THIS ENTRY IS COMPLETED BY “THE LEGALIZATION OF BUSINESS BOOKS. II” dated February 23, 2015.
I usually write on impulse from day to day, and as a result of the concerns of the people who come to my Notary Office. Well, last week, a client-friend asked me for a number of requirements, which we usually call article 106 of the Commercial Registry Regulations, through which the representative of a commercial company declares, by means of a notarial act, the loss or destruction of the minute books of the collegiate bodies.
Considering that this friend is the main partner of a group of companies, my question was not long in coming, Have you lost all the minute books of all the companies?He told me no, that in fact they kept some, that they were still kept by hand and that in most companies they did not have minute books, since they were replaced by the public registration of the corporate agreements, but that all these minutes that they asked me for were a consequence of their need to adapt to the new system of telematic legalization of company books, regulated by article 18 of Law 14/2013, colloquially known as the Entrepreneurs Law.
I started to dive into that article, to whose content I must say that I had not paid any attention, which says:
- All books that entrepreneurs are required to keep in accordance with applicable legal provisions, including the books of minutes of meetings and other collegiate bodies, or the books of registers of partners and registered shares, will be legalized electronically in the Commercial Registry. after completion in electronic format and before four months have passed following the closing date of the fiscal year.
- Business owners may voluntarily legalise detailed books of minutes or groups of minutes drawn up with a frequency less than annual when it is of interest to reliably prove the fact and the date of their intervention by the Registrar.
- The Registrar will verify compliance with the formal requirements, as well as the regular successive training of those carried out within each class and will electronically certify their intervention in which the corresponding validation code will be expressed.
My first impression was that this was another obvious example of what has come to be called liquid right and which introduced new aspects of certain matters through the back door, since if it modified the Commercial Code and the Regulations of the Commercial Registry, the most technical, and above all honest, thing to do was to modify these legal bodies.
But now that I'm here, I've decided to try to make a critical analysis of the precept, especially to focus on the actions that companies that are most closely linked to the Commercial Registry of Lleida should take, since the situation of anguish that my client-friend expressed to me was, as the saying goes, noteworthy.
REGIME REPEALED
At this point it is necessary to make a brief reference to the previous regime, enshrined in the Commercial Code and the Regulations of the Commercial Registry, according to which the obligatory books of entrepreneurs will be legalized in the Commercial Registry of their domicile.
If it is a loose-leaf book, must necessarily be legalized by the Commercial Registry before use. The legalisation of books consists of a document signed by the Registrar, which shall be drawn up on the first page and which identifies the entrepreneur, including, where appropriate, his registration data and which states the type of book, the number that corresponds to it within those of the same type legalised by the same entrepreneur, the number of pages it is composed of, and the system and content of its sealing. The Registry seal is placed on all pages by printing or stamping or by mechanical perforation of the pages, or by any other procedure that guarantees the authenticity of the legalisation.
In case the Mandatory books are made up of sheets bound afterwards The books must be bound in such a way that it is not possible to replace the pages and must have the first page blank and the others numbered consecutively and in the chronological order that corresponds to the entries and annotations made in them. They must conclude with a closing note, more or less with the following tenor: "I declare under my responsibility that this book..., (class or type of book, journal, inventory, etc.), number... (the number that makes up those of its class), consists of... pages written on one side only, corresponding to the fiscal year (year) and that I present for legalization today." In these conditions, they must be presented for legalization before four months have passed following the closing date of the fiscal year and if they are presented after the deadline, the registrar will record it.
In this way, the books do not have a temporary expiration, which will be determined exclusively by their use and completion of all the pages. In my professional practice I observe that there are very few companies that usually keep a minute book, which derives, I believe, firstly, from the fact that despite the fact that there is an obligation on the part of the directors to present to the Commercial Registry, within eight days following the approval of the minutes, a notarial testimony of the registrable agreements, there is no sanction for not doing so; and secondly because the elevation to public of the registrable agreements is usually carried out through the presentation before a notary of a certification of the minute book, which is elevated to public and it is subsequently, according to each company, the one that, based on that certification (in my professional practice almost to 99% drawn up in the notary's office itself), with which the minute book is subsequently filled out and many times not even that, since people are sufficiently covered by the set of public deeds that document the social life.
This is so because most companies adopt their agreements in a Universal Meeting and by Unanimity, which in practice means that the agreements are verbal, and at most there is a brief document that replaces the minutes of the Meeting, signed by all those attending, and in those Meetings that are presumed to be contentious or that may not be attended by all the partners, the presence of a Notary is usually requested, at which time it is used to record certain statements that exceed the mere vote for or against the agreements, with a very clear purpose of using them in court.
CURRENT REGIME
This is the result of the transcribed Article 18 of Law 14/2013. For its execution, the Commercial Registries have implemented the legalia program, through which the content of the minutes is incorporated in computer format.
The first problem posed by this regime, in force since 29 September 2013, is that since no transitional regime has been established, is to determine whether the old and unfinished minute books are still valid. The most reasonable thing is to understand that the existing minute books are still valid and can continue to be used, until they are finished. And if you want to move to the telematic legalization system, it would be enough to cross out all its pages, or to grant a notarial act of loss or destruction of the book or to report its theft, in order to proceed with the telematic legalization of the new book. Having consulted the Commercial Registry of Lleida, they tell me that they advise moving to the new system, but that in no case will the old minute books be rendered useless. On the other hand, the issue of the transitional regime has been partially dealt with by the RDGRyN of August 5, 2014 (BOE October 6, 2014).
Apparently, the main innovations introduced by the precept, with respect to the previous regime, are the obligation in the use of the electronic format for the minute books and in the via telematics to proceed with its legalization, but the reform goes much further, and in my opinion with a certain corporate smell, which seeks to lay the groundwork for subsequent conquests, because legalization includes the content communication of the minutes to the Commercial Registry.
Regarding the obligation telematics, the statements made by García Valdecasas (Commercial Registrar of Granada) in notarios y registradores.com seem to me to be full of common sense when pointing out that with the new regulations, referring to the minute books, increases, without strict necessity, corporate documentation and legalization costs.
Linked to the issue of obligation, There is a deadline in which the minutes books must be legalized, since according to the provision to which we refer, the books will be legalized electronically in the Commercial Registry after completion in electronic format and before four months have passed following the closing date of the fiscal year. In this way, an annual expense is imposed, when many companies will have at most the agreement to approve annual accounts, and with respect to the stock and participation books there may not even be any notes.
But the fundamental thing, in my opinion, is that since legalization is subsequent to its completion, it turns out that the agreements and deliberations of all the collegiate bodies of the commercial companies will be recorded in the Commercial Registry, despite the fact that the content recorded in the minutes will not be public, remaining encrypted thanks to the alphanumeric code that is created when they are registered.
The role of the registrar is not to qualify, but to verify compliance with the formal requirements. , as well as the regular successive training of those carried out within each class and will electronically certify their intervention in which the corresponding validation code will be expressed.
From my humble position as a provincial notary, a few doubts come to mind.
1.- It is said that the Registrar will checkcompliance with formal requirements, That is to say, those contemplated in article 97 of the Commercial Registry Regulations. Which raises my first question. What happens if the minutes are incomplete? We must remember that most companies do not have a legal advisor and that most Boards are universal.
2.- It is said that the Registrar will check the successive preparation of the minutes. Which raises the question: What happens if, by mistake, a previous minute has not been presented, the existence of which can be known through other means, such as the registration of corporate agreements?
3.- What happens if the content of the minutes does not exactly conform to the deeds that document the corporate agreements that are registered in the Commercial Registry?
4.- What does the electronic certification of the registrar's intervention mean? Can it be used for the purposes of article 1227 of the Civil Code?
5.- What is the point of publishing in the Commercial Registry agreements that by their very nature must be very confidential, such as the deliberation of a Board of Directors on the investment strategy of a company? And if those that must be public are already registered, then why duplicate the publication?
Finally, due to my status as a law practitioner, I always find this phrase, which many of us have learned from González Palomino, very attractive: that in law what are not effects, are celestial music. And I ask, what would be the effects of not legalizing the books of minutes of companies? Obviously there are, since it is the responsibility of the administrators that all agreements are taken in the proper form and can prove that they have not committed any falsehood, hence the convenience of notarial acts. But as this is normally proven by other means, the only reference I have found is the one referring to the importance that legalization can have in the field of bankruptcy, being able to affect the qualification of the bankruptcy as culpable, that is if it is dealing with accounting books. Thus, in article 164.2.1º of Law 22/2003, of July 9, on Bankruptcy, it is established that: In any case, bankruptcy will be considered culpable when any of the following situations occur: 1. When the debtor legally obliged to keep accounts substantially breaches this obligation, keeps double accounts or has committed an irregularity relevant to understanding his financial or patrimonial situation in which he keeps accounts. And it seems that some Spanish Courts have understood on some occasions that the legalization of accounting books is included in the obligation to keep accounts.
We will see how things develop on a day-to-day basis. My advice is to draw up the minutes well, and to ensure that the certifications of the same are literal and not extracts.
