The representative of body corporate director cannot be a de facto director

He or she who performs all of the tasks and functions of a director without having been formally appointed as such shall be considered a de facto director. In other words, a de facto director is any person who performs management functions without having the official title.

The natural person representing the director who is also the legal person

In accordance with the character of the de facto director, the Spanish Supreme Court has declared that the natural person who represents the director who is also the legal person shall not be considered the de facto director because of the nature of the roles’ duties. In this regard, the 104/2018 decision reached on March 1 of the same court states that:

…by definition, natural persons representing directors of a corporate body cannot be classified as the de facto director, since they precisely perform the functions of a position already explicitly provided for by law.

It must be taken into account that Article 212 of the Spanish Corporate Enterprises Act (Ley de Sociedades de Capital) expressly establishes that, in the case a director is also the legal person of a corporate body, he or she must assign a single natural person to permanently execute the duties of the role.

This single natural person designated for the permanent exercise of the functions as body corporate director shall:

• Meet the established legal requirements to exercise the functions of director
• Be subject to the same duties and work jointly with the director who is the legal person.

In summary of the above, we can conclude that a natural person with a representantive- position is the director de jure and not the director de facto of a company precisely because of the legal framework in which these roles are established.

For further information regarding the de facto director in Spain,