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The General Directorate of Notaries and Registries (GDNR) published a resolution on 19th July 2019 arising from an appeal against the refusal of the Registrar of Companies and Movable Goods I of Asturias to register a deed bringing into public by way of a notarial deed corporate resolutions amending the company by-laws and, in particular, article 21, relating to the means of calling the general meeting and the possibility of the meeting being called by e-mail.
The amended article read as follows:
«Article 21. All General Meetings must be called by means of any individual and written communication procedure, including by electronic means, carried out by both the universal postal service or by a different operator, which ensures the receipt of the announcement by all the members (partners) at the address designated for this purpose or which is recorded in the company’s documentation (the address appearing in the Partner’s Registry Book being considered as such and in the absence thereof, the address stated in the document or title deed demonstrating membership status) or at the e-mail address provided by each member (partner), also stated in the Partner’s Registry Book (with a read receipt taking into account that the refusal to confirm the request to provide a read receipt for the e-mail containing the summons will have the same effect of refusal, unless it has been returned by the system). In any case, the content of the summons must adjust to the provisions of article 174 of the Spanish Capital Companies Act, and must be sent at least fifteen days prior to the date set for the meeting, except in cases of merger and spin-off, where the notification must be given at least one month in advance, taking into account the period starting from the date on which the notice was sent to the last of members (partners), […]».
The Registrar of the Commercial Registry refused the registration of the public deed of modification of company by-laws arguing that an electronic mail summons system could not be accepted without requiring a read receipt, basing her decision on the resolution of the General Directorate of Notaries and Registries of 28th October 2014 and in accordance with article 173.2 of the Spanish Capital Companies Act.
The aforementioned refusal was appealed by the notary who, as we shall see below, rightly questioned the refusal, stating that from the moment the partner has provided an e-mail address, it must be understood that he/she accepts this as a means of communication with the company, adding that “efficiency cannot be left to the exclusive discretion of the partner, so if the partner does not confirm the reading (of the summons), the consequences derived therefrom must be the partner’s responsibility and assumed by the partner“.
Thus, the GDNR settled the debate by opting for upholding the appeal and the revocation of the contested registry refusal, affirming that the intended system makes it possible to reasonably ensure the receipt of the announcement of the meeting by the Partner and that in the current state of telematic communications, proof of receipt can be obtained through, for example, the <<confirmation of delivery>>, a means that must be considered sufficient.
Finally, the GDNR adds that the provision in the article as regards to “non-confirmation” producing the effects of confirmation provided that the notification had not been returned by the system, does not distort the proposed system, providing that “the procedure shall prevail over the obstructive attitude of the partner who refuses to provide said read receipt, so that in such a case the partner shall be responsible for the proof of the possible lack of summons“.
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Pedro Blanco Guardado
Barcelona, 30th August 2019