Notarized Minutes of the Meeting

In this regard, and based on the principle of freedom of choice of Notary Public that any client has, it is necessary to indicate that the Notary Public chosen must have territorial jurisdiction in the place where the Meeting is to be held, so that not just any Notary Public in the national territory may be chosen, but only one whose notarial office is located in the place where the General Meeting in question is to be held.

It is possible that the interested parties may have doubts as to whether, in addition to the functions performed by the Notary Public described above, the presence of the Notary Public at the general meeting may have other effects, such as validating the representation by virtue of which certain persons act or determining the legality of the resolutions adopted within the corporate body.

In this regard, it is undoubtedly necessary to bring up the provisions of Article 102.3 of the Mercantile Registry Regulations, by virtue of which in no case shall the Notary Public qualify the legality of the facts recorded in the instrument, so that it is not up to him to assess the legality of the facts and resolutions adopted at the general meeting, much less to validate their legality.

Likewise, it is necessary to refer, among others, to the judgment of the Supreme Court of February 12, 2014, which flatly rules out the possibility that the presence of a notary public at the general meeting validates the validity of the representation of shareholders who attend the meeting represented by third parties. Thus, if any of the shareholders attend the meeting represented by another person by virtue of a power of attorney, it will not be within the competence of the Notary Public required to judge the validity and sufficiency of the same, since this is not among the functions legally entrusted to him for this act.

The content of the notarial minutes of the meeting is determined by Articles 102 and 103 of the Mercantile Registry Regulations, which establish that in addition to the general circumstances derived from the notarial legislation, the Notary shall express the following circumstances:

1. Date and place in the national territory or abroad where the meeting was held.
2. Date and manner in which the call was made, except in the case of a Meeting or Universal Assembly.
3. The indication of the result of the voting, expressing the majorities by which each resolution was adopted.

In particular, it shall attest to the following facts:

1. The identity of the Chairman and Secretary, stating their positions.
2. 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 capital stock.
3. That no reservations or protests have been formulated by the members regarding the foregoing statements of the Chairman and, if not, of the content of such reservations or protests, indicating their author.
4. 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 voting, indicating the statements relating thereto whose recording in the minutes has been requested.
5. Of the manifestations of opposition to the agreements and other interventions when so requested, stating the fact of the manifestation, the identification of the author and the general sense of the same and its literal tenor if the written text is delivered to the Notary, which shall be attached to the matrix.

In any case, the Notary Public may excuse the summary of the interventions that, in his opinion, are not pertinent because they are not related to the matters debated or to the points of the agenda, and, likewise, if he appreciates the concurrence of circumstances or facts that could constitute crimes, he may interrupt his performance, recording this in the minutes.

Likewise, the doctrine of the General Directorate of Legal Security and Public Faith (see resolution dated April 6, 2011) has established that it will also be necessary to include in the notarial minutes of the meeting an indication of the date and form of the notice of the meeting, since both questions are "essential elements for the Registrar to be able to qualify the regularity of the notice of the meeting and, therefore, of the resolutions adopted at the meeting", thus safeguarding the right of the non-attending shareholders to know the notice of the meeting in a reliable manner in order to, if necessary, resort to the means of challenge that may be applicable at law against the same. 

As a formal precision, it is necessary to indicate that if the sessions extend over 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.

Finally, once the general meeting has concluded, the Notary Public shall proceed to close the notarial minutes, for which purpose he shall draw up the minutes of the meeting, either at the meeting itself or later in his study with reference to the notes taken on the place. In any case, the same will not need to be approved or signed by the Chairman and the Secretary of the meeting.

Once closed, these notarial minutes shall be considered the minutes of the Meeting and, as such, shall be transcribed in the Company's Minutes Book.

In any case, the content of the minutes must be written in a scrupulous and impeccable manner, without any mistake being made, otherwise, if subsequently in the deeds that are granted as a consequence of the agreements reached in the general meeting, If, on the other hand, a comparison of the two documents reveals contradictory data (such as, for example, the date of the meeting or the matters agreed upon), it will be up to the courts of justice to resolve this controversy (see in this respect the resolution of the Directorate General of Legal Security and Public Faith of July 25, 1998).

It is possible that those interested in resorting to this instrument may consider the possibility of recording in the registry the request made to the administrators to require a Notary Public to authorize the notarized minutes of a meeting. This possibility undoubtedly seems very interesting in those situations of corporate conflict of minority shareholders in relation to the majority of the company's shareholding, since this will have the consequences that will be explained below.

This possibility is dealt with in Article 104 of the Mercantile Registry Regulations, which establishes that, at the request of any interested party, the request for notarization of the minutes of the Meeting provided for by the Law, as well as the publication of a supplement to the notice of the meeting, including one or more items on the agenda, must be recorded in a preventive manner.

This annotation will be made by virtue of the notarial request addressed to the administrators and made within the legally established term for such request (remember the minimum notice period of 5 days already indicated above).

As the most relevant issue in this respect, the aforementioned regulation establishes that in these cases, once the preventive annotation has been made, the resolutions adopted by the Meeting to which the entry refers may not be recorded in the Mercantile Register unless they are recorded in the notarial minutes, This provision therefore offers additional protection to minority shareholders, since in the event that they request the intervention of the Notary Public, they will be able to record this and ensure that the presence of the Notary Public at the meeting is complied with, since otherwise the resolutions adopted at the meeting cannot be duly recorded in the Mercantile Register.

In the same terms, the General Directorate of Legal Security and Public Faith, among others, has made a peaceful pronouncement in its resolution dated November 13, 1999, which confirms the obviousness of the fact that, once the notarial minutes of the meeting have been preventively recorded, the resolutions adopted in a meeting held in a different manner cannot be registered.

Finally, the preventive annotation of the request for the notarial act will be cancelled by marginal note when the intervention of the Notary in the Meeting is duly accredited, or when three months have elapsed since the date of the annotation.

As it has already been indicated in the first question of this entry, beyond the notarial minutes of meeting, specific modality whose characteristics and regulation have been conveniently described in these lines, our legislation includes the existence of other modalities of notarial minutes, such as those of presence, in which the Notary will record facts and circumstances that he witnesses or that are known to him, and that by their nature are not subject of contract, accrediting the reality or truth of the fact that motivates his authorization.

This generic type of minutes may also be authorized in the context of a general meeting of a commercial company, as provided for in Article 105 of the Commercial Registry Regulations, which establishes that it is perfectly possible for an interested party to request a Notary Public to appear at a general meeting for the purpose of verifying certain facts that occurred during the meeting.

However, as an exception to this authorization, the aforementioned regulatory precept establishes that in the event that a Notary Public has been requested to prepare the minutes of a meeting, no other Notary Public may provide his services to verify the facts of said corporate act.

This precept, in short, reinforces the independence of the notary's actions, so that all citizens should be clear that there are no "party notaries" who are inclined to record in the minutes facts or statements favorable to the party that has requested them, since the notary is a public official and a legal professional, subject only to the rule of law and strict compliance with the law. Thus, it will not be necessary for several notaries to attend the meeting at the request of different parties, since the presence of only one of them will guarantee legal certainty.

In relation to this question, logic would seem to indicate that the fees generated by the Notary Public in the exercise of his office should be paid by the applicant who has made the request, that is to say, by the administrator of the company who has requested it of his own accord or, failing that, by the minority shareholders who have urged the administrator to request the services of the notary public.

However, the legislator has established in Article 203.3 of the Capital Companies Act, as an additional protection mechanism, that the notarial fees in the notarial minutes of the meeting shall be paid by the company, thus mitigating any financial concerns that the administrator or minority shareholders may have when requesting the services of the Notary Public.

This offers an additional guarantee to those interested in having a notary public intervene in the act and offer the preventive legal security that the law and the Regulations of the Commercial Registry specify, without any possible reticence of an economic nature influencing the decision to require it or not. 

Another issue to be raised is the situation that may arise when, once the notary is requested to authorize the notarial minutes of the meeting, this is not done for any reason, for example, when some of the partners materially prevent this intervention from taking place or when the company claims that it lacks the financial means to pay the notary's fees.

In these cases, the legal consequence of the lack of intervention will be the ineffectiveness of the resolutions adopted by the general meeting, as has been reiterated on numerous occasions by the case law that has ruled on the matter (see among others the Judgment of the Provincial Court of Madrid of October 28, 2016), so that such decisions will lack any validity, will not be able to have any effect in the legal reality, much less enjoy, if applicable, access to the registry. 

The disconvocation of a general meeting (including those in which a Notary Public has been required to draw up notarial minutes of the meeting) is a matter not expressly regulated by law, so that we must resort to the interpretation made by the General Directorate of Legal Security and Public Faith.

In these cases therefore (see resolution dated July 28, 2014), the management center has determined that this is perfectly possible, provided that this deconvocation is made by the same body that made the call and through the use of the same means of notification of deconvocation as those that were used in its call. In the event that these formalities are not observed, the request made to the Notary shall be without effect.

In any case, it should be borne in mind that this disconvocation could generate liability in the administrative body if it is not duly justified and, in the event that this general meeting is finally held, the resolutions adopted therein would logically be invalid.

To request these minutes, it is only necessary to contact the notary's office (by calling the telephone number of the notary's office or at the email address mercantil@jesusbenavides.es), prove the necessary condition to be legitimized in such request and indicate the date and place of the meeting.

On the date and time indicated, the Notary Public will appear at the place where the meeting is to be held to comply with all the formalities required by the Capital Companies Act and the Mercantile Registry Regulations, after which he/she will proceed to close the corresponding minutes.

Once the meeting is over, the required Notary will return to his office and, with all the notes he has prepared, will proceed to draw up the minutes of the meeting, after which, after a few days, a certified true copy of the minutes can be delivered to the clients.