Types of companies in Spain
In the legal catalog there are some general types that work in the commercial field to establish a company in Spain.
The criteria for choosing one or other corporate types are very varied, and will depend on the intended responsibility, taxation, legal requirements or prospects according to the business plan.
Traditional commercial companies are the collective, The simple limited, The limited by shares, The anonymous and limited; although there are more types such as cooperatives or reciprocal guarantee, among others.
La Anónima (SA) is the preferred model for the legal organization of large companies because it allows a huge number of investors and large sums of money to be grouped in its capital; and the Limited (SL) emerges historically as alternative for the SME compared to the previous one.
Process and requirements for the constitution of a company in Spain
The legal steps to follow in the constitution of a company in Spain are the following:
1. Commercial Registry
Issuance by the Companies register Spanish central defender of a authorization certificate for the use of the name of the new company.
2. Subscription and minimum capital disbursement in SL and SA
La minimum amount of subscribed capital for a SL it is 3.000 €; although, due to Law 14/2013, of September 27, on support for entrepreneurs and their internationalization, it may initially be lower.
However, the capital, which is divided into shares, must be fully subscribed and paid up; and both the articles of incorporation and that of a capital increase will express the contributions made by the partners.
For its part, The minimum capital in the SA is €60.000, and must be fully subscribed, although only one is required minimum disbursement of 25%.
3. Drafting of the company's statutes
Which will include:
- Registered office in Spain.
- Social object of the company.
- Number of shares/participations.
- Type of governing body: Sole Administrator or Board of Directors, among others.
- Restrictions on the transfer of shares/participations.
- Quorum (only applies to the SA) and majorities necessary to approve resolutions at general meetings of shareholders and, where applicable, at meetings of the board of directors.
4. Name of the company's administrators
5. Granting of the public deed of incorporation before a Spanish notary
6. Assignment of a tax identification number to the new company
This is a necessary step for the registration of the company in the Commercial Registryl, and consists of submitting a special form (also used for VAT purposes) to the competent tax authorities; with which a provisional number is automatically granted.
Once the company is registered in the Commercial Registry, You must obtain the definitive tax identification number within a maximum period of six months from the issuance of the provisional number.
7. Registration in the Commercial Registry
Once the previous steps have been completed, The public deed of incorporation of the company will be delivered in the Commercial Registry for its formal registration.
This requirement must be met for the company to be legally born.
8. In addition to the previous procedures, the new company must carry out the following steps before starting its activities:
- Registration for the purposes of the tax on economic activities.
- Company registration for VAT purposes.
- Payment of the opening license tax.
- Registration of the company in Social Security and work accident insurance.
- Compliance with certain procedures at the local office of the Ministry of Labor (Government of Spain, 2021).
Aspects that you should take into account when establishing your company
What is the social capital?
The social capital is the set of material and monetary assets contributed by partners to a companyIt has its broadest regulation and meaning in the area of the creation and foundation of the SA and the SL.
Once the company is established, Its share capital can be the subject of various operations, among which the increase in share capital stands out. (arts. 295 to 316 of the TRLSC) with which, if done through monetary contributions, a preferential subscription right arises on the part of those who are already shareholders of the company that they can exercise or transfer.
Si The share capital has been fully increased from reserves, the partners who were partners at the time of adopting the expansion agreement, as a means of defending their rights as such, are granted the right to free allocation of the new shares of the expansion in proportion to the number of those they already had; and, if they are not interested, they can transfer them, obtaining their equivalent value.
However, in capital companies only assets or property rights susceptible to economic valuation may be subject to contributions (art. 58.1 LSC).
In this case, if we look at the characteristic notes of the know-how by the DGRN, which are: "secrecy, substantiality (understood as a competitive advantage), appropriate identification and patrimonial value”, this contribution would be susceptible to economic valuation as it has a patrimonial nature, can be subject to appropriation and is capable of producing a profit.
What are the bylaws?
The bylaws are contractual law sui generis in two senses: first, because part of its content is imposed by Law without the partners being able to exclude its incorporation into the statutes; It is an unavailable content whose non-compliance would lead to its nullity (imperative law rules); second, because it is a contractual content established with a general and impersonal nature, aimed at governing the life of the company and its application and submission not only to the partners who drafted them, but also to those who join after its foundation..
That is, the statutes They are legally conceived as the channel available to partners to adjust the governing rules of the company to their specific circumstances or needs.
As they are binding, non-compliance can be pursued and sanctioned through a set of corporate remedies (challenging agreements, liability actions, ineffective transfers or exclusion from the company, among others).
However The statutes can only include agreements that do not contradict the laws nor the so-called "type-configuring principles".
And in view of the conception that usually prevails in our legal culture of corporate norms, the freedom of partners to transfer the operating rules that they have freely agreed upon to the statutory framework is severely limited.
The statutes are presented as "ready-to-wear" models, in which the operator only has the option of choosing between two or three predefined sizes.
However, the parties have a wide margin to autonomously configure their company, through statutory agreements (that moldable part of the social statutes) and extra-statutory.
Shareholders' agreements
The Shareholders' agreements are truly tailor-made, ideal for hosting any exercise in contractual engineering.
The partners do not find here any more restriction regarding its content than the general limits of the autonomy of the will.
Since they operate on a purely contractual level and are not integrated into the corporate order of the company, the general rule is that "they will not be enforceable against the company" (art. 29 LSC).
The shareholders agreements, like any other contract, They bind the partners who enter into them in their internal relations, but not the company., which is a third party with respect to them.
What is a social benefit?
Social contributions are the benefits provided by the partners to achieve the corporate cause and integrate the amount of social capital.
Its consideration is the shares or social participations (art. 1 LSC).
The object of the social contribution in the capital company can be any economically valuable asset or property right that is transferable (art. 58.1 LSC); That is, you can try monetary and non-monetary contributions.
The first They will be set and disbursed in euros or in foreign currency, determining their equivalence in euros. (art. 61 LSC); while the Seconds may be patents or know-how, For example.
However, the latter's contribution lacks consensus.
The majority doctrine points out that the undoubted usefulness it has for society in the current technological process and its value in the market make it susceptible to contribution.
The STS of October 24, 1979 and October 21, 2005 are pronounced along these lines.
What is an accessory benefit?
An accessory benefit It is every obligation, whether give (such as the transfer by the partner or partners to the company of some asset or property right), of do (such as the provision of services to society) and even not to do (such as non-competition to society), imposed on some or all partners, linked or not to specific participations -or actions-, but as long as the benefit makes economic sense and is not part of the share capital.
El art. 86 LSC allows:
- “In the statutes of capital companies, accessory benefits other than contributions are established, expressing their specific and determined content and whether they are to be carried out free of charge or through remuneration, as well as the possible penal clauses inherent to their non-compliance.
- In no case will these form part of the share capital.
- The bylaws may establish them as mandatory for all or some of the partners or link the obligation to perform ancillary services to the ownership of one or more specifically determined social shares or shares.
Therefore, If they have not been foreseen, there will be no place for them, but if they are foreseen, they can be established.
And in this case, we will have to pay attention to article 187 of RD 1784/1996, of July 19, which approves the Regulations of the Commercial Registry, which states that "the statutes will detail their regime, with an expression of their specific and determined content, which may be economic or in general any obligation to give, do and not do, as well as free or paid."
In the event that they are remunerated, the statutes must determine the compensation to be received by the partners who perform them, without it exceeding in any case the value corresponding to the benefit.
Types of administrative bodies
The administrative body is necessary and permanent, and integrates, together with the general meeting, the power structure in capital companies.
The corporate administrators perform the most important function with the execution of the agreements adopted by the board, the management or administration of the company of which the company is the owner and the representation of the company to third parties.
It may have, depending on the needs of the company and the preferences of the partners, a variable structure.
Specifically, from the regulation contained in the TRLSC (arts. 209 – 251) and in the RRM (arts. 124 and 138-152 for the registration of anonymous companies, and art. 185 for limited companies), the following results administrative body models:
Sole administrator
It refers to administration or management, and the representation of society in a single person, physical or legal (art. 233.2.a LSC).
Several joint or joint administrators
Each corporate administrator has all the powers of the administrative body, has full powers of management and representation before third parties.
The forecasts in the social statutes or the agreements of the general meeting on the distribution of powers have a purely internal scope (art. 232.2.b LSC).
In the case of joint or multiple entities, in the case of anonymous, there may be two, since, above that number, the constitution of a board of directors is mandatory; and, two or more joint directors in the limited company, in which the previous legal obligation does not exist.
Board of directors
Voluntary in the limited company and mandatory in the case of the Anónima if more than two corporate administrators are appointed (arts. 210.2 LSC).
The powers of the administrative body, including: organic representation, decides by a majority regime.
Likewise, In capital companies, the bylaws may establish different modes of organization of the corporate administration. (for example: a sole corporate administrator, two joint administrators and a board of directors) (art. 23.e LSC), and authorize the general meeting to opt for any of the models provided without the need to modify the bylaws; although the change in the administration model must be registered in the Commercial Registry (art. 210.4 LSC).
What is a company's management team?
El management team or senior management is the group of people who have overall responsibility for the entire organization.
They are responsible for setting long-term objectives and defining the strategies to achieve them, ultimately resulting in being responsible for the success or failure of the company.
In the field of business management, the formal authority derived from the position requires the existence of leadership as a mechanism for mobilizing the efforts of the members of the organization towards the achievement of objectives, both terms - authority and leadership - being necessary characteristics. of senior management.
That is, he must lead the company, act as a facilitator of communication, negotiate between the different groups that coexist within the organization, such as those with external power (unions, political groups, associations, etc.), be strategic and ethical.
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