In Spain, the legal concept of a branch is defined in article 295 of the Commercial Registry Regulation (hereinafter referred to as the “Regulation”) as follows:
“a branch shall be understood as any secondary establishment with permanent representation and a degree of management autonomy through which the activities of the company are carried out, wholly or in part.”
Unlike permanent establishments, branches are subject to the same obligations as a Spanish company, in spite of not having its own legal personality, as demonstrated in the aforementioned article.
Therefore, a branch must be registered with the commercial registry corresponding to its corporate domicile, and branches with a foreign company as its parent company must also file annual accounts in accordance with article 375 of the Regulation.
In Spain it is difficult to imagine legislation that does not establish the obligation for national companies to keep accounting order which should be deposited and registered in a company register. However, this may be the case and, for this purpose, Article 376 of the Regulation establishes the following:
“In the event that the legislation of the foreign company does not prescribe the preparation of the accounts (…) or prescribes them in a manner not equivalent to Spanish legislation, the company must prepare these accounts in relation to the activity of the branch and deposit them with the Commercial Registry”.
Otherwise, that is to say, if the legislation of the country where the parent company is based contemplates the obligation to deposit annual accounts, foreign companies with branches in Spain must deposit their annual accounts in the registry in which the data of the branch is recorded, and where appropriate, consolidated accounts if drafted in accordance with the legislation applicable to the parent company.
If the accounts have already been deposited in the registry corresponding to the foreign company, the qualification of the Spanish Registrar shall be limited to the verification of this particular.
In accordance with the information provided by the different commercial registries in Spain which have been consulted on this issue, there is no unified criterion regarding how the annual accounts should be filed. However, although the financial years of the parent companies are unknown to Spanish commercial registries there does seem to be a unified approach regarding the deadline for filing, which shall be 31st December of the year following the financial year regarding which the annual accounts are filed.
In practice, the non-fulfilment of the aforementioned regulations and the consequent lack of filing of the annual accounts within the established deadline, may generate very serious problems for the branch and likewise for the parent company. The non-filing of the annual accounts shall mean that the commercial registry closes the registry record sheet for the branch, which would impede the registration of powers of attorney, for example. In the hypothetical case that a branch must cease or appoint permanent representatives or grant powers of attorney for lawsuits, they may find their registry record sheet has been closed and that therefore it is impossible to carry out said actions.
Hugo Ester
Vilá Abogados
For more information, please contact:
8th of June 2018
