The incorporation of Spanish private limited liability companies fully online
Published on 21st May 2020
According to Directive (EU) 2019/1151, of 20 June 2019, amending Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law (the "Directive"), the incorporation of Spanish Private Limited Liability Companies ("Sociedades de Responsabilidad Limitada" or "S.L.") fully online, without the need for the applicants to appear in person before a Spanish Notary Public, should be in place by August 2021.
The Directive requires Member States to allow the formation of companies, the registration of branches, and filing company documents and information to be carried out fully online, in order to facilitate the formation of companies and the registration of branches, and to reduce the costs, time and administrative burdens associated with those procedures, especially for micro, small and medium-sized enterprises. All of this, without compromising legality controls and the Public Notaries’ assessment and intervention to guarantee the legal certainty of the procedure.
Procedure for online incorporation of Spanish companies
The Directive only requires online formation procedures for private limited liability companies, although Member States may also provide these procedures to other types of capital companies.
The Chairman of the Spanish General Directorate of Public Notaries ("Consejo General del Notariado") confirmed that Spanish Public Notaries are ready to incorporate private limited liability companies fully online with full legal guarantees, and in accordance with the Directive.
The Spanish General Directorate of Public Notaries is already developing the procedure and technical tools that will allow granting the incorporation public deed for private limited liability companies fully online. This procedure would require completing the following milestones online:
1.- Identification of the founder shareholders (or their representatives) before the Notary Public of their choice with their electronic National Identity Cards. Rarely, and only when there are reasons to suspect identity falsification, or non-compliance with the rules on legal capacity and on applicants’ authority to represent a company, the Directive provides that the physical presence of the applicant may be required before any national competent authority for the purposes of verifying their identity.
2.- Connected by videoconference, the Notary Public shall:
- verify the founders' identity;
- give them advice and agree with them on the content of the company’s incorporation public deed, adapting it to their particular needs;
- digitally confirm that the initial contributions to the company's share capital have been made; and
- re-examine the details of the incorporation public deed.
3.- Electronic signature of the incorporation public deed by the founders and the Notary Public.
4.- Immediate receipt by the founders of a digital copy of the certified incorporation public deed and online filing with the Commercial Registry by the Notary Public.
Before the videoconference, and at the founders' prior request, the Notary Public may ask for the company's corporate name. Likewise, during the videoconference, the founders may also ask the Notary Public to request the company's provisional tax identification number and to carry out the payment of the relevant taxes.
Thus, the online formation procedure aims to be an intuitive and simple procedure, which will ensure the correct application of the European regulations, the identification and verification of the applicants’ legal capacity, impartial legal assessment, and the prevention of money laundering, terrorism financing and tax fraud.
Online registration of branches
The Directive aims to facilitate the registration of branches in countries different than where the company is registered. The procedure is very similar to that of incorporating a company: it requires online registration, without the need to appear in person before any national authority, and online filing of documents and information.
Online filing of company documents and information and disclosure in the registry
The Directive allows online filing of company documents and information (including any modification thereof) with the Commercial Registry without the need for an applicant to appear in person before any authority or person or body mandated under national law. Member States shall ensure that the origin and integrity of the documents filed online may be verified electronically.
Likewise, the Directive reiterates the need to have a Commercial Registry in each Member State, for each of the companies registered therein, requiring Member States to ensure that
- a European unique identifier is assigned to each registered company, allowing them to be unequivocally identified in communications between registers through the system of interconnection of registers;
- the disclosure of company documents and information is in force by making them publicly available in the register;
- all documents and information submitted online for the formation of a company, the registration of a branch, and the modifications thereof, are stored by the registers in a machine-readable and searchable format or as structured data; and
- copies of the registered company documents and information may be obtained online.
Other relevant issues regulated by the Directive
The «once-only» principle
The Directive requires Member States to apply the ‘once-only’ principle in the area of company law. Applying the once-only principle means that companies do not have to submit the same information to public authorities more than once. For example, when a company is formed in a Member State and wants to register a branch in another Member State, it should be possible for the company to make use of the documents or information previously submitted to a register. Similarly, given the system of interconnection of registers, it should be possible for the company to submit certain changes to its company information (such as a change in the company name or the corporate address) without the need to submit the same information to the branch register.
Templates for online incorporation of companies
Member States shall make templates available on registration portals or websites that are accessible by means of the Single Digital Gateway, so that applicants may use these as part of the online formation procedure. The content of the templates shall be governed by national law.
With all these various measures, which shall be transposed into the Spanish legal system by August 2021, the Directive faces the new social and economic challenges of globalisation and digitalisation, encouraging the competitiveness and growth of the European market.