The resolution of the Directorate General of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP) of 5th September 2022 regarding the refusal of the Registrar of the Commercial Registry of Almeria to register a public deed of special power of attorney was published in the Official Gazette on 14th October 2022. In this case, a public deed of special power of attorney granted by a joint director of a limited liability Company, pursuant to which the representative was able to exercise the delegated faculties was filed at the Registry.
The registrar suspended the registration for the following reason: “The assignation of the power of attorney corresponds to the two joint director. Ratification by the other joint director is missing”.
An appeal was filed against this decision, with the following arguments:
i) the power of attorney is made in one’s own name and right and furthermore, in the name and on behalf of the Company as joint director of the Company. It is made under the consideration of joint director, not attributing to him/herself the consideration of being the only director.
(ii) it is not appropriate to consider the other director because the power is not designed so that the representative may exercise the faculties established in the power of attorney in an individual manner, but acting on the faculties as a representative of the grantor of the power of attorney (joint director), hence the faculties must be shared with the other director.
The General Directorate dismisses the appeal and confirms the Registrars decision to suspend the registration on the following grounds:
The Directorate General analyses whether it is possible “that a joint director grants a power of attorney in favour of a third party so that they may act together with another joint director, thus binding the company”, and considers that the “granting of a power of representation so that the competence of representation is exercised by a third party, is an act of management which requires the joint action of the joint directors appointed by the general meeting”.
Although the power of attorney is granted in favour of a third party, not so that they may act in an individual manner, but as a representative of the grantor of the power of attorney together with the other joint administrator, the instrument presented lacks the necessary clarity on the will of the person appearing, and the fact is that it is not possible for a joint administrator to exercise their competence via a representative which they have appointed. “The choice of the person or persons who must exercise the organic competence of management and representation of the company corresponds to the general meeting, without the appointed person being able to “delegate” their competence outside of the legally established premises”.
Finally, the Directorate General clarified that there should be no confusion as to the organic level of the exercise of the competence of management and representation, which corresponds to the management system, as a mode of direct action on the part of the company, both on an internal level, as well as externally before third parties, which is exercised by persons designated for such purposes who are subject to the system of obligations and responsibilities determined by the law, with the possibility of attributing to a third party not organically integrated in the company the possibility of legally binding them to the company through a voluntary power of representation. It is concluded that the registration of a power of attorney granted by a joint director in favour of a third party so that they may exercise the organic competence of such position together with the other appointed joint director is not viable because it implies an absolute change in the nature of the figure and because it is a case contrary to the content of the Spanish Companies Act.
Vilá Abogados
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18th November 2022
