Article 173 of the Spanish Companies’ Act establishes the requirements for the valid calling of a general meeting of partners or shareholders, and as an alternative to the general rule, that is publication on the company’s website, the second paragraph sets forth that the company’s by-laws may establish a system of individual and written call that assures the announcement is received by all partners.
It goes without saying that the notification aims to inform all partners or shareholders of the next General Meeting, to make them aware of it and that way can freely decide whether to participate, in person or through a representative, or even to not attend.
The Directorate-General for Legal Security and Certification (DGLSC), has on numerous occasions ruled that where there is a statutory provision on the manner of calling a meeting, the form set out in the by-laws must be ‘strictly observed’ without it being possible to use any other type of system, regardless of whether it has less or more publicity (among others see rulings from 15th June 2015, 25th April 2016, 25th October 2018, 4th October 2019 and 7th March 2022). This way, when the notification is carried out through means not set out in the by-laws, the call is considered flawed, and the agreements reached in the meeting (if it is held) will not be able to be accepted for registration at the Commercial Registry.
Such a resounding affirmation and consequences are supported by the fact that the by-laws are the fundamental regulations of a company whose aim is to establish the rules of operation of it and to which company life is subject. This is a view that similarly finds itself supported in Case Law, as can be seen in the Supreme Court’s judgement on 30th January 2001 (which further cites previous judgements).
Although the obligation to respect the by-laws is clear, a judgement from 24th November 1999, confirmed by others from 29th April 2006 and 28th February 2014, established the possibility for the validity of other communication methods in certain circumstances; specifically, the notification of the calling of a general meeting carried out by a Court, which was given the same validity as if it had been carried out in conformity with that established in the company’s by-laws. A recent judgement by the DGLSC on 7th June 2025 recalled that the management body that calls the general meeting does not hold the necessary power to modify the system of notifying the partners and shareholders (Ruling of 21st October 2015). The conflict resolution body justifies it in the following way:
“(…) partners have the right to know how they are specifically going to be called, thus that is the only way in which they shall expect it and to which they need to pay attention”
It also underlines, however, that the system can be modified by the partners by means of the corresponding by-law modification and with its foundation in the principle of the autonomy provided for in article 28 of the Spanish Company’s Act.
In our opinion, keeping in mind the exceptions to the mandatory by-laws regulation, the extraordinary change in the people’s way of life and the vast array of cases that we cannot ignore, we support adopting a more flexible criteria that offers the managing body more options to effectively achieve the desired result, keeping in mind the facts of each case; this would involve deeming valid the calling of the General meeting carried out via alternative means to those set out in the by-laws in extraordinary situations:
- As a general premise that can be applied to any case in which an alternative notification system is used, it must ensure the same or better publicity or guarantee of receipt than that set forth in the by-laws. For example: instead of a letter with acknowledgement of receipt, use burofax (that, incidentally, offers more guarantees to the receiver given that its content is subject to certification by the official post office (Correos) service).
- When the notification system is not practically possible: example: when the by-laws provide for the sending of a burofax and the country in which one or more of the partners resides does not have that service or the time needed to send it goes beyond the date on which the General Meeting is held.
- When by prior verbal acquiescence of the partners, a notification system different to that set out in the by-laws is used and furthermore, they all acknowledge receipt of the calling notification.
- When it is known that the partner is not at their address for notification purposes, either because they are always travelling and moving around, or because they are to be absent therefrom for a medium to long period. In this scenario, sending an email under certain technical conditions that allow its delivery and receipt to be verified, should be considered as a valid alternative system.
These formulae seek to avoid unwanted circumstances that are more common than they should be, among them is:
- The practical unfeasibility of holding a general meeting due to not being able to notify the partners through the means set out in the by-laws, or if they are notified this way, it is known that it will not be received by the partner or it will arrive after the date of meeting.
- The bad faith of a partner, who resorting to an aspect purely centred on form wants the meeting not to take place or prepares, beforehand to challenge it, as the decisions made are not in their interest, but they are not backed by a majority to stop it.
- The delay or effective impossibility of holding urgent or extraordinary General Meetings.
We do not believe it reasonable that the DGLSC offers the previous modification of the by-laws on the notification system as the only way out of these problematic scenarios. As such it seems as though it does not understand commercial dynamics and how extremely complicated corporate life can be. In many instances, the company’s by-laws were drawn up decades ago, in a pre-digital era, and today seem obsolete in terms of the notification provisions (it does not seem reasonable to be tied to using a letter with acknowledgement of receipt, when there are similar means that offer the same or greater guarantees for the sender and the receiver); and on the other hand, it may be in the interest of the majority not to change the by-laws and as a result, deliberately perpetuate the situation.
It is not the form that is essential but the substance: when the notification system is not that of the website of the company, one needs to make sure that the partners effectively receive the call notification to avoid the partners being unaware of the holding of the General Meeting and its agenda. No objections so far. But if the analysis of whether the notification is valid or not solely focusses on the form, closing one’s eyes to the results amounts to an injustice that penalises legal traffic and the internal functioning of companies, which require the utmost agility.
This agility does not have to be at odds with partner’s right to information given that currently there are various means of guaranteeing the delivery of notifications. We think it unwise to justify the absolute ban on using alternative notification systems purely on the basis of the fact that the partner expects to receive the call in the way the by-laws set out, and only that way. It is just as irrational as claiming that we are only aware of what is around us when we see it, and disregarding all other senses.
As a consequence of the above, we believe that, in exceptional circumstances, the use of alternative notifications for the calling of the general meeting to those set forth in the by-laws must be accepted when there is a just cause for it and only to the extent that alternative means allow for the notice to be delivered in an effective manner and in such a way as to enable proof delivery and/or receipt to be obtained. To continue to maintain the contrary seems anachronistic and an unnecessary exhibition of formal rigor that is somewhat alien to the ultimate purpose of article 173 of the Spanish Companies’ Act, which not only hinders the progress of companies’ corporate life, but can also generate perfectly unavoidable unfairness for the partners themselves. Let it be known that we are not advocating for making an exception to the rule, but to use alternative systems, when failing to do so would harm the interests of the company, its partners or shareholders by preventing the meeting from taking place, and provided that the alternative notification system used does not violate the basic right of the shareholder to be notified effectively.
Eduardo Vilá
Vilá Abogados
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18th July 2025
