The call to a general meeting as a right of the partner
The summoning of the partners to the general meeting by the administrators is a right granted by the Capital Companies Law.
The partner who has not been summoned may challenge the agreements adopted at the meeting. It is important to underline that this obligation applies to both limited companies and stock companies.
In addition, the Law and the statutes establish certain obligations in the way of executing the call, which means that it can only be considered valid when it has been carried out within the limits established by current regulations.
These obligations are intended to safeguard the rights of the member in order to prevent administrators from issuing calls without the certainty of having the desired informative effect, or hiding a simulated will to convene the partner when the opposite is really intended, that is, that the partner does not get to know of the holding of the general meeting.
Legal obligations in the form of calling a general meeting
Usually the bylaws establish that the announcement is made in writing and in a reliable manner, so that the receipt of the call by of all partners. The most common is to designate for the purposes of these notifications the address of each one of them.
When the statutes agree to the call in the manner described in the previous paragraph, it is recommended to send the announcement by burofax or through a notary public, so that certify that it was done correctly.
In those cases in which the sending of the call by mail is not contemplated in the statutes, it must be done in the manner established by art. 173.1 of the LSC. That is, through publication of the announcement on the company’s website when it was created, it was registered in the Mercantile Registry and was published in the Official Gazette of the Mercantile Registry (BORM). p>
If there is no corporate website or it has not been registered in the Mercantile Registry and duly published, the call must be published Official Gazette of the Mercantile Registry and in one of the newspapers with the largest circulation in the province where the registered office is located.
The ad must necessarily include at least the following:
- Company name
- Date and time of the meeting
- Agenda of the day with a description of the issues to be discussed
- Position of the person making the call announcement
The absence of any of these contents could lead to the challenge of the adopted agreements, either as a whole or individually if the lack of concretion only affects one of the agreements to be adopted.
For example, let’s imagine that an aspect not included in the agenda is discussed and approved at the general meeting. Said agreement would be subject to challenge due to lack of call, as the aspect to be dealt with was not included among the points covered by the meeting.
For more information on challenging social agreements, you can consult our article Challenging corporate resolutions of the General Meeting.
Interestingly, the Law does not require that the announcement specify the place where the general meeting is held. Since if said information is not expressly referred to, it will be understood that the meeting has been called at the registered office. This is what the art refers to. 175 LSC.
Power to call a general meeting
The competence of the call corresponds to the administrators of the company, except that the company is in a situation of liquidation, in which case they must convene the general meeting of the corresponding liquidators.
There are legal formulas to call the meeting when the administrators refuse to do so or when they have not made the call within the period established in the Law or in the bylaws of the company.< /p>
In this case, the Court Clerk or the Mercantile Registrar will call the meeting at the request of any partner who requests it.
In these cases, the possibility is provided for the administrators to allege what they consider appropriate, before the Court Clerk or the Mercantile Registry agree and proceed to publish the holding of the meeting
Deadlines for holding the meeting from the call
A minimum call period must be respected before the general meeting is held. Said term varies depending on whether the company is a public limited company or a limited company, the minimum term being one month for the former, and fifteen days for the latter.
When the call has been made individually to each one of the partners, the start of the calculation of the term will be the date on which the announcement was sent to the last of them.
When a second call has been announced, there must be a minimum period of 24 hours between the date of both calls.
However, when the meeting could not be held on first call, and the date for a second call had not been provided in the published announcement, a new announcement must be made respecting the same agenda.
This announcement must be made within 15 days following the date set for the first call, and at least 10 days must elapse between the announcement and meeting date.
Conclusions on the call to a general meeting as a shareholder’s right
- The call for a general meeting is a basic right of the shareholder.
- It must be made through a published announcement in accordance with the legal and statutory requirements, among which the inclusion of the agenda and the date and time of the celebration stand out.
- The partner may challenge the agreements adopted when the call suffers from formal defects.
- If the administrators fail to convene the general meeting, the partner may request its convening at the Mercantile Registry and at the Court.
18/04/2018
