The resolution issued by the General Directorate of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP) of 10th March 2021 regarding the negative decision of the registrar of the commercial registry of Badajoz to register the public deed of incorporation of a limited liability company was published in the Official Spanish State Gazette (Boletín Oficial del Estado – BOE) of 28th April 2021.
In this case, in the company bylaws of said limited company the corporate object is described as the “training, consultancy and advice in the area of construction, engineering and architecture”. The registrar of the commercial registry of Badajoz issued a negative decision and did not enter the registration of the incorporation for the following reason:
“The activities described in the bylaws constitute professional activities, therefore the Company should adopt the form of a Professional Company, or determine – in the bylaws – clearly and unequivocally that, with regard to said activities, the object is the mediation or intermediation, thus being excluded from the scope of application of Law 2/2007 of 15th March on Professional Companies.”
An appeal was filed against this decision completely rejecting that for the performance of the activities of training, consultancy and advice in the field of construction, engineering and architecture it is necessary to hold the corresponding official university degree and registration with the relevant professional Association. Rendering advice/consultancy services or any other type of training in such fields or branches of knowledge does not by any means imply the practise of the profession; thus the engineer or architect who renders advice or training services is not performing the activity which the qualification enables them to do when carrying out these activities, but is exploiting and transmitting their knowledge in such areas. It is not the same practising a profession for which a certain qualification or registration with a professional association is required (in the area of engineering or architecture this would be the preparation and drafting of projects or works management than carrying out an activity), since for consultancy or training the knowledge acquired for obtaining the qualification are used and taken advantage of.
The resolution of the General Directorate points out the generic nature of the decision of the registry and the omission of the legal grounds. In spite of this the appellant focuses on “contesting that training activities, consultancy and advice in the field of construction, engineering and architecture have the character of professional activities for the purposes of article 1 of the Law on Professional companies, arguing that none of these tasks involves the practise of the profession of architect or engineer”. And it concludes that if the decision-making mechanism of the registrar had flowed in this direction, it would commit the error of confusing the profession of architect or engineer with the rendering of training, guidance or advice services for the better practise of such tasks. With regard to consultancy, it must be observed that this is gradually being defined as a socially typified professional activity, but the legislator has not yet taken a decision on its regulation as a qualified profession subject to registration with a professional association.
Finally the General Directorate upholds the appeal and revokes the challenged decision of the registry.
Vilá Abogados
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25th June 2021
