I.- EINFÜHRUNG.

Am 6. Juli 2012 wurde das Gesetz 7/2012 vom 15. Juni im Amtsblatt der katalanischen Regierung veröffentlicht, welches die Novellierung des dritten Buchs des Zivilgesetzbuchs von Katalonien – betreffend juristische Personen – zum Inhalt hat. Vorrangiges Ziel dieses Gesetzesvorhabens ist es, die bisherigen Rechtsnormen zu vereinfachen und den vorhandenen Exzess an Voraussetzungen, die zur Gründung einer katalanischen Stiftung bisher erforderlich waren, sowie den Exzess an Möglichkeiten staatlichen Eingreifen in die Organisation und Funktionsweise dieser Stiftungen abzuschaffen.

II.- CHART SHOWING THE MAIN DIFFERENCES.

The following chart brings together the main modifications introduced by Law 7/2002:

Law 4/2008 (former wording)
Law 7/2012
Minimum contribution The initial contribution (assets or rights) of a foundation had to have a minimum value of 60,000 €. The initial contribution (assets or rights) of a foundation must have a minimum value of 30,000 €.
Paying up The initial paying up had to amount to at least 50% of the contribution and the rest had to be brought in within 4 years.
The initial paying up must amount to at least 25% of the contribution and the rest must be brought in within 5 years.
Temporary foundations Foundations with initial contributions of no less than 30,000 € could be incorporated provided that they had a maximum duration of 5 years. Foundations with initial contributions of no less than 15.000 € may be incorporated provided that they have a maximum duration of 5 years.
Composition of the board of trustees Minimum of 3 members, with a president and secretary. The post of secretary had to be fulfilled by one of the members of the board of trustees. Minimum of 3 members, with a president and secretary. The post of secretary may be fulfilled by a person non-member of the board of trustees.
Ordinary management
In foundations with more than 25 employees and with assets greater than 6 million € or with an annual volume of ordinary revenue greater than 3 million €, the trustees could not perform management functions nor undertake remunerated employment or professional relationships. A trustee may perform management functions or undertake remunerated employment or professional relations in any type of foundation provided that certain formal contracting conditions are fulfilled and the functions in question are different to the duties typical of the role of trustee.
Registration General powers of attorney had to be filed at the corresponding registry. It is not necessary for general powers of attorney to be filed at the corresponding registry.
Conflict of interest and self-dealing The foundation could not sign with its trustees (or persons related thereto) purchase and sale or real estate or movable lease contracts of extraordinary value, nor contracts for money loans or the rendering of remunerated services without the prior authorisation of the protectorate. The foundation may carry out any type of operation with it’s trustees (or persons related thereto) if the board of trustees previously issues a statement of liability which justifies the necessity and interest and presents it to the protectorate.
Acts subject to authorisation The transfer, encumbrance or disposal of the assets and rights making up the patrimony of the foundation was subject to the prior authorisation of the protectorate if the product of the operation was not totally reinvested in the patrimony of the foundation. The transfer, encumbrance or disposal of the assets and rights making up the patrimony of the foundation, when the product of the operation is not totally reinvested in the patrimony of the foundation, is subject to a statement of liability from the employer.

III.- CONCLUSION.

Having verified that Law 4/2008 has meant a regulatory and interventionist excess in Catalonia on the part of the administration which has caused not only a slowing down in the creation of foundations, but also a „flee“ of these entities to more flexible jurisdictions, with the aforementioned draft bill, the Catalan Government endeavours to propel the creation of foundations in Catalonia and make their operation and organisation more dynamic.

Law 7/2012 incorporates measures for administrative simplification regulated in Law 26/2010 resulting from European Directive 2006/123 relative to services in the internal market.

Für weitere Informationen bitte kontaktieren Sie mit:

Ramon MANYÀ: rmt@vila.es

13.09.2012