On 29th July 2022 the annual accounts for the 2021 fiscal year of the company SNAP SHOP 24H, S.L. (hereinafter the “Company”) were filed at the Commercial Registry of Alicante (hereinafter the “CRA”).

The certificate was signed and filed by electronic means, and contained the agreement regarding the approval of the accounts as well as the agreement for the distribution of profit. With regard to the second agreement, the certificate only contained the phrase “distribute the profit in the following terms”, without giving further details regarding the distribution.

With regard to the certificate in question, the CRA refused the registration, stating the following legal grounds:

(i) In the certificate of the agreement made in the meeting the distribution of profit is not recorded, and in the absence thereof, neither is the inactivity of the Company, in accordance with that established in article 366.1.2. of the Commercial Registry Regulation (hereinafter the “CRR”).

(ii) It was impossible to validate the electronic signature of the certificate in relation to the person entitled to do so, in compliance with article 109 of the CRR. As a consequence, it was not possible to establish a clear connection between the signatories who conducted the electronic signature, and the legitimate persons entitled to sign.

(iii) The Company was required to undertake a full rectification of the signature of the certificate, as well as of the electronic filing thereof, rather than a partial amendment.

The Company filed an appeal against the Registrar’s decision, with a separate argument for each of the legal grounds set forth by the CRA:

  • Firstly, that the agreement of the meeting referred to the result contained in the filed annual accounts, electronically signed by the signatory of the certificate.
  • In reply to the second point of the CRA, the appealing party alleged that, when the same electronic signature of the meeting’s resolution is recorded in both the certificate and in the filed annual accounts, and this signature is that of one of the Company directors, then the possibility of establishing the connection between the signatories and the persons entitled to sign does actually exist, in compliance with article 109 of the CRR.
  • Finally, the appealing party alleged that a partial registration of the agreements should have taken place, rather than a total refusal, pursuant to articles 42.1, 42.4 and 42.10 of the CRR.

The Registrar maintained her refusal with regard to the appeal. As a consequence, she proceeded to refer the matter to the Directorate General of Legal Security and Public Trust – DGLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP), which settled the corresponding appeal filed by the Company in accordance with the following legal grounds:

On the one hand, the certificate wherein the company resolutions were adopted with regard to the annual accounts must include in any case (i) the approval of the annual accounts (ii) the distribution of profit, and, as the case may be, the consolidated accounts, which must be filed with the signatures having been authenticated before a notary public. As a result, and without the certificate of the resolutions adopted by the company incorporating further details with respect to the corresponding distribution of profit, the Directorate General confirmed the defect already notified by the CMA.

As for the second point of law, the lack of connection between the signatories of a certificate and those who are entitled to sign only materialises when it is not possible to validate all of the signatures included in the certificate of the resolutions adopted by the company. This is the reasoning of the Directorate General, based up on the Instruction of 30th December 1999 and also article 2 of Ministerial Order of 28th January 2009. Therefore, since it was not possible to validate the electronic signature in the certificate of the resolutions adopted by the company, which was electronically filed, it was impossible to establish the connection between the signatories and the persons entitled to sign.

Pursuant to the resolution dated 24th January 2023, the Directorate General dismissed the appeal and confirmed the Registrar’s decision.

 

 

Diego Martínez-Costa

Vilá Abogados

 

For more information, please contact

va@vila.es

 

3rd March 2023