The acts carried out by a de facto director may go unnoticed when there is a general agreement, however, they may be challenged by alleging lack of standing when there is a disagreement, and may be declared null and void.
As you may already know, the liability of the administrators extends to the “de facto administrator” (who acts as such without having been formally appointed – or whose position has expired – or who gives instructions to the officially appointed administrator), but it must be possible to prove that he/she is one.
The Supreme Court understands de facto administrators to be those who, without formally holding the appointment of administrator and other requirements, exercise the function as if they were legitimised without such formalities.
It excludes from this definition those persons who act regularly by mandate of the administrators or as managers of the latter, since the characteristic of the de facto administrator is not the material performance of certain functions, but acting in the capacity of administrator, without observing the minimum formalities that the law or the articles of association require to acquire such a status.
Nor should it be confused with the figure of proxies. Proxies are persons appointed unilaterally by the company to act on its behalf. They are characterised by the fact that they are appointed by public deed and for a certain period of time or for certain actions, all of which will appear in the power of attorney, which is revocable under certain conditions and circumstances. Thus, it should not be confused and should be included within the definition of de facto administrator, as there is extensive case law that differentiates between them.
It can be a hidden administrator, who dictates instructions to the de jure administrators on how to proceed, or a notorious administrator, who acts and is recognised as such, but without complying with the procedures for a correct appointment.
The existence of this figure is not unusual, as sometimes, in order to facilitate and speed up the procedures to be carried out, compliance with the rules of the articles of association is suppressed, and the company is satisfied with the de facto administrator.
The acts carried out by an administrator of these characteristics can go unnoticed when there is a general agreement, however, they can be challenged on the grounds of lack of standing when there is disagreement, and can be declared null and void.
In addition, although they are not real administrators in law, they have the same liability, as established in article 263.3 of the Capital Companies Act.
There are many convictions of de facto administrators to joint and several liability with the company, as if they were de jure administrators. A great deal of case law has focused its efforts on determining whether or not these persons are jointly and severally liable, taking into account their functions and characteristics to determine whether or not they can be considered de facto administrators. Also, in the case of claims for maladministration.
In short, although it may sometimes be quicker and simpler in the short term, it is not advisable to leave aside the legal route, as failure to comply with it can lead to problems in the medium and long term, especially when discrepancies arise between the different persons to whom a legal bond links them.
This is no exception in the case of the appointment of directors in companies.
You can contact this professional firm for any questions or clarification you may have in this regard.