The Resolution issued on July 19 by the Directorate General of Registries and Notaries (DGRN) addresses an aspect of undoubted interest, namely the possibility that the articles of association of a capital company may establish that the convening of a General Meeting may be carried out by sending an email.
The hypothetical scenario stems from the case of a limited company that amended its Statutes, incorporating into the article regulating the convening of the General Meeting a provision that established that the partners could be convened by sending an email, subjecting such procedure to the following conditions:
- That the email address was the one provided by the partners and that it had been incorporated into the Register of Partners Book.
- That the email included a read receipt request.
- Refusal to confirm reading will be considered confirmation, unless the email sent was returned by the system.
In short, the procedure described allowed the sender to confirm receipt of the notification, but also equated the lack of confirmation with receipt. Requiring the recipient to confirm receipt in all cases would encourage obstruction, as it would leave it to their discretion whether or not they had been notified. Furthermore, to protect the recipient, it was established that if the email was returned by the system, the notification would be considered not to have been delivered.
The Commercial Registrar who reviewed the deed opposed its registration, considering that the established procedure was not valid, since it did not require, in order for the communication to be considered complete, that there be confirmation of reading by the recipient.
In the aforementioned Resolution, the DGRN resolves the matter by upholding the appeal and considering the statutory modification proposed by the limited company to be registrable.
And the main reasoning on which he bases his decision is as follows:
“(...) From the teleological and systematic interpretation of Article 173 of the Capital Companies Law (see Article 11 quater of the same law), also taking into account the social reality regarding the use of electronic communications (Articles 3.1 of the Civil Code and 231-59 of the Draft Commercial Code, the subject of a report to the Council of Ministers on May 30, 2014) and the principle of freedom of contract recognized by law in this respect (see Article 28), the admissibility of the disputed bylaw clause follows. Undoubtedly, the system provided for reasonably ensures the shareholder's receipt of the announcement. Regarding proof of receipt, which in the current state of electronic transmissions can be easily obtained (for example, through systems such as "delivery confirmation," etc.), the specific bylaw provision subject to the challenged ruling includes read receipts. And This conclusion cannot be undermined by the fact that it is additionally stipulated "that the refusal to confirm the request to read the email summons will have the same effect provided it has not been returned by the system," since, interpreted in the most appropriate way for this provision to be effective (Article 1284 of the Civil Code), it can only be understood as a means for the sending and receipt of the electronic communication to prevail over the obstructive attitude of the partner who refuses to confirm reading, once the agreed-upon sending and receipt have been proven, so that in such a case the burden of proof of the possible lack of summons will fall on said partner.
Thus, the DGRN (Directorate General of Registries and Notaries) understands that including a read receipt in the email ensures receipt of the meeting notice, which is the ultimate goal the legislator intends to achieve through the provisions of Article 173 of the Capital Companies Law. Equally important, it considers the mechanism established in the bylaws—which treats the lack of confirmation of receipt by the recipient as proof of delivery, provided the system has not returned the email due to undeliverable—to be a reasonable and appropriate mechanism to prevent the recipient from adopting an obstructive attitude by refusing to confirm receipt of the email.
We understand that the Resolution issued constitutes a positive element to promote the simplification of corporate communications, adapting them to the means of communication currently in use, making it possible to abandon extremely formalistic and inefficient forms of communication.
If you require our assistance to obtain further information or have any questions, please contact us via our legal email address, ambit@ambitassessor.com, or at our offices.
Do you have any questions about this topic?
Our team of expert advisors will help you resolve any issues related to our services.
Contact us now
A graduate in Law from the University of Barcelona and with a Master's degree in Business Law from the same university, he worked at the law firm Alonso-Cuevillas Advocats and later joined the Civil and Commercial Litigation department of the law firm Bufete Bueno Bartrina. He then joined the team at the firm Casamitjana-Cuyas-Morales, and subsequently continued his career at Bufete Herrera Advocats, in the Commercial and Litigation department. In November 2015, he joined aÀmbitJurídic i Econòmic, SLP, as a professional partner, to head the Commercial and Insolvency practice.
Latest posts by Andreu Pujol i Camps
(see all)
Related
