Call of general meeting by email
The problem of a General Meeting Call by email
In order to duly hold a general meeting of partners and ensure the validity of the agreements that are adopted, all partners must be summoned, indicating essential aspects such as: the name of the company, date and time of the meeting, agenda or position of the person making the announcement of the call.
The dynamics of companies are complicated when there is a conflict between the partners, which can lead to the challenge of the resolutions adopted at the general meeting by the dissenting partner.
Failure to make the call in the proper manner, recording its receipt by all members, and respecting the legal requirements; It is one of the tools most commonly used by the discordant partner to get the nullity of the approved agreements.
Hence the importance for any company to make sure that the methods of communication to partners are used in a guaranteed manner, preventing any of them from challenging the corporate agreements due to defects in the call.
Email communications are the most common method of notification in personal relationships today, but they do not guarantee receipt by the recipient like a burofax with acknowledgment of receipt does.
For this reason, in this study we consider the possibility that a company uses email notifications as a valid method of calling, analyzing to what extent it guarantees protection against partner conflicts that may lead to a future challenge of the corporate agreements adopted at the meeting. general.
Legal aspects to take into account
The art. 173 of the Ley de Sociedades de Capital (“LSC”) establishes the form of the call of the Meeting in the following terms:
- “The general meeting will be called by means of an announcement published on the company’s website if it had been created, registered and published in the terms provided in art. 11a. When the company has not agreed to the creation of its web page or it is not yet duly registered and published, the call will be published in the “Official Gazette of the Mercantile Registry” and in one of the newspapers with the largest circulation in the province in which it is located. located the registered office.
- In substitution of the form of call provided for in the previous paragraph, the statutes may establish that the call is made by any individual and written communication procedure, which ensures the reception of the announcement by all partners at the address designated for that purpose or at the address stated in the company’s documentation. In the case of partners residing abroad, the statutes may provide that they will only be called individually if they have designated a place in the national territory for notifications.
- The statutes may establish additional advertising mechanisms to those provided for in the law and impose on the company the telematic management of a system of alerting the partners of the call announcements inserted in the company’s website”.
It would have been desirable for the standard to be more precise and expressly pronounce on the possibility of notifications by email, as this is the most common form of communication today and considering that the LSC was approved by Royal Decree of 2010.
It is clear in any case that the Law allows each company to regulate in its bylaws the appropriate way to make notifications, although it seems to impose as a requirement that the communication ensure the reception of the announcement by all partners.
Commented interpretation of the law
Section 2 of the reproduced article has been interpreted by the General Directorate of Registries and Notaries in a flexible manner. Given the doubts raised by multiple Mercantile Registries, the General Directorate has established the following doctrinal lines:
- Calling the General Meeting by email is a means permitted by the LSC as long as it meets the requirement that it ensures receipt of the announcement by all members (Resolution of April 16, 2005).
- This security at reception is achieved, for example, through the request for confirmation of reading, or certain means that allow obtaining proof of the remission and receipt of the communication through the use of electronic signature (Resolution of 10/28/2014 ).
- This means of calling implies an active behavior consisting of informing the company of an electronic address where the mandatory calls will be made (Resolution of June 4, 2011).
As an additional measure, it may be recommended that these email address communications be included in the Membership Book, as a relevant element of location and communication.
In this way, the partner will have the obligation to notify the company of the change in his email address, which could be important to prove his bad faith if in the future he denies having been duly summoned to the general meeting for not using an old email address.
Currently partner agreements frequently include the means of notification to each one of them, but these guarantee clauses and agreements between partners are not so frequent in companies that have been operating for some time.
In view of the foregoing, it is possible to conveniently modify the bylaws, and specifically the regulation of the call of the General Meeting, establishing the system of personal communication by mail, provided that the legal requirements are respected and that there are no particular circumstances that advise against it
Since this is the option of the company, it is recommended to require the partner to acknowledge receipt or establish a telematic mechanism for acknowledgment of receipt. In any case, it is advisable to analyze the specific case to prepare the corresponding advice, especially when there is a divergence of interests between some partners and others.
Call of the general meeting by email – Conclusions
- Although the LSC does not expressly contemplate it, the majority doctrine makes a flexible interpretation of the norm, concluding the possibility of making notifications and calls to members by email.
- In order for the company to be able to call a general meeting by email, it must modify the bylaws as appropriate.
- The call made by email must respect all the requirements imposed for this purpose by the LSC. More information on this can be found in our article The call to general meeting as right of the shareholder
- It is recommended to apply guaranteed means of calling a general meeting when there are partner conflicts.
Can a General Meeting be called by email?