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In the present case, the partners of the defendant entities attended the meetings of two companies represented. Despite the fact that the method of attributing the representation used by the partners had been carried out for a long time without being rejected, it differed from what is established in the bylaws and in the Corporate Enterprises Act, which is why the presidents of both boards rejected the validity of the representation in the act of the board itself.

As a preliminary consideration, the Spanish Supreme Court points out that the representation regime provided for limited liability companies responds to their closed nature and aims to avoid the presence of strangers at meetings, without prejudice to the fact that the bylaws expand the number of people who can assume representation of the partners. In this sense, it is usual that in this type of companies the same partners attend meetings for long periods of time, which means that the requirements to accredit correct representation are adapted to this circumstance and mitigated.

According to the Spanish Supreme Court, the fact that the form of representation used by the partners had been allowed in several previous meetings without being rejected and that it is now prevented in the same act of celebration, in a strict interpretation of the representation regime provided for in the normative shows a bad faith in the presidents of those. In this sense, it argues, citing the judgment under appeal, that a form of representation cannot be accepted repeatedly over time and then, suddenly and surprisingly, reject that form, preventing the partners from exercising their right to assistance.

This action supposes a contravention of the own acts, as well as a violation of the duty of good faith that must be fulfilled by whoever exercises the position of chairman of the meeting, as guarantor of the rights of the partners.

For this reason, Supreme Court rules in favor of the partners and considers that the chairmen of the meetings have not acted in good faith by not giving sufficient advance notice of the change in criteria, leaving the partners with no room for reaction.

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The Governing Centre states that the application of the result of a company’s annual accounts is a sine qua non condition for the corresponding filing of the annual accounts to take place. Thus, Article  279 of the Spanish Companies Act (LSC) lists the matters that must be included in the certificates of corporate resolutions referring to the annual accounts, among which is included the manner in which the profit for the year is to be distributed. Such is its importance that Article 253 of the LSC already obliges company directors to include a proposal for the distribution of profits in the annual accounts. This omission is therefore an insurmountable defect that makes it impossible to file the annual accounts.

In relation to the verification of the electronic signature that covers the certificate, the Directorate General has drawn up a doctrine on the requirements for filing the annual accounts with the commercial registers online. Articles 279 and 280 of the LSC and Article 366 of the Commercial Register Regulations stipulate that the appropriate signature is mandatory as a necessary clause for filing. The final aim of this line of action is to guarantee, regardless of the means of filing, that the accounts filed are precisely those approved by the company’s General Meeting.

In line with the above, in the case of filing annual accounts in electronic format online with electronic signatures, the correspondence between the file containing them and the file containing the certificate of the resolution approving the meeting is carried out by the application itself. In the case of the electronic signatures contained in the certificate of the meeting resolution, only if the electronic signatures are duly validated by the corresponding computer application can this due correspondence be established with those who, according to the Register, are legitimised to do so (Art. 366.1.2º RRM). Thus, the lack of validation of the electronic signature of the signatory of the certificate of the resolution approving the annual accounts means that the electronic signature cannot be considered as having been affixed and therefore create the required certifying effects.

Lastly, in order to remedy the defects set out, the Directorate General states that they could either generate a new electronic signature that is duly able to be validated or provide the certificate in paper format and signed in handwriting by the person authorised to do so.

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In the context of a contentious-administrative appeal for damages suffered by a contractor during the execution of public works, in the first and second instance it is disputed whether: (a) whether an increase in the time limit for the execution of the work can be considered to be included within the principle of risk and chance to be borne by the contractor when this occurs for reasons not attributable to the contractor; and (b) whether the compensation for indirect costs can be fixed on the basis of an estimated percentage or whether, in any event, the actual damages caused must be taken into account.

With regard to the first question, the Supreme Court points out that Article 196.2 of Law 9/2017, of 8 November, on Public Sector Contracts, makes the Administration liable for the damages suffered by the contractor when they have been caused as an immediate and direct consequence of an action of the former, considering this precept applicable to the case as there had been a considerable delay in the execution of the works due to the lack of availability of the land and legalisation of the installations, a circumstance for which the Administration itself is responsible.

As regards the second question, the quantification of the indirect damage caused, the High Court finds that there is no reason to rule out the possibility that the indirect costs referred to as a result of the delay in the completion of the works may be calculated on the basis of a percentage of overheads, rather than a calculation based on an assessment of the body of evidence in order to determine those costs. However, it points out that such calculations must always be carried out in a way that is as much in line with the reality of the circumstances as possible.

In this way, it upheld the appeal lodged by the contractor, overruling the lower court’s ruling and declaring that, in accordance with the provisions of Article 196.2 LCSP, the contractor must be compensated for damages when the execution period of the work is increased for reasons not attributable to the contractor, excluding the application of the principle of risk and chance that the contractor must bear. Furthermore, it points out that, although the calculation of indirect costs may be made on the basis of a percentage of overheads, this percentage must always be justified and be in line with the reality of the circumstances.

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The Spanish Supreme Court has ruled in this regard, in its judgment No. 494/2022, of June 22, 2022, in an appeal filed by the second purchasers of a home who sued a developer entity for failing to comply with the provisions of the quality memories.

The developer alleged, based on the principle of relativity of contracts, the lack of legitimacy of the plaintiffs for being the second purchasers of the home and not having contracted directly with them. However, the Supreme Court indicates that the effects of the relativity of contracts must be considered in a specific and determined manner, and not in a general way, so in cases such as contracts referring to obligations by reason of the thing, it is accepted that contracts may have indirect, reflected or mediate effectiveness for third parties who must respect created legal situations. Thereby, the obligations of the promoter or seller of a home must be maintained against the second or successive purchasers due to construction defects.

With this argument, the Spanish Supreme Court rules in favor of the appellants, even though they are second purchasers, declaring that they are entitled to claim the defects found from the developer, to the extent that they derived this right from the previous owners when purchasing the home.

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