In the Official State Gazette of the 25th of March 2022, the Resolution of the Directorate General of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP), of the 7th of March 2022, was published, in relation to the refusal of the registrar of the commercial registry of Madrid to register a public deed containing the company agreements of a limited liability company LLC, for faults in the call of the corresponding general meeting.
In this case, the meeting in question was called in accordance with company bylaws, “by means of individual and written communication sent to each partner” and which was carried out “through certified communication with notice of having received it”. Incorporated in the deed was a document with the following opening: “Certified communication. This is a certificate issued by a Trusted Third Party, article 25, Act 34/2002 on the Information Society and Electronic Commerce Service, of the 11th of July.” On the request of the previously mentioned company, said public deed was also accompanied by a notarial document, in which the authorising public notary attested that he had verified in the indicated computer “server” that the given email had indeed been sent and received.
After filing the deed, the Registrar suspended the registration entry, because, in her view, it was not confirmed that the Meeting had been called by means of email or certified letter with notice of reception sent via the “National Postal Service” (Correos).
An appeal was filed against this decision, alleging that the sending of the meeting call was carried out through email via a trusted third party and not through a certified letter, therefore, not requiring notification of the meeting announcement through “the Post”.
The Directorate General rejected the appeal and confirmed the registrar’s decision for the following reason:
According to the reiterated policy of the GDLSPT, if there exists statutory provision on the manner of calling the general meeting of partners, said manner shall be strictly observed, without there being the possibility of validly and effectively resorting to any other system, so that the form of announcement established by the bylaws must supersede all others and be necessarily applied by the sender. The same applies to a judicial or registry call.
When bylaws specify the manner of call of the general meeting as the sending of a certified letter with notice of having received it, they determine the concrete nature of the communication of the call, without the management body of the company being competent to modify it. The case is such, because partners have the right to know in what specific manner they are to be summoned, and that this is the only way in which they shall expect to be called, and will be required to observe.
“According to article 22.4 of Act 43/2010, of the 30th of December, notifications sent by the provider of the universal postal service (“National Postal Service”), shall be “presumed truthful and authentic in the distribution, entry and receiving, or rejection or impossibility, of handing over of notifications from administrative and judicial bodies…”. The same act, under article 22.4, Paragraph 2, establishes that “the notifications distributed by the remaining postal operators will fall in agreement with the regulations of common law…” In other words, the other operators will be able to distribute administrative notifications, but these will lack the authenticity that the Act grants to Correos.
In the case in question the company expresses in the public deed that the general meeting was called in agreement with company bylaws, “by means of individual and written communication sent to each partner” and that it was carried out through certified communication with notice of reception; and the sending of the call by an email with the intervention of a trusted third party meets the statutory requirement according to which general meetings must be called via email or certified letter with notice of reception.
Upon interpretation of this statutory clause, it is unambiguously clear that on establishing that the communication of the call must be carried out “with notification of reception”, this last requirement is being provided for not only for the remittance of the call by certified letter through the post, but also for sending it via email as a means of adhering to what has been established in article 173 of the Spanish Companies Act (Ley de Sociedades de Capital – LSC), with the aim that the calling of the meeting be done through a means that ensures the receiving of the call by all partners. It is worth remembering that the GDLSPT accepts the system of announcement via email if it is done so with a procedure that allows for the notification of having received it – including, for example, the request for confirmation of having read it, or other means that permit the obtaining of proof of remittance and reception of the communication-.
In this specific case, the GDLSPT concluded that the requirements established in the company bylaws were not met, given that the certificate of the trusted third party lacked authenticity in the information contained within it, including information corresponding to the parties that issued and received the email. This information has nothing at all to do with the company whose general meeting is under discussion, since not a single piece of that information coincides with the partners who – as holders of the liquidation quota – appear in the certification of agreements. Furthermore, in the notarial deed, “the fact that the partner, who should have been the addressee of the notification, has become aware of the communication of the call – along with the corresponding identification data – has not been confirmed.
With this Resolution, we are able to understand that when the means of calling the general meeting are established via email, the proof of notice of reception must be specified by the partners so that the management body can state in the minutes of the general meeting that, in accordance with the bylaws, the emails that have been sent have been received correctly by the partners without any another type of additional document being necessary.
Vilá Abogados
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8th April 2022
