The Spanish Supreme Court (Civil Chamber), in its judgment of 23 June 2026, No. 989/2026 (ECLI:ES:TS:2026:2710, appeal No. 5079/2023), held that, where there are no minutes recording a meeting purported to have been held as a universal shareholders’ meeting, the company bears the burden of proving that all shareholders did, in fact, attend such meeting. The Court also held that the notarial deed recording the resolutions is not sufficient to establish this and reiterated that an action to challenge the resolutions does not become time-barred where the universal meeting did not include the entire share capital.
The case
A Spanish limited liability company claimed that a universal shareholders’ meeting had been held on the 7th of July 2014 with all shareholders in attendance. The share capital was divided between an individual (4%) and two companies (34% and 62%), represented by their respective sole directors.
According to the company, the shareholders unanimously approved the resignation of the sole director, the appointment of his successor and the authorisation to formalise the resolutions in a public deed. On the same day, the outgoing and incoming directors appeared before a notary and had the resolutions recorded in a notarial deed.
No minutes were drawn up for the meeting. The shareholders holding 4% and 34% of the share capital challenged the resolutions, claiming that they had never attended any such meeting.
The Commercial Court No. 1 of Tarragona dismissed the claim. It rejected the argument that the action was time-barred, but held that the claimants were responsible for proving that they had not attended the meeting.
The Provincial Court overturned that decision and declared the resolutions null and void. In the absence of minutes, it held that the company was responsible for proving that the claimants had attended the meeting and that the witness evidence did not provide sufficient certainty.
The company appealed to the Supreme Court on points of law and procedural grounds.
The burden of proof
The company relied on Article 217 of the Spanish Civil Procedure Act (LEC), arguing that the claimants should have been required to prove that they had not attended the meeting.
The Supreme Court cites Article 178 of the Spanish Companies Act (LSC), under which a universal shareholders’ meeting is validly constituted only when the entire share capital is present or represented and all those attending unanimously agree to hold the meeting and approve its agenda.
The Court also recalls that the universal nature of a meeting does not exempt the company from the obligation to draw up minutes (Articles 202 LSC and 97 of the Commercial Registry Regulations (RRM)). The absence of minutes does not, in itself, render the meeting or its resolutions null and void, as they may be established by other means of evidence. However, it does place the burden on the company to prove that the meeting took place and what was resolved, since the company, through its corporate bodies, is legally responsible for documenting the meeting.
The Court justifies this approach on substantive grounds: otherwise, it would be sufficient for directors to appear before a notary and make the relevant statements for non-existent resolutions to be registered.
The judgment is based on two criteria:
- The doctrine concerning negative facts. A negative fact does not have to be proved; rather, the person asserting the corresponding positive fact must prove it. In this case, the positive fact is that all shareholders attended the meeting.
- The availability and ease of proof. The company is in a better position than an individual shareholder to evidentially establish who attended the meeting.
The Court adds an important qualification: if the company produces minutes signed by those attending, the burden of proof shifts back to the challenging shareholders, who must then establish that the document or signatures are false.
The evidential value of the notarial deed and registration
The company also argued that the Provincial Court had irrationally assessed the evidential value of the public deed recording the resolutions.
The Supreme Court reiterates its case law on public documents: they provide full evidence of the fact, act or state of affairs they record, as well as of their date and the identity of the persons appearing before the notary, but they do not establish the truthfulness of the statements made.
In this case, the deed establishes that certain individuals appeared before a notary on a particular date and presented a certificate of the resolutions issued by the director. It does not, however, establish that the shareholders’ meeting actually took place or that it met the requirements for a universal meeting, in particular that the entire share capital was present.
For the same reason, registration with the Commercial Registry does not alter this conclusion. The public faith attached to the Commercial Registry extends to the document recorded in the notarial deed, but not to the truthfulness of its contents. The certificate is sufficient for registration unless challenged, but responsibility for its accuracy lies exclusively with those who prepare and submit it, who must be able to substantiate its contents if required to do so.
The Court also rejects the argument that the appearance before the notary of the outgoing director, who represented one of the claimant companies, was sufficient in itself to prove the attendance of the individual shareholder at the universal shareholders’ meeting. Nor did it consider the assessment of subsequent emails to be irrational, as they merely showed that the former director was interested in stepping down. In his testimony, he had stated that he believed he had ceased to be a director because of what the new director had told him, rather than because of what had taken place at a shareholders’ meeting.
Practical recommendations
- Always draw up minutes, including for universal shareholders’ meetings. The universal nature of the meeting does not remove this obligation. Without minutes, the company assumes the risk of being unable to prove that all shareholders attended.
- Have the minutes signed and properly document representation. If the company produces minutes signed by those attending, the burden of proof shifts to the challenging shareholders, who must establish that the document or signatures are false. It is also advisable to expressly record the unanimous agreement to hold the meeting and approve the agenda, as well as to properly document the representation of any shareholders who do not attend in person.
- Notarial recording and registration do not replace the minutes. They establish that the relevant persons appeared before the notary and that a certificate of the resolutions was submitted, but they do not prove that the meeting took place with the entire share capital present.
- The risk may remain over time. If the meeting was not genuinely universal because one or more shareholders were absent, the action to challenge the resolutions is not time-barred. This risk is particularly relevant to changes in the governing body and to subsequent acts that depend on those changes, and should therefore be considered as part of the due diligence process in corporate transactions.
- For the challenging shareholder, it is sufficient to deny having attended the meeting and to challenge the certificate, without having to prove a negative fact. Nevertheless, it is advisable to gather evidence supporting that position.
Shameem Hanif Truszkowska
Vilá Abogados
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2nd of October 2026