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Reform of the capital companies law by law 11/2018
Jan 29, 2019

Law 11/2018, of 28 December, in force since 30 December, has two distinct aspects. The first refers to the parliamentary processing of the new validation (following the Resolution of the Congress of Deputies of 13 December 2017) and, in turn, amendment, of Royal Decree-Law 18/2017, in the exercise of transposing Directive 2014/95/EU. A pending matter in Spain, insofar as the capital companies obliged -considered as large companiesAmong the listed companies according to various parameters - are required by the European standard to disclose non-financial information related to corporate social responsibility and aimed at monitoring the impact of business activity on society. This increases transparency and pressure on the companies concerned by including specific information in the management report and other additional measures. At the same time, diversity is enhanced, especially gender equality, by promoting the incorporation of women on boards of directors, as their presence on boards is currently not representative of female talent.

After devoting Article 1 to the aforementioned transposition, Article 2 of the Law devotes Article 2 to the amendment of the Consolidated Text of the Capital Companies Act (TRLSC) in other matters, the joint justification for which the Preamble places, with some systematic confusion, simply in the exemption from administrative burdens.

The first of the regulations is the reform of Article 64 of the TRLSC, in order to limit the control of company contributions in the incorporation of limited liability companies. As opposed to the general rule of notarial accreditation, it will now no longer be necessary to prove the reality of the monetary contributions in the incorporation - not in the capital increase - of these companies. Although Annex II of Directive (EU) 2017/1132 on the codification of certain aspects of company law only obliges public limited companies to provide proof of the minimum capital, the frequency with which limited liability companies are required to provide proof of the minimum capital and the cash control measures on economic movements have made it advisable since 1989 to extend this to all limited liability companies. The founders are now responsible for the declaration in the articles of association, and are jointly and severally liable to the company and to the company's creditors for the reality of the contributions. This modification, on the one hand, represents a certain breach of the principle of separation of liability between the company and the shareholders and, on the other hand, may be an artificial measure when the founders are themselves companies or natural or legal persons whose personal law is not Spanish law.

This measure is in addition to the trend already expressed in Article 4 bis of the TRLSC, introduced by Law 14/2013, which regulates successively incorporated limited companies, incorporated from one euro of share contribution, subject to a special regime. This regulation, which has not been formally repealed, will henceforth no longer have the minimal use it has had to date.

The reform additionally paves the way for the future implementation of the Digitisation Directive included in the so-called Company Law PackageThe Commission will publish the report before the end of the current European Commission's term of office.

The objective of facilitating the creation of companies is combined with the extension of the scope of Article 16 of Law 14/2013 relating to the incorporation of limited companies without standard articles of association, in which the doubts raised are resolved by extending the method of document management with the same allowances.

Practice, particularly in the creation of sole proprietorships, where controls to avoid the personal liability of the sole shareholder are formal and strict, will make it advisable to avoid accreditation in order to safeguard the separation of the personality of the shareholder and the company created.

The second notable reform is the new wording of article 348 bis of the TRLSC. The effective application of the precept, after various vicissitudes, from 1 January 2017, led to unanimous criticism from the doctrine of its shortcomings and maximalism.

The amendment now offered is intended to address the negative effects identified, even if it fails to achieve a clear result.

Briefly considering the rule, it should be noted that its scope of subjective exclusion is extended, in some cases correctly, as in the case of pre-insolvency, and in others in response to specific justifications, as in the case of sports limited companies or companies included in multilateral trading systems, now added to listed companies. It also includes the parent company in accounting consolidation, with respect exclusively to its shareholder, an issue which in practice had given rise to litigation. The objective scope also limits the application of the rule. It will now only cover the partner's right that had recorded in the minutes his protest at the inadequacy of the dividends recognised; the the undistributed dividend shall be at least the twenty-five percent of the legally distributable profits made during the previous financial year and provided that profits have been made during the previous three financial years; and the total of the dividends distributed during the last five years equals at least twenty-five percent of the legally distributable profits recorded during that period. All of these criteria are subject to clarification.

The softening of the rule is also seen in its dispositive nature "...".except contrary provision in the statutesParadoxically, however, the amendment of the articles of association is made stricter by ordering that the suppression or modification of the cause of separation will require, in addition to the majorities provided for the amendment of the articles of association, the consent of all the partners, - as an essential condition of the partnership contract for each partner - except again that "the right to separate from the company is recognised for the partner who did not vote in favour of such an agreement", incorporating a new cause of separation. ad nutum of separation to the list of article 346 TRLSC.

However, the reform does not take advantage of the reform to improve the remaining grounds and the common exercise of the right of separation despite its important shortcomings.

Finally, Law 11/2018 limits the deferral of the payment of dividends by now establishing in article 276.3 TRLSC that the maximum period for the complete fertiliser The time limit for the payment of dividends is twelve months from the date of the resolution of the general meeting to distribute the dividend. What happens if this time limit is not complied with? Is it possible to make an agreement to the contrary with the shareholder, I think it is not statutory? How does it affect the dividend payments? in natura? In addition to understanding that this is a new case of directors' liability that does not affect the distribution agreement for this reason, failure to comply with the time limit (civil computation) will result in default on an obligation owed. In such a case and in principle, Article 64 of the Code of Commerce will be applicable (and therefore no interpellation is necessary). The problem of the computation for the subsequent limitation period will arise given the interpretation made by the Constitutional Court of Article 944 of the Code of Commerce, as well as the possible application of Book I of the Civil Code of Catalonia, for non-professional investment partners. These issues, in the absence of a state regulation such as the Commercial Code or Book IV of the Civil Code, which unifies the treatment of the Law of Obligations in Spain, ratione materia should be fully included in Art. 149.1.8 of the Constitution, which establishes the state competence on the basis of contractual obligationsDespite the fact that the Second Final Provision of Law 11/2018 does not refer to this competence title.

In short, a one-off reform, but one that raises a number of problems