Article 3 of Law 3/2009, of April 3, on structural modifications of mercantile companies, establishes that by virtue of the transformation a company adopts a different type, preserving its legal personality. In other words, there is no change in its personality, which affects its active or passive legitimacy within the judicial procedure, and that the company adopted a different social type, preserving its personality.
In accordance with the above, when said transformation occurs before the process, it does not cause any problem since, in this case, the active legitimacy will be the same, that is, the transformed company will be the one that initiates the process, and if it is the passive legitimation, it is responsible and the claim must be directed against it (transformed society), without prejudice to what will be expressed later, since an amplification of responsibility may occur.
Thus, when the transformation occurs pending the processing of a judicial process, the procedural succession does not take place or does not have to be interested, since it does not imply any succession, but a mere change in the name and/or formation of one of the parties. (transformed society). In other words, said change is not subject to the approval of the court, but is nevertheless carried out once interested by one of the parties, as long as said transformation is accredited, either through the contribution of the corresponding deed registered in the registry. , registration certificate, etc.
Example of previous sentence of the Contentious - Administrative Chamber of the TSJ of the Balearic Islands, of 27/1/2016. the records, due to the transformation of a public limited company into a limited company, and also a defect in the representation due to not having obtained new powers.
Thus, the Chamber, citing art. 3 of Law 3/2009, states that by virtue of the transformation, the company adopted a different type, preserving its legal personality, therefore the extinction of the legal person and the birth of a new legal person had not occurred, what constitutes a true procedural succession, but the maintenance of the previous legal person under a different corporate form due to a change in legal form, which did not affect the identity of the transformed company, which retains its personality and is maintained under the new formula ( STS No. 914/1999, of November 4, STS of 30/1/1987, SAP of Valencia No.
The Chamber ruled that, by virtue of the transformation, the company adopted a different type but retained its legal personality, that no one is extinguished at any time.
Thus, STS No. 914/1999 states that said transformation, with the same personality, continues to assume the same rights and obligations, so that with said transformation there is no transfer of use and enjoyment or patrimonial transfer, but quite the contrary, it is a " Continuation of the personality” of the old society.
Thus, the STS of 30/1/1987 will reiterate that the transformation does not produce the dissolution of the transformed company, whose legal personality remains the same. And the judgment of the AP of Valencia will reiterate the exposed doctrine, already with mention of the aforementioned precept (Art 3), reiterating that the rights and obligations of the transformed company are not modified. In that same resolution of the AP of Guipúzcoa will reiterate what was previously stated.
The transformed society continues to assume the same rights and obligations
Thus, the Order of the Fourth Chamber, of the TS, of 19/4/2016 establishes (in relation to a case of business succession): all the more reason the solution must be sustained in all transformation phenomena (Articles 3 to 21 of the LME), it is possible that in them the company adopted a different social type, preserving in all cases its own legal personality, so that it is not even possible that it has produced subrogation of the company, but that such transformation only reaches a "formal novation" of the company, which becomes irrelevant for the purposes we are dealing with.
Therefore, in an ongoing judicial process, the transformation of a company in which it is part of it, does not alter the active or passive legitimacy, nor is any right or obligation affected, but as has been advanced, It would be enough to inform the court of said circumstance so that the process of said transformation is recorded.
In an ongoing judicial process, the transformation of a company in which it is part of it, does not alter the active or passive legitimacy
According to art. 21 of the aforementioned law, and regarding the liability of the partners; The partners who, by virtue of the transformation, assume personal and unlimited liability for the corporate debts, will respond in the same way as the debts prior to the transformation. It should be noted that, among others, the passive legitimation can be extended when the company adopts a company in which liability is not limited, and therefore the partners will respond with their personal assets for the debts prior to the transformation and in In all cases of the post-transformation, it is to decide, the assumption could be realized that as a consequence of the transformation, the responsibility will increase. On the contrary, unless the corporate creditors have expressly consented to the transformation, the liability of the partners who would be personally liable for those of the transformed company will remain, for the corporate debts contracted prior to the transformation of the company, although this liability will prescribe five years from the date of publication in the Official Gazette of the Mercantile Registry.
The partners will respond in the same way as the debts prior to the transformation; passive legitimation can be expanded when the company adopts a corporate form in which liability is not limited. The partners can start responding with their personal assets for the debts prior to the transformation
What will happen in the cases that the transformation has occurred after the filing of the claim and before the answer? That without prejudice to hearing that it is directed against the transformed company, the possibility arises that this responsibility has been expanded and that the partners who have assumed this responsibility by virtue of the transformation, that is, it would be possible to expand the sued against the partners (401.2 of the Civil Procedure Law) or, after said term, file a new lawsuit against the partners and interest the accumulation of processes, which is difficult given the limitations imposed by art. 78.2 and 3 of the Civil Procedure Law, it is necessary to prevent this possibility when it is not justified that, with the first demand, it cannot promote a process that includes substantially the same claims and issues, even if there are a diversity of issues. Without prejudice to the fact that there are judicial decisions that make the interpretation of the limitation of accumulations more flexible, for example, the case raised by SAP Coruña, 329/2008, of 15/9/2008, in which it refers to an error or forgetfulness of the existence of a sequel at the time the first defendant filed, stating that there was no evidence of bad faith on the part of the plaintiff, and heard that it should have allowed the accumulation, among other reasons, in attention to procedural economy.
