On 10th December 2021, the Spanish Council of Ministers agreed to refer the Bill for the Promotion of the Ecosystem of Emerging companies (better known as “Startups“), to the Spanish Parliament as one of the milestones of the Recovery, Transformation and Resilience Plan, which responds to the criteria established in the EU Startups Nation Standard declaration or set of practices designed to promote entrepreneurship in the European Union.
In our article published on 31st December 2021 called “Emerging Companies’ Law (“Startups”) – Part I” we explained the general civil and commercial framework established in the first titles thereof, focusing on the contents of Titles I and II.
In Part II of said article we shall focus on the contents of Titles III and IV and Third Final Provision thereof.
Title III regulates the incentive for foreign investment and the recruitment of talent.
Article 10 establishes that natural persons who do not have Spanish nationality and who wish to invest in Spanish emerging companies and who do not reside in Spain, must file an application at the Spanish Tax Administration (AEAT) in order to obtain a tax identification number (número de identificación fiscal – NIF), without having to obtain a foreigner identification number (número de identidad de extranjero – NIE). Their powers of representation may be recorded in a notarial deed or in a contract wherein their acceptation as tax representative is expressly stated. If this is stated in a notarial deed, granted abroad, the contents thereof will not be required to comply with the Spanish legal system. The AEAT will establish an electronic procedure for such purposes and must issue a decision on the application within a maximum term of 10 business days as from filing the application together with supporting documents, as required.
Article 11 provides that the general meeting may authorise the acquisition of own membership interests for up to 20% of capital, to be presented to the directors, employees or other collaborators of the company, with the sole purpose of executing a remuneration plan and that this remuneration plan must be provided for in the company bylaws and approved by the general meeting by means of an agreement which shall include (i) the maximum number of membership interests which may be assigned during each financial year, (ii) the value thereof and (iii) the term of duration of the plan.
The acquisition by the company of own membership interests shall require the following conditions: (i) that the membership interests are fully paid up, (ii) that the net worth, once the investment has been carried out, is no less than the amount of capital as well as the unavailable reserves and (iii) that the acquisition is carried out within the five years following the date of the authorisation agreement.
Title IV regulates the registration procedures and notary and registry fees for the incorporation of emerging limited liability companies.
- The deadline for the registration of the incorporation and corporate acts will be five days from the day following the date of filing the entry with the registry and, in the case of standard bylaws, the registrar will issue their decision and register the public deed within one working day following the receipt by electronic means thereof.
- Partners’ agreements will be registrable and will benefit from registration publicity if they do not contain clauses contrary to the law.
- It is established that notary and registry fees and publication in the Official Gazette of the Commercial Registry are free of charge.
The Third Final Provision establishes the concept of the international remote worker (a national of a third country authorised to stay in Spain to carry out an employment or professional activity remotely for companies located outside the national territory by means of the exclusive use of computer, electronic and telecommunication means and systems), their residence status and the international remote working visa.
It is foreseeable that changes will be made to the Bill during the parliamentary process. The aim is to conclude this process before the summer of 2022 so that the Law can enter into force by 30th September 2022 at the latest.
Mireia Bosch
Vilá Abogados
For further information, please contact:
7th January 2022
