The resolution of the Directorate General of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP) of 13th October 2022 regarding the refusal of the Registrar of the Commercial Registry of Santa Cruz de Tenerife to register a letter of resignation from the post of member of the board of directors of a company was published in the Official Gazette on 11th November 2022.
In this case, a document bearing the signature which had been authenticated before a notary public, pursuant to which a member of the board of directors resigns from their post was filed at the Registry. Said document was accompanied by the proof of sending by burofax (certified fax) to the company which had been signed electronically by the interested party, and the contents thereof coincided with the document which had been signed by hand, bearing the signature which had been authenticated before a notary public.
The registrar suspended the registration for the following reason: In accordance with article 147.1 of the Commercial Registry Regulation, the resignation from the post granted by the director should be notified in a certifiable manner to the company, in the form provided for in article 202 of the Notary Regulations, specifically, the sending, by the notary required for this purpose, of the registered letter with acknowledgement of receipt to the corporate address of the company, and the acknowledgement of receipt must state that the letter has been duly delivered.
An appeal was filed against this decision, arguing that the notification was carried out “by burofax (certified fax) with acknowledgment of receipt and certification of contents, it was sent to the corporate address of the company, and the reception of the notification was stated in a certifiable manner in the acknowledgment of receipt thereof”.
The Directorate General dismisses the appeal and confirms the registrars decision based upon the following grounds:
With regard to the form of notifying the resignation of the director, it should be recalled that the doctrine of the Directorate General requires that the company has timely knowledge of the vacancies that for any reason occur in its management body, in order to enable the immediate adoption of the necessary precautions to replace such resignation. Therefore, the registry recognition of the resignation is subject to its prior communication to the company in a certifiable manner.
Finally, the Directorate General concluded that the notarial deed supporting the sending by registered mail with notice of receipt of the resignation document must be considered sufficient, provided that the sending has been carried out to the registered office of the company itself, according to the Registry, and the acknowledgement of receipt shows that the document has been duly delivered to said address; and otherwise, if the sending has been unsuccessful, the notary must personally provide the notification, according to the terms set forth in Article 202 of the Notary Regulations.
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9th December 2022
