The regulation of intra-group contracts within the area of public procurement, supplied for in article 321.6 of Regulation 9/2017, on Public Sector Contracts, has undergone an oblique change, via the modification of Law 5/2021, of April 12, which modifies the revised text of the Capital Companies Law, approved by Royal Legislative Decree 1/2010, of July 2, and other financial regulations, as Regarding the promotion of long-term involvement of shareholders in listed companies, to which a submit on this weblog has not too long ago been devoted.
Certainly, though the regulation from a cloth viewpoint doesn’t bear adjustments and the substantive regime that was already defined on this entry continues to use, from a procedural viewpoint it incorporates the duty that they be permitted both by the Board. of Shareholders or by the Board of Administrators.
Particularly, the principle supplies the next:
Article 231 bis. Intragroup operations.
The approval of the operations that the corporate celebrates with its guardian firm or different group corporations topic to battle of curiosity will correspond to the overall assembly when the enterprise or transaction by which it consists, by its very nature, is legally reserved to the competence of this physique and, in any case, when the quantity or worth of the operation or the full quantity of the set of operations supplied for in an settlement or framework contract is bigger than 10% of the full property of the corporate.
The approval of the remainder of the operations that the corporate celebrates with its guardian firm or different group corporations topic to battle of curiosity, will correspond to the executive physique. However the provisions of articles 228.c) and 230, the approval could also be made with the participation of the directors who’re linked and characterize the guardian firm, by which case, if the choice or vote of such directors is decisive for the approval, it is going to correspond to the corporate and, the place applicable, to the directors affected by the battle of curiosity, to show that the settlement is in accordance with the social curiosity in case it’s contested and that they used due diligence and loyalty within the occasion that your duty is required.
The approval of operations carried out by the corporate with its guardian firm or different group corporations topic to battle of curiosity could also be delegated by the executive physique to delegated our bodies or members of senior administration so long as they’re transactions carried out within the peculiar course of enterprise exercise, which is able to embody these ensuing from the execution of an settlement or framework contract, and concluded underneath market situations. The administration physique should implement an inside process for the periodic analysis of compliance with the aforementioned necessities.
For the needs of the earlier sections, transactions carried out with a bunch firm topic to battle of curiosity won’t be thought-about these carried out with its dependent corporations, besides when an individual with whom the corporate couldn’t perform the transaction is a big shareholder within the dependent firm. operation straight with out making use of the regime of operations with associated events. Nonetheless, for the dependent firm that’s topic to this Regulation, since they’re operations carried out with the guardian firm, the provisions of the previous paragraphs shall apply.
From the next principle, in relation to intra-group contracts, the next conclusions will be drawn:
- This regime will apply each to circumstances by which, within the case of state corporations, one of many events is taken into account to be its personal medium or it’s two corporations that aren’t contracting authorities and neither of them has it.
- This regime doesn’t apply to circumstances by which the contracts are between “sister” corporations the place the guardian firm of each corporations is known that this regime wouldn’t be relevant. The rationale for this derives from the truth that, in precept, we’re confronted with circumstances by which there isn’t any battle of curiosity.
- They have to be permitted by the Basic Assembly, which within the case of state corporations with totally public capital shall be a Sole Companion Settlement of the subsidiary firm, these operations that affect greater than 10% of the capital inventory or the subject material of the contract intragroup inside the scope of this company physique.
- These operations whose affect is lower than 10% have to be permitted by the Board of Administrators of the subsidiary firm. That is the peculiar case of intra-group contracts supplied for in article 321.6 of the LCSP.
- In the course of the parliamentary course of, there was the inclusion of a complementary part that enables its exclusion. It could be a case by which, along with being an intra-group relationship, there’s a case of battle of curiosity, a delegation from the Board of Administrators could also be made to the Administration Committee or to single-person our bodies with excessive govt features; so long as they’re operations carried out within the peculiar course of enterprise exercise, which is able to embody these ensuing from the execution of an settlement or framework contract, and concluded underneath market situations. That is a unprecedented case, relevant within the public sphere to corporations with vital non-public participation (which can happen within the circumstances of execution of the public-private collaboration contracts of this system subsequent era of the European Union), when within the dependent firm a associated social gathering of the corporate that’s obliged to approve the transaction is a big shareholder
As will be seen, the change implies the incorporation of a brand new process that will be quickly situated after the approval of the kind of intra-group contract by the Nationwide Markets and Competitors Fee.