The Role of the Notary in Shareholders’ Meetings in Spain

The role of the notary in shareholders’ meetings in Spain is a key element in ensuring transparency, traceability and legal certainty in corporate governance. Notarial involvement in a general shareholders’ meeting provides an official record of what occurs during the session. It helps evidence the resolutions adopted, particularly where there are tensions between shareholders, doubts about the valid constitution of the meeting or a risk of subsequent challenge.

Under Spanish company law, the directors of a capital company may request a notary’s presence to draw up the notarial minutes of the general meeting. They are also required to do so when requested by shareholders representing at least 5% of the share capital, provided that the request is made within the legally required timeframe before the meeting. In these cases, the notarial minutes replace the company’s ordinary internal minutes and acquire particular evidentiary relevance.

However, in Spanish corporate practice, notarial involvement in shareholders’ meetings often gives rise to practical misunderstandings. The most common mistake is attributing to the notary functions that do not legally correspond to them, especially those of the chair or secretary of the meeting. This confusion may have significant consequences, since a valid holding of the meeting depends on each participant acting within their proper area of responsibility.

Notarial Involvement in the General Shareholders’ Meeting

The primary purpose of having a notary present at a shareholders’ meeting is to draw up the notarial minutes of the session. The notary records the facts witnessed, the statements made by attendees and any relevant circumstances arising during the meeting.

This involvement is particularly useful for companies facing shareholder disputes, complex corporate groups, Spanish companies with foreign investors, or businesses where disagreements may arise regarding the notice of the meeting, quorum, proxies, shareholders’ information rights, or the outcome of voting.

The notarial minutes of a shareholders’ meeting provide an objective record of what occurred and reduce the scope for later factual disputes. For this reason, the role of the notary in shareholders’ meetings should not be seen merely as a formality, but as a preventive tool in corporate conflict management.

In this context, the expression “notarial minutes” refers to the official record drawn up and authorised by a Spanish notary. It differs from ordinary internal corporate minutes because it is issued by a public official vested with notarial authority and has enhanced evidentiary value under Spanish law.

The Notary Is Not the Secretary of the Meeting

One of the key legal points for companies, particularly foreign companies with interests in Spain, is that the notary does not assume the board’s functions. The assumption that the notary acts as secretary of the meeting is common, but technically incorrect.

The role of the notary in shareholders’ meetings is limited to certifying the facts that occur and drawing up the notarial minutes. The notary acts as an impartial observer and qualified witness, but does not replace either the chair or the secretary of the meeting.

The meeting must have its own board, consisting of a chair and a secretary, in accordance with the law, the company’s articles of association or the applicable corporate rules. These positions remain necessary for the valid constitution, direction and conduct of the meeting.

Accordingly, the chair is responsible for directing the meeting, organising the debate, admitting interventions and announcing the resolutions adopted, assisted by the secretary. The notary records what happens, but does not direct the meeting or decide internal corporate matters.

Exclusive Powers of the Chair and Secretary

Since the notary does not act as secretary, responsibility for verifying and declaring compliance with the prior legal requirements rests with the meeting board. This allocation of functions is essential to avoid formal defects that may compromise the validity of corporate resolutions.

The Attendance List

The preparation, calculation and closing of the attendance list fall within the responsibilities of the meeting’s chair and secretary of the meeting. They must determine which shareholders are present or represented, what percentage of the share capital attends the meeting and whether the required quorum is met.

The notary does not prepare the attendance list. Their role is to record that the list has been prepared and, where appropriate, to incorporate, attach or transcribe it in the notarial minutes. This distinction is important because the notary does not replace the internal assessment of the meeting board regarding shareholder attendance or representation.

Declaration of Valid Constitution

It is for the chair to declare whether the meeting has been validly constituted. To do so, the chair must assess whether the meeting has been properly convened, whether the shareholders present or represented meet the required quorum and whether the proxies and powers of attorney submitted by shareholders are sufficient.

The notary may record in the minutes the declaration made by the chair, as well as any objections, reservations or statements made by shareholders. However, it is not for the notary to assume the chair’s authority to declare the meeting duly constituted.

Moderation of the Debate and Voting

The moderation of the debate is the chair’s responsibility. The chair grants or withdraws the right to speak, organises interventions, directs discussion of the agenda items and announces the outcome of votes.

The secretary assists the chair, records relevant matters and helps ensure the proper internal documentation of the session. When a notary is present, the main documentary function is transferred to the notarial minutes, but this does not turn the notary into the secretary or displace the powers of the meeting board.

The notary will objectively record in the minutes what the chair declares, the statements made by shareholders, the votes cast and any relevant incidents. However, the notary must not assume the internal control functions that belong to the meeting’s corporate bodies.

Legal Value of the Notarial Minutes of the Meeting

The notarial minutes of the general shareholders’ meeting have significant evidentiary value. As they are authorised by a notary, they provide a reinforced official record of the facts witnessed and the statements made during the session.

In addition, notarial minutes replace the ordinary minutes of the meeting and do not require subsequent shareholder approval. This makes them particularly useful where there is a risk of disagreement over the content of the minutes or the manner in which the meeting was conducted.

Nevertheless, the evidentiary value of the notarial minutes does not eliminate the need for the meeting to be properly held. The presence of a notary does not automatically cure defects in the notice of meeting, errors in the constitution of the meeting, infringements of shareholders’ information rights or material irregularities in the adoption of resolutions.

The Role of the Notary in Meetings with Foreign Shareholders

In Spanish companies with foreign shareholders, notarial involvement may be particularly advisable. In such cases, the notarial minutes provide a precise record of the meeting and offer an additional safeguard for shareholders, foreign parent companies, international investors and non-resident directors.

Notarial involvement may also be relevant where powers of attorney have been granted abroad, shareholder representation is complex, corporate documentation is multilingual, or there are discrepancies regarding the interpretation of certain resolutions. In this context, prior legal advice is essential to prepare for the meeting properly and avoid formal incidents.

The role of the notary in shareholders’ meetings must therefore be coordinated with a sound corporate strategy. It is not enough simply to request the presence of a notary. The notice of meeting must be prepared, the agenda reviewed, the quorums analysed, the proxies verified, and possible conflict scenarios anticipated.

Conclusion

Relying on the role of the notary in shareholders’ meetings in Spain is a strategic tool to reinforce the legal certainty of corporate resolutions and reduce the risk of subsequent disputes. Notarial involvement is particularly useful in complex meetings, companies with shareholder conflicts, international groups or meetings in which resolutions may later be challenged.

However, the presence of the notary does not alter the allocation of functions within the meeting. The notary is not the secretary, does not direct the meeting, does not prepare the attendance list and does not independently declare the valid constitution of the meeting. These powers correspond to the chair and secretary of the meeting.

For the notarial minutes to fulfil their purpose effectively, the powers of the meeting board must be respected, and the meeting must be prepared with legal rigour. Only in this way will notarial involvement provide the security, clarity and evidentiary strength required by sound corporate practice in Spain.

Mariscal Abogados advises companies, directors and foreign shareholders on the preparation of shareholders’ meetings in Spain, including notarial involvement and the prevention of corporate disputes.