It is a frequent occurrence in many non-listed companies that the actual residence of the partners, shareholders or directors does not coincide with that of the corporate domicile. Likewise, the circulation of minutes for signature in which the attendance of partners is recorded at meetings which have clearly not taken place in person is a known practice, as a means of overcoming the formalities required by the law in order to place on record resolutions passed at the partners or shareholders meeting.
On the other hand, commercial dynamics require growing agility in the processing of certain formal aspects of corporate life. Technology (like the electronic signature) allow for solutions which facilitate acts of legalisation of documents, streamline the notarial function, and contribute to simplifying the fulfilment of said requirements, like the signing of minutes and the issuance of certificates of meetings and executing the resulting resolutions into a public document before a notary.
With regard to the remote attendance of meetings by partners or shareholders, the passing of Law 5/2021 which partially modifies the Spanish Companies Act (Ley de Sociedades de Capital – LSC), has constituted the express recognition of the possibility of carrying out meetings via electronic means, provided that this is regulated in the company bylaws. This measure has a precedent (albeit limited to attendance) in article 182 of the LSC and more recently in Royal Decree Law 8/2020 (and the successive modifications thereof), even if in the latter case it is exceptional and transitory up until December 2021, due to the Covid-19 crisis.
This largely resolves the problem of the personal attendance of partners and directors at shareholders meetings and board of directors meetings, but it raises the question of the signature of minutes and certificates of the minutes of meetings, especially when the person certifying or the supervisors reside abroad or in different geographical locations either full time or part time. Companies are calling for a system which avoids circulating original minutes or certificates in paper format by ordinary post or courier in order to sign them with their handwritten signature, and with that the implied risk of losing the documents, as well as the related costs in terms of time and money.
With regard to minutes the DGRN (Dirección General de Registros y Notariado – General Directorate of Registries and Notaries) has already stated in a resolution dated 25th April 2017 that if it is so established in the company bylaws, the minutes may be signed by electronic signature. And in this case, the provision of the bylaws may determine that an advanced electronic signature is not necessary, and instead a simple one based upon a private access associated to a secret PIN number and the name of the user may suffice. Likewise the handwritten signature stamped on the document via a device and software allowing it may also be sufficient.
With regard to certifications of minutes, and from solely a technical point of view, the signature via an electronic certificate does not offer anything different with regard to what has been said about the minutes. However, a great reticence exists among notary publics to execute in a public deed certificates which have been digitally signed, although there is no unanimity of criteria. Let us see where the focus of resistance to this practice lies and why we believe that the bringing into a public deed of certificates signed with certain certificates is appropriate.
- Article 202 of LSC requires that all corporate resolutions must be recorded in the minutes and that the minutes must be issued and signed by the chairman of the meeting and two supervising partners within the term of 15 days from passing the resolution. It is clear that this article does not distinguish between handwritten and electronic signatures, therefore, a priori, either of the two options may be regarded as valid.
- In spite of this, the notary public must be sure of the veracity of the signature which is recorded in the certificate as well as the identity of the certifying person. In this sense, article 261 of the Notary Regulation, tells us that “the notary may certify the recognised electronic signatures placed in electronic format in the documents included in the terms of article 258”, which is subject to the fulfilment of certain requisites:
- The notary must identify the signatory and verify the validity of the certificate upon which the electronic signature is based. (This second requirement is relatively simple given that software applications exist which allow the notary to carry out this procedure rapidly).
- The notary shall witness the signature by the signatory from the computer file.
It seems that the problematic question lies in the “judgment on belonging” which the notary must make in relation to the electronic signature and the certifying person. With a handwritten signature, the notary would contrast the signature in the certificate with that of the original identification document of the signatory in which their signature figures. Merely providing the notary with the certificate of the minutes electronically signed by the person empowered to bring it into a public deed would be met with the inconvenience that this does not meet the requirement of the identification of the signatory with the electronic signature, given that this person is not found to be in the presence of the notary public in order to carry out the signature.
¿How to overcome the obstacle of “judgment on belonging” which must be carried out by the notary before bringing into a public deed the digitally signed certificate? The need to establish a direct link between the electronic signature and the identity of the person who is on record as the certifying person responds to the principle of legal security. If this premise is true, in the event of being able to establish a form of reasonably verifying that the electronic signature belongs to the person who is acting in the capacity of the certifying person, which sufficiently satisfies the notary public, the obstacle shall be deemed to have been overcome. Accordingly, we refer to the possibility that the notary establishes a video communication with the certifying person in which the latter affirms the ownership of the electronic signature which is recorded in the certificate and / or the notary public asks the questions they deem appropriate in order to reasonably ensure the identity of the signatory and that the electronic signature before them “belongs” to the signatory. In this way, this electronic signature would come to be known and recognised by the notary public, and no ulterior verification would be needed in successive notarial procedures.
And even without the need to resort to the aforementioned means of identification, digitally signed certificates of meetings should be deemed valid when the signature consists of a qualified certificate issued by a qualified trusted service provider, as defined in Law 6/2020 of 11th November. You could say that this type of electronic signature offer a degree of veracity or trust equivalent to a conventional handwritten signature, and precisely for this reason, we may understand that the notary may require that the electronic signature of the certification of the meeting corresponds to a qualified certificate (ruling out non-qualified signatures), in as much as the issuer of qualified signature certificates is subject to prior authorisation, control and supervision from the Administration via the Ministry for Economic Affairs and Digital Transformation.
And in addition to the previous argument, article 6 of Law 6/2020 of 11th November, which regulates determined aspects of electronic trust services, must be considered, as it establishes criterion for the identification of the holder of qualified certificates. Said Law indicates that the holder, where natural persons are concerned, shall be consigned through their name, surname and National Identification Document number (DNI) or Foreigner Identification Number (NIE), and even via a pseudonym. Likewise, it is also important to remember that obtaining a qualified certificate means appearing in person so that the applicant may identify themselves before the officers of the certifying entity, which constitutes a solid guarantee insofar as the identity between the electronic signature which figures in the qualified signature certificate and the person claiming to be the holder of said certificate.
These arguments seem sufficient enough to us in order to overcome the judgment of “belonging” in the case of qualified electronic signatures, however, we shall add another argument: the new section 4 of article 326 of the Law on Civil Procedure establishes a presumption of validity of the electronic signature which has been recorded in a document, provided that at the time the document is stamped, the signature is included on the trusted list of the qualified service provider in question. Furthermore, it establishes that the burden of proof of its verification falls on whoever challenges it. We understand that this presumption is transferable to the issue we are analysing, since the security and identification measures provided for by law for the qualified electronic signature produce a presumption of veracity and validity sufficient for the notary to accept the electronic signature recorded in the certificate of the meeting, without prejudice to the liability acquired by the certifying person with regard to a possible act of forgery, impersonation or other act contrary to law, in the same way as with the handwritten signature.
Eduardo Vilá
Vilá Abogados
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6th August 2021
