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The courts find in favour of FCC once again in its conflict with Acciona

29/07/2005

The courts find in favour of FCC once again in its conflict with Acciona

Mercantile Court number 4 of Barcelona has upheld the decision of the Directorate General of Registers and Notary Publics, in FCC's favour, and has rejected the lawsuit filed by the Business Registrar of Barcelona who, at Acciona's behest, refused to register three FCC directors elected by the company at the General Meeting of Shareholders.

At the General Meeting of Shareholders of FCC held in Barcelona on 23 June 2004, three directors proposed by Acciona, a minority FCC shareholder, were elected to the board. At the same meeting, and at the request of a shareholder, the three directors were removed from office and replaced by three others proposed by the company's Board of Directors.

A majority of the shareholders considered that since Acciona is a direct competitor of FCC it is therefore not entitled to appoint board members.

The Barcelona Business Registrar, Heliodoro Sánchez Rus, at Acciona's request refused to register the three directors appointed by FCC.

FCC filed an appeal against this decision with the Directorate General of Registers and Notary Publics which on 14 December 2004 revoked the registrar's decision, considering that he had overstepped his authority.

Mr. Sánchez Rus filed a lawsuit, supported by Acciona, with the Barcelona Mercantile Court. That court recently rejected the lawsuit, finding in favour of the Directorate General of Registers and Notaries and ordering the registrar to pay the court costs.

Another decision in FCC's favour in this conflict.

Last February, the Court of First Instance number 2 of Barcelona also found in favour of FCC on the question which is at the heart of the dispute with Acciona over the latter's claim that it is entitled to appoint three representatives to the Board of Directors of FCC.

Acciona filed suit challenging the business resolutions adopted by the General Meeting of Shareholders of FCC held in Barcelona on 23 June 2004, where the three directors appointed by Acciona under the proportional representation method were removed from office.

The ruling recognised FCC's legitimate right to oppose three directors representing its competitor from sitting on the Board of Directors and ordered Acciona to pay the legal costs.

According to the sentence, Acciona is ''an effective and direct competitor of Fomento de Construcciones y Contratas'' and adds that ''the tie which binds Acciona with the three directors (named by it) contaminates, to a greater or lesser extent, their actions in the posts from which they have been removed.

The sentence goes on to note that "The right to information, "know how" in tender processes, confidential data and the numerous powers vested in Directors means that no matter how impeccable the actions of those directors are, the risk of filtrations is unavoidable, considerations that support the correctness of removing those directors" on the legal grounds that their interests are in opposition to those of FCC.

The sentence concludes by stating that "the prudence of the previous decision - to remove these directors - is supported by the feeling of the shareholders of Fomento de Construcciones y Contratas, since 74 of those present and 866 of those represented are in favour of the removal and only Tibest Cuatro (an Acciona subsidiary) and Acciona oppose it".