The resolution of the Directorate General of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP) of 13th December 2021 regarding the refusal of the Registrar of the Commercial Registry of Madrid to register a public deed in relation to termination of a director, change in the structure of the management organ and appointment of a sole director was published in the Official Gazette on 29th December 2021.
After filing the public deed, the registrar suspended the registration for the following two reasons:
1) The majorities with which the resolutions have been passed must be indicated.
2) It must be accredited that the entire text of the call of the meeting was sent to all of the partners, in accordance with the procedure set forth in the company bylaws and that attention was paid to said call (articles 97 and 112 of the Commercial Registry Regulation).
An appeal was filed against this decision.
With regard to the first defect, the Directorate General dismisses the appeal and confirms the registrar’s decision for the following reason:
In accordance with the Resolution of 13th October 2015 it is not necessary that the majorities with which the corresponding resolutions have been passed are directly and explicitly recorded, it being sufficient for this information to be clearly stated therein. However, in this case, the required point is not clearly reflected in the text, which states only that two partners attended, holding 80% of the voting rights, and that the decisions were taken “without any opposition”, an assumption whereby it is possible that both partners voted in favour or that one of them cast a blank vote or abstained.
As for the second defect, the Directorate General upholds the registrar’s decision for the following reason: as stated in the certificate, the company only has 3 partners; one of them, who did not attend the meeting, was notified of the meeting by registered fax (burofax), the proof of which was incorporated into the public deed; and the other two, who attend the meeting, are notified of the calling thereof in advance and in person, and they agreed to attend the meeting in accordance with the call, therefore, no written notification was necessary. “As outlined in the Resolution of 25th January 2019, the consideration that the absence or lack of any of the requirements for the call of the meeting may trigger the nullity, precisely due to the devastating effects of this penalty, should be mitigated, so that merely formal defects can be put to one side provided that, due to their limited relevance, they do not compromise the individual rights of the shareholder or partner.” And in this particular case, it is recorded both in the certificate and in the public deed that both attendee partners were summoned to the meeting personally, that they attended the meeting and that they took part in the decisions “without any opposition”, that is to say, without having reported any defect in the call of the meeting. As a consequence, the second defect as per the registrar’s decision should be revoked.
Vilá Abogados
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28th January 2022
