The Official Gazette of the Spanish Government of 2nd July 2020 published a resolution by the General Directorate of Legal Security and Public Trust (the “Directorate”) in the appeal filed against the refusal of the Madrid Commercial Registrar XXII to register a public deed of termination and appointment of a company director.
In this case, a public deed of termination and appointment of a sole director was filed. In the public deed it states that in accordance with article 111 of the Commercial Registry Regulations (“CRR”) it is requested that the termination of the director is notified at his/her home address, and the notary attests that he is received in person at the specific address (that of the departing director) by two persons who identify themselves, but without taking delivery of the notification writ.
The registrar refuses to register the public deed because, “the effected notification to the departing director does not comply with article 111.1 of the CRR, as it had not been carried out at the address thereof, according to the Registry”.
The notary appeals based upon the substance of the matter as follows:
The notification shall be completed in any of the forms referred to in article 202 of the Notarial Regulations. And the joint interpretation of the rules which regulate acts of notification and the purpose thereof. It is clear that if the Notary, having personally carried out the notification, and knowing what is going to be notified, is refused upon handing over the notification at the registered address, and even so decides to conclude the notarial deed, the act is meaningless. It is contrary to the purpose of the legislator of providing agility to commercial traffic, to obligate the notary to send the notification again by registered post with acknowledgment of receipt, which without doubt would delay the registration of the new director in the Commercial Registry, and thus obstruct financial and legal traffic.
The Directorate says that article 203 of the Regulations for Notaries points out that “if the interested party, their representative or person with whom the procedure has been agreed, refuses to collect the notification or actively or passively resists its receipt, this shall be recorded and the notification shall be deemed to have been made“. However, Judgment of 20th May 2008 given by the Third Chamber of the Supreme Court declared null and void the section: «or person with whom the procedure has been agreed», as this was a departure from the general regime “established by Law 30/92, in matters subject to legal reservation.
The Directorate also says that it will be necessary that, as provided for in article 202, the notary, for not having handed over the writ, should send it by registered post with acknowledgment of receipt as set forth in Royal Decree 1829/1999 of 3rd December, or by any other procedure which allows a reliable record to be made of the delivery. In the light of what is established in articles 202 and 203 of the Regulations for Notaries, it must be concluded that should a writ be delivered to a person different to the required person or his/her representative, a double notarial action would be necessary to cover at least two attempts at notification with delivery of the corresponding writ, one carried out in the presence of the notary at the address where the notification was to be made, and the other by sending it by registered mail with acknowledgement of receipt (or by any other procedure that would ensure a reliable record of the delivery).
We may conclude in this case that an obstacle to registration exists if the only attempt made at notification was the notification in person provided for in the aforementioned article 2020, and not the sending of the notification by registered post with acknowledgment of receipt.
Mika Tsuyuki
Vilá Abogados
For more information, please contact:
7th August 2020
