In the recent resolution dated 4th October 2021, the Directorate General of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP) issued its decision regarding the appeal filed by the sole director of a company against the registrar’s decision to suspend the registration of the public deed of incorporation of said company.
The bylaws of the aforementioned company provided for, amongst other particulars, that the general partners meetings must be called by the directors “by way of a letter sent by registered post with acknowledgment of receipt to each of the partners (…)” and that “A term of at least fifteen days must elapse between the date upon which the aforementioned letters are sent and the date set for holding the Meeting, except for cases of transformation, merger, assignment and spin-off for which the minimum notice shall be one month”.
The registrar suspended the registration, deeming that in the bylaws the requirements for calling a general meeting in the case of the international transfer of the registered address of the company had been omitted. Specifically, given that in accordance with the imperative provision of article 98 of Law 3/2009 of 3rd April, on structural modifications of commercial companies, in the event of an international transfer of the registered office, the call of the meeting must be published in the Official Gazette of the Commercial Registry and in a newspaper widely circulated in the province in which the company has its registered office, with a minimum of two months advance notice to the date set for holding the meeting.
The appellant alleged that the registered office of the incorporated company had been established in Spain, therefore, the demand of the registrar for the bylaws to expressly contemplate the requirements for the call of the general meeting in the case of the international transfer of the registered address was inappropriate due to it not being applicable, and that this requirement may only arise when the company effectively carries out an international transfer of registered address, and that in any case, the applicable legislation would be so regardless of what the bylaws stipulate.
In its resolution, the Directorate General confirms the registrar’s decision, and refers to its reiterated doctrine on the need for the wording of statutory regulations to not protect interpretations that may be considered «contra legem»,
a) because an ambiguous term has been used;
b) clarifications are required (even though they may be considered implicit due to legal requirements);
c) because the mention of an imperative legal exception has been omitted; and even
d) due to statutory clauses that merely reproduce the applicable legal regime, when such reproduction has not been complete or exact.
In the case at hand, the Directorate General considers that the bylaws establish a “conventional system regarding the form of the call of the general meeting as a substitute for a legal system, which, having been expressed in terms of absolute generality, without details, makes the interpretation plausible that it was desired to be the same for any type of agreement”. Also with respect to the advance notice period for the call of the general meeting “where, some scenarios of exception have been provided for, but others have not, it generates a reasonable doubt about the situation of those which have been omitted”.
In view of the foregoing, the Directorate General concludes that the rule in the bylaws, “insofar as it does not contain any exception, it does directly contradict a legal rule (…) so it is not a matter whereby an incomplete bylaw regulation can be directly integrated into the mandatory rule not included in the bylaws”, and raises the question as to the form and advance notice required to call a general meeting to decide on the international transfer of the company’s registered office.
On the other hand, the Directorate General affirms that in the case of a “mere reproduction of legal regulations which would be applicable anyway”, the “fact of not having expressly considered the special rules applicable in the same case, would not necessarily lead to the conclusion that they were excluded from the bylaws intentionally”.
Therefore, if in the bylaws we do not simply reproduce legal text, but we give them a “customised” wording, we must expressly mention the mandatory rules, which are applicable, or include a generic exception to the effect that everything that is imperatively regulated in the Companies Act and other applicable legislation that contradict the provisions of the bylaws shall prevail over the latter.
Carla Villavicencio
Vilá Abogados
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3rd December 2021
