Article 293 Spanish Criminal Code: Denial of a Shareholder’s Rights

Article 293 of the Spanish Criminal Code punishes the de facto or de jure administrators of any company, incorporated or in formation, who without legal cause deny or prevent a member from exercising the rights of information, of participation in management, of control of the company’s activity or of pre-emptive subscription of shares recognised by law. The penalty is a fine of six to twelve months. It is the provision that converts a shareholder dispute into a criminal matter, and the words without legal cause are what confine it.

Wording of Article 293 of the Spanish Criminal Code

Elements of the offence

1. A perpetrator who is a de facto or de jure administrator of a company incorporated or in formation.
2. A member exercising one of the rights listed: information, participation in management or control, or pre-emptive subscription of shares.
3. Denial or obstruction of that exercise, which requires an actual refusal and not merely a delay or an incomplete answer.
4. The absence of legal cause, which is the element that decides the case.

Defence strategy

Legal cause for the refusal. Company law itself allows information to be refused where disclosure would harm the corporate interest, subject to the conditions the legislation lays down, and it limits the right of information in time and in scope. Where the refusal rested on that basis, on the disproportion of the request, or on the member’s failure to follow the statutory channel, there is legal cause and no offence. The defence documents the ground relied on at the time, since a justification produced later carries little weight.

The request must be properly made. The rights protected are those recognised by law, exercised in the form the law prescribes: in writing, within the periods laid down and before the corresponding body. Verbal requests, requests made outside the general meeting where the law requires it, and requests by a person whose status as member is disputed do not engage the article.

Partial or delayed compliance. The offence requires denial or obstruction. Where the information was provided incompletely, late, or in a form the member considers unsatisfactory, the matter belongs to the commercial jurisdiction, which can compel disclosure. The defence produces the record of what was delivered and when.

The complaint requirement and the commercial route. Under article 296 the offence cannot be prosecuted without the complaint of the injured party, save where the general interest or a plurality of persons is affected. That requirement, and the fact that the penalty is a fine, mean that these prosecutions are ordinarily an instrument of pressure within a wider shareholder dispute. The strategy therefore addresses the dispute as a whole, and the criminal proceedings within it.

• Article 290: false company accounts
• Article 252: unfair administration
• Internal company fraud: defence service
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.