Remote and Early Voting at the Meeting of a Limited Liability Company

Can a partner of a limited liability company cast their vote remotely and in advance?

Today it is common for the partners of a limited liability company not to reside in the city or country in which the company’s registered office is located. This leads to numerous doubts being raised about whether they can vote remotely and/or in advance.

Of the provisions of the Royal Legislative Decree 1/2010, of July 2, which approves the revised text of the Capital Companies Act, specifically in its article 189 It follows that the specialties in the exercise of voting and attendance rights apply only to public limited companies.

Contrary to the provisions of the Capital Companies Law, the resolution of the General Directorate of Registries and Notaries, dated January 8, 2018, validated the clauses statutory regulations of a limited liability company, by which the partners and members of the administrative body are empowered to cast their vote in advance on the proposals contained in the agenda of the Meeting.< /p>

This fact was classified negatively, due to the provisions of article 189 LSC, which determines that in corporations, in accordance with the provisions of their bylaws, the issuance of votes for any kind of Meeting by shareholders, it may be held remotely by postal or electronic correspondence or any other means that guarantees the identity of the person exercising their right to vote.

The General Directorate of Registries and Notaries recalls that it has already authorized on previous occasions the attendance and telematic voting of members at the General Meeting of limited liability companies (Resolutions of April 25 and 26, 2017). He concludes by stating that:

“although it is true that this possibility refers only to public limited companies, this should not lead to the understanding that the Capital Companies Act prohibit limited liability companies from using these means for the attendance and voting of partners at the general meeting”.

In this way, limited liability companies would be equal to public limited companies in this regard.

As a consequence of the resolution of the General Directorate of Registries and Notaries, the possibility is enabled that both the partners and the members of the administrative body of a company limited liability exercise their right to vote in advance on the items established on the agenda for the General Meeting, provided that a series of guarantees are met:

• That the identity of the subject be guaranteed, that is, the partner or member of the administrative body who exercises his right to vote.
• That the vote be expressed in writing, either in physical (documentary) or electronic format.
• The vote must be received at least 24 hours in advance, at the time set for holding the Meeting.

In order for the right to vote remotely to be exercised within a limited liability company, it must be regulated in the bylaws both for its partners and for the members of the body of administration. It must also be taken into account that both the partners and the members of the administrative body who exercise their right to vote in this way must be taken into account when constituting the Meeting as if they were present.

Alba Sacido Jimenez
Department of Civil and Commercial Law

03/01/2019

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