The articles of association may specify the functions that the legal representative will exercise, but if this is not the case, the provisions of Article 26 of Law 1258 apply: the election and appointment of the legal representative correspond to the general meeting or the sole shareholder. They are subject to the rules on directors` liability laid down in Articles 23 and 24 of Law No. 222 of 1995. In the event that he is also registered with the Chamber of Commerce of the registered office as a representative of the company, he will retain this investiture for all legal purposes, as long as his registration is not canceled by the registration of a new appointment or election to this position (Article 164 of the Commercial Code). In this sense, it is then up to the general meeting as the supreme body to determine everything concerning the management of the company. This means that the legal representative is the one acting on behalf and on behalf of the company or legal person, and that this registration must appear on the certificate of existence and legal representation or in the commercial register. The meeting may provide for the joint representation of the legal person by two or more persons. In the case of legal representatives, both must be registered in the commercial register and take collegial or individual decisions. Therefore, in our opinion, the existence of the legal reserve in the simplified public limited company is not mandatory, unless there is a statutory provision, since the same law applies to the parties. The company supervisory authority, with the official letter 220 – 156759 of 2018, has recently resolved a number of questions concerning the powers of the legal representative of a simplified joint-stock company (SAS) with regard to the exercise of legal representation without complying with the obligation to register in the commercial register.
as well as in respect of those who acquire obligations on behalf of the company, claiming, among other things, that they have legal powers of representation. In the absence of the Management Board, the functions normally falling within its competence shall be exercised by the legal representative. “However, legal representation is particularly important with respect to the ability of the company to act as plaintiff or defendant in court … Companies enter the process as legal entities through their legal representatives. In the context of the requirements of an action brought by or against a legal person, it is necessary (…) to attach proof of such representation, which in the case of commercial companies is the certificate issued by the Chamber of Commerce of what is entered in the register. This certificate of existence and legal representation (…) “Proof is required to prove the legal representation of a legal individual. The status of legal representative of a legal person cannot be proved by the freely chosen means” “Similarly, simplified public limited companies shall be subject to inspection, supervision or control by the supervisory authority of the company in accordance with the relevant legal provisions.” It should be noted that, although this editorial deals with the provisions relating to an SAS, the provisions of the Commercial Code relating to legal representation and the jurisprudence of the Constitutional Court apply to all types of companies in general. The above-mentioned Act also stipulates that the functions of the legal representative shall be determined by law.
In the event that these functions are not provided, it is understood that this representative has the power to celebrate and perform all actions and contracts arising from or directly related to the corporate purpose of the company. For registration in the commercial register, the Commercial Code stipulates that the appointment of the legal representative, the contact details of the liquidators and their dismissal must be recorded. Companies that are under the supervision of the company`s supervisory authority must not only comply with the formality of registration, but also meet the requirements of other regulatory requirements. This registration may be requested at any time, unless the law provides for a specific time limit. In view of the above, it is very important to bear in mind that acts or documents subject to compulsory registration do not produce effects before third parties, but from their registration. The representative, who is not registered as such in the commercial register, is not authorized to act on behalf of the Company or to bind it to third parties. However, if it interferes with administrative acts, it is subject to the obligations and responsibilities imposed on the de facto administrator. The legal representative of a commercial company is the one who usually acts on its behalf. In order for the latter to be able to exercise this representation, it is necessary to register it in the commercial register. According to Article 26 of Law 1258, the legal representative of the simplified joint-stock company is appointed by the shareholders` meeting, depending on whether the statute is taken into account. `In the absence of provisions, it is understood that the legal representative may conclude or execute all acts and contracts which form part of the object of the company or which are directly related to the existence and functioning of the company.
If the appointment of the legal representative is not provided for by law, his choice is made by the general meeting or the sole shareholder. The election and appointment of the legal representative corresponds to the meeting or to the sole shareholder. They are subject to the rules on directors` liability laid down in Articles 23 and 24 of Law No. 222 of 1995. By the way, in judgment C-621 of 2003, the Constitutional Court ruled that the mere resignation or dismissal of the legal representative does not entail the extinction of legal effect, but that it is also necessary to register a new appointment: by means of the statutes, it is possible to determine the organic structure and the norms that govern the functioning of a company, However, in the absence of a legal provision, the provisions of Article 420 of the Commercial Code apply, which determines the functions exercised by the meeting or the sole shareholder, since the administration is responsible for the legal representative. Law 1258 of 2008 did not impose on the SAS the obligation to constitute a legal reserve in its inheritance, nor did it refer to the general rules, so it is not obliged to constitute reserves. With regard to the SAS, as specified in paragraph 7 of Article 5 of Law 1258 of 2008, the act of its incorporation must indicate how the management of the company will be carried out, the name, identity document and powers of the directors. A legal representative must also be appointed. In general, the legal representative of an SAS performs the functions that are regularly performed by the legal representative of a company.
The appointment of the legal representative of an SAS is associated with a number of requirements that must be fully met. One of them is the obligation to register them in the commercial register, which is essential against future obligations arising from commercial activity. On the other hand, SAS are not obliged to have a board of directors, but they can form it. If this is not done, the functions of administration and legal representation are the responsibility of the legal representative appointed by the Assembly (Article 25 of Law 1258 of 2008). The company may set a different majority, but it is assumed that in such a case it must be higher than the legal minimum of 50 + 1. “Note that the text does not say that the legal effects of the action as a representative or expert end with the registration of the resignation or dismissal, but with the registration of a new order.” “In addition, this interpretation of Article 164 allows the company not to have a representative or auditor at all times, (…) and that, at least as far as the legal representative is concerned, it is impossible to prosecute him and prevents him from acting in the legal world in order to develop his corporate object. The legal reserve depends on what is provided for in the statutes of each SAS and is subject to the rules that each SAS establishes. In the same vein, the regulation stipulates that the functions of the legal representative must be included in the articles of association and cost the same form in the commercial register, so that he can thus celebrate and execute all acts and contracts arising from the company`s corporate purpose. The responsibilities of the directors of the simplified joint-stock company, such as the legal representative or the board of directors, are the same as those provided for by Law 222 of 1995 for other types of companies.
People often refer to the simplified corporation as simplified joint-stock companies, but this comparison is wrong. The law also allows for the introduction of an authorization prior to the sale of a share, so that new shareholders cannot join without the consent of the shareholders` meeting. Very important, accurate, up-to-date and timely information submitted. Although SAS shares some characteristics with society, it does not belong to them and is not a simplified form of it.