Division V of the Federal Court of Appeals in Administrative Matters maintained that upon filing an information request with the Public Registry of Commerce, it is not necessary to invoke a “legitimate interest”. In addition, Division A of the Commercial Court of Appeals reminded of the importance of having access to information on a company’s legal domicile registered with the Public Registry of Commerce.
As from June 2012, the Public Registry of Commerce (“PRC”), the agency in charge of the Public Registry of Commerce of the City of Buenos Aires, has changed the requirements to grant access to information, files or comments to proceedings under its jurisdiction. It is now necessary to evidence being an interested party, its attorney-in-fact, legal advisor or previously authorized agent. In the case of registered acts, a “legitimate interest” must be evidenced to process the application. Furthermore, the PRC has restricted access to the information provided on its official website - in order to access information on the status of a proceeding, its number must be provided (searches by company name, or company file number are no longer admissible). The PRC construes that the information contained in its registries constitutes a personal information database, subject to the provisions of Law No. 25,326 (Personal Data Protection Law) and related rules.
The PRC based these restrictions on access to information on Legal Opinion N° 7/2012, of March 16, 2012, issued by the National Office for Personal Data Protection (Dirección Nacional de Protección de Datos Personales -“DNPDP”, after its Spanish name-).
In its legal opinion the DNPDP concluded that, although the information to be provided by the PRC qualifies as “information subject to public access”, “considering that not all the personal information recorded in a public registry can be disclosed or delivered by the mere fact of its being part of a public database, the entity subject of the request must verify the viability of granting, through the mechanisms foreseen by the PRC, the information corresponding to the mentioned companies and verify the existence of a legitimate interest in order to grant more information on the same.” Furthermore, in its legal opinion, the DNPDP includes a narrow construction of the term “legitimate interest.”
- Brief summary of court decision “Gil Lavedra Ricardo Rodolfo vs. Federal Government, Ministry of Justice and Human Rights – Public Registry of Commerce, on summary proceeding aimed at the protection of constitutional rights (amparo) Law No. 16,986”
In this context, on June 19, 2013, Division V of Federal Court of Appeals in Administrative Matters, in re: “Gil Lavedra Ricardo Rodolfo vs. Federal Government, Ministry of Justice and Human Rights – Public Registry of Commerce on summary proceeding aimed at the protection of constitutional rights (amparo) Law No. 16,986”, referred to the viability of requesting information contained in the PRC’s registries, with no need to invoke a “legitimate interest.”
The plaintiff, National Congress member Ricardo Gil Lavedra, filed a summary proceeding (amparo) aiming at obtaining a court order to cause the PRC to provide him with information on certain companies (requests of February 17, 2012, and March 30, 2012, that were never answered by the PRC).
As set forth in the court decision, the request of information to the PRC concerned two issues: a) confirmation on whether any kind of investigation was carried out regarding purported irregularities in the incorporation and transactions of certain companies, and in such case, provide copies of the proceedings or explain the reasons whereby the PRC decided not to intervene; and b) to inform if the companies were registered, in what character, provide copy of their by-laws, detail of the composition of government and surveillance bodies, shareholders, domiciles and other relevant data.
Such requests of information were based on the right of access to public information, as per Decree No. 1172/2003, constitutional rules and international conventions. The PRC’s lack of response to the information request motivated the presentation of the summary proceeding (amparo) that was considered by the Court of Appeals after it was rejected by the lower court judge.
In its decision, the Court admitted the appeal filed by the plaintiff and revoked the lower court judge ruling, declaring the legitimacy of the plaintiff and the viability of the action.
Firstly, the Court rejected the information requested in item a), above, on grounds that: “the information requested on the purported irregularities in the incorporation process of the denounced companies, are subject to investigation in various criminal cases, and it is up to such proceedings to determine whether any irregularity in their incorporation and transactions exists or not, and in such case, to determine whether there was also responsibility of their controlling entity” (i.e., the PRC).
Notwithstanding the above, the Court of Appeals accepted Ricardo Gil Lavedra’s request of information mentioned in item b) above, ordering the PRC “within a 10-day term, to provide the plaintiff, with the requested public information on whether the companies were incorporated, in what character, copy of their by-laws, detail of composition of government and surveillance bodies, shareholders, and domiciles.”
The Court based its decision, among other rules, on Sections 33 and 36, paragraph 3, of the Argentine Commercial Code, Section 1 of Law No. 22,316 (PRC’s Functions), and Section 3 of Law No. 22,315 (Law Regulating the PRC), setting forth that the PRC is in charge of the Public Registry of Commerce and establishing its jurisdiction. Furthermore, the Court mentioned that, as provided by Section 8 of Decree No. 1493/82 (regulating Law No. 22,315), ”the proceedings of the PRC, are of public nature and are to be freely consulted by the interested parties, according to the regulations to be issued by such governmental entity” (i.e., the PRC), and expressly referred to the duty to inform in the terms of Sections 8, 9 and relating provisions of Annex VII of Decree No. 1172/2003, and Section 3 of Law No. 26,047 (National Registries Law) providing that: “The national registries shall be of public access by computerized means, with no need to evidence interest ….”
- Validity of the registered legal domicile referred in court decision “Guadagnino, Eduardo M. vs. Heliodino SAIC on executive proceeding”.
A recent court decision of Division A of the Commercial Court of Appeals, in re: “Guadagnino, Eduardo M. vs. Heliodino SAIC on executive proceeding”, dated March 22, 2013, reminds us of the importance of having access to a company’s registered legal domicile.
The Court refers that pursuant to Section 11, item 2, second paragraph of Law No. 19,550 (Argentine Companies Law) “all notifications made to the company’s registered domicile shall be valid and binding” adding that “this consequently allows to assume iuris et iure, the legal domicile of the company in such address, even if it is inexistent, and therefore a change of address is not enforceable vis-à-vis third parties, until the same is duly registered with the PRC (as provided in Section 12, of the Argentine Companies Law), and plaintiff is not required to deliver notice to the defendant at a different domicile to the one registered with the PRC.” “Notices of the complaint made to the registered domicile, in principle, are valid and binding, pursuant to Section 11 of the Argentine Companies Law.” This decision is in line with the Argentine Supreme Court of Justice’s decision issued in 2011, in re: “Acher, María Laura and others vs. Aderir et al. on precautionary measure”. Furthermore, in re “Terrazas al Mar S.A. on bankruptcy proceeding” (as per the Attorney General’s opinion), the Supreme Court ratified that a company’s registered domicile determines the jurisdiction of the reorganization or bankruptcy proceeding (Section 3, Law No. 24,522).
In business practice, in order to exercise a party’s rights, access to registered information is required (e.g., as in the abovementioned case, to validly deliver a notice to a company at its registered legal domicile). However, as from June 2012, the PRC has restricted access to the information contained in its registries (in the case of third parties, a “legitimate interest” must be evidenced). In such connection, although the Court decision in re: “Gil Lavedra Ricardo Rodolfo vs. Federal Government, Ministry of Justice and Human Rights – Public Registry of Commerce on summary proceeding aimed at the protection of constitutional rights (amparo) Law No. 16,986”, is only effective for this particular case, the Court’s resolution is a significant contribution towards making access to public information contained in the PRC’s registries more flexible.