Resolutions passed without you: how to challenge them
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
You can challenge the resolution before the Commercial Section of the Tribunal de Instancia (the first-instance court). The action lapses one year after the resolution was passed, after you received the copy of the minutes, or after the entry became enforceable against third parties, and never lapses if the resolution offends public policy. You need one per cent of the capital.
You hold 20 % of a Spanish limited company. Your partner, who controls 80 %, calls the meeting two days in advance, does not hand over the accounts you had requested in writing, and in that same session approves 90,000 euros of remuneration for himself as director and allocation of the profit to reserves for the sixth year running. You vote against and have it recorded in the minutes. Three months later you see the resolution registered at the Registro Mercantil (the Companies Register) and realise your dividend is being drained through his salary.
The case, in five lines
- What is brought
- Action to set aside company resolutions under article 204 LSC, seeking a declaration that the resolution is void and, where appropriate, removal of its effects and compensation for the harm it caused while in force.
- Before which court
- The Commercial Section of the Tribunal de Instancia (the first-instance court), with a later appeal before the Audiencia Provincial (the provincial appeal court).
- Deadline
- One year, counted from the date the resolution was passed in the meeting or the board, from receipt of the copy of the minutes if it was passed in writing, or from the date the registration became enforceable against third parties. If the resolution offends public policy, the action never lapses.
- Who can bring it
- Any director, third parties with a legitimate interest, and shareholders who already held that status before the resolution and represent, alone or together, at least one per cent of the capital, a threshold the articles may lower. Against resolutions that offend public policy, any shareholder, director or third party has standing, even if they acquired that status afterwards.
- Financial risk
- If the claim is dismissed you may be ordered to pay the other side's costs, and the case calls for a payment on account and often an expert report on the loss. The company can validly revoke or replace the resolution before you sue and leave your challenge without an object.
The one-year clock does not always start at the meeting
Article 205 LSC sets a one-year limitation period, but the starting date changes according to how the resolution was adopted. If it was voted at a shareholders' meeting or at a board meeting, time runs from the date it was passed. If it was adopted in writing, from the moment you received the copy of the minutes. And if the resolution was registered, from the date the entry became enforceable against third parties, which is later than the meeting.
That third rule rescues many cases that looked lost. A shareholder who learns late of a capital increase already on the register does not count from a meeting nobody called him to, but from the date the entry became enforceable against third parties. That is why the first thing we do on accepting the case is to set down in writing the day your period started, the document that proves it, and how many days you really have left.
There is one situation with no clock. Article 205 itself excludes from the time limit those resolutions that, by their circumstances, cause or content, offend public policy: that action never lapses and never prescribes. It is a narrow door and is read restrictively, but it always deserves examination before writing off a matter in which more than a year has already passed since the meeting.
The law screens out minor defects: not every ground works
Article 204.3 LSC shuts down four groups of grounds. It is not enough to allege breach of merely formal requirements for calling, constituting or passing the resolution; nor incorrect or insufficient information given before the meeting; nor the presence at the meeting of persons without standing to attend; nor an invalid vote or a miscount of the votes cast. A claim built only on those complaints is born dead.
Each exclusion has its exception, and that is where the case is won. A challenge does succeed when the defect concerns the form and the notice period for calling the meeting, the essential rules for constituting the body, or the majorities required. Information refused or badly given does work as a ground when it was essential for an average shareholder to exercise the vote or any other participation right in a reasonable way.
Article 204.3 itself orders that, once the claim is brought, whether the ground is essential or decisive be resolved as a preliminary incidental issue. That means the argument about whether your defect is relevant arrives before the merits, and that the claim must explain from its first page why that two-day notice, or that refused information, was decisive.
An abusive resolution is challengeable even with no loss
Article 204.1 LSC allows a challenge to resolutions contrary to the law, resolutions that conflict with the articles or with the meeting regulations, and resolutions that harm the corporate interest for the benefit of one or more shareholders or of third parties. Most companies already bear that much in mind when they draft the agenda of a meeting.
The second rule is the one that changes cases like yours. The same paragraph states that the corporate interest is harmed even where the resolution causes no loss to the company's assets, when the majority imposes it abusively. And it defines when it is abusive: where it does not answer a reasonable need of the company, is passed by the majority in its own interest, and causes unjustified detriment to the other shareholders.
That is the test to be proved point by point: reasonable need, self-interest of the majority, and unjustified detriment. Directors' remuneration that grows while the profit is sent to reserves year after year with no investment to explain it fits all three, and it is proved with the accounts, with the contracts, and with an expert report comparing that pay against the market.
The company can defuse your claim by replacing the resolution
Article 204.2 LSC provides that a challenge does not lie where the resolution has been revoked or validly replaced by another one passed before the claim is brought. If the revocation or replacement arrives after that, the court issues an order terminating the case because its object has ceased to exist. In both situations the challenged resolution drops out of the litigation.
This has a direct tactical consequence: announcing the challenge in too much detail and too far in advance hands the majority shareholder the map to call another meeting and replace the resolution in proper form. That is why we measure what goes into the prior demand letter and what is kept back for the claim, without breaching the duty to negotiate in good faith.
Article 204.2 itself keeps an exit open: revocation or replacement is without prejudice to the right of the challenging party to seek removal of the resolution's effects or compensation for the harm it caused while it was in force. If that resolution has already cost you money, that money is still claimed even though the resolution itself disappears.
Before suing, a genuine attempt to negotiate is required
Since Ley Orgánica 1/2025, article 5 requires, as a general rule in civil matters, that the parties first turn to an appropriate means of dispute resolution for the claim to be admissible. That admissibility requirement applies to the declaratory actions of book II of the Ley de Enjuiciamiento Civil (the civil litigation statute), and a challenge to company resolutions is one of them.
Article 5 itself says how it is met: mediation, conciliation, the neutral opinion of an independent expert, a confidential binding offer, or any other negotiating activity provided for by law. And it adds something important for your case: the requirement is met when the negotiation is conducted directly by the parties, or by their lawyers under their instructions and with their consent. The subject negotiated and the subject of the litigation must be the same.
That prior step is planned, not improvised, because it runs at the same time as the one-year limitation period. We conduct it with a written, dated proposal that records the identity of subject matter, keeps the pressure on the majority and, if no agreement follows, is attached to the claim to show the requirement was met before going to the Tribunal de Instancia.
How we run the case, step by step
- 1
We fix the date from which your time limit runs
We read the minutes, the notice of meeting, the articles and the Companies Register entry to decide whether the year under article 205 LSC runs from the meeting, from receipt of the minutes or from the date the entry became enforceable, and how many days are left.
- 2
We select grounds that survive the article 204.3 screen
We discard merely formal complaints and build the case on what the law does admit: the form and notice period for calling the meeting, essential rules for constituting the body, majorities, essential information refused, and the abusive character of the resolution imposed by the majority.
- 3
We lead the prior negotiation the law demands
We send the majority shareholder and the company a written, dated proposal with the same subject matter as the future litigation, to satisfy article 5 of Ley Orgánica 1/2025 and, if there is room, to close a negotiated exit better than a judgment.
- 4
We bring the claim against the company
The action is brought against the company, as article 206.3 LSC requires, with the documentary evidence, the expert report on the loss and, where the resolution is causing harm that cannot wait, an application for interim measures.
- 5
We argue the preliminary issue on the essential character
Before the merits, whether the ground relied on was essential or decisive is resolved as an incidental issue. A good part of the case is played out there, and it is defended with the notice documents and with the information the company failed to provide.
- 6
Judgment, register effects and the claim for damages
Once judgment is obtained, we take its effects to the Companies Register and, if the company revoked or replaced the resolution along the way, we maintain the claim for the harm it caused while in force, as article 204.2 LSC allows.
The evidence that decides the case
- The minutes of the meeting recording your vote against and the express objection to the defective notice raised in the session itself.
- The notice of meeting with its date and method of delivery, which is what proves whether the required prior notice period was respected.
- The written request in which you asked for information before the meeting and the company's answer, or the absence of any answer.
- The Registro Mercantil (Companies Register) extract showing the date the resolution was registered, which fixes the start of the limitation period.
- The annual accounts of recent years and the accounting detail of the director's remuneration set against the profit allocated to reserves.
- An expert report comparing that remuneration with market levels and quantifying the detriment suffered by the minority.
What closes the door
- Letting the year run out by miscounting its start. Many shareholders count from when they found out, while the law counts from adoption, from receipt of the minutes, or from the date the registration became enforceable.
- Staying silent at the meeting about a formal defect when it could have been raised. Article 206.5 LSC bars anyone who had the chance to object at the proper time and did not from relying on those defects later.
- Building the claim on a merely formal defect in calling the meeting, or on a counting error that was not decisive for reaching the required majority.
- Suing the majority shareholder instead of the company. Article 206.3 LSC requires the action to be brought against the company, without prejudice to those who voted in favour intervening at their own expense.
- Accepting and acting on the resolution for months, taking payments or signing under it, and only attacking it once it has consolidated against third parties.
The law that applies
- Art. 204 LSC. Makes challengeable those resolutions contrary to the law, to the articles or to the meeting regulations, and those harming the corporate interest, including one imposed abusively by the majority with no reasonable need. It rules out a challenge if the resolution was revoked or replaced before the claim, and screens out merely formal grounds. BOE-A-2010-10544
- Art. 205 LSC. Sets a one-year limitation period for the action, except where the resolution offends public policy, in which case it never lapses or prescribes. Time runs from adoption of the resolution, from receipt of the copy of the minutes, or from the date the registration became enforceable against third parties. BOE-A-2010-10544
- Art. 206 LSC. Gives standing to directors, to third parties with a legitimate interest and to shareholders holding one per cent of the capital before the resolution, widening standing to anyone against resolutions offending public policy. It requires the action to be brought against the company and shuts out anyone who could have objected to a formal defect and did not. BOE-A-2010-10544
- Art. 5 LO 1/2025. Makes prior recourse to an appropriate means of dispute resolution a condition for the admissibility of a civil claim, with identity between the subject negotiated and the subject of the litigation. It is satisfied by mediation, conciliation, a confidential binding offer, or negotiation conducted by the parties or by their lawyers. BOE-A-2025-76
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
I hold 3 % of the capital. Can I challenge on my own?
Yes. Article 206 LSC requires at least one per cent of the capital, individually or together with other shareholders, and that you became a shareholder before the resolution was passed. The articles may lower that threshold. Anyone who does not reach it still keeps the right to compensation for the harm the challengeable resolution has caused them.
The resolution is already registered. Am I too late?
Not necessarily, and registration often works in your favour. Article 205 LSC provides that, where the resolution was registered, the year runs from the date the entry became enforceable against third parties, not from the meeting. That pushes the start of the period forward. The first step is to obtain the Register extract so the date rests on a document and not on memory.
Do I sue my majority shareholder or the company?
The company. Article 206.3 LSC requires challenges to be brought against it, and provides that, if the claimant holds sole representation of the company and the meeting has appointed nobody, the court itself names the person to represent it from among the shareholders who voted in favour. Those shareholders may also intervene at their own expense to defend the resolution.
The majority never pays a dividend. Is that challengeable?
It can be. Article 204.1 LSC treats the corporate interest as harmed, even with no loss to the company's assets, where the resolution is imposed abusively: without answering a reasonable need of the company, in the majority's own interest, and with unjustified detriment to the other shareholders. Profit sent to reserves year after year while the director's pay grows fits that test if the three elements are proved.
Must I attempt a settlement before bringing the claim?
Yes. Article 5 of Ley Orgánica 1/2025 requires, for a civil claim to be admissible, prior recourse to an appropriate means of dispute resolution on the same subject matter. Mediation, conciliation, the neutral opinion of an independent expert, a confidential binding offer, or negotiation conducted by the parties or by their lawyers with their consent all count.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.