In the Official State Gazette of the 4th of May 2022, the Resolution of the Directorate General of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública – DGSJFP) –, of the 8th of April 2022, was published, in relation to a refusal of the registrar of the Commercial Registry of Tarragona dismissing the private request of the unilateral revocation of a power of attorney.
In this particular case, the system of management of the company changed from a sole director to joint directors. Before said change was seen through, the previous sole director (of the L.L.C.) granted an extensive power of attorney to her permanent representative. However, the appointment of said representative was done without having prior agreement from the General Meeting of the Company. Faced with this situation, the new joint director of the company decided to revoke this power, because she thought that the natural person (permanent representative of the previous sole director) wanted to maintain exclusive control of the Company, with the ability to act under this extensive power of attorney, without the need to have the consent of the joint director.
The Registrar has resolved not to carry out the registration entry for the following reason:
“The Registrar will not proceed to unilaterally revoke the granting of a power of attorney on the grounds that the revocation of the powers applies to the management body that is currently functioning. Furthermore, the principle of petition of the register does not allow for the ex officio cancellation except in cases provided for in legal and regulatory provisions.”
An appeal was filed against this decision, alleging that:
(i) initially, the commercial power of attorney that is the object of revocation should never have been granted and registered, since the representative granted with the power of attorney is affiliated to the director, on the basis of Article 231 of the Spanish Companies Act, thus an agreement of the General Meeting should have existed; and
(ii) if the possibility of revoking the commercial power of attorney, as desired by the other joint director, is not admitted, then said power will remain irrevocable.
The Directorate General dismissed the appeal and confirmed the decision for the following reason:
“In this case, there is no debate about the possibility of revocation of a power of attorney as desired by a single joint director, when the representative granted with the power of attorney happens to be their colleague. Nor can it be stated that there is a dispute on this point, since the Registrar is not making a statement on such an eventuality. What she does indicate in her decision is that the competence to revoke the power of attorney belongs to the management body, that lacks authority to cancel ex officio the registration entry of the power, and that the actions petitioned to the registrar in the private request, would entail an infraction of the principle of petition, a fundamental principle that, in general, summons them to act at the request of a party, except in exceptional cases specified by law.” “Otherwise, even if the request met the requirements referred to with regards to its content, there would also be the need to meet the demands deriving from the principle of public title (registration of a public deed at the commercial registry), included in Articles 18.1 of the Commercial Code and 5.2 of the Regulations of the Commercial Register.”
Vilá Abogados
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13th of May 2022
