It is common for these types of entities to approve the minutes of previous meetings/assemblies at subsequent meetings, even including that approval as one of the agenda items of the following meeting. However, the applicable regulations (Law 1/2002 on the Right of Association, Law 12/1991 on Economic Interest Groupings, Law 50/2002 on Foundations) say nothing on this matter.
In contrast to the regulation of corporations (primarily, Royal Legislative Decree 1/2010, which approved the Corporate Enterprises Act, and Royal Decree 1784/1997, which approved the Commercial Registry Regulations), the regulation of associations and foundations is silent on the procedure for approving meeting minutes, creating a complete legal vacuum.
First, it depends on what is established in the bylaws.
Therefore, it will be necessary to adhere to what each entity’s bylaws establish. But in the absence of such a clause, the question arises: how should the minutes be approved in associations, AIEs, or foundations?
What we must keep in mind is that the agreements adopted in a validly held meeting are enforceable from the moment they are adopted and not from the approval of the minutes that merely reflect what happened in the meeting. The drafting of minutes, while mandatory, is an evidentiary act, not a solemnizing one [1]., and all these entities follow this logic. In this regard, the Spanish Supreme Court (STS 5-1-2007) states: “Ultimately, resolutions are the expression of the majority will, obtained through the sum of parallel individual declarations, issued under the conditions and in the manner established by law. Meanwhile, the minutes are merely an instrument of record, for fundamental reasons of legal certainty and evidence, of the prior adoption of certain resolutions ”.
Nevertheless, in order to notarize the resolutions adopted at a meeting, certificates of the minutes signed by the secretary and the chair of the meeting must be submitted, and, in some cases, the minutes themselves must also be submitted
But how are minutes approved?
Returning to the key issue, how are minutes approved? The minutes must be approved by the same governing body, typically the board. The laws on associations, AIEs, and foundations do not provide any guidance on this (nor do their implementing regulations or registry rules). However, by analogy with corporate law, which is the most similar and detailed, we can state that the minutes should be approved either at the end of the meeting (by the meeting itself, jointly) or within 15 days by two members representing the majority and minority.
This second option, however, makes little sense in associations, AIEs, and foundations, since they usually emphasize equality among members in rights and duties. Thus, the first option (approval at the end of the meeting) is preferred due to the lack of practical usefulness of the latter, for two reasons:
- These types of entities typically do not prepare the final version of the minutes during the meeting itself, but afterward (the same occurs in corporations);
- Even if they are drafted a few hours later, many attendees would no longer be present.
That is why the most reasonable and, above all, practical option is to approve the minutes during the same meeting, so there’s no need to send them afterward to the members or to approve them at the following meeting.
Finally, regarding how exactly minutes are approved, we understand that a formal resolution is not required, but rather it is sufficient to express tacit consent, either orally or in writing, through silence or explicit approval.
However, nothing prevents the minutes from being approved by telematic means if this is allowed in the bylaws. Furthermore, communications between shareholders and the company, including the signing of documents, may be carried out using a simple electronic signature (for example, via an uncertified email, or through a digital tool that automates this process, such as boardchainapp.com).
[1] Campins Vargas, A.: https://almacendederecho.org/acta-la-junta-comentario-al-art-202-lsc/
