Commercial Power of Attorney in Barcelona

Commercial powers of attorney are usually granted when the usual attorney-in-fact of the company does not want or cannot attend an act, but their intervention is necessary. Thus, another person is authorised to exclusively handle that specific act, contract or legal transaction.

This is because the administrators of a company are involved in so many management activities of the business (economic, strategic or market positioning) that sometimes they need representatives to act on their behalf and in representation of the company in the management of legal transactions.

The relationship between the granting company and the attorney-in-fact is considered close and based on trust and, for this reason, other partners of the company or executives of the same usually act as attorneys-in-fact. This is because the person who receives the commercial power of attorney must act in good faith on behalf of the company they represent. Instances where the attorney-in-fact acts incorrectly or for their personal purposes can lead to significant financial losses that result in legal disputes. If the company loses trust in its attorney-in-fact, it must process a deed of revocation of power to annul the powers that it had granted in the document or deed of commercial power of attorney.

In any power of attorney, a principal, that is to say, the person granting the power, authorises an attorney to act on their behalf. The granting of commercial power of attorney or commercial authorisation results in the appointment of an attorney. The power can be granted:

• By the administrative body, as it is the one that grants the representation of the company and can transfer its powers to other parties. Therefore, it can be granted by the sole administrator, any of the joint administrators, the joint administrators acting together, or the board of directors itself.
• By the General Meeting. The general meeting cannot strictly speaking grant the commercial power of attorney, as it is an external act of the company and must be granted by the administrators. However, they can agree in the meeting to grant power to another person, with the administrator being the one to formalise this corporate resolution publicly and grant the power to the person designated by the meeting.

There are different areas where the actions of a proxy can be focused, highlighting among them the special power of representation or the special power of administration before any Public Administration (public bodies or entities of public law).

As examples, we find the incorporation of companies (including amendments, dissolutions or liquidations), attendance at general meetings of companies, credit operations, the administration of a property, real estate transactions such as a sale, the carrying out of transfers or debt collections.

In commercial power, there are certain limits:

• Limitations of the administrator: the administrative body cannot confer powers that are limited or prohibited according to the company’s bylaws.
• Self-contracting: the administrative body of a company that lacks the express power of self-contracting cannot grant a power of attorney to a third party, conferring upon them the power of self-contracting; a waiver only concerns its principal, the company, which must grant it through the body expressing its will: the general meeting of shareholders.
• Non-delegable powers: These are those that the law prevents from being delegated, and must be exercised by the administrators themselves, such as convening the shareholders’ meeting.

This is a notarial deed in which a company grants power of attorney to an attorney-in-fact (natural or legal person) to represent it and act in all areas of its commercial dealings, granting broad powers, especially regarding assets, for its intervention in acts or formalisation of contracts on its behalf.

The general notarial power granted will serve to subsequently authorise signatures in public deeds for the company or business, among other activities. The general notarial power also grants administrative powers over the assets of a company. In this way, while the administrators are responsible for the organic management of a company, the attorneys-in-fact hold voluntary representation.

The granting of general power may be established for a fixed term or for an indefinite period, with its validity being indefinite. Generally, they tend to be indefinite unless the grantor specifies otherwise.

It also has specific characteristics as it is unilateral, in the sense that acceptance by the attorney-in-fact is not necessary. Furthermore, it is considered receptive since the power is communicated to the attorney-in-fact.

To revoke the commercial notarial power, a power of attorney revocation deed must be executed and the revocation registered in the Commercial Registry.

A special commercial power of attorney is quite similar to a general commercial power of attorney. However, the granting company authorises a person for their representation in a specific act, contract or legal transaction or for a specific power that is expressly mentioned in the document in which the representation is transferred.

The main advantage of this type of commercial power of attorney is that it shortens the scope of action of the attorneys, restricting and limiting their actions in a specific and determined contract or legal transaction.

As we have seen, the difference lies in the fact that in the general commercial power of attorney the attorney acts in all areas of commercial traffic, with more freedom and powers, whereas a special commercial power of attorney is granted for a specific act, contract or legal transaction without extending the power to other areas.

Therefore, the special commercial power of attorney ends with the completion of the transaction for which it was granted, differing in this respect from the duration of a general commercial power of attorney, which is usually indefinite. It is also common for the special power of attorney to end if the granting company is dissolved or the attorney resigns.

However, special commercial powers of attorney may refer to a plurality of acts, such as carrying out all banking procedures. In this case, it would be a special power of attorney that allows all banking procedures to be carried out. This type of special powers of attorney, but referring to a plurality of acts, have an indefinite duration unless a specific term of validity is established in the power of attorney.

The notarial document of commercial power of attorney must include the following information: name of the granting company, address and CIF, and information relating to the attorney-in-fact.

It also includes the place where the notarial act is held, the name of the Notary Public, and the city in which they operate.

The content summarises the purpose of the power and the right granted to the special attorney-in-fact, the names of the persons attending the signing, the signatures of the parties, and the Notary's seal.

It will be important for the granting company to communicate to the Notary why and for what purpose it needs to grant a power of attorney. We will advise you impartially, offering the best solutions to the situation, always ensuring that they are within the context of legality. We will inform you about the legal and financial risks, how to mitigate them, and advise you on possible conflicts of interest that may arise.

Once the Notary has ensured that the parties involved are aware of the responsibility conferred on the attorney-in-fact and that the grantors are of full mental capacity, the document granting powers to the attorney-in-fact will be drafted and authorised. In the special commercial power of attorney, the capacity or power granted by the company to the attorney-in-fact is established, specifying exclusively what they are authorised to manage. Meanwhile, in the general commercial power of attorney, the capacities granted by the company to the attorney-in-fact are established, specifying the actions and responsibilities they are authorised to manage, being, as we have mentioned, one of the types of commercial powers of attorney that offers the greatest scope of action.

The Notary is a legal professional with legal powers to authenticate documents, legal acts, and ensure the legal validity of transactions. Their seal and signature provide legal security to transactions and protect the interests of the parties involved.

The commercial power of attorney must be drafted as a public deed before a Notary in the cases established by law. Its drafting as a public deed is mandatory if it includes acts linked to public deeds, that must be registered in some registry, or that may harm third parties (Civil Code article 1280), such as powers of attorney for the sale of real estate or modification of company bylaws.

Then, authorised and simple copies of the deed will be granted for use, as well as the authentic copy of the deed to the attorney-in-fact for the purpose of exercising their commercial power of attorney.

In detail, the following must be provided:

• DNI, NIE, passport or residence card of the company representative (grantor). Anyone wishing to process a commercial power of attorney must go to a notary with a valid DNI. The grantor must be of legal age and have full mental capacity.
• Deed of appointment of administrator where the grantor appears as the company administrator. This requirement can be replaced by the notary consulting the company data in the Mercantile Registry.
• Name, company name, registered office and CIF of the company.
• Authentic copy of the deed of incorporation of the company and of the bylaws or of the amendment of the bylaws that have occurred. The presentation of these deeds can be replaced by obtaining the information from the Mercantile Registry through the notary.
• Real ownership certificate (notarial deed identifying the partners who own more than 25% of the company’s share capital)
• Documentation related to specific data of the attorney-in-fact (name, surnames, photocopy of DNI, NIE or passport)
• If the company is a foreign company, at the time it wishes to grant a special power of attorney it will need the company documentation translated and apostilled, the official certificate of the company’s registration in the registry, Spanish NIF and NIE or passport of the representative.

Registration of the general commercial power of attorney in the Commercial Registry is necessary to ensure legality, the integrity of legal agreements, and the protection of the parties, so that the applicable law and regulation are complied with.

This is established by Article 94 of the Commercial Registry Regulations with the purpose that the attorney-in-fact can carry out their activity effectively and increase the legal certainty of the business. If it is not registered, the legitimacy for the representation of the company would not be accredited. In the event that there is a future deed of revocation, it must also be registered in the Registry.

However, only those powers of attorney granted by a previously registered administrative body may be registered in the Commercial Registry.

Regarding the registration of the general commercial power of attorney, the question arises whether the attorney-in-fact can act before the power is registered. In this regard, the Resolution of 25 May 2017, of the Directorate General of Registries and Notaries declared that “In relation to voluntary representation based on an unregistered general power of attorney or a special power of attorney, this Governing Body has declared, within the scope of the Property Registry, that the absence of the registration data in the Commercial Registry as an indicator of the valid existence of the alleged representation can be supplemented by the note in the registrable title of those data and documents that demonstrate the valid appointment of the company representative or attorney-in-fact for having been appointed with the legal and statutory requirements and formalities by a competent corporate body, duly convened, and in force at the time of the appointment, including acceptance of the appointment and, where appropriate, notification or consent of the holders of previous registered positions in terms that make the registry situation compatible and consistent with the extraregistry situation.”

Regarding the special commercial power of attorney, registration of special commercial powers of attorney in the Commercial Registry is not necessary, since the person to whom the power is granted ceases to have it at the moment the action for which it was granted is carried out.

It is important to know that notaries such as JLA Notarios offer the possibility of processing notarial services online, allowing for faster management and greater convenience for the client, with the corresponding time savings. In our case, as a technologically advanced online notary, we can process the granting of an online commercial power of attorney by authorisation via videoconference, offering considerable advantages in commercial notarial actions.

Contact us to process your commercial power of attorney from anywhere in Spain! You will receive a personalised, comfortable and efficient notarial service.

The price of notarial acts is regulated by the Government and complies with the regulatory framework of the notarial fee schedule (RD 1426/1989, of 17 November, which regulates the Notaries' Fee Schedule).

However, the exact price of a notarial document cannot be calculated until its specific content is known, that is, until it is signed, as there are many circumstances that can cause it to vary. The number of copies requested of a document, the number of pages it contains, the number of grantors and attorneys-in-fact, as well as possible changes or additions, can slightly alter the final price.

If you wish to receive a detailed quote, we invite you to contact us directly through the method that is most convenient for you. You can do so via the contact form on the main page of this website, through the contact section found in the footer of the website, using the direct WhatsApp access at the bottom right of this page, by sending an email to bcn@jlanotarios.com, or by calling us at 93 159 17 62.

As a guideline, we can inform you that, according to the current regulatory framework, the usual price for the formalisation of a general commercial power of attorney deed is between €125 and €175, including VAT.

Regarding the usual price for the formalisation of a special commercial power of attorney, it is between €90 and €150, including VAT.

These indicative prices are calculated for a document with typical content (9 pages) and with the issuance of a single authorised copy and one simple copy, granted by a company.

Spanish commercial powers of attorney have international recognition as long as they are apostilled. Through the Hague Apostille, an annotation on the private document or deed certifies its authenticity. This is because our country, along with many others, is part of the Hague Convention, an international treaty in which the signatory countries use an apostille to legalise the document for use abroad.

At JLA Notarios we can take care of obtaining the notarial apostille on powers of attorney signed at our notary office for clients who wish. This is a complementary service to the signing of the power of attorney and we offer it because our clients regularly request these services from us. Therefore, we offer a comprehensive service in the management of powers of attorney and commercial services for our clients, being able to handle all the complementary procedures required for deeds signed at our notary office.