Notarial meetings are a legal mechanism in Spain that allows the presence of a notary at shareholder meetings or boards of directors to provide public certification of what occurs during the session. This process enhances transparency and legal security for the decisions made in these meetings. In this article, we explain who can request the presence of a notary, the requirements to do so, the functions of the notary during the meeting, and other relevant aspects of this procedure.
Who Can Request the Presence of a Notary?
In general, the individuals or entities that can request the presence of a notary are:
The Company Directors
Members of the management body may determine if a notary’s presence at the meeting is necessary, based on its benefit to the company’s interests.
Partners or Shareholders
In certain situations, partners or shareholders may request the intervention of a notary. According to the Capital Companies Act, shareholders representing at least 1% of the share capital in a public limited company or 5% in a limited liability company have the right to request the presence of a notary.
Requirements for Submitting the Request
A prior formal request notified to the governing body in writing at least five days before the meeting is necessary for the presence of a notary at a meeting to be valid.
Once the request is accepted, the administrators must contact a notary to coordinate their attendance and provide the necessary documentation to perform their duties properly.
Functions of the Notary During the Meeting
The presence of a notary at a meeting is not merely formal; they have specific functions that ensure the validity and authenticity of what occurs during the session. Among their main functions are:
- Public Attestation: The notary acts as a public certifier, attesting the authenticity of the facts and agreements made during the meeting, including identifying the attendees, confirming the necessary quorum for the meeting’s validity and verifying compliance with legal and statutory requirements.
- Drafting the Minutes: One of the primary responsibilities of the notary is to draft the minutes of the meeting. This document will provide a detailed summary of what occurred during the session, the agreements made, the votes cast, and any other relevant observations. The notarial minutes have privileged evidentiary value, meaning their content is presumed authentic.
- Certification of Documentation: In some cases, the notary may certify the authenticity of documents presented at the meeting, such as powers of attorney or share certificates, among others.
Other Relevant Issues
- Costs and Fees: The involvement of a notary at a meeting incurs additional costs for the company or entity convening the meeting. Notarial fees may vary depending on the duration of the meeting, the type of company, and other factors. It is important to anticipate these costs when requesting the presence of a notary.
- Notarial Minutes and Their Challenge: Notarial minutes enjoy a presumption of truth. However, if any party believes minutes do not accurately reflect what occurred or contain errors, they may challenge them in court. In such cases, the burden of proof falls on the party challenging the minutes, given the public and official nature of the notarial document
The Role of a Lawyer at Notarial Meetings
Comprehensive Legal Advice
The lawyer guides the company on the advisability to request the presence of a notary, ensuring that the request is appropriate and meets the established deadlines.
Drafting the Formal Request
The lawyer is responsible for preparing the necessary documentation for the notary’s convening and ensuring compliance with legal formalities.
Regulatory Compliance
The lawyer ensures that all meeting procedures adhere to current regulations, avoiding potential errors that could compromise the agreements’ validity.
Mediation in Challenges
If the notarial minutes are challenged, the lawyer defends the company’s interests, manages the court process and provides evidence to support the procedure’s legality.
Legal Security
The support of a lawyer ensures that all decisions made at the meeting are properly documented and that the process is protected against potential legal disputes. It is advisable for the chairman to invite the company’s lawyer to the meetings, in addition to the notary.
Notarial meetings are valuable resources to ensure transparency and legality in corporate decisions. The role of the notary as a public certifier provides an additional guarantee that the agreements made comply with current regulations and accurately reflect the wishes of the partners or shareholders. However, it is advisable to have a specialized lawyer manage the notary’s request, ensure compliance with legal requirements, and protect the company’s interests against potential challenges. Administrators and shareholders should be aware of the importance of these aspects to guarantee the proper conduct of meetings and the validity of their agreements.
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