Holding of shareholders' meetings in writing and without a meeting. Interpretation of the Commercial Registry.

In the absence of regulation on this matter in the Capital Companies Act (“LSC”), and in accordance with the interpretation given by the Directorate General of Registries and Notaries (“DGRN”), its resolution of January 8, 2018 addresses the need to record and give legal validity to this current corporate reality, as it questions the possibility of casting votes in advance of the holding of a universal shareholders’ meeting by telematic means. In this regard, the DGRN reaffirms its support for remote voting, referring to previous resolutions in which it recognized the validity of such voting, provided that shareholders are not offered “fewer guarantees of authenticity than physical attendance.”

The conclusion reached by the DGRN is that the company’s bylaws must reflect the possibility of adopting resolutions without the need for shareholders to be physically present, detailing the procedure to be followed at all times to safeguard shareholders’ rights and voting transparency.

Recently, in April of this year, the aforementioned resolution of the DGRN was joined by the registration in the Madrid Commercial Registry of a bylaw clause allowing a limited liability company to adopt resolutions at the shareholders’ meeting without the need for a session.

1. Requirements:

• The matters on which resolutions of the meeting are requested must be capable of being voted on with a simple affirmative or negative.

• All shareholders must express their agreement to the adoption of resolutions without the need for a meeting.

2. The procedure included in said registered bylaw clause is as follows:

• The Administrative Body will propose to the shareholders the matters on which resolutions are to be adopted without a meeting, expressing, if it deems appropriate, its proposed resolution on each matter. To this end, it will send each shareholder a written communication containing such matters, accompanied by all the necessary information on each matter.

• This communication will state the period, not exceeding 10 days, for shareholders to express their agreement to this system of adopting resolutions and to indicate the direction of their vote.

• If during that period any shareholder has not expressed their agreement, the procedure will lapse, and if all shareholders have expressed their agreement, the procedure will continue. The expression by any shareholder of the direction of their vote on all or some of the proposed matters will imply their agreement with the procedure. When a shareholder, having indicated their vote on one matter, fails to do so on others, they will be deemed to have abstained with respect to them.

• In addition to the means established, where applicable, by the legislation in force, communications provided for in this procedure may be made in physical or electronic writing or by any other means of remote communication that duly guarantees the identity of the person making it as well as the integrity of its content.

• If the company has a Corporate Website and within it an area has been created that complies with the requirements of Art. 11 quater of the Capital Companies Act, the adoption of this type of resolution may take place through the posting in said area:

  • By the Administrative Body, of the electronic document containing the matters on which resolutions without a meeting are requested and the corresponding information.

  • By the shareholders, of their agreement with the procedure and their vote on them, through electronic documents containing them, or by expressing their will in another manner through said area. The Administrative Body must notify the shareholders of the said postings by email.

• A record must be kept of all communications made in this procedure.

3. Record of the procedure and, where applicable, of the resolutions adopted:
According to article 100 of the Commercial Registry Regulations, “those authorized to certify on behalf of the company shall record in minutes the procedure followed and the resolutions adopted, where applicable, stating the identity of the shareholders, their agreement with the procedure, the system used to form the will of the meeting, and the vote cast by each shareholder. It shall be deemed that the resolutions have been adopted at the registered office and on the date of receipt of the last of the votes cast.”

In light of the foregoing, it seems reasonable to think that there is no obstacle to reflecting in the bylaws the possibility of holding shareholders’ meetings in writing and without a session, which would undoubtedly provide greater practicality in the process of adopting resolutions by the shareholders, especially those deriving from the daily management of the company. Nevertheless, the resolution of the DGRN mentioned above makes clear the need for legislation specifically regulating this matter.