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Entre los expedientes que negocia la Presidencia española de la Unión europea, en el área de Justicia, cabe destacar por su importancia para la ciudadanía europea, la propuesta de Reglamento del Parlamento europeo y del Consejo relativo a la competencia, la ley...

Digitalization and legal certainty in corporate law
Feb 10, 2019

The so-called Company Law Package (CLP), which was presented on 24 April, includes, in addition to the proposal for a Directive on cross-border structural changes - to which I dedicated this column in the last issue - a proposal on the use of digital tools and processes in the field of company law. To this end, it envisages the amendment of the so-called Codification Directive(EU) 2017/1132 of 14 June 2017, which systematises all European company directives. These include Directive 2012/17/EU, which establishes the interconnection of central, commercial and company registers, in force throughout Europe since June 2017. In Spain, a DGRN Instruction of 9 May 2017 was transposed at the lowest possible level. Since then, information on branches and cross-border mergers is sent to and received from the European Central Platform through the electronic headquarters of the National Association of Registrars, where the access point to the interconnection system of commercial registers is established. Following the Tallinn Declaration on e-Government of 6 October 2017, the new proposal for a Directive makes progress both in the implementation of an electronic register and in the interconnection of company registers, simplifying, notably, the treatment of the branch in relation to the codified Directives so that all its incidents must be communicated only once, either in the register of the company or in the register of the branch. This principle of simplification or only onceIn the case of national gazettes, this prevents the company from having to report information twice, and the second information can be respected if it is the Commercial Register that provides the information, as is the case in Spain.

The draft directive is based on the complete digitisation of the commercial registers throughout the company's life cycle: incorporation, modifications or dissolution and extinction. It is aimed exclusively - and at this stage - at limited companies, including sole proprietorships. The information to be provided by the registers, which are already interconnected, expands on the existing, minimal information: name and form; address; Member State; registration data and the assignment of a unique code to each company, consisting of the country prefix. It now adds the company's website; legal status; branches registered in other Member States; details of directors and, if available, information on the number of employees. The information shall be provided free of charge and at least in a language other than the language of the Register.

It should be noted that the electronic register does not exclude the national activity of notaries where the Member State has conferred on them competences in the field of company law, as is the case, for example, in Spain, Austria or Germany. In such a case, procedures must be devised which are neutral in national law but do not prevent the objectives of the Directive from being achieved. In the case of the international creation of a company to be registered in a Spanish register, videoconferencing or remote communication systems may be used, or the notary may act at a later stage, prior to registration in the national register, in order to analyse all the elements involved, without paralysing the process, which may not last more than five working days, or require physical presence, except in very specific cases. Not to mention that, surprisingly, it is added that Member States may authorise companies to file on paper (Recital 17).

As soon as the material content of the social type is not harmonised (remember the failure of the dossier concerning the societas unius personae or SUP) each State shall require such incorporation requirements as may be determined by its national law.

The Directive refers to two. The electronic identification of the constituent citizens (or companies) and the social contribution. With regard to the former, the so-called eIDAS Regulation (910/2014) extends to this case. Recital 21 of that Regulation clearly states that "Nor should this Regulation regulate aspects related to the conclusion and validity of contracts or other legal obligations where there are formal requirements established by national or Union law. On the other hand, it should not affect national format requirements for public registers, in particular commercial and land registers". So the Directive, in fact, amends the Regulation, with the problems of hierarchy of norms arising from the fact that the Directive requires transposition and the Regulation, a European law, is applicable in all its terms.

This circumstance makes us reflect on the loss of the contractual nature of society through digitisation. In the CLP as a whole, the contractual element gives way to the institutional element. It is not the subjective substratum (actual identification, capacity of the parties, analysis of the availability of contributions, special or family agreements) that is important, but the incorporation of the company. On this point, Article 13a(3) clearly exceeds the scope of Article 13a(3) by defining "registration: the act of incorporation of a company as a legal person", whereas it should refer exclusively to the incorporation of a company form listed in the relevant annex, since the definition of legal personality does not fall within the competence of the European Union but of the Member States, which means that the competences of the Member States and the principle of proportionality are not respected.

With regard to capital contributions, the proposal deals with the types of contributions, their payment and any authorised international payment platforms. The fact is that the principle of minimum capital, which is increasingly being called into question in view of its limited economic and legal function, should be replaced in this type of electronic company by a reality test to be carried out by the Member State in which it is domiciled, within a given time limit, simplifying incorporation on the one hand and avoiding empty structures on the other.

The proposal has an intensive journey ahead of it under the incoming Austrian Presidency.