Minutes or Public Deed? Which Document Do You Need for Each Corporate Change?

Minutes or Public Deed? Which Document Do You Need for Each Corporate Change?

When managing a company, it is common to come across two documents that, although related, serve different purposes: corporate minutes and a public deed. Knowing when it is sufficient to document a decision in minutes and when it is necessary to formalise it before a Notary is essential, particularly when the decision must be registered with the Commercial Registry.

Corporate minutes record the decisions adopted by the General Meeting or, where applicable, by the management body. They are the internal document evidencing that the competent corporate body has validly adopted a particular decision. Where the decision must be registered, a corresponding certification of the minutes may subsequently be issued with the relevant formalities. For example, the Commercial Registry Regulations allow certain appointments of directors to be registered by means of a certification of the minutes, provided that the applicable legal requirements are met and the signatures are duly notarised.

By contrast, a public deed is a document authorised by a Notary through which certain corporate resolutions and transactions are formally documented. Not every corporate change necessarily requires a public deed. For example, the appointment of a director may be registered with the Commercial Registry by means of a certification of the minutes of the General Meeting or Board of Directors, together with the relevant acceptance of office, although it may also be formalised by means of a public deed.

The situation is different when the resolution involves an amendment to the company’s Articles of Association. In such cases, Spanish Companies Law provides that the resolution must be documented in a public deed and subsequently registered with the Commercial Registry. This applies, among other matters, to changes to the company’s name, corporate purpose, registered office where this entails an amendment to the Articles of Association, provisions relating to share capital, and any other amendment to the Articles of Association.

A public deed is also required for certain transactions involving share capital, such as capital increases and reductions, which require the corresponding public documentation and registration in order to produce their full registrable effects. Likewise, the incorporation of a company requires a public deed and registration with the Commercial Registry.

Another relevant situation concerns a change in the structure of the management body. If, for example, a company changes from a sole director structure to a Board of Directors, Spanish law requires the relevant resolution to be documented in a public deed and registered with the Commercial Registry. This is different from the simple appointment or removal of an individual director where the management structure established in the Articles of Association remains unchanged.

In the case of the transfer of shares in a Spanish limited liability company, the rules are also specific: the transfer must be documented in a public document, although this does not necessarily mean that every transaction must take the form of a public deed amending the Articles of Association. In addition, the company must record the ownership of the shares in its Shareholders’ Register.

Therefore, the question should not simply be “minutes or public deed?”, but rather what type of corporate decision or transaction is being carried out and whether the law requires it to be formalised before a Notary and registered with the Commercial Registry. As a practical rule, corporate minutes are used to document the decision internally; a certification of the minutes may be sufficient for certain registry procedures; and a public deed is required where the law expressly requires notarised formalisation, particularly in relation to amendments to the Articles of Association, certain share capital transactions and changes to the structure of the management body.

Ultimately, choosing the correct document from the outset helps avoid unnecessary procedures, delays before the Commercial Registry and subsequent difficulties when evidencing the validity of a corporate decision or the authority of the company’s representatives before third parties.