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The Resolution of the Directorate General of Legal Security and Public Faith (‘DGSJFP’) of 19.03.24 studied this issue, analysed the background, made the reasoning and reached the conclusion that we will now explain.

I.-Background

  • The deed of 19.09.23. contained the decision of the sole partner (shareholder) of a limited company to remove the sole director and appoint a new director. The grantor requested the notary to notify the dismissed director at his domicile in France, in accordance with article 111 of the Commercial Register Regulations (‘RRM’).
  • On 26.09.23 the notary sent a letter with a verbatim transcription of the deed to the dismissed director by registered letter with acknowledgement of receipt to the said address.
  • On 6.11.23 the notary was provided with proof of delivery of the undelivered letter ‘due to an unknown address’, according to the French post office’s statement.
  • On 15.11.23 an authorised copy of the deed was filed with the commercial register.
  • The registrar decided not to carry out the registration on the grounds that the sending of the reliable notification did not comply with the requirements set out in article 202 of the Notarial Regulations (‘RN’) since, due to the negative result, it should have been attempted again by means of the channel provided for in European Regulation 2020/1789, on the service of judicial and extra-judicial documents in civil and commercial matters and/or in the 1965 Hague Convention, without prejudice to the possibility of resorting to other international instruments.
  • On 27.12.23. the notary lodged an appeal against the registrar’s refusal to carry out registration, arguing:
  • Service had been attempted at the address entered in the commercial register in accordance with article 111 of the Commercial Register Regulations.
  • The doctrine of “double attempts at notification, one in person by notary and one by registered post” does not apply to a notification abroad because:
  • The Spanish notary is not competent to act in French territory;
  • The French notary cannot be requested to carry out the notification because he cannot do so by means of the procedure of article 202 of the RN, but must do so in accordance with the provisions of French law.
  • It is illogical that the double attempt must be of the same nature (personal or postal). Although, according to the doctrine, if a face-to-face attempt has failed, another attempt must be made by registered letter with acknowledgement of receipt, at the same address, however, if the postal attempt has already failed, the same result will be obtained if a second attempt is made.
  • The European Regulation does not make its application to extrajudicial documents mandatory.
  • The procedure laid down in that Regulation is different from the procedure laid down in article 202 of the RN and the decision is therefore in breach of article 111 of the RRM.

II.-Reasoning

  • Article 111 of the RRM imposes the requirement of a reliable notification at the address indicated in the Register. Service must be effected in accordance with article 202 of the RN, which allows two methods with equal effect (notarial personal appearance and registered letter with acknowledgement of receipt).
  • If the addressee refuses to receive the writ of notification, this shall be recorded and the notification shall be deemed to have been made, in accordance with article 203 of the RN. Any circumstance that makes it impossible to deliver the writ of notification shall also be recorded, in which case it must be sent by registered letter with acknowledgement of receipt, or by any other procedure that allows a reliable record of delivery to be made.
  • In this case, following the doctrine of the DGSJFP, a double notarial action is necessary, consisting of two attempts at delivery, one in person and the other by registered post with acknowledgement of receipt, or by any other procedure that allows a reliable record of delivery to be made. It is sufficient to ensure that it is reasonably possible for the addressee to be informed and to know the contents, without the requirement of ‘actual knowledge’. If only one attempt at service (in person or by registered letter with acknowledgement of receipt) has been made, there is an obstacle to registration.
  • The rules set out in the first two paragraphs refer to internal notifications. For the external ones, the following apply: EU Regulation 2020/1784 of 25 November 2020, the Hague Convention of 15 November 1965, Law 29/2015 of 30 July 2015 on international legal cooperation, without prejudice to other bilateral or multilateral instruments.
  • In the present case, EU Regulation 2020/1784 is applicable, one of the characteristics of which is the communication of service of documents through transmitting agencies and their reception by the recipients, who are the only authorised parties. In Spain, only the clerks of each court (Letrados de la Administración de Justicia) will be able to serve extrajudicial documents, even without litigation and through judicial channels, as indicated in the Judgment of the Court of Justice of the European Union of 25 June 2009, Case C/14-18.

III.-Conclusion

The DGSJFP took the view that a second notarial notification should have been attempted through the clerk (Letrado de la Administración de Justicia) of the court of the notary’s domicile, rejected the appeal and upheld the  registrar’s refusal to register the public deed.

 

 

Mireia Bosch

Vilá Abogados

 

For more information, please contact:

va@vila.es

 

27th of September 2024