In our article dated 23rd September 2021 titled “THE GENERAL MEETING OF A JOINT STOCK COMPANY. SUPPLEMENTARY CALL. CERTIFIABLE NOTICE TO THE COMPANY” we covered the concept of “certifiable notice” to the company, regarding the application for the supplement to the call which may be carried out by the minority partner, and which must be received at the registered office of the company within five days following the publication of the call of the meeting, in accordance with article 172 of the Spanish Companies Act. We also emphasise the importance of carrying out said communication fulfilling all legal requirements, given that the absence of the publication by the company within the legal term, of the application for the supplement to the call of the meeting, may lead to the invalidity of the meeting, and all of the agreements passed therein.

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 case wherein the shareholder had submitted their application for a  supplement to the call of the meeting, 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.

The GDLSPT maintained the registrar’s decision, who had 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.

In this case, both the registrar and the Directorate General considered 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”.

The Judgment of the Provincial Court of Salamanca of 3rd January 2020 (La Ley 13749/2020) also analysed the case of a request for a supplementary call, in which the meeting was declared invalid in first instance proceedings, given that the company had not proceeded to publish the supplement to the call requested by the minority partner within the legal term.

In this case, the minority partner carried out the “certifiable notice” via burofax, within the legal term provided for in article 172 of the Spanish Companies Act, but the director of the company did not acquire knowledge of the content thereof until after said period had elapsed.

The judgment refers to the concept of “certifiable notice” included in the Judgment of the Provincial Court of Vizcaya of 30th December 2013, which establishes that the communication must be carried out:

“by an adept form of communication in order to ensure the receipt by the interested party or, at the very least, to ensure that the interested party was in a position to acquire knowledge of such communication in a normal way”.

According to this definition, any form of communication is accepted, provided that:

  1. It allows ensuring receipt by the interested party.
  2. Or it allows ensuring that the interested party was able to acquire knowledge thereof.

Thus, the judgment studied establishes that it is sufficient for the communication to have been received at the registered office within the term, in such a way that, if the company refuses or delays the receipt, it should be deemed received at the time that it is rejected or delivery was attempted, since the recipient had the possibility of acquiring knowledge of the communication at that time.

Hence the judgment focused the issue of whether the burofax (certified fax) had been made available to the company within the legal term, regardless of the moment in which the directors acquired knowledge thereof. And it concluded in the affirmative, in such a way that it considered the minority partner’s right to have been effectively exercised at the time when the first delivery attempt was made and considered, however, that the meeting in question was null and void, since the supplement to the call of the meeting had not been published within the legal deadline by the company.

However, the judgment considered that there were legal doubts as to the concept of “certifiable notice” due to the lack of clarity in the wording of article 172 of the Spanish Companies Act and, for this reason, did not impose any court costs on the company.

 

Mireia Bosch

Vilá Abogados

 

For more information, please contact:

va@vila.es

 

22nd October 2021