The Commission has recently adopted the proposal for a Directive on enhancing the digitisation of companies. This is a step forward with respect to the previous Directive (EU) 2019/1151 which, together with Directive (EU) 2019/2121, formed the so-called Company Law Package - Digitisation and Mobility Directives - of immediate transposition, albeit delayed, in Spain.

Its legal basis is found in Arts. 50 and 114 TFEU and is integrated in the context of digitalisation and sustainability that presides over the policies of the European Union, especially since the Covid-19 pandemic, seeking greater transparency and trust in the business environment; the improvement of the connection of public services for companies; the facilitation of the expansion of SMEs and more effective action against fraud and abuse.

The new Directive entails, like the previous ones, an amendment of Directive (EU) 2017/1132 on different aspects of company law (partial codification). As a subjective novelty, it extends Directive 2009/102/EC, relating to sole proprietorships, which was not included in the previous Digitalisation Directive. It also establishes an advertising regime for partnerships, including a new Annex to Dir. (EU) 2017/1132 (Annex IIB) in which partnerships and limited partnerships are included for Spain.

To a greater extent than Directive (EU) 2019/1151, the proposal emphasises the growing importance of the BRIS system of European interconnection of business registers, as a connection of electronic administrations that allows compliance with the so-called "eleven only principle", thus avoiding duplication for companies, especially in the creation or liquidation of branches and thus additional costs. Consequently, the level of transparency required and relevant information published is increased. There is also an increase in the cases of free of charge, which are compensated by new publicity functions of the national business registers.

BRIS will be the unique tool foreseen for the introduction of information and circulation within the European Union not only of individual companies, but also of groups of companies domiciled in Europe, either from the parent company or from the intermediate company acting as parent (only one must be recognised by the group) when the parent is outside the European Union. The full structure of the group, in whatever form, and its subsidiaries, will be published in a European company register, with a corresponding structure map, and the information will be circulated through BRIS, available to interested parties, contracting parties, creditors or consumers.

The key to the effective circulation of information is undoubtedly the control of the input received by the national register and whose publication is circulated. The new Art. 10 of Dir. 2017/1132 now stipulates that this ex ante input control must always be carried out by a judicial or administrative authority. This control is carried out on the notarial deed, if required under national law, which is a significant change to the current European system.

The Directive is part of the EU's actions in relation to European digital identity and single information portals, especially for SMEs. The ongoing amendment of Regulation 910/2014, e-Idas, to create a wallet that includes the digital identity of natural and legal persons, as well as the single digital gateway (Gateway, R. (EU) 2018/1724, which will now be replaced by the single digital access point (COM/2021/723 final), is therefore relevant, as it aims to prevent the abuse of corporate structures for purely tax or fraudulent purposes or empty companies with no effective activity. BRIS will thus be integrated in a surrounding legal context, in its relation to other European registers. These are the register of beneficial ownership (BORIS) (Directive (EU) 2015/849) and the insolvency register (IRI) (R. (EU) 2015/848). The national information will be uploaded to BRIS.

Among other amendments, the proposal for a Directive notably introduces two interesting new features of great significance in international company practice. The first is the creation of the European Union company certificate (EU Company certification), the second, a standard European digital proxy model (Digital EU power of attorney). 

The issuance of the European Company Certificate (relating to all companies except public limited companies) is conclusive proof that the company is registered and the information provided in the certificate is correct at the time of issuance (Art. 16.ter: in terms of name, duration, corporate purpose, registered office and its status as a company in liquidation, in insolvency or in normal business activity). They will be numbered and will allow for electronic verification of their authenticity at source. Their model will be published by the Commission in all official languages. 

The power of attorney shall cover both organic representation and general voluntary representation, insofar as it grants the power of representation. It shall be granted and revoked in accordance with the relevant applicable law, which shall be the lex societatis.

These are always registered powers of attorney. Without prejudice to the company's obligation to register and update its entry in the event of revocation of representation, the entire contents of the sheet must be updated (even if there are no changes) on an annual basis. Digital or paper powers of attorney issued by the Registry, as well as notarial deeds of representation, do not require an apostille for circulation in Europe (Hague Convention of 5 October 1961). During the processing of Regulation (EU) 2016/1191, which abolishes formalities, such as the apostille, for certain public documents and amends the internal information system (R. (EU) 1024/2012 IMI), the need to extend its content in a future revision to public documents relating to the legal personality and representation of a company or other undertaking became apparent.

The future directive chooses its way by establishing a verification system other than IMI through contact points in certain national registers to be notified to the Commission.

These important changes will have to be implemented within approximately two years of the publication of the Directive, which is expected to be negotiated rapidly. It represents a major change in the mechanics of the cross-border activity of European companies which, in order to be included at a strictly national level, would require legislation. ad hoc. This is undoubtedly an important instrument that will require careful technical negotiation. Only in this way can information on the company circulate properly throughout the European area without disrupting national legal traditions.