Invalidity of the registered notice of meeting due to communication to a non-effective address

The validity of the registered notice of the general meeting of a company requires that the effective intervention of the affected directors be guaranteed, with a notice to the actual address, in accordance with the standard of the Madrid Provincial Court in its Ruling 274/2024, of 13 September , when it declared the nullity of a notice of meeting sent to a registered address that did not match the real address.

The case arose when, pursuant to article 169 of the Capital Companies Act (LSC), a request was made to the company registrar for the convening of a general meeting to be held. The request, made by a group of shareholders, indicated as the registered office the address stated in the articles of association and in the Commercial Register. However, the applicants were aware that this address did not correspond to the real address, so that neither the company nor its director could be located at that address.

The meeting was held, at which it was agreed that the sole director would be dismissed and a new director appointed. In response to those resolutions, the director who had been removed brought an action challenging the validity of the meeting and, consequently, of the resolutions adopted.

At first instance, the claim was upheld as it was found that there had been an infringement of the essential hearing procedure provided for in article 169.2 of the LSC. The judgement emphasised that the conduct of the applicants violated the principle of good faith, depriving the director of the effective possibility of intervening in the proceedings.

On appeal, the Provincial Court dismissed the appeal and upheld the nullity of the notice of meeting and the resolutions adopted, based on the following reasoning:

1. Requirement of hearing the directors: article 169.2 LSC requires that the directors be heard in the registration proceedings. The Court considered that the notification cannot be a mere formality and must guarantee the effective participation of those affected.
2. Knowledge of the reality: despite the presumption of validity of the Register, it was proven that the applicants knew that the registered address was not effective. This knowledge invalidates the presumption contained in Article 20.1 of the Commercial Code.
3. Irrelevance of the failure to update the registered details: even if the dismissed director had failed to update the registered address, such omission does not exempt the applicants from their duty to act in good faith. The Court underlined that the petitioners knew of another valid address where the notification would have been effective.