The controversial Royal Decree-Law 5/2023, of the 28th of June, has implemented new measures of various subjects. The media have been related to the the reconciliation of family and professionalbut there are others that have not appeared much in the media, but that are also very relevant, such as those related to the structural modifications of commercial companies.
The aim of these measures has been standardise and to harmonize the legislation that regulates the operations of structural changes in companies with the regulations of the European Union. In this sense, the adoption of this standard has resulted in the transposition of the Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019, in connection with the transformations, mergers and divisions cross-border.
This Royal Decree-Law 5/2023 came into force on 30 June 2023, except for some sections that will be in force as of the publication of the July 29, 2023, and it implies the abolition integrates the Law 3/2009 April 3, on structural modifications of the commercial companies.
What is the objective scope of this standard?
The Royal Decree-Law aims to regulate the structural modifications (transformation, merger, split, etc.) internal and cross-border (both within and outside of Europe) of corporations.
One of the most significant changes in comparison with the law previous one is that the “transfer international registered address” it is replaced by the “transformation of cross-border“. This means that there is the possibility that a commercial company Spanish is to become a mercantile society of the member State of destination, or, a trading company of a member State, in particular, will become a commercial company Spanish.
Add to that, the new law tackles the regulation of the split cross-border, so it was not in the legislation above.
Unification of the documentation required for a modification in structural
With the new law, any modification to the structural requires the following documentation:
- A project, produced by the directors of the company who make or participate in a modification of structure.
- In accordance with art. 5 of the new law, the administrators will elaborate a report by the partners and employees explaining and justifying the legal and economic aspects of the modification on the structural, its consequences for workers, as well as, in particular, for the business future of the company and to its creditors.
- In accordance with art. 6 of the new law, a independent expert appointed by the Mercantile Registrar, at the request of the directors, will examine the project of modification on the structural and develop a a report will be made available to the partners with a month prior to the date of the General Meeting which approves the modification of structure.
Measures for the protection of members and creditors in the structural modifications
With the aim of protecting the members and creditors, are established measures of safeguards applicable to all the structural modifications of commercial companies.
- With regard to the partners, incorporates a new law called the right of alienation (the above is known as the right of withdrawal). This law allows the members who voted against the project or are holders of the shares without the right to vote, sell their shares. Will be applied in cases of internal transformations, mergers and absorption of investee to 90% without reports of the directors and experts on the merger project, and operations cross-border subject to a law, foreign. Add to that, if the member considers that the compensation in cash bid for the company is not appropriate, you can claim additional compensation in a period of two months.
- With regard to the creditors, it replaces the old right of opposition to the possibility of requesting the modification or extension of the measures through the intervention of the Registrar of commerce and an independent expert, and in some cases, from the Court of the Commercial. It is important to note that the exercise of this right on the part of the creditors not to stop the modification of structural or prevent its entry in the Commercial Register. In addition, the creditors will have to prove that their rights are endangered by the modification of structural and who have not received guarantees adequate.
As additional security, administrators can attach a statement along with the project that reflects the financial situation requires the company not more than a month before publication. This declaration should state that there are no reasons for which the company does not comply with its obligations after the operation has been carried out.
Regulation of transactions cross-border
The new Royal decree-law includes provisions to regulate the structural modifications border, both within Europe and outside of it.
Thus, we will establish a procedure to carry out the transformation of societies of capital by Spanish companies subject to the law of another member country of the EU, or vice versa. Also we will cover the operations of mergers, divisions and transfers of assets and liabilities when participating societies, subject to the legislation of the member countries of the EU, as well as companies subject to other regulations different.
It is important to remember that it will require the issue of a certificate prior to the operation on the part of an authority of each country, which in the case of Spain, corresponds to the Mercantile Registrar. In the event that it is considered that the operation to cross the border is done with purpose abusive and fraudulent the business Registrar may act denegant such certificate.
Therefore, this new law introduces novelties of a certain importance and regulates exhaustively a casuistry that is becoming increasingly common in a world as connected as today.
