Following on from our previous article RESIGNATION LETTER – FORM OF DELIVERY, we analyse the notification formalities with regard to the resignation of a company director.
Article 147 of the Commercial Registry Regulations establishes that the notification to the company of the resignation of a director from their post must be carried out in writing by irrefutable means.
¿Can the notification of resignation via “burofax” (certified fax) be construed as an irrefutable means?
A priori, the reply should be affirmative, but a resolution of the Directorate General of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP) of 13th October 2022 arrives at the opposite conclusión.
The facts were as follows: a letter of resignation from the post by the resigning director bearing a signature which had been certified before a notary public was filed at the Commercial Registry. The irrefutable means of notification to the company was justified by burofax with certification of contents, and signed electronically by the outgoing director, with identical contents as contained in the letter signed by hand and which had been certified before a notary public. The burofax had been effectively received at the registered address of the company, and the irrefutable form of the reception was recorded therein.
The Registrar refused registration on the understanding that article 147 of the Commercial Registry Regulations refers to article 202 of the Notary Regulations, to the effect that the notification to the company must be carried out by notarial deed sent by registered post with acknowledgement of receipt or be personally delivered by the notary public at the registered address of the company.
The Directorate General supports the refusal by the Registrar. Firstly, it considers that the registry recognition of the resignation is conditioned to the notification by irrefutable means thereof to the company. Next, and as the only statement, it recognises the communication by notarial means as being sufficient. However, it does not go into expressly assessing whether the communication by burofax complies with the requirement of irrefutability provided for in article 147 of the Commercial Registry Regulation, which is surprising and does not dispel the doubt which has arisen.
In any case, the resolution seems questionable. Note that said article 147 only requires that the notification be “irrefutable”, not that it must necessarily be made through a notary; furthermore, it does not refer this matter to article 202 of the Notary Regulations, which regulates the acts of notification. Thirdly, it ignores the fact that what is essential is that the company has exact knowledge of the resignation and the terms thereof, so that if there is irrefutable confirmation of receipt of the notification at the registered office of the company by a means other than the notarial deed, the objective should be understood to have been fulfilled and the notification correctly carried out.
In support of the above, it is necessary to take into account the nature of the notifications made by burofax, which is a certifiable reliable communication service, as provided for in art. 22 of Law 43/2010 of the Universal Postal Service, which states in its fourth paragraph that […] the actions of the designated operator (in this case, the Post Office) shall benefit the presumption of veracity and irrefutability in the distribution, delivery and receipt or refusal or impossibility of delivery of notifications from administrative and judicial bodies […]. This affirmation must be projected not only on an administrative level but also on a private level, so that the sending and delivery of communications by means of burofax from the Post Office must be understood to be irrefutable. There is no logical reason to deprive notifications sent by burofax by private entities or persons of their irrefutable nature, simply because the law only expressly mentions administrative and judicial bodies. In view of this, if it seems clear that notification by burofax is irrefutable, it is not possible to see either the grounds or the need for the notification to have to be necessarily carried out by notarial means.
Regardless of our opinion, and taking into account the current position of the Directorate General (in our opinion incorrect) and as long as this persists, it is important that notifications of resignation from the position of director of the company are sent through a notary public to the registered address of the company, and the letter of resignation must include the signature of the interested party certified before a notary public.
Eduardo Vilá
Vilá Abogados
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23rd December 2022
