“1. In a joint stock company, shareholders representing at least five percent of capital may
request the publication of a supplement to the call of a general meeting of shareholders to include one or more points on the meeting agenda. Such right must be exercised by issuing certifiable notice to be received at the registered office within five days following publication of the call.
2. The supplement to the call must be published at least fifteen days before the scheduled meeting date.
Failure to have the supplement to the call published within the legally stipulated time limit will be grounds for annulment of the meeting”.
Article 172 of the Spanish Companies Act (Ley de Sociedades de Capital – LSC) regulates the supplementary meeting call under the terms exposed above.
The law clearly establishes the subjects and the object of the application and, with regard to the procedure, calls for the requirement of a “certifiable notice”, which must be received at the registered office of the company within five days following publication of the call.
That said, ¿what should be understood by “certifiable notice”?. It must be taken into account that, if this legal requirement is not complied with, the absence of the publication of the supplementary call shall lead to the annulment of the meeting.
The resolution of the General Directorate of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP) of 17th May 2021 analysed the refusal of the registrar XI of the Commercial Registry of Madrid to make a preventative entry of the request for a supplementary call of the general meeting. It dealt with a case wherein the shareholder submitted their application, within the legal term of five days, via two means:
(a) via certified fax (burofax) (and received by the company after the expiration of that period); and
(b) via email, whereby acknowledgement of receipt was received, by means of a read receipt by the natural person representative of the Sole Administrator of the company, on the same day it was sent.
In their assessment, the registrar deemed that receipt of the “certifiable notice” of the request for a supplementary call had not been accredited, within the stipulated term, at the registered office of the company, as there was no record that said email message had been validated by a Service Provider of Electronic Certification certifying the effective issue of the communication and the exact moment thereof, the receipt of the message, as well as the authenticity and integrity of its content. The registrar referred to:
(i) Court Order of the Supreme Court of 21st March 2013, which established the need for the intervention of a Service Provider of Electronic Certification in the notification process in order for it to be considered “reliable” as opposed to normal mail;
(ii) the European Regulation 910/2014 on Electronic Identification and Trust Services;
(iii) the resolution of the GDLSPT, of 28th October 2014, which considered the electronic signature of the mail to be necessary for the call of a General Meeting.
In the light of filing a request for rectification, with a report from a computer expert accrediting both the date of sending of the email and the date on which it was read, as well as the authenticity and integrity of the message, the registrar reiterated the first decision, for identical reasons, referring to the evidential value which the email could have in legal proceedings.
When the interested party appealed against the decision, the Directorate General deemed that:
(i) that the duty of diligence required of the management body is the same as that required of the shareholder;
(ii) that email is not considered to be a “certifiable notice” without the intervention of an entity which is a Service Provider of Electronic Certification;
(iii) the Judgment of the Provincial Court of Vizcaya of 30th December 2013 stated that the communication must be carried out by an adept mode of communication in order to ensure the reception thereof by the interested party or, at the very least, that the latter was in a position to be aware of said communication;
(iv) the distinction between the concepts of “authenticity” and “certifiability” was addressed by Resolutions of the GDLSPT, of 2nd of January and 6th November 2019, with regard to the call of the general meeting by registered post and the possibility of replacing it by a courier service.
Likewise, it took the view that both the registration procedure as well as the notarial action, unfold within different parameters to those of legal proceedings, thus when assessing evidence, especially the performance of a postal operator other than the universal operator, is a performance which, in the registration and notarial fields, requires the added advantage of “certifiability“. The Directorate General also declared that only the universal postal operator possesses the presumption of veracity and “certifiability” in the distribution, delivery and receipt or refusal or impossibility of delivery, both for physical notifications as well as notifications by electronic means. This “certifiability” is different from “authenticity”, which can be accepted and assessed in legal proceedings and becomes an unequivocal requirement in the registry and notarial spheres.
Taking into account these fundamentals, the registrar’s difficulty in evaluating the evidence, the fact that the company had not been a party to the proceedings, the effects that would be produced if the preventative entry was made (annulment of the meeting) and the possibility of challenging the resolutions adopted through the courts, the Directorate General dismissed the appeal and confirmed the registrar’s decision.
Ultimately, both the registrar and the Directorate General deemed that the sending of a request by electronic mail, together with the receipt by the sender of the acknowledgement of receipt consisting of proof of reading by the recipient on the same day of sending, do not constitute “certifiable notice”.
Mireia Bosch
Vilá Abogados
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23rd September 2021
