eBook Company Formation In Spain

1. Introduction

Starting up a new business is a task that requires an in-depth prior analysis of our needs and aims as it involves taking a lot of decisions that will have effects in various areas, both professional and personal.

Adopting one legal form or another, determining the type of company we wish to incorporate, regulating how we will relate with other shareholders and carrying out all the procedures about the incorporation of the company are just some of the most important aspects we need to think about.

In this regard, it is recommended to see a personal legal and tax advisor who can advise you about all the legal aspects of the company and about those pertaining to taxes involved in having a company.

2. The main legal forms in Spain

If you have decided to be an entrepreneur, you need to know the main legal forms which exist in Spain in order to carry out your activity. The most important ones are as follows:

2.1 Self-employed

A self-employed person is a natural person who carries out economic or entrepreneurial activity on a personal, freelance basis. He/she may or may not employ his/her own workers. Incorporation as a self-employed person does not entail the incorporation procedures involved in the creation of a company, but basic procedures will have to be carried out such as the following:

• At the Tax Agency you must Register on the National Legal Persons’ Register.
• At the General Social Security Treasury you must register under the special regime for self-employed workers (RETA).
• At the Provincial Commercial Registry you must see to the legalisation of the Daily Ledger and the Book of Inventories and Annual Accounts.
• Obtaining the electronic certificate.

2.2 Limited liability entrepreneur

A limited liability entrepreneur is a natural person whose liability is limited in certain eventualities and who carries out an activity as a usual freelancer. In this case, he/she may or may not employ workers too. The procedures are the same as for self-employed persons.

The entrepreneur as an employer is liable to the extent of his/her assets for any debts deriving from the activity. The usual place of residence is excluded in the event that certain conditions are met, namely:

• The value of the dwelling may not exceed 300,000 euros.
• In the case of dwellings situated in towns/cities with more than one million inhabitants, a coefficient of 1.5 shall be applied to the value stated in the previous paragraph.
• When registering the address of the entrepreneur at the Commercial Registry you shall state that you do not wish the real estate asset to be subject to corporate liability.
• This limitation shall not apply in cases involving serious negligence or fraud.
• The unlimited liability of the debtor shall remain in place for any debts taken out prior to his/her registration with the Commercial Registry, unless the creditors specifically agree otherwise.

2.3 Joint ownership arrangement

A joint ownership arrangement is created when the ownership of an asset or right belongs on a pro indiviso basis to several people and forms part of the entrepreneurial activity which they carry out together. In these cases, liability is unlimited. To incorporate a joint ownership arrangement the following steps must be taken:

• It may be formed through a private contract signed by all the coproprietors. This document shall state the contributions and the percentage interest of each coproprietor in the joint ownership arrangement.
• In the event that real estate or rights in rem are contributed, the incorporation shall be carried out before a Notary in a Public Deed.
• Each coproprietor must register on the national legal persons’ register.
• A Tax Identification Number (NIF) must be obtained from the Tax Agency.

2.4 General Partnership (SCP)

The general partnership is a contract whereby two or more people pool capital, assets or industry to create a legal person which seeks to obtain a profit to be shared between the people who form part of the company. Furthermore, liability is unlimited.

General Partnerships may or may not have a corporate purpose. General Partnerships with a corporate purpose are those whose business purpose consists of carrying out an economic activity involving the production, exchange or rendering of services. Conversely, those which do not carry out these activities shall be regarded as General Partnerships without a corporate purpose.

The incorporation of a general partnership is recommended, just as occurs with joint ownership arrangements, for small businesses which do not require major investments or whose management is straightforward.

With the reform introduced in early 2016, the accounting and fiscal management of SCPs with a corporate purpose is similar to that of Private Limited Companies, having to submit annual accounts and pay Corporation Tax.

2.5 Private Limited Company (SL)

A private limited company is a type of company in which the capital stock is divided up into shares and made up of the contributions of the shareholders who are not personally liable for the corporate debts. The minimum capital stock of an SL is 3,000 euros and liability is limited to the capital stock.

We shall describe the incorporation process in further detail later, but broadly speaking the main steps are as follows:

• Obtaining a company name availability certificate at the Central Commercial Registry.
• Opening a bank account in the company’s name and depositing the minimum capital stock.
• Drafting the corporate bylaws of the company.
• Obtaining a Tax Identification Number (NIF) from the Tax Agency.
• Granting a Public Deed before the Notary for the incorporation of the company.
• Registration of the Public Deed of incorporation of the company at the Commercial Registry.

2.6 Public Limited Company (SA)

A public limited company is a type of trading company in which the capital stock is divided up into shares and made up of the contributions of the shareholders who are not personally liable for the corporate debts. The minimum capital stock of a public limited company is 60,000 euros. The shareholders’ liability is limited to the capital stock.

The incorporation procedures for an SA are the same as for an SL, with the particular difference being the amount of the minimum capital stock. The Deed of Incorporation of the SA before a notary must contain the following elements:

• Identity of the shareholders.
• The willingness to incorporate a public limited company.
• The cash, assets or rights that each shareholder contributes.
• Amount of the incorporation expenses.
• Complete data of the natural or legal person who is going to be the director.
• Corporate bylaws which shall contain the following data:
• • Company name.
  • Business purpose.
  • Company address.
  • Capital stock.
  • Classes of shares and series.
  • Form of administration.
  • Form of making decisions and adopting resolutions.
  • Operations start date.
  • Date of closure of the financial year.
  • Share transfer restrictions.
  • Ancillary obligations’ regime.
  • Special rights of the founding partners.

2.7 Collective investment undertaking (SOCIMI)

SOCIMI (real estate investment trusts) are listed public companies whose main activity is the acquisition, promotion and rehabilitation of urban assets for their rental, directly or through shares in the capital of other SOCIMI. The international equivalent to SOCIMI are REIT (Real Estate Investment Trusts).

2.8 Cooperative Society (SC)

A cooperative society is a society comprising a group of people who get together to carry out entrepreneurial activities, geared towards satisfying their economic and social aspirations and needs, with a democratic structure. Cooperative members may join on a non-binding basis and their departure from the cooperative is voluntary. The liability of cooperative members shall be limited to the capital contributed.

2.9 Non-profit-making associations

A non-profit-making association is an entity whose purpose is not economic profit, but rather its corporate purpose is altruistic, humanitarian, artistic and/or aimed at the community. Non-profit-making associations are usually financed by aid and donations from natural persons, legal persons, institutions or organisations.

2.10 Foundations

Foundations are non-profit-making organisations which, in line with the wishes of their creators or founders, have devoted their assets to fulfilling purposes in the general interest.

Although they are non-profit-making, the founders may distribute any annual economic surpluses or profits.

3. What is a limited company?

A limited company (SL) or limited liability company (SRL) is a type of trading enterprise in which the capital stock is made up of shareholders’ contributions and divided up into indivisible, accumulable shares. The minimum capital stock is 3,000 euros and third-party liability is limited to the capital stock contributed.

It is a type of company which is very commonly used in Spain by small-scale entrepreneurs, as it allows them to limit their liability and it is of a highly personal nature which is why the unrestricted transfer of shares is limited.

Limited liability companies are regulated by Royal Legislative Decree 1/2010 of 2 July, which approves the revised text of the Capital Company Act.

3.1 Characteristics and requirements of a limited company

The characteristics and requirements of a limited company are the following:

3.1.1 Name, identity and address

The name of the limited liability company must contain the indication “Limited Liability Company” or its abbreviations “S.R.L.” or “S.L.”. As regards its identity, the limited company may not use a name identical to that of a pre-existing company nor generic or common words. The registered office shall be situated in the place where the centre of its effective administration and management is located or where its main establishment or operation is based.

3.1.2 Incorporation

The limited company shall be incorporated in a Public Deed before a Notary which must be registered at the Commercial Registry of the province where the registered office is located and by means of this registration the company shall acquire legal personality. The deed of incorporation must be granted by all the founding partners or their legal representatives and by those people who are going to be appointed as members of the governing body.

The deed of incorporation of a limited company must contain at least the following elements:

• Identity of the shareholder or shareholders.
• Willingness to incorporate a limited company.
• Contributions made by each shareholder and the numbering of the shares.
• The corporate bylaws.
• Identity of the initial governing body.
• The specific way in which the administration is going to be organised if the bylaws envisage different alternatives.

3.1.3 Corporate bylaws

The corporate bylaws shall set out how the company operates and they must contain the following elements:

• Company name. This is the name of the company.
• Corporate purpose or activities which the company will carry out. It is recommended to determine a wide range of activities to avoid any costs on future amendments to the bylaws.
• Registered office. Address of its administration centre or of its main establishment.
• Capital stock and shares into which it is divided, their par value and correlative numbering. If the shares are unequal, the rights that each share bestows upon the shareholders and the amount and extent of these rights must be stated. Furthermore, in the case of a limited liability company of successive formation, the bylaws must contain a statement of subjection to said regime.
• Way in which the company administration is to be organised: sole director, joint and several directors (they may act independently), joint directors (they must act jointly) or board of directors. The number of directors or the minimum and maximum number, the term of office and the remuneration system, if they have one, must also be determined.
• Form of making decisions and adopting resolutions by the Shareholders’ Meeting and by the governing body.
• Remuneration of the members of the governing body: If nothing is referred to, it is assumed that the post is unremunerated.
• Share transferability: Transfers inter vivos and transfers mortis causa must be regulated, in other words, any transfers to be made by the shareholder to third parties and the transfers which shall be made in the event that the shareholder has deceased.

3.1.4 Capital stock and contributions

The capital of a limited company may not be less than 3,000 euros. Contributions may be monetary and in kind. Monetary contributions must be made in euros, whilst contributions in kind may consist of assets, real estate or rights which may be valued in euros. Furthermore, limited liability companies may be formed with capital less than the legal minimum in cases of limited liability companies of successive formation. In this eventuality, the company shall be subject to the following rules:

• A figure equal to at least 20 per cent of the profit for the financial year, without any limit on the amount, must be assigned to the legal reserve.
• Once the legal fees or statutory requirements have been covered, dividends may only be distributed to shareholders if the value of equity is not or – as a result of the distribution, will not be – less than 60 per cent of the minimum legal capital.
• The annual sum of remunerations paid to shareholders and directors for the performance of said posts during said financial years may not exceed 20 per cent of the equity of the attendant financial year, without prejudice to the remuneration that may pertain to them as an employee of the company or through the rendering of professional services that the company in question may agree with said shareholders and directors.
• In the event of voluntary or involuntary liquidation of the company, if the company assets are not sufficient to pay its obligations, the shareholders and directors of the company shall be jointly and severally liable for paying up the minimum capital stock amount determined by law.
• In those cases of limited liability companies of successive formation, it shall not be necessary to prove that the monetary contributions of the shareholders have actually been made at the time of incorporation. Whosoever acquires shares shall be jointly and severally liable vis-à-vis the company and vis-à-vis any company creditors for ensuring that said contributions actually exist.

In capital companies, such as limited liability companies, only assets or property rights which can be economically valued may be contributed. Work or services may not be contributed.

3.1.5 Classes and number of shareholders

In a limited company we can distinguish between those shareholders who are also company employees and those who are merely sleeping partners, in other words, who contribute their money and are merely informed about the activity.

The minimum number of shareholders in a limited company is one and there is no maximum limit. The shareholders may be natural or legal persons. In the event that there is one sole shareholder, the company shall be a single-member company.

A single-member company may have this status for various reasons:

• Because it was formed by one sole shareholder, whether a natural or a legal person.
• Because it was formed by two or more shareholders and all the shares have become the property of one sole shareholder, in a supervening conversion into a single member company.

The incorporation of a single-member company or the supervening conversion of an existing company into a single member company must be recorded in a public deed and it shall be registered with the Commercial Registry. Furthermore, the single member company status must be stated in all the documentation, correspondence or invoices of the company. The abbreviation used is S.L.U.

3.1.6 Shareholders’ liability

The shareholders’ liability in a limited company is joint and several between them and limited to the capital contributed. There is thus a separation between the assets of the shareholders and those of the company.

3.1.7 Shareholders’ rights

The shareholders of a limited company shall have at least the following rights:

• To take part in the distribution of corporate earnings and in the assets deriving from liquidation.
• Pre-emptive right in the creation of new shares.
• To attend and vote at the general meetings and challenge corporate resolutions.
• Right to information.

In general, shares bestow the same rights upon shareholders, but shares with privileges over ordinary shares may be created. To create them, the same formalities must be complied with as for the amendment of the bylaws.

3.1.8 Non-resident shareholders

A company may have non-resident shareholders in Spain who may be foreign or Spanish. In the case of non-resident foreigners, a series of procedures must be carried out to become the shareholders of a Spanish company. These procedures are the following:

• If the future shareholders are not going to be present at the formalisation of the deed of incorporation of the company, they must grant a power of attorney before a Notary to someone to go in their place.
• The power of attorney must bear the Apostille of The Hague which is a procedure for legalising foreign public documents and certifying the authenticity of the signature. If the country of origin is not a signatory to the Hague Convention which regulates the Apostille, diplomatic or consular legalization must be carried out.
• The non-resident foreign shareholder must obtain a NIE (foreigner identification number) as this is mandatory in order to carry out any economic transaction in Spain.
• The incorporation of a company by a foreign founding partner is regarded as a foreign investment in Spain and so said investment must be notified to the Spanish Foreign Investments’ Registry.

It may be the case that a non-resident Spanish person is the shareholder of a company which is Spanish too. In this case, he/she may receive dividends from the company and he/she must declare them at the place where he/she has his/her tax residency.

3.1.9 Shareholders’ agreement

The Shareholders’ agreement is a private document signed to regulate certain internal aspects of a company. Contrary to what occurs with the Bylaws, which are public because they are notarised in a Public Deed and registered with the Commercial Registry, the shareholders’ agreement is a private agreement which shall govern the operation of the company.

In a shareholders’ agreement various aspects may be regulated such as the following:

• Personal data of the shareholders and company data.
• Posts and duties of each shareholder and their remuneration.
• Corporate governance. The shareholders’ agreement may regulate the majorities required to adopt certain resolutions or create various committees to monitor certain company activities.
• Minimum contract period and non-compete undertaking. This means that shareholders are involved in company activity, they undertake to remain in their posts for a given time period and they will not work at companies which are the competitors of the company.
• Non-disclosure. The shareholders undertake not to disclose any reserved information pertaining to the company.
• Share transfer regulation. This aspect is particularly important in the start-ups when investors are expected to enter the capital stock. With the regulation of the share transfer, the bases are established for this entry by investors and the conditions whereunder this is going to occur.
• Minority shareholders’ rights

3.1.10 The General Meeting of Shareholders

This is the deliberating and decision-making body of the company. The resolutions of the general meeting shall affect all the shareholders, including those not in agreement and those who have not taken part in the meeting provided they have been reached and approved in accordance with the regulation determined in the Capital Company Act and in the Corporate Bylaws.

The competences of the General Meeting of Shareholders are as follows:

• Approval of the annual accounts, the distribution of earnings and the approval of corporate management.
• Appointment and departure of directors, liquidators, accounts’ auditors and the implementation of a corporate liability action against any of them.
• Amending the corporate bylaws.
• Increase or reduction in capital stock.
• Suppression or limitation of the pre-emptive subscription right.
• Acquisition, disposal or contribution to another company of critical assets.
• Transformation, merger, split or general assignment of assets and liabilities and moving registered office abroad.
• Dissolution of the company.
• Approval of the final liquidation balance sheet.
• Any other item of business determined by law or the corporate bylaws.

The general meeting may be ordinary or extraordinary. The ordinary general meeting shall meet up within the first six months of each financial year to approve the corporate management, the accounts of the previous year and decide upon the distribution of earnings. The other meetings shall be extraordinary.

3.1.11 Governing body

The administration and management of a limited company can be carried out through one of the following bodies:

• Sole director. He/she acts on an individual basis and his/her decisions legally bind the company.
• Joint and several directors. They may act interchangeably on behalf of the company.
• Joint directors. They must act jointly.
• Board of Directors. It shall be formed by a minimum of three members and it shall carry out company management on a collegiate basis. In this case, there is the possibility that one or several managing directors are appointed to whom all or part of the delegable powers of the board shall be delegated.

The corporate bylaws of limited companies may determine one sole management system or several alternative systems. In the latter case, in the event it is wished to change the form of company administration, it will not be necessary to amend the corporate bylaws.

The directors of a limited company may be natural or legal persons and to be appointed as a director, shareholder status shall not be required, unless regulated otherwise in the corporate bylaws. If a legal person is appointed as a director, a natural person must be appointed, in turn, as the representative of said entity.

The following may not be appointed as directors:

• Unemancipated minors.
• Those who are legally unfit.
• Anyone disqualified under the Bankruptcy Law.
• Those sentenced for crimes against freedom, assets, socio-economic order, collective security, the Administration of Justice or for any kind of falsehood.
• Those who by dint of their position cannot engage in free trade.
• Employees in the pay of the public Administration with duties under their responsibility which are related with the specific activities of the companies in question, judges or magistrates and anyone else affected by a legal incompatibility.

The position of director is unremunerated and for an indefinite duration, unless the corporate bylaws establish a remuneration system or limitation to the timeframe for the exercising of the position.

4. Forming a limited company step by step

Below we are going to analyse the steps that must be taken for the incorporation of a limited company.

4.1 Application for a company name availability certificate at the Commercial Registry

The incorporation of a limited company shall start as from the application for a company name availability certificate at the Central Commercial Registry. The procedure consists of requesting the record that proves whether there is any company with the same name which we wish to use for the firm we are going to form. It is recommended to put forward several business name options. This procedure may be carried out in person or online.

Once the Central Commercial Registry has made the check on those names that have not been registered, it issues a company name availability certificate. This certificate proves that we can use the name and it will be reserved for the term of six months.

4.2 Opening a bank account in the company’s name

Once you have obtained a company name availability certificate from the Commercial Registry, it is time to open a bank account in the name of the company and deposit the minimum capital stock which, as we have seen above, amounts to 3,000 euros (except in those cases of limited liability companies of successive formation). The bank shall issue a certificate of deposit which we shall then provide to the Notary who incorporates the company.

4.3 Drafting the corporate bylaws

The shareholders must draft the corporate bylaws, in other words, the set of regulations which are going to regulate the company and which shall be included in the Deed of Incorporation of the company. The most recommended course of action in this case is to obtain advice from a personal legal and tax advisor and from the Notary to clear up any doubts and who can advise you so that the Corporate Bylaws comply with the legal stipulations.

The bylaws must include the following minimum content:

• Company name.
• Business purpose.
• Capital stock and shares into which it is divided, their par value and correlative numbering.
• The manner in which the management of the company will be organised.
• The form of deliberating and adopting resolutions by the collegiate bodies of the company.

4.4 Granting of the Public Deed of incorporation of the company

Once the procedures set out in the previous paragraphs have been carried out, it is time to grant before a Notary the Public Deed of incorporation of the company. The granting must be attended by all the shareholders themselves or legally represented, as well as anyone who is going to be appointed as a member of the governing body.

To formalise the deed, it is necessary to provide the following documentation:

• The Corporate bylaws.
• Company name availability certificate.
• Bank certification with regard to the capital stock.
• DNI (Spanish ID card), NIE (foreigner identification number) and Deeds of power of attorney (where applicable) of each of the shareholders.
• Declaration of foreign investments if any shareholder is not Spanish.

4.5 Obtaining the tax ID (NIF), registering for Business Activities Tax (IAE) and census declaration form

Once the Deed of incorporation of the company has been granted, it is necessary to go to the Tax Agency and obtain the provisional tax ID (NIF) of the company, as well as the identification cards and labels. The process to obtain the provisional NIF may be carried out by the notary himself/herself.

4.6 Registration in the Commercial Registry

The Deed of Incorporation of the company must be registered with the Commercial Registry of the province where the company has its registered office. The term for registration is three months as from the date of incorporation of the company.

4.7 Application for definitive NIF

As a final procedure, once the incorporation of the company has been registered with the Commercial Registry, it is necessary to go to the Tax Agency again and request the definitive NIF.

Registering for Business Activities Tax (IAE) must also be managed, with this being a tax on the activity of companies and professionals. Finally, the tax registration pertaining to Value-added tax (VAT). This registration shall be carried out in the event of the commencement, modification or cessation of activity.

5. Cost and timeframe for forming an SL

As regards the cost of incorporation of an SL, we can distinguish between the following costs:

• Cost of the company name availability certificate from the Commercial Registry which shall be around 14 euros, to which a further 5 euros shall accrue if we ask the Central Commercial Registry to send us the certificate.
• Notary and Registration Costs. The estimated Notary and Registration Costs are between 200 and 400 euros for the former and 150 euros for the latter. The costs may vary in line with the initial capital stock, the number of shareholders, the number of pages of the Corporate Bylaws and the number of appointments which take place (e.g. Initial governing body formed by a board of directors).

The timeframe for forming a limited company will depend on many factors but, generally speaking, and by way of example, it may be between seven and twenty days.

6. FAQ

How long does it take to form a company?

Although the timeframes will depend on various factors such as the type of company formed or the class of shareholders, it may take around between seven and fifteen days to form a company.

How can an SL be formed urgently?

A limited company can be formed urgently electronically via the CIRCE portal. In these cases, the Notary shall grant the deed of incorporation on the same day as it receives the Company name availability certificate from the Commercial Registry and the Commercial Registrar shall duly classify and register the company within three business days as from electronic receipt of the deed.

CIRCE is the Company Creation Network and Information Centre. It is a system which allows the electronic incorporation of certain types of companies such as:

• Sole trader or self-employed.
• Limited liability company.
• Limited liability company of successive formation.
• New limited liability company.
• Joint ownership arrangement.

To facilitate the procedures, the future entrepreneur only needs to complete the so-called DUE (Single Electronic Document) and CIRCE carries out all the procedures required for the incorporation of the company through communication with all the bodies involved: Notary, Commercial Registry, Tax Agency and General Social Security Treasury.

If you wish to carry out the procedures to complete the DUE, you will have two options:

• To go in person to an Entrepreneur Care Desk (PAE).

To carry out the procedures via the CIRCE portal. In the latter case, to complete the DUE you must have an electronic certificate.

Can a company be created online?

All the procedures for the incorporation of certain types of company (limited liability company, limited liability company of successive formation, new limited liability company) via the CIRCE portal and using the DUE (Single Electronic Document) to which end you will need an electronic certificate.

What are SLPs?

SLP or professional limited liability companies are usually formed for the carrying out of professional activities which require a university qualification and registration with the attendant Professional Association. This is the case of architects, lawyers and dentists, for example.

What is the difference between and SL and an SLNE?

The New limited liability company (SLNE) has certain characteristics which are the following:

• It allows the company savings account application.
• The number of shareholders cannot exceed five.
• The company name comprises the surnames and the first name of some of the shareholders and a unique alphanumeric code followed by SLNE.
• The business purpose is generic.
• The Corporate Bylaws approved by the Ministry of Justice may be used.

What classes of shareholders are there in a limited company?

In a limited company we can distinguish between shareholders who are company employees and those who are sleeping partners. The latter provide their money and are kept informed of company activity, but they do not work in the company.

What documentation is required to create a limited company?

The documentation required to form a limited company is as follows:

• Company name availability certificate from the Commercial Registry.
• Bank certification with regard to the depositing of the capital stock.
• The Corporate bylaws.
• DNI (Spanish ID cards) of the founding partners and the deeds of power of attorney, where applicable.
• Declaration of foreign investments (if any shareholder is not Spanish).

Can a working partner opt for unemployment capitalisation to form an SLNE or an SRL?

Yes, he/she may assign one hundred per cent of his/her capitalised benefit to the capital of a new SLNE or SRL or one which has been in operation for less than one year.

Does the entire capital stock have to be paid up at the time of incorporation of the company or can there be deferred disbursements?

If it is an SLNE or an SRL, the capital stock must be fully paid up at the time of incorporation. In the case of a Limited liability company of successive formation, the capital stock does not have to be fully paid up.

7. Sources

www.rmc.es

paeelectronico.es

www.ipyme.org

Royal Legislative Decree 1/2010 of 2 July, which approves the revised text of the Capital Company Act.

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