This is the notarial document by means of which the decisions of the governing bodies of a company, either its General Shareholders' Meeting or its administrative body, are recorded in a public deed authorized by a Notary Public, for the purpose of attesting to them and, if applicable, allowing their registration in the Commercial Registry when appropriate.
This is a merely informative and non-binding estimate. This estimate is calculated based on two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
As has been explained in the analysis of the other institutions related to corporate law, as is well known, commercial companies are legal instruments that our legal system has designed to promote and facilitate economic and commercial activities that create wealth and employment for the community and society, All this through the execution of a contract by which two or more persons undertake to pool money, goods or industry, with the intention of sharing the profits among themselves, thus creating entities with their own legal personality and with assets separate from those of their partners with which to finance their social activity and with which they can respond to the debts and social liabilities that they may incur.
On this basis, as is logical, capital companies, in the course of their operations in the market, may experience the need to make many modifications to their legal structures or governing bodies in order to adapt them to their changing needs, such as changes of address, name, corporate purpose, termination and appointment of officers, changes in the company's management system, capital increase or reduction, merger, change of the company's management system, etc.
Likewise, on certain occasions, corporations must take decisions relevant to their operations or future strategy, such as agreeing to purchase a competitor company, opting to issue debt instruments, such as debentures, in order to obtain financing to undertake investment projects, etc., for which it is also necessary to record them in a public deed.
In relation to these changes or decisions, given the transcendence of many of them, the legislator has considered it advisable that they be conveyed through a public deed, which will be called the deed of elevation to public deed of corporate resolutions, the purpose of which will be to document the act or legal business carried out by the corporate body competent to do so.
As to the need for this, see in this respect Article 95 of the Regulations of the Commercial Registry, which requires the form of a public deed in order for a number of acts specified in the immediately preceding article of the aforementioned regulations to be registered in the Commercial Registry, including, for example, the amendment of the bylaws.
Thus, the deeds of elevation to public deed cannot be considered simply as an instrument to notarize a private document, but they operate as a true filter of legality of the agreements and acts adopted by the bodies of the capital companies, so that it cannot be a public document that simply refers to what is established in a certificate issued by the competent body, Rather, it will be a true legal document subject to the preventive control of legality by the Notary, an impartial and independent public official, a legal professional, who will ensure that the acts and agreements to be made public are in accordance with the law.
Pursuant to Article 107 of the Mercantile Registry Regulations, the conversion into a public instrument of the resolutions of the General or Special Meeting or Assembly and of the resolutions of the collegiate administrative bodies may be carried out on the basis of the minutes or minutes book, notarized testimony thereof or certification of the resolutions. Likewise, it may also be made on the basis of the authorized copy of the minutes, when the resolutions are recorded in the notarial deed.
Therefore, the interested companies must provide, at the time of the execution of the deed, some of the documents mentioned above, in which all the agreements and circumstances of adoption of the same necessary to judge the legality of the same are recorded.
This will therefore be necessary since in the deed of elevation to public deed of the corporate resolution all the circumstances of the minutes that are necessary to qualify the validity of the resolution must be recorded and, if applicable, the Notary Public will attest in the deed the published notice of convocation or will notarize a notarial testimony of the same.
In many occasions, it appears as a controversial or doubtful question for the companies who has faculties to appear before a Notary Public to grant the corresponding deed of elevation to public of social agreements. We will try to answer this question below so that those interested in this kind of documents have a clear idea of who and how to proceed according to the type of agreement and the body issuing it:
1) Pursuant to Article 108 of the Mercantile Registry Regulations, regarding the persons empowered to notarize, the notarization of corporate resolutions adopted by the General or Special Meeting or by a collegiate administrative body, corresponds to the person empowered to certify them, which, pursuant to Article 109 of the aforementioned regulations, shall correspond, in relation to the minutes and resolutions of the collegiate bodies of mercantile companies:
In all these cases, it will be necessary that the persons issuing the certification have their position in force at the time of issuance, since in order to register the agreements contained in the certification, the position of the certifier must have been registered, previously or simultaneously.
And, in any case, as a formal matter, it will also be necessary to take into account that agreements that do not appear in approved and signed minutes or in notarized minutes may not be certified.
2) On the other hand, the decisions of the sole shareholder, recorded in minutes under his signature or that of his representative, may be executed and formalized by the shareholder himself or by the directors of the company.
3) It may also be carried out by any of the members of the administrative body with a valid appointment and registered in the Mercantile Registry, when they have been expressly empowered to do so in the corporate deed or in the meeting in which the resolutions have been adopted.
4) The conversion into a public instrument by any other person shall require the execution of the appropriate power of attorney, which may be general for all types of resolutions, in which case it must be recorded in the Commercial Registry. This procedure shall not be applicable to convert corporate resolutions into a public instrument when they are based on the minutes or notarial evidence thereof.
Likewise, it is necessary to take into account that when the Mercantile Registry has been closed for lack of the deposit of the accounts, the person who converts the corporate resolutions into a public instrument will state this circumstance in the deed.
Finally, readers should also be aware that the power to issue certifications of the minutes or resolutions of the Bondholders' Meeting is vested in the Statutory Auditor (Article 110 of the Commercial Registry Regulations).
By way of summary, it will be necessary to consider the following particular issues:
The certification issued, if applicable, must logically include the agreements to which the deed is to refer, with all the requirements that are legally required for the modification or agreement that is sought.
Likewise, in order for the Commercial Registrar to be able to judge the validity and lawfulness of the agreement, the doctrine of the General Directorate of Legal Security and Public Faith has established in its resolutions that the list of attendees, their signature and acceptance of the agenda (resolution of April 17, 1999) as well as the majority with which the agreements are adopted (resolution of June 6, 2013) must be included in the agreement.
In addition, it is interesting for readers to take into account the following particular situations:
In accordance with Article 111 of the Regulations of the Mercantile Registry, regarding certifications issued by a non-registered person, it is necessary to know that the certification of the resolution appointing the holder of a position with certifying power, when issued by the appointed person, will only be effective if it is accompanied by reliable notification of the appointment to the previous holder, with registered position, at the address of the latter according to the Registry.
Thus, it will be possible to notarize corporate resolutions by means of a certificate issued by an unregistered person, provided that such person has been appointed as holder of a position with certifying power (for example, sole or joint administrator of the company), and such circumstance has been reliably notified to the person who previously held such position, which was registered at that time.
This notification shall be completed and shall be deemed to have been made in any of the ways set forth in Article 202 of the Notarial Regulations, i.e., by sending the writ by certified mail with notice of receipt or by direct delivery by the Notary Public himself to the addressee.
In this regard, it should be noted that, according to the doctrine of the General Directorate of Legal Security and Public Faith, in the event that the first notification by mail is unsuccessful, a second notification in person by the Notary Public should be attempted (resolutions dated December 16, 2013 and January 30, 2012).
In these cases, the Registrar will not register the certified agreements until fifteen days have elapsed from the date of the filing entry, within which time the previous holder may oppose the registration of the entry, if he justifies having filed a criminal complaint for falsity in the certification or if he otherwise proves the lack of authenticity of the said appointment. In this extreme case, if the filing of the complaint is accredited, this circumstance shall be recorded in the margin of the last entry, which shall be cancelled once the same has been resolved, without such filing preventing the recording of the certified agreements.
Notwithstanding, all that has been said so far about the need to notify the previous owner, this will not be necessary when the consent of the previous owner to the content of the certification is accredited, by means of his signature legitimated in said certification or in a separate document, nor when the judicial declaration of absence or death, incapacitation or death of the previous owner is duly accredited.
Finally, it is necessary to take into account that everything explained under this question will also be applicable to the registration of the agreement of appointment of office with certifying power whose elevation to public, carried out by the appointee, has taken place by virtue of minutes or minute book or notarial testimony of the same.
In relation to the content of the certification, it is necessary to refer to Article 112 of the Mercantile Registry Regulations, which establishes that the resolutions of the collegiate bodies of mercantile companies may be certified by literal transcription or by extract, except in the case of resolutions relating to the modification of the deed or of the articles of association, in which case the literal transcription of the resolution will be mandatory.
The certification shall state the date and the system of approval of the corresponding minutes or, as the case may be, that the resolutions are recorded in notarial minutes.
Likewise, if the resolutions are to be recorded in the Mercantile Registry, the certification shall include all the circumstances of the minutes that are necessary to qualify the validity of the resolutions adopted.
In the event that the interested parties opt for the option of certification by extract, if the agreements are to be recorded in the Mercantile Registry, all the circumstances listed in Article 97 of the aforementioned regulation shall be recorded therein, with the particularities specified below.
Thus, the certification must contain:
Taking into account, in addition, as specific particularities, the following issues that must be expressly stated in the certification:
Finally, in any case, the certification must state the date on which it is issued.
Once the corresponding deed has been executed, in most cases, given its content, it will be necessary to register it in the Mercantile Registry, where the registration of the corporate resolution will state, in addition to the general circumstances of the entries, the specific content of the resolutions, the date and place where they were adopted, as well as the date and manner of approval of the minutes, when they are not notarized (Article 113 of the Mercantile Registry Regulations).
In order to execute a deed of elevation to public deed of corporate resolutions, it is only necessary to contact the notary's office (by calling the telephone number of the notary's office or at the e-mail address mercantil@jesusbenavides.es) and make an appointment on the day and time most convenient for the grantors.
On the agreed date and time, the grantors must simply go to the notary's office with the necessary documentation (see section on necessary documentation) to sign the corresponding deed, which will be drafted based on the minimum legal content required and the forecasts and needs of the clients in question.
In any case, if the interested parties need assistance in relation to the models of certificates resulting in the adoption of the decisions of the sole shareholder necessary to grant the deed in question, they can contact the notary's office for help and advice in this regard.
If the interested party so wishes, he/she may be given an authentic copy of the deed of elevation to public deed of corporate resolutions on the same day of the signing, but in such case, he/she must go to the Mercantile Registry to register it, since this is a necessary step in most of the corporate resolutions that are elevated to public deed, as has been indicated.
Of course, if so desired, it is possible to entrust this management to the notary's office itself, which will telematically send the deed to the Commercial Registry in order to obtain its registration.
Once this has already taken place, the authentic copy of the deed will be delivered to the grantors, which will be much more useful, since from that moment on the document will be able to have all its effects.
Outside our business hours, you can also contact us. The corresponding department will get back to you as soon as possible:
It is enough that the administrator or representative of the company goes to the notary's office with his ID card. In the case of a foreign person, he/she must present to the notary his/her original and valid passport. In addition, the NIE must be presented together with the aforementioned passport.
Normally it will be necessary to provide the certification of the resolution of the general meeting or of the decision of the sole shareholder from which all the adopted resolutions are individualized. The notary's office can advise and assist in the preparation or preparation of this type of certificate at no additional cost.
The relevant documentation relating to the company within which the resolutions to be notarized are adopted must be submitted to the notary. For this purpose, the authentic copy of the deed of incorporation of the company must be provided, as well as any subsequent deed modifying the articles of association. Nevertheless, from the notary's office we can access telematically to the Mercantile Registry where the company is registered to verify part of the above mentioned documentation and to corroborate the data that are in force at the moment of granting the deed.
Practically every time someone goes to sign at a notary's office in the name and on behalf of a company, it is mandatory to identify at that moment, before the notary, which partners (even if not present) within the company hold more than 25% of the capital stock of the company at that moment. In order to carry out such identification, the Law obliges to exhibit the authentic copy of the corresponding notarial deed called "Acta de titular real".
If the persons issuing the certificate of the corporate resolution do not go to the notary's office to execute the public deed (since a different representative of the company does so) and these persons have not previously signed other documents in the notary's office in question (so that it is not possible to validate their signature), it will be necessary for said certificate of the corporate resolution to be provided with the signatures notarized, in order to verify its validity.
If the corporate resolution corresponds to a General Meeting, and the same has not been held on a universal basis (i.e. not all the shareholders have attended), it will also be necessary to provide a copy of the notice of the meeting made in accordance with the statutory requirements.
