Although nowadays the concept of “immigration” is mainly used to refer to people, it can also be applied to companies.
Any company incorporated both in a member country of the European Union or in some other foreign country can immigrate to Spain without losing its legal personality.
This type of operation is called international transfer of the registered office and is regulated by Law 3/2009, of April 3, on structural amendments of commercial companies.
The main specialty presented by the international transfer is the concurrence of two jurisdictions, that of the country of origin and the Spanish one, implying the obligation to comply with the regulations of both.
However, its complexity is offset by the great advantage it offers, this being the continuity of the economic activity of the transferring company and its liquidation in the country of origin only after definitive registration in Spain.
In other words, the company maintains the relationship with its customers, suppliers and employees, which would not occur in the event of liquidation of the company in the country of origin and incorporation of a new one in Spain. Likewise, the international transfer allows the contracts already formalized to be kept in force, producing the main change only in the nationality of the company and the applicable legislation.
Although the law does not provide in exhaustive detail the procedure to be followed for the international transfer of foreign companies, we can identify the following requirements that must be met both in the country of origin and in Spain:
– The procedure begins with the transfer agreement, which must be approved by the competent corporate bodies according to the company’s national legislation.
At the same time, this agreement must contain the necessary particulars that are required by Spanish law for the constitution of the company of the same type, including, if necessary, the adaptation of the bylaws.
– The next step would be to prepare the certifications of the company data that appear in the registry of the country of origin, which must be translated into Spanish and duly legalized.
Among other aspects, the certifications must include information on the execution of the right of opposition by the company’s creditors.
– The agreement and the aforementioned certifications must be executed into a public deed, granted before a Spanish notary. The signing of this deed can be done by the legal representatives of the company or its attorneys.
– As an additional requirement for companies from countries outside the European Union is that it will be necessary to provide an independent expert report justifying that the net worth of the company covers the amount of share capital required by Spanish law. In practice, this expert is appointed by the competent Commercial Registry based on the new domicile of the company in Spain.
– Finally, it will be mandatory to register the deed in the Commercial Registry that corresponds to the new registered office in Spain and cancel the registration in the registry of the country of origin.
Along with the deed, the annual accounts for the last tax year-end must be submitted to the Spanish Commercial Registry.
Apart from complying with the legal procedure of international transfer of the registered office, the company will effectively have to ensure compliance with the corresponding administrative, tax and labour obligations.
At Martí & Associats we can advise interested foreign companies on all relevant aspects before, during and after the transfer of their registered office to Spain, preserving the rights of their owners, directors, employees and other related parties.
