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Ruling in favour of FCC on the registration phase of its dispute with ACCIONA


Ruling in favour of FCC on the registration phase of its dispute with ACCIONA

The Directorate General of Registers and Notary Publics ruled in favour of FCC on its appeal involving the refusal of the Barcelona Business Register to register certain board member.

On 14 December 2004 the Directorate General of Registers and Notaries ruled in favour of FCC, upholding the appeal filed by FCC against the decision of the Barcelona Business Register dated 9 August 2004, in which it refused to register the appointments of Fernando Falcó y Fernández de Córdova, Felipe Bernabé García Pérez and Daniel Caille to the FCC Board of Directors.

On 23 June, the General Meeting of Shareholders of FCC agreed to remove three board members proposed by ACCIONA, on the understanding that they were ineligible to sit on the board due to the fact that they represented a competitor. Instead, the board appointed the three new members mentioned above.

The Registrar of the Business Register XI of Barcelona, Heliodoro Sánchez Rus, refused to register the three board members appointed by FCC, arguing that these three spots on the Board must remain vacant and at the disposal of ACCIONA.

An appeal was filed against the registrar by FCC and by the notary which authorised the unregistered public deed, Valerio Pérez de Madrid y Palá, arguing that in addition to certain formal defects committed by the Registrar in the processing of the documents, he was inconsistent in admitting the removal of the board members proposed by ACCIONA but refusing to allow those vacancies to be filled by board members appointed by FCC.

The decision of the Directorate General discusses the arguments of FCC and the Notary Public in an extensive 42-page ruling, noting that the Registrar has exceeded his authority by getting involved in the debate between FCC and ACCIONA (the legitimacy of a shareholder appointing representatives to the board of directors of a competitor) which is a matter that only the courts of justice have the authority to decide.

The Registrar's decision was revoked as a consequence.

This decision is a triumph for the thesis held by FCC in the proceedings to defend itself against ACCIONA's attempts to appoint representatives to the Board of Directors of FCC.

However, the final solution to this dispute will depend on what the Courts of Justice have to say.