The Spanish Law 11/2023 of 8th May was published on 9th May, transposing the European Union Directives regarding accessibility of certain products and services, the migration of highly-qualified persons, taxation and the digitalisation of notary and registry proceedings; pursuant to which Law 12/2011 of 27th May on the civil responsibility for nuclear damage or damage caused by radioactive material is modified.

This law, which transposes six directives of a very diverse scope, introduces new significant developments in the corporate field (in force since 10th May) as well as in the notarial field (which will enter into force on 9th November), regarding which we would like to highlight the following:

Notaries Act: a new article 17 ter is introduced which allows the granting of notarial documents on line via videoconference, without the need for the grantor to appear in person before the notary public. The acts or legal business which may be carried out through this process, are, among others, the following:

  • Commercial policies. In this case, the submission of the policy by the credit institution to the online office of the notary public will imply its consent to the documented business, unless otherwise stipulated in the text of the policy.
  • Incorporation of companies, appointments and commercial powers of attorney of any type set forth in commercial legislation, as well as the execution of any other commercial actions, provided that, in the event that they contain a partners contribution to company equity, they are in cash.
  • Powers of procedural representation, for intervention before the public administration, as well as for specific acts. The authorisation via videoconference for general or preventative powers shall not be allowed.
  • Withdrawal of powers of attorney, except for general preventative powers of attorney.
  • Receipts and the cancellation of guarantees.
  • Minutes of the general meeting and those of reference thereto in the strictest sense.
  • The verification of signatures.

The Spanish Companies Act: incorporates a new article 22 bis which allows the incorporation of limited companies to take place completely online, except when the partners contribution to company equity is carried out via contributions of a non-monetary nature. When incorporating a company through this proceeding (which shall be regulated by articles 40 bis to 40 quinquies) the grantor may use a standard model of incorporation and bylaws for the public deed, the content of which shall be determined legally. The most relevant aspect of the procedure of incorporation of companies completely online are as follows:

  • Performing a monetary contribution (article 40 ter): monetary contributions shall be conducted through an electronic payment instrument, which shall allow for the identification of the person who carried out the payment and should be provided by a provider of electronic payment services or a financial institution established in a member State. The documentation, assessment and transfer of the monetary contributions shall be implemented electronically. Nevertheless, it will not be necessary to accredit the reality of the monetary contributions for the incorporation of limited liability companies if the founders state in the public deed that they will be jointly and severally liable to the company and to the company’s creditors for such contributions (article 62.2 of the Spanish Companies Act).
  • Registration of the company in the Commercial Registry (article 40 quater): the procedure of online incorporation, when standardised format public deeds and standard bylaws are used, shall be carried out within six business hours, as from the day following the date of filing and entry. For other scenarios, assessment and registration shall take place within a maximum five working days as from the day following the date of filing and entry.
  • Exceptions to full online incorporation (article 40 quinquies): the notary may require the interested party to appear just once in person in the following cases:

(i) For reasons of public interest in order to avoid any falsification of identity.

(ii) In order to verify the capacity of the grantor and, where appropriate, their effective powers of representation.

This will not impede the remaining phases and elements of the electronic procedure of incorporation from being completed electronically.

 

 

Joan Lluis Rubio

Vilá Abogados

 

For more information, please contact:

va@vila.es

 

19th May 2023