On June 13, 2014, the so called Mercantile Reform (Miscelanea Mercantil), which amended, among others, the Mexican Commerce Code (Código de Comercio), the General Law of Business Organizations (Ley General de Sociedades Mercantiles) and the General Law of Negotiable Instruments and Credit Transactions (Ley General de Títulos y Operaciones de Crédito), was published in the Official Gazette of the Federation (Diario Oficial de la Federación or “DOF” for its Spanish acronym). As part of the amendments, Article 50 BIS was added to the Commerce Code, which states that those publications that should be made in accordance with the Mexican mercantile laws shall be carried out through the electronic system to be established by the Secretariat of Economy (Secretaria de Economia – the “Secretariat”), in the understanding that such publications shall be effective on the day following their publication, but without prejudice of the publications that shall be made in accordance with other special provisions or laws (the “System”).
A year later, on June 12, 2015, and in compliance with the Transitory Article Third of the Mercantile Reform Decree, the Secretariat published in the DOF the Rules establishing the Electronic System for Publications by Business Organizations and the provisions for its operation (Acuerdo por el cual se establece el Sistema Electronico de Publicaciones de Sociedades Mercantiles y las disposiciones para su operacion – the “Rules”), set forth in Article 50 BIS of the Commerce Code.
The purpose of the Rules is to enhance country’s competitiveness and productivity, through modernization and administrative simplification of certain provisions ruling the mercantile business activity.
The operation of the System began on June 15, 2015 and the services provided by it are free of charge.
II. ACCESS TO THE SYSTEM AND SERVICES PROVIDED.
The System is a web-based electronic system available at http://www.psm.economia.gob.mx/PSM/. Publication of communications by business organizations which mercantile laws require to be published (e.g. calls to shareholders’ meetings), as well as the correction of errors in said publications, can be made through the System. Likewise, the System grants the general public access to the published information.
Only representatives of the company interested in the publication, users pre-authorized by such company’s legal representatives and officials of the Secretariat are allowed to use the System to make publications or corrections. The legal representative shall use his/her advanced electronic signature (firma electronica avanzada) and provide the information required by the system, including the company’s taxpayer registry number (or RFC for its Spanish acronym), the corporate name of the relevant company, the digital file on “pdf” format (which shall not exceed 1 megabyte) containing the document to be published, among other information. During the process, the legal representative may appoint authorized users or revoke their appointment. The System will create a publication number and a confirmation ticket (boleta) for each publication and correction made. As mentioned, such confirmation tickets can be accessed by any person.
III. NOTICES SUBJECT TO PUBLICATION.
As provided in provision Sixteenth of the Rules , the following publications can be made:
I. Call to an Incorporation General Meeting; II. Call to General Meetings; III. Call to a Meeting to holders of equity certificates (certificados de participacion); IV. Call to a Meeting by authority order; V. Meeting’s Resolutions regarding the increase of the corporate capital; VI. Foreign companies’ operations balance sheet; VII. Financial Statements, notes and opinion of the statutory axaminer; VIII. Balance Sheet of debenture-issuing companies; IX. Reduction of corporate capital; X. Merger resolutions, last balance sheet of each merging company, basis for the payment of liabilities of the merged entities; XI. Spin-off resolutions; XII. Resolutions on the conversion of the company; XIII. Notice for the payment of pending contributions to the corporate capital when the payment term or amount is not set forth in the share certificate; XIV. Resolution of partial distribution of assets of the company subject to liquidation; XV. Liquidation balance sheet; XVI. Outcome of the draw (sorteo) to determine the shares to be redeemed; XVII. Regulations applicable to freight service providers; and XVIII. Other publications set forth in the mercantile laws in accordance with the list set forth in the System. The System is for publications by business organizations, not by natural persons performing mercantile transactions.
Beginning on June 15, 2015, any communication by a business organization that must be published in accordance with a mercantile law shall be published through the System, in addition to the making of such publication through any other means as may be required by special regulation, the relevant company’s bylaws or the particular resolutions adopted by the equity holders;
The information crated, sent, received or stored in the System shall be, for all legal effects, considered a data message in terms of Article 89 of the Commerce Code;
Those documents and data messages with the advance electronic signature (firma electronica avanzada) shall have the same effects as those bearing a signature and, consequently, shall have the same probative value that applicable provisions grant them in accordance with the terms of Article 89, eighth paragraph, of the Commerce Code;
We recommend the review of the bylaws of each company, as well as the minutes for the issuance of debentures (obligaciones) and other documents of business organizations, as it is possible that these documents still reflect what was in effect before the reform of June 13, 2014 and, in such cases, absent an amendment to such documents, we suggest that calls for meetings and other publications required be made through both the System and the means currently established in the aforesaid documents.
As the terms of the Rules are currently written, a publication required by a mercantile law that is not listed either in the Rules or in the list shown in the System would not be subject to publication in the System, even though its publication in the System is required according to Article 50 BIS of the Commerce Code.
It is important to emphasize that the company’s legal representatives and authorized users will be liable for the damages and losses that may arise as a result of the publications, as such persons are responsible for the existence and veracity of the information they published.