The General Directorate of Legal Security and Public Faith, in its resolution of October 23, 2020 (BOE of November 6, 2020), resolved that it is necessary that the members of the Board of Directors who attend the meeting must be identified for the registration of the acts that they agree, even when all those who form part of the body attended the meeting, considering that the generic mention that all the members of the body were present is not enough.
1. Deed of power of attorney granted by the Board of Directors and its presentation for registration in the Companies House.
In the case under discussion, the Board of Directors met and agreed to grant a power of attorney for a corporation. Once the registration agreement was presented, the Toledo Companies House register rated it negatively and agreed not to register since in accordance with article 97.1.4º II of the Companies House Rule, “[i]n case of collegiate bodies of administration, the name of the concurrent members shall be stated, indicating those who attend personally and those who do so represented by another member”. In the case of this resolution, the name of the directors attending the meeting of the Board of Directors did not appear.
The notary authorizing the deed of empowerment filed a governmental appeal against the negative note of the Companies House registrar, stating that the General Directorate itself had previously declared that it was not necessary to name the directors attending the board meeting when the certification states that all of them attended, which in his opinion is perfectly logical, since the requirement of the list of assistant directors is understandable when only a part of them attend; however, when all attend, it does not seem reasonable to have doubts about who the assistant directors are.
The particularity of this case was that the appointment of the Board of Directors had been formalized in a previous protocol of the same notary, on the same day, and had been submitted for registration in the same Companies House in which it had been submitted to register the power of attorney. For the recurring notary, it did not seem logical to think that a change in the composition of the Board could have occurred.
2. Resolution of the General Directorate.
The General Directorate resolved the appeal in the sense of dismissing the appeal and confirming the resolution considering that rule 4 of article 97.1 of the Companies House Rule provides that “[i]n case of collegiate administrative bodies, the name of the concurrent members, indicating those who attend personally and who do so represented by another member”. In addition, it declared that article 112 of the same regulatory text includes two passages from which the requirement to enter the names of the directors derives:
(i) According to section 2 of the aforementioned article 112, “[i]f the agreements have to be registered in the Companies House, all the circumstances of the act that are necessary to qualify the validity of the agreements adopted will be recorded in the certification.” The identification of the attending directors seems to be the ideal way to verify the successive tract of article 11.3 of the Rule of the Companies House.
(ii) According to rule 4 of article 112.3 of the aforementioned registry regulations, “[i]n case of bodies of direction, it will not be necessary to specify how many attended personally or how many by representation.” This recently transcribed rule offers the General Directorate the conclusion that “the name of the concurrent members” will have to be expressed, whether they do so personally or represented by another member.
3. Conclusion of the General Directorate: Directors must always be identified, even if all of them attended the Board meeting.
For the General Directorate, the argument that the directors must be nominally listed when only some of them attend, but not when all attend, does not seem acceptable.
According to the resolution, the requirement under discussion is to verify that those who have attended the meeting are directors, are registered and are sufficient for the valid constitution of the body. On the other hand, this verification is not possible when it is only indicated that all the directors attended the board meeting, since in this case the members of the group to which it refers are not identified. Nothing changes the fact that, in this case, the deed of appointment of the Board of Directors was granted just in the prior notarial protocol, since the fact that it is unlikely that the composition of the Board had been modified should not eliminate the opportunity for control by the Companies House registrar.