The new amendment to the Law related to Capital Companies, aims to increase the level of participation and professionalism of the board. It introduces a more precise definition around the board’s duties of care and loyalty, specifically relating to supervisory decisions and the non-delegable powers afforded to the management.
As discused earlier, this amendment is an extension of the responsibilities of the governing body members. Even if the administrators previously had «all» the responsibilities, this reform introduces criteria that assumes certain responsibilities that, under no circumstances, can be delegated to corporate executives.
Recently, Miguel Ferre, Secretary of the State for Finance, reiterated that “With the reform of the Law of Capital Companies coming into effect on January 2015, the board is encouraged to consider aggressive tax planning initiatives, because the responsibility for the design of the company’s fiscal strategy and its risks falls directly on the Board and is «non-delegable«. With «non-delegable-authority», the overall strategy of the company and the approval of its investments or operations, are both included in its coverage and hence, because of their size or special characteristics, they may attract a special tax risk.
The establishment of mandatory quarterly management meetings should be seen in the same vein, meaning that the board members cannot claim a lack of knowledge of the progress of societies.
Accordingly, at Bufete Escura, we advise that you seek professional legal advice and consultation to ensure that there is strict adherence to the directives of the new Amendment, and that best practice and protocols are implemented.