Post by account_disabled on Mar 9, 2024 21:54:22 GMT -6
This Royal Decree omnibus with an impossible title (includes references to the war in Ukraine and other European Directives) contains, among its various provisions, the new regime of structural modifications of mercantile companies due to the necessary and late adaptation of Spanish law (the transposition period ended on January 31, 2023) to Directive of the European Parliament and of the Council, of November, also called the Mobility Directive. The transposition of European law implies, in addition to the repeal of Law 3/2009 on structural modifications of commercial companies, the adaptation of Royal Legislative Decree 1/2010, of July 2, which approves the revised text of the Capital Companies Law (LSC) to the new regime contemplated in the first book of RDL 5/2023 and the inclusion of modifications in the recently reformed Royal Legislative Decree 1/2020, of May 5, which approves the revised text of the Bankruptcy Law. The new regime of structural modifications It will enter into force on July 29, 2023., establishing a transitional regime for operations that are in progress before its entry into force, so that the old regulation (Law 3/2009) It will be applied to the structural modifications whose projects have been approved by the corresponding general meetings of the participating companies before July 29, 2023. Therefore, it will be necessary to by the modifications to be included in ongoing projects that have not been able to call the corresponding General Meeting to be held before that date (except, obviously, those in which it is possible to hold a universal meeting). As a relevant novelty, for the first time the Extra-European mergers and cross-border divisions, which lacked a specific legal regime that required coordination between the different legal systems of the companies involved to confirm their viability.
For its part, the previously called international transfer of the registered office is now called a cross-border transformation, different from the transformation of the corporate type or internal transformation in which a Spanish company adopts a different corporate type without altering its nationality. One of the issues that has been most controversial since the publication of the Draft Law on Structural Modifications on February 14 has been the structure of the regulation. Thus, it contains a first section of common provisions that apply to any type of structural modification, and regardless of whether they are internal (national) or cross-border. The following section lists specific rules for each of the internal USA Phone Number modifications and finally the provisions applicable to cross-border ones. It is probably due to lack of custom, but this sometimes makes it not easy and intuitive to know the details of the regime applicable to each structural modification. As a summary of the novelties regarding the procedure to follow for the execution of a structural modification, it can be pointed out that the new norm will mean the extension of the terms for the inclusion of new documents (or the modification of the content of those that already existed). or the need to send them to new recipients.
Examples of the above can be found in the the need to prepare a project for the transformation, the need to include or accompany the certified projects that the companies participating in the structural modification are up to date with their tax and social security obligations or the necessary inclusion of a new section in the directors' report addressed to the workers of the corresponding company. In the field of partner protection, especially noteworthy is the modification of the separation procedure in cases of transformation into a different type of company and in the specific case of merger by absorption of a company owned by more than 90%, requiring, yes, that the partners who wish to exercise the right must vote against in the corresponding general meeting (when the rule until now only required not to vote in favor in caso of transformation, or nothing was required in the caso of the merger). Similarly, modify the right of opposition of creditors, which now becomes the right to obtain the appropriate guarantees from the company, being able to express their disagreement with the guarantees offered by the company itself (up to 5 days before the General Meeting is held) and having to go to the corresponding commercial registry in the assumption that he considers that they are inadequate and, ultimately, to judicial assistance.
For its part, the previously called international transfer of the registered office is now called a cross-border transformation, different from the transformation of the corporate type or internal transformation in which a Spanish company adopts a different corporate type without altering its nationality. One of the issues that has been most controversial since the publication of the Draft Law on Structural Modifications on February 14 has been the structure of the regulation. Thus, it contains a first section of common provisions that apply to any type of structural modification, and regardless of whether they are internal (national) or cross-border. The following section lists specific rules for each of the internal USA Phone Number modifications and finally the provisions applicable to cross-border ones. It is probably due to lack of custom, but this sometimes makes it not easy and intuitive to know the details of the regime applicable to each structural modification. As a summary of the novelties regarding the procedure to follow for the execution of a structural modification, it can be pointed out that the new norm will mean the extension of the terms for the inclusion of new documents (or the modification of the content of those that already existed). or the need to send them to new recipients.
Examples of the above can be found in the the need to prepare a project for the transformation, the need to include or accompany the certified projects that the companies participating in the structural modification are up to date with their tax and social security obligations or the necessary inclusion of a new section in the directors' report addressed to the workers of the corresponding company. In the field of partner protection, especially noteworthy is the modification of the separation procedure in cases of transformation into a different type of company and in the specific case of merger by absorption of a company owned by more than 90%, requiring, yes, that the partners who wish to exercise the right must vote against in the corresponding general meeting (when the rule until now only required not to vote in favor in caso of transformation, or nothing was required in the caso of the merger). Similarly, modify the right of opposition of creditors, which now becomes the right to obtain the appropriate guarantees from the company, being able to express their disagreement with the guarantees offered by the company itself (up to 5 days before the General Meeting is held) and having to go to the corresponding commercial registry in the assumption that he considers that they are inadequate and, ultimately, to judicial assistance.