The reiterated doctrine of the General Directorate of Notaries and Registries (the GDNR) states that when a statutory provision exists regarding the form of carrying out the call of the general shareholders’ meeting, said form must be strictly observed in order to protect the rights of the shareholders to attend the general meeting.
In the resolution dated 2nd January 2019 by the General Directorate of Notaries and Registries, published in the Official State Gazette on 5th February 2019, the validity of a meeting call made via a postal service with acknowledgment of receipt operated by a private company was analysed, in cases where the company’s bylaws establish “registered mail with acknowledgement of receipt” as a means of call of the meeting.
The General Directorate of Notaries and Registries rejected the validity of said call, with the mention of the following points.
Following the deregulation of the postal service sector, the national Postal Company (Sociedad Estatal Correos y Telégrafos, S.A. – “Correos”) is the only entity in a position to provide a universal postal service with the required quality and reach, and which is party to a contract regulating the provision of this service with the Ministries of Economy and Finance and Development. And in Law, only those notifications carried out by “Correos” enjoy the “presumption of veracity and reliability in the distribution, delivery and reception or refusal or impossibility of delivery, both by physical and telematic means”.
In this case, the bylaws of the company establish “registered post with acknowledgment of receipt” as the mode of calling the meeting, and when a statutory provision regarding the mode of carrying out the call of the general shareholders’ meeting exists, said form must be strictly observed in order to protect the rights of the shareholders to attend the meeting.
As mentioned in the foregoing, only notifications carried out by “Correos” enjoy the presumption of veracity and reliability in the distribution, delivery and reception or refusal or impossibility of delivery, and such reliability may be admitted and assessed in the course of legal proceedings. On the other hand, when notifications carried out by other handlers differing from the universal postal carriers, the effects thereof shall be governed by the rules of private law as regards their evidentiary value.
Taking into account this difference, the expression “registered post with acknowledgment of receipt” used in the statutory provision cannot be understood in any other way than as it was understood in the decision under appeal.
Mika Tsuyuki
Vilá Abogados
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22nd February 2019
