{"id":14454,"date":"2025-07-18T14:07:50","date_gmt":"2025-07-18T14:07:50","guid":{"rendered":"https:\/\/vila.es\/?p=14454"},"modified":"2025-07-25T14:25:04","modified_gmt":"2025-07-25T14:25:04","slug":"the-calling-of-general-meetings-form-and-substance","status":"publish","type":"post","link":"https:\/\/vila.es\/en\/corporate\/the-calling-of-general-meetings-form-and-substance\/","title":{"rendered":"THE CALLING OF GENERAL MEETINGS. FORM AND SUBSTANCE"},"content":{"rendered":"

ES<\/a><\/span>|EN|\u65e5\u672c\u8a9e<\/a><\/span><\/strong><\/p>\n

Article 173 of the Spanish Companies\u2019 Act establishes the requirements for the valid calling of a general meeting of partners or shareholders, and as an alternative to the general rule, that is publication on the company\u2019s website, the second paragraph sets forth that the company\u2019s by-laws may establish a system of individual and written call that assures the announcement is received by all partners. <\/u><\/p>\n

It goes without saying that the notification aims to inform all partners or shareholders of the next General Meeting, to make them aware of it and that way can freely decide whether to participate, in person or through a representative, or even to not attend.<\/p>\n

The Directorate-General for Legal Security and Certification (DGLSC), has on numerous occasions ruled that where there is a statutory provision on the manner of calling a meeting, the form set out in the by-laws must be \u2018strictly observed\u2019 without it being possible to use any other type of system, regardless of whether it has less or more publicity (among others see rulings from 15th<\/sup> June 2015, 25th<\/sup> April 2016, 25th<\/sup> October 2018, 4th<\/sup> October 2019 and 7th<\/sup> March 2022). This way, when the notification is carried out through means not set out in the by-laws, the call is considered flawed, and the agreements reached in the meeting (if it is held) will not be able to be accepted for registration at the Commercial Registry.<\/p>\n

Such a resounding affirmation and consequences are supported by the fact that the by-laws are the fundamental regulations of a company whose aim is to establish the rules of operation of it and to which company life is subject. This is a view that similarly finds itself supported in Case Law, as can be seen in the Supreme Court\u2019s judgement on 30th<\/sup> January 2001 (which further cites previous judgements).<\/p>\n

Although the obligation to respect the by-laws is clear, a judgement from 24th<\/sup> November 1999, confirmed by others from 29th<\/sup> April 2006 and 28th<\/sup> February 2014, established the possibility for the validity of other communication methods in certain circumstances; specifically, the notification of the calling of a general meeting carried out by a Court, which was given the same validity as if it had been carried out in conformity with that established in the company\u2019s by-laws. A recent judgement by the DGLSC on 7th<\/sup> June 2025 recalled that the management body that calls the general meeting does not hold the necessary power to modify the system of notifying the partners and shareholders (Ruling of 21st<\/sup> October 2015). The conflict resolution body justifies it in the following way:<\/p>\n

\u201c(\u2026) partners have the right to know how they are specifically going to be called, thus that is the only way in which they shall expect it and to which they need to pay attention\u201d<\/p>\n

It also underlines, however, that the system can be modified by the partners by means of the corresponding by-law modification and with its foundation in the principle of the autonomy provided for in article 28 of the Spanish Company\u2019s Act.<\/p>\n

In our opinion, keeping in mind the exceptions to the mandatory by-laws regulation, the extraordinary change in the people\u2019s way of life and the vast array of cases that we cannot ignore, we support adopting a more flexible criteria that offers the managing body more options to effectively achieve the desired result, keeping in mind the facts of each case; this would involve deeming valid the calling of the General meeting carried out via alternative means to those set out in the by-laws in extraordinary situations:<\/p>\n