An issue to keep in mind, which is often unknown, is the right of the shareholders to request the presence at the general shareholders' meeting of a Notary Public to draw up the notarial minutes of the meeting.
The administrator of a company may request a notary to take the minutes of a shareholders’ meeting. And he will be obliged to do so if, five days prior to the date on which the meeting is scheduled to be held, shareholders representing at least 5% of the capital of the Limited Company (1% in the case of a Public Limited Company) request it.
An issue to keep in mind and that in many occasions is unknown, is the right that corresponds to the partners to request the presence in the general meeting of partners, of a Notary Public to draw up notarial minutes of the meeting.
Usually, when a notary is required to take the minutes of the meeting it is because there are discrepancies between the partners, and what is intended with the presence of the notary is that he, under the protection of his public faith, accurately relates the facts and gives authenticity and probative force to the declarations of will of the parties.
Pursuant to Article 203 of the Spanish Corporations Law, the directors may request the presence of a notary public to prepare the minutes of the general meeting and are obliged to do so whenever, at least five days prior to the date scheduled for the meeting, shareholders representing at least 1% of the capital stock of a corporation or 5% of the capital stock of a limited liability company so request. In this case, the resolutions will only be effective if they are recorded in notarial minutes.
The notarized minutes will not be subject to approval, will be considered as minutes of the meeting and the resolutions contained therein may be executed as from the date of its closing.
Notary fees will be paid by the partnership.
The shareholder who has requested the presence of a notary (if he has done so by notarial request) may request the Commercial Registry to record such request. Thus, the resolutions adopted at the meeting that are not recorded in the notarial minutes cannot be recorded in the Register.
A recent decision of October 11, 2023 of the General Directorate of Legal Security and Public Faith (DGSJFP) has confirmed the refusal of a registrar to register the resolutions of a meeting (a shareholder requested notarized minutes, they were recorded in the Register and the notary only made an act of presence to record certain facts that occurred at the meeting).
Attention. When requesting notarial minutes and registering the request, the agreements that do not appear in the minutes are not registered.
Notarial Minutes of the Meeting
The Notary who has been requested by the administrators to attend the celebration of the Meeting and to take the minutes of the meeting, shall judge the capacity of the requesting party and, unless it is a Universal Meeting or Assembly, shall verify whether the meeting has been called with the legal and statutory requirements, otherwise denying the request.
Once the request has been accepted, the Notary shall appear at the place, date and time indicated in the announcement, and shall proceed to ascertain the identity and positions of the Chairman and Secretary of the meeting.
Once the Meeting has been constituted, he will ask the assembly if there are any reservations or protests regarding the Chairman’s statements on the number of members attending and the capital present.
In addition to the general circumstances derived from the notarial and registry legislation, the Notary will attest to the following facts or circumstances:
- ª The identity of the Chairman and Secretary, stating their positions.
- ª The Chairman’s declaration that the Meeting is validly constituted and the number of members with voting rights attending in person or by proxy and their participation in the share capital.
- ª That no reservations or protests have been made by the members regarding the foregoing statements of the Chairman and, if not, of the content of those made, indicating the author thereof.
- ª Of the proposals submitted to vote and the resolutions adopted, with a literal transcription of both, as well as the statement of the Chairman of the Meeting on the results of the votes, indicating the statements relating thereto whose recording in the minutes has been requested.
- ª Of the manifestations of opposition to the resolutions and other interventions when so requested, stating the fact of the manifestation, the identification of the author and the general sense of the same or its literal tenor if the Notary is provided with a written text, which shall be attached to the matrix.
The Notary Public may excuse the summary of the interventions which, in his opinion, are not pertinent because they are not related to the matters debated or to the points of the agenda. When he/she appreciates the concurrence of circumstances or facts that could constitute a crime, he/she may interrupt the proceedings and record it in the minutes.
If the sessions last for two or more consecutive days, the meeting of each day shall be recorded as a separate proceeding in the same instrument and in chronological order.
In no case shall the Notary Public qualify the legality of the facts recorded in the instrument.
The minutes of the meeting, drawn up by the Notary in the act itself or, subsequently, in his study with reference to the notes taken on the place, will not need approval, nor will it be necessary to be signed by the Chairman and the Secretary of the Meeting.
The notarial minutes shall be considered as minutes of the Meeting and, as such, shall be transcribed in the Minutes Book of the Company.
In practice, the notarial public faith is useful in order to leave a reliable record of what has actually taken place at the general meeting. Thus, for example, it can be duly accredited by the notary that the administrators have clarified to the shareholders all the questions raised by them or, on the contrary, the minority shareholders can be sure that the contrary will be recorded, in the cases in which this has happened.
In short, the notarial act is a very useful resource that should be used in all those cases in which there is a conflict between the partners of a commercial company.
For further information, please consult with Legal advice
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