Law 11/2023 has been approved, incorporating the "Directive on the digitalization of companies", and it does so by providing for the possibility of carrying out the incorporation procedure entirely online for limited liability companies (except when the contributions of the partners are non-monetary), as well as subsequent modifications, and the registration of branches, by applicants who are EU citizens.
In the Official State Gazette (BOE) of May 9, and with general entry into force on May 10, 2023, Law 11/2023, of May 8, has been approved, transposing European Union Directives on the accessibility of certain products and services, migration of highly qualified persons, taxation and digitization of notarial and registry actions; and amending Law 12/2011, of May 27, on civil liability for nuclear damage or damage caused by radioactive materials, which transposes several European Union directives, some of which are several years old and whose application was quite delayed.
Directive (EU) 2019/1151 of the European Parliament and of the Council of 20 June 2019 amending Directive (EU) 2017/1132 is the one that affects the digital transformation and digitization of the process of setting up companies.
Amendment to the Capital Companies Act: digitization of the company formation process
Law 11/2023 transposes it by modifying the Capital Companies Law through the incorporation of several provisions and with the aim of digitizing the procedure to a level that allows for the possibility of establishing companies in a fully digital and online manner, as well as their subsequent actions, including the opening of a branch of the business in another Member State.
The European standard is truly "basic", not legislating on the system or methods to be used, requiring each Member State to create the necessary legal and administrative structure to make online business creation fully possible.
First, the possibility of creating capital companies online is recognized, without excluding other legally recognized methods. Companies in which partners make non-monetary contributions to capital are excluded from online incorporation. Similarly, the regulation recognizes that, in the case of limited liability companies, the grantors may use the standard articles of incorporation in the notarial deed, the content of which will be determined by regulation.
The regulation governs the fully online incorporation of limited liability companies
The Ministry of Industry's website will offer a standardized public deed and articles of association template—though their execution and registration will, of course, remain subject to notarial regulations. Cash contributions to digitally created companies must be made through a European electronic payment instrument, and the notary may verify their authenticity—unless the founders declare in the deed that they are jointly and severally liable to the company and its creditors for this matter. Finally, even though the company is created electronically, the public deed must be registered in the registry of the new company's registered office within the timeframes established by law.
The entire procedure can be carried out without the founders needing to appear in person before a notary, except in the case established by Article 40 quinquies of the Capital Companies Law (for reasons of public interest and in order to avoid any falsification of identity, the notary may, for the purpose of verifying the exact identity of the founder, require the physical appearance of the interested party only once; (ii) likewise, such physical appearance may be required by the notary in order to fully verify the capacity of the grantor and, where appropriate, their effective powers of representation).
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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