Royal Decree-Law 5/2023 transposes several European Union Directives on structural modifications, regulating both the transfer of the domicile of a foreign company to Spain and the transfer of the domicile of a Spanish company abroad.
The transfer of the registered office to Spain implies that the company modifies the law applicable to it, maintaining its legal personality, but adapting it to the requirements of Spanish corporate law. First of all, it is necessary to determine the legal regime of the company’s country of origin in order to check whether it allows the transfer of the company to another state.
The previous regulations, contained in Law 3/2009, of April 3, on structural modifications of commercial companies (LME), did not contain a complete regulation of the transfer of the domicile of foreign companies to Spain, merely admitting it and requiring compliance with Spanish regulations regarding the guarantee of the share capital, as well as imposing the same requirements as for the incorporation of Spanish commercial companies. The new regulation, contained in Royal Decree-Law 5/2023, still does not provide an exhaustive regulation, but it does provide for some additional requirements that must be complied with in order to carry out this cross-border structural modification.
It should be noted that the international transfer of the domicile of a foreign entity to Spain has a very favourable tax regime if the conditions of the tax neutrality regime for structural modifications are met. Likewise, the Court of Justice of the European Union (CJEU) confirmed in its Judgment C-106/2016 of October 25, 2017 ( Polbud case) the possibility of transferring the domicile to another Member State without modifying the seat of the exercise of the economic activity and without transferring the effective headquarters.
One of the main novelties of the new regime applicable to the transfer of a foreign company to Spain is the requirement of the certificate prior to the structural modification (certification of the Registrar or competent foreign authority in the case of Companies from outside the European Economic Area). This certificate will allow the Spanish Commercial Registry to verify that the necessary formalities have been complied with in the company’s country of origin in order to carry out the transfer. It is also important to consider the new obligation of the Spanish Commercial Registrar to control the legality of the operation in case of suspicion that the cross-border modification resulting in a Spanish company is carried out for fraudulent or abusive purposes.
It is necessary to take into account in any case that Article 99 of Royal Decree-Law 5/2023 provides as a measure for the protection of the Company’s creditors that, during the two years after the transformation has taken effect, the creditors whose claims arose prior to the publication of the transformation project may sue the company before the courts of the registered office that the company maintained in the State of origin (Without prejudice to other forums of international jurisdiction, such as for example Regulation 1215/2012 Brussels I bis).
To complete its transfer to Spain, the company must comply with the requirements of Spanish law, obtaining a tax identification number (NIF) for its partners and administrators, obtaining a company name, establishing a registered office in Spanish territory and providing the Registry with bylaws in accordance with Spanish law. On the other hand, for companies that are not part of the European Economic Area, the obligation remains, to justify by means of an independent expert’s report, that the net worth of the foreign company covers the amount of capital stock stated in the articles of association is maintained. Therefore, it is ruled out that the foreign company may have a negative net worth, and it must have at least the amount of capital required for the type of company chosen.
Simultaneously with the registration of the transfer of the registered office to Spain of the foreign company, the deposit of the annual accounts corresponding to the last completed fiscal year must be submitted to the Commercial Registry (Article 309 of the Commercial Registry Regulations).
Finally, in the event that the Company has employees, it is essential to provide, together with the documentation of the transfer of domicile, information on the measures adopted in relation to the participation of the employees. The company must comply with Spanish tax and labor legislation, and register its workers with the corresponding authorities.
David del Valle
Senior Manager
