Ciments Molins has its effective registered office in Madrid and, therefore, it is not appropriate to oblige the company to return it to Sant Vicenç dels Horts (Barcelona), from where it left on October 20, 2017. Jorge Montull, head of the commercial court 3 of Madrid, has rejected in a ruling notified last Friday the challenge of the social agreements of Ciments Molins against the change of headquarters produced at a time of great political uncertainty. The company, which was then listed on the stock market, accepted the provisions of a decree law of the PP Government and moved its registered office in search of legal certainty.
But not all of the Molins family agreed. Jordi, Javier and Santiago Molins Amat, Rita and Xènia Molins Mateu and Joan Cisa Molins, in addition to Molimat Capitoli, sued the company and asked the judge to declare null the agreement of the board of directors that approved the change of headquarters, as well as its ratification by the shareholders' meeting. The lawsuit was based, above all, on the fact that the change of registered office was fictitious because it was not accompanied by an effective transfer of the administration and management of Ciments Molins to Madrid, which was limited to holding councils and meetings in the capital.
The trial was held last December and now the sentence has arrived. The judge explains that, in effect, the law of capital companies establishes that the registered office is established in the place where the center of its effective administration and management is located. And that from this rule it follows that "a change of address must be accompanied by a transfer of the real headquarters of the company", which is what was tried to verify whether or not it occurred in this specific case.
Ciments Molins argued that, from October 2017 until the trial, it held four shareholder meetings, 49 boards of directors and 70 meetings of the remuneration and appointments committees and the audit committee in Madrid, compared to 12 and 12 in Barcelona. He also explained that the financial director and three other people work regularly at his headquarters in the capital.
Given the above, the judge says that the effective change of headquarters is understood, according to jurisprudence, if it affects "those bodies that adopt decisions related to the senior management of the company in a habitual way and recognizable by third parties." Which, the sentence continues, must be understood in this case by the meetings of the council and the commissions cited in Madrid. "These bodies have exercised their functions from the registered office in Madrid," he concludes.
The judgment rejects all the requests of the plaintiffs, advised by the Augusta Abogados office, and acquits Ciments Molins, defended by Garrigues, of the express request to annul the council's agreements and return the headquarters to Sant Vicenç dels Horts. With regard to the costs, which are usually imposed on the plaintiff in the event of a total dismissal, the judge chooses not to do so because "there are doubts of law in the interpretation of the concept of the center of the effective direction and administration of the society". In the face of this sentence, an appeal can be appealed to the Provincial Court of Madrid. At the moment, almost five years after moving his headquarters, Molins is still in Madrid and has no intention of returning.
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