The right of partners (shareholders) to request the drawing up of notarial minutes of the general meeting (as in Article 203 of the Spanish Companies Act – Ley de Sociedades de Capital, hereby referred to as LSC) is an effective mechanism for protecting their rights, especially when they are in the minority or are involved in conflictive meetings. The exercise of this prerogative requires that the partner (shareholder) informs the management body of his wish to have the minutes of the meeting drawn up by a notary, and that the management body then requests the notary to do so. The communication made by the partner (shareholder) is not subject to any formal requirement, and can be sent by email or other means (without prejudice to the advisability of opting for means that enable the communication to be reliably accredited, such as a certified fax letter – burofax).
In addition to the aforementioned, the partner (shareholder) also has the possibility of applying through the Commercial Registry for the registration of a precautionary entry of the request for the notarial minutes of the general meeting (ex article 104 of the Commercial Registry Regulation – Reglamento del Registro Mercantil, hereby referred to as RRM). The practice of this precautionary entry means that only those resolutions adopted at the general meeting that are recorded in the notarial minutes are able to be entered at the Registry. The precautionary entry requires that the request to the management body for notarial intervention must necessarily have been made through the notarial channel, and that the directors must have had knowledge of the request.
This last point has been confirmed by the Resolution made on the 17th of October 2024 by the Directorate General for Legal Security and Public Trust, in which it was examined whether it was appropriate to make an entry at the Commercial Registry requested by a minority partner (shareholder), who had called for the presence of a notary to draw up the minutes of the general meeting. The most relevant circumstances of the case are as follows:
- After receiving the announcement calling the meeting, the partner (shareholder) appeared, within the legal deadline (five days before the meeting was due to be held), before a notary in Vigo, where he was domiciled, and executed a deed stating that he held 25% of the share capital (the minimum for requesting the drawing up of the notarial minutes in limited liability companies is 5%, and 1% in joint-stock companies) and requesting the notary’s involvement in the meeting. To this end, the partner (shareholder) asked the notary to send the company, via another notary in O Porriño, where the company had its registered office, the request for notarial minutes.
- The general meeting took place without the presence of the notary.
- The notary in Vigo later confirmed that the request had been made at the notary in O Porriño, but that they had not received any response, and therefore had no record of whether the company had, eventually, been notified or not.
- The partner (shareholder) then requested the registration of the precautionary entry of the request for notarial minutes of the general meeting, but the Commercial Registry rejected said request for the following reason: “There is no record of the notarial request to the company’s directors having been duly completed and carried out within the legally stipulated time limit”.
In light of the aforementioned, the Directorate General resolves that, despite the fact the partner (shareholder) acted correctly and no greater diligence can be required of him, the fact is that the notarial request to the directors, as set out in Articles 104.1 and 194 of the RRM, was not carried out. Therefore, the request for a precautionary entry cannot be made, all of which is without prejudice to the liability that falls upon those who may not have acted diligently.
The Directorate General recalls that the request for a precautionary entry is not an essential instrument for the protection of the partner (shareholder), and even if there is no temporary closure of the Registry as provided for in Article 104.2, the corporate agreements adopted that do not appear in notarised minutes are automatically void.
Joan Lluís Rubio
Vilá Abogados
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7th of February 2025
