Shareholder disputes and director liability

Published on 22 September 2026

A dispute between shareholders usually starts on civil ground: a resolution that disadvantages part of the shareholders, or a director's decision that damages the company's assets. A third element often joins in, a transaction that was never put to the shareholders' meeting. What many miss, especially when the amount at stake is high: the same conduct can carry a criminal dimension too, and pursuing it down only one track risks losing rights on the other that cannot be recovered later.

Two claims, one set of facts

Spain's Companies Act opens two different claims against a director.

• The corporate liability claim, acción social de responsabilidad (article 238 of the Companies Act): brought by the company itself, following a resolution of the shareholders' meeting, which any shareholder can request even if it was not on the agenda. Shareholders whose stake is large enough to require a meeting to be called can bring the claim themselves if the directors fail to call the meeting requested for that purpose, if the company does not sue within a month of the resolution, or if the meeting votes against pursuing liability. Where the claim rests on a breach of the duty of loyalty, they can go straight to court without putting it to the meeting at all (article 239).
• The individual liability claim, acción individual de responsabilidad (article 241): open to shareholders and to third parties where a director's act has harmed them directly and personally, independently of any harm to the company.

The difference is more than technical. The first protects the company's assets, the second one's own. In practice, that distinction often decides which route is even open, and sometimes both are.

When it becomes a crime

Not every damaging decision by a director is a crime, and the line rarely sits where the loss is largest. Spain's Criminal Code (Código Penal) sets out several offences that come up regularly in a shareholder dispute:

• Breach of fiduciary duty (article 252): a director who, exceeding their powers over assets they manage, causes harm to those assets.
• Falsifying the accounts (article 290): a director who falsifies the annual accounts or other documents on the company's economic or legal position, in a way capable of causing economic harm to the company, a shareholder or a third party.
• Forcing through abusive resolutions (article 291): using a majority at the meeting or on the board to impose abusive resolutions, for the benefit of oneself or of someone else, to the detriment of the other shareholders and without any benefit to the company.

What separates these offences from a bad business call is almost never the outcome, but the conduct: whether powers were exceeded, and whether the end result was a benefit taken at someone else's expense.

The protection of business judgment

The same law protects, the other way round, a director who does the job properly. Article 226 of the Companies Act treats the standard of care of an ordinary businessperson as met when a decision was taken in good faith, without personal interest, on sufficient information and through an adequate procedure. That protection expressly does not extend to decisions affecting other directors, or people connected to them, personally.

That cuts both ways in a shareholder dispute. A director's defence rarely lies in the outcome of the decision but in the record of how it was made. A shareholder who suspects a breach needs to secure exactly those records before deadlines or retention policies put them out of reach.

Why both fronts belong together from the start

Civil and criminal proceedings over the same facts do not run independently, and Spanish law sets out how they interact. Once criminal proceedings are under way, no civil action on the same facts may continue, and a pending one is stayed until the criminal judgment becomes final (article 114 of the Criminal Procedure Act, LECrim). The Civil Procedure Act governs when the civil case is actually stayed, which as a rule happens only once it is ready for judgment and the criminal ruling could be decisive, or immediately if the forgery of a decisive document filed in the case is under criminal investigation (article 40 of the Civil Procedure Act, LEC).

Corporate offences, which include falsifying the accounts and forcing through abusive resolutions, can only be prosecuted on a complaint by the injured party, unless the conduct affects the general interest or a plurality of people (article 296 of the Criminal Code); breach of fiduciary duty is not subject to that limit. The civil track has its own clock as well, because both the corporate and the individual claim against directors are time-barred four years after the day they could first have been brought (article 241 bis of the Companies Act). Which route to take first, and how to combine them, is therefore a strategic call rather than a purely procedural one; it shapes the burden of proof, the deadlines and the negotiating position, and what is argued in one set of proceedings can be used in the other.

How I approach it

I start by placing the facts on both tracks at once: which civil claim fits, whether any of the conduct could carry criminal weight, and in what order or combination the two serve the case best. Then come the records: minutes of the shareholders' meeting, board resolutions, annual accounts, correspondence around the disputed decision. I act for shareholders alleging a breach and for directors defending against that claim. This is where my practice in white-collar crime meets company law; how I work is set out under method. A matter that often runs alongside this one: the criminal liability of company directors. And when the company is also in financial distress: business distress and insolvency. If criminal proceedings are already under way in Barcelona, you can read how I work as an English-speaking criminal lawyer.

Editorial responsibility: Carles Jiménez, attorney-at-law (Barcelona Bar No. 34.946). This note was prepared with the assistance of artificial-intelligence tools and reviewed and approved by the author before publication.

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