Professional companies (PC) are those companies whose corporate object is the common exercise of professional activities, understood to be those whose performance requires an official university qualification, or a professional qualification, and for the pursuit of which an official university qualification is necessary as well as registration with the corresponding professional association (as is the case of engineers, doctors, architects, lawyers, auditors, etc.)
Professional companies may acquire any of the existing legal corporate forms. However, their specific regulation is set forth in the Professional Companies Act 2/2007 of 15th March (hereinafter referred to as “PCA”).
In order to determine whether a group of the aforementioned professionals should incorporate a PC, the corporate object and composition of the PC must be taken into account.
(a) According to articles 1.1 and 2 of the PCA, the corporate object of PCs consists, exclusively, of the common performance of a professional activity.
Therefore, when defining said corporate object it advisable to avoid a list, description or summary of activities and instead limit the definition to the designation of the specific profession to be carried out in common, given that a PC may not have activities of a non-professional nature as their corporate object, as indicated by the General Department for Registries and Notaries in its recent resolution dated 31st October 2017.
(b) As far as the composition of the PC is concerned, article 4 of the PCA establishes that, at least the majority of capital and voting rights, or the majority of corporate assets and the number of partners in non-capitalist companies, must correspond to professional partners. Likewise, at least half plus one of the members of the administration bodies of PCs must be professional partners. If this is not the case, the PC S shall be dissolved.
On the other hand, the existence of a specific regulation of PCs offers additional guarantees in favour of third parties who require professional services.
Thus, one of the most relevant questions to be taken into account regarding PCs is the special regime of joint and several liability of both the company and the professionals, whether they are partners or not, who have intervened in the rendering of the service, as provided for in article 11 of the PCA, which obliges the PC to provide the corresponding civil responsibility insurance.
Likewise, the second Additional Provision extends said special regime of responsibility to those cases wherein two or more professionals collectively develop a professional activity without incorporating a professional company in compliance with the PCA, as they generate a particular confidence for the client of the services as to the collective support of such activity which should not be defrauded in the moment in which, if necessary, accountability is demanded.
Carla Villavicencio
Vilá Abogados
For more information, please contact:
1st of December 2017
