When must a defect in the calling of a General Meeting be alleged?
As has been previously stated by this court (Section 28 of the Provincial Court of Madrid), for instance, in judgments dated 30 December 2008 and 9 January 2009, any infringement of legal provisions in the convening of the general meeting must be raised at the commencement of the meeting. If it is not raised at that time and later used as grounds to challenge the resolutions passed, such conduct would contravene the principle of good faith (see Supreme Court judgments dated 9 June 1987 and 28 March 1989, among many others).
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Is the incorrect classification of a meeting (ordinary instead of extraordinary) a defect that invalidates the meeting?
No. The Supreme Court has clarified that both types of meetings—ordinary and extraordinary—do not differ substantially. Except for the periodic nature of ordinary meetings, they are not distinct in terms of subject matters addressed or in the guarantees required for their convening and holding. Therefore, the effectiveness of the resolutions adopted cannot be conditioned by a mere issue of terminology.
What happens when conflicts arise between shareholders during a General Meeting—due to disputes regarding ownership of shares or stakes—that prevent the verification of voting results?
Resolutions adopted under such circumstances may not be registered. This has been confirmed, inter alia, by the Resolution of the Directorate-General for Legal Certainty and Public Faith (formerly the Directorate-General of Registries and Notaries) dated 13 February 2019.
Is the Chairman of the Board required to convene the General Meeting?
No. General Meetings are convened by the administrative body (the Board). Once the Board has met and resolved to convene the meeting, it is the Chairman who executes that resolution. However, the Chairman does not have the authority to unilaterally call the meeting. While this may seem like a mere formality, case law has clearly ruled in this regard. It is thus not a hypothetical issue. Accordingly, it is the Board, acting as a collegiate body, that must resolve to convene the General Meeting, fulfilling all necessary formalities to ensure the validity of the resolutions adopted therein.
What if the Chairman of the Board convenes the meeting without a prior resolution from the Board (administrative body)?
A defect in the convening of the General Meeting renders its constitution null and void (pursuant to Article 166 of the Spanish Companies Act – LSC), as the power to convene is non-delegable. Any breach of the legal rules governing the convening, constitution, or holding of a General Meeting generally invalidates all resolutions adopted, as it vitiates the very meeting itself.
What happens if the person convening the meeting holds an expired office? Is the meeting invalid?
In accordance with the principles of business continuity, corporate stability, and market certainty—and to prevent a paralysis of the governing bodies and eventual dissolution—the courts have recognised, in line with pragmatic considerations (see Judgment 771/2007), that individuals effectively acting as directors despite the expiration of their mandate are authorised to convene a General Meeting for the sole purpose of regularising the company’s governance bodies. Furthermore, any remaining director may convene the General Meeting with that specific and exclusive objective.
What minimum content must a Board resolution to convene a General Meeting include?
The minutes of the Board meeting must specify the essential details of the call, such as the date of the meeting and the matters to be addressed. These elements may not be altered subsequently.
How should the agenda for the General Meeting be drafted?
The agenda in the meeting notice must be clear, as required by Article 174 LSC. While it need not be exhaustive, it must sufficiently inform shareholders of the matters to be discussed. If the agenda is incomplete, ambiguous, or indeterminate, it constitutes a material defect in the convening process for the purposes of Article 204 LSC and will affect the validity of any resolutions adopted. This directly impacts shareholders’ fundamental rights—such as the rights to attend, to be informed, and to vote—as they must not be surprised by topics not previously listed. (See Supreme Court judgments of 17 May 1995 and 12 July 2005.)
What if the meeting notice for a capital increase omits the amount of the increase?
Despite the high level of formal rigor generally required, this specific omission is considered a remediable defect. The only missing element in the meeting notice was the amount of the increase, but this was rectified in due time—six days prior to the meeting—when the complete proposal for amendment, including all necessary details, was provided to the shareholder, thereby enabling an informed vote.
May matters not included in the agenda be discussed at the General Meeting?
Unless the meeting is held as a universal meeting, the Supreme Court has long maintained that resolutions may not be adopted on matters not included in the agenda, with the sole exception of the removal of directors.
In the event of the Secretary’s absence due to force majeure, may the legal advisor act as Secretary during the meeting?
Certification authority lies with the Secretary and the Chairman. The meeting minutes must be signed by the Secretary and endorsed by the Chairman, provided they acted in those capacities. Although the legal advisor may customarily draft the minutes, this does not exempt the requirement for the Secretary’s signature following approval of the minutes at the next General Meeting, as had been the standard practice. The habitual involvement of the legal advisor cannot substitute the legal obligation for the Secretary’s and Chairman’s signatures, which serve to guarantee the authenticity of the record. In this case, two drafts exist—one from the Secretary and one from the legal advisor—neither of which bears the requisite signatures.
What if there are two different drafts of the minutes?
Where those authorised to certify (the Secretary and Chairman) refuse to sign a single version of the minutes due to disagreement over its content, the advisable course of action is to ratify the resolutions in a new, immediate General Meeting. It is not recommended for each to assert their own version, even though the Secretary is the one charged with drafting the minutes (pursuant to Article 99 of the Mercantile Registry Regulations).
May a sole joint director convene a General Meeting if the other joint director has passed away?
Yes. Both doctrine and case law have accepted this possibility, in order to preserve the company’s viability, provided that the meeting is called specifically to address the conflict arising from the death of the co-director. However, this does not imply that the surviving joint director is tacitly converted into a sole director.
