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Notion of economic concentration The LDC has dealt with the control of economic concentrations. The provision thus refers to any “stable change of control of the whole or part of one or more companies” as a result of a series of operations: merger, acquisition of control of the whole or part of another company,. Article 8 LDC delimits the scope of application of the Law to concentrations on the basis that one of the two following circumstances is present:
● That as a consequence of the concentration a share equal to or greater than 30 percent of the relevant product or service market is acquired or increased at the national level or in a defined geographical market within the same. Shall nevertheless be exempt from this control procedure all those concentrations in which, even if the above-mentioned is complied with (i) the overall turnover in Spain of the acquired company or of the assets acquired in the last accounting year does not exceed the amount of 10 million euros, (ii) provided that the venturers do not have an individual or joint share equal to or greater than 50% in any of the affected markets, on a national basis or in a geographical market defined within the same;
● That the overall turnover in Spain of all the participants exceeds 240 million euros in the last accounting period, provided that at least two of the participants have an individual turnover in Spain of more than 60 million euros.
b. Regime for the control of concentrations The LDC establishes a regime for concentrations of companies whose essence lies in the fact that those included within the scope of application established by the LDC (see Article 8 referred to above) are obliged to notify, in advance, their intention to form or incorporate to the CNMC, and cannot carry it out until this body grants the appropriate administrative authorization (Article 9 LDC).
This notification obligation will not affect concentrations with a Community dimension. The notification of the concentrations that are subject to the scope of the LDC must be made, as we pointed out, prior to its execution and will produce a suspensive effect on it. However, in general, the Law authorizes the formulation of a PTB on a company, after notifying the CNMV and the CNMC.
18. Stakes and shares The company’s stakes. A. NOTION AND CHARACTERS OF THE COMPANY STAKES The company holding assumes the function of being one of the defining elements of the limited liability company and whose characteristics are indicated in Article 90 LSC when it states that “the company holdings… are indivisible and accumulable parts of the share capital”. These characteristics bring them closer to those held by the stakes, but article 92 of the LSC itself, wishing to make a difference, specifies that they will not have the character of securities nor can they be incorporated into negotiable securities or represented by book entries, nor be called shares.
● Company stakes are an aliquot part of the share capital and must be numbered. The LSC has omitted the characteristic that the stakes must be equal, from which it follows that the stakes, which must have a certain nominal value, may have a different nominal value belonging to different series, although it can be presumed, as in the case of stakes, given the silence of the LSRL, that holdings in the same series will have the same nominal value.
● However, these inequalities can be seen not only in the content of the rights conferred (e.g. a holding of 10 euros has the right to one vote, and other holdings of the same nominal value have the right to 50 votes), but also in the fact that it is considered admissible to deprive certain holdings of important rights, insofar as non-voting holdings, which have a regime similar to that of non-voting stakes, are admitted. In the event that the rights attributed to the shareholders by each holding are unequal, the bylaws must express the content and extent of the rights.
● The stakes are cumulative, so that one partner, as in the case of the joint-stock company, may have several stakes, even, in the case of the single partner, all of them. ● The stakes are indivisible, as is the case with shares (=actions); consequently, they cannot be split.
2. The share as part of the capital The LSC states that the capital of the corporation “shall be divided into shares”, thus highlighting one of the characteristic notes of the corporation, and insists on this idea by declaring that the “shares are indivisible and cumulative aliquots of the share capital” If the share capital is essentially a formal figure, which is a measure of what the partners have contributed or have undertaken to contribute to the company as a whole, the nominal value of a share indicates the amount that must be contributed as a minimum to achieve the status of partner. There must be an exact relationship between the number of shares held by the company, their nominal value and the share capital, so that the amount of the latter is the result of multiplying the number of shares by their nominal value. As we saw earlier when we spoke of share capital (see Chapter 8, Section II), the share must have as its counterpart an effective contribution to the company’s assets, which can be made at the time the share is subscribed or at a later date, in which case the shareholder is obliged to pay passive dividends. The Law states that the issue of shares that do not correspond to an effective contribution to the company’s assets is null and void (Article 59.1 LSC) and, as we know, only assets or rights that can be economically valued can be contributed (Article 58.1 LSC). In addition, the prohibition established by Article 59.2 LSC that “shares may not be issued for less than their nominal value” must be taken into account. It is lawful to issue shares with a premium in the context of a capital increase. The nominal value of the shares is different from their real or effective value, their real value will be the stock market price, which is influenced by many circumstances, such as the value of the company’s assets, its possibilities of increasing due to the good progress of the company’s economic activity, the policy of distributing dividends and that of capital increases, the liquidity or mass of money held by investors at a given moment, as well as different psychological motivations which affect the supply and demand for the shares. If the shares are not listed, it is more difficult to determine their effective value. The Law provides for the incidental determination of the share price in the event of the separation or exclusion of the shareholder from the company, in the absence of agreement, by an independent expert appointed by the commercial registrar at the request of the company or the shareholder (see Article 353.1 LSC)