The Resolution of the Directorate General for Legal Certainty and Public Faith (the Spanish authority on Registries and Notary publics) of 23 May 2022 (published on the Official Gazette of 14 June 2022) rules on the powers of the Notary Public who draws up the notarial minutes of the general meeting of shareholders of a company (articles 203 of the Spanish Capital Companies Law (“SCCL”) and 101-103 of the Regulation of the Commercial Registry).
In the case analysed by the Directorate, a Notary had drafted the minutes of the general meeting of shareholders of a company. The Chairman of the meeting (outgoing director) had stated in the minutes that 100% of the share capital was present or represented and that the resolutions had been adopted by certain majorities.
Nevertheless, the notary stated in the deed, after examining a deed of acceptance of inheritance, that he considered that 50% of the share capital (which belonged jointly and severally to several siblings) had not validly participated in the general meeting as they had not appointed a common representative (pursuant to article 126 of the SCCL). Consequently, in the Notary’s opinion (i) this 50% of the share capital had not validly participated in the general meeting and, therefore (ii) the majorities by which the various resolutions had been adopted had to be modified.
In the words of the Directorate, “the notary, in the minutes of a meeting, must limit himself to attesting to the declarations that the chairman makes about the attendees and their share in the capital, and therefore lacks the power to include in the deed, on his own initiative, a diligence that alters the content of these declarations, and even less so to assess the consequences of this change, attributing specific legal effects to it.”
