Law 18/2022: Law creates and grows

On September 29, it has been published Law 18/2022, of September 28, on the creation and growth of companies.

The object from the norm is:

• Promote business creation and growth through measures that speed up its constitution
• Improve regulation by removing obstacles to the development of economic activities
• Reduce commercial delinquency
• Facilitate access to more and better means of financing.

 

Purpose of the law is facilitate the creation of new companies and reduce obstacles they face in their growth, whether regulatory or financial in origin. For contribute to increased competition for the benefit of consumers, the productivity of the industrial fabric, business resilience and the ability to create quality jobs.

Among the different news regulated, we highlight:

Constitution of limited companies with one euro of share capital

The cost of creating a company is reduced from 3,000 to 1 euro. For these companies impose two obligations whose purpose is to safeguard the interest of creditors:

1. At least 20% of the profit must be allocated to the legal reserve until the sum of this and the share capital reaches the amount of 3,000 euros
2. In the event of liquidation, if the company's assets are insufficient to meet the payment of social obligations, the partners will be jointly and severally liable for the difference between the amount of 3,000 euros and the amount of the subscribed capital. (art.2 L18/22 Business Creation and Growth)

Telematic creation of companies

The constitution is facilitated through the one-stop shop of the Information Center and Business Creation Network (CIRCE), which implies a reduction in terms, notary and registration costs.

In relation to the constitution of limited liability companies without standard bylaws:

• It is specified that the public deed with a standardized format must be used.
• The period in which the registrar must definitively register the deed of incorporation in the commercial register is reduced.
• It is established that the publication of the registration of the company in the Official Gazette of the Mercantile Registry will be exempt from the payment of fees (Modification of Law 14/2013, of September 27, support for entrepreneurs and their internationalization. (art 5 L18/2022)

Fight against delinquency

With the aim of promoting the transparency of payment periods and reducing their excessive duration, the Government:

• Creates and regulates the functioning of a State Observatory of Private Delinquency, Responsible for monitoring the evolution of payment data and promoting good practices.

Among its actions is the publication of an annual list of delinquent companies (legal entities that do not pay a percentage greater than 5% of their invoices on time and that the total amount of unpaid invoices exceeds 600,000 euros). (Sixth final provision L18/2022)

•  establishes the Electronic bill as a useful instrument to reduce the transaction costs of commercial traffic and to have access to information on payment terms.

• starting next October 19 , small and medium enterprises They will have 24 months to incorporate the digital invoice to their businesses and thus avoid the imposition of fines. (Eighth Final Provision L18/2022)

Modification of article 2.bis of the Law 56/2007, of December 28, on Measures to Promote the Information Society

Companies that, being obliged to do so, do not offer users the possibility of receiving electronic invoices or do not allow access to their invoices to people who have ceased to be customers, will be sanctioned with a warning or a fine of up to 10,000 euros. . The sanction will be determined and graduated according to the criteria established in article 19.2 of Law 6/2020, of November 11, regulating certain aspects of trustworthy electronic services. The same penalty may be imposed on companies that provide services to the general public of special economic importance that do not comply with the other obligations set forth in article 2.1. The person in charge of the Secretary of State for Digitization and Artificial Intelligence is competent to impose this sanction. (art.12 L18/2022)

•  Incorporates incentives for meeting deadlines payment both for its configuration as a criterion for access to public subsidies, and for the reinforcement of public procurement regulations to guarantee that the successful bidders pay the price agreed with the subcontractors on time.

Companies that want to collect aid of more than 30,000 euros may not have any invoice pending payment for more than two months. This new obligation has been introduced in a modification of the General Subsidies Law. (art 11 L18/2022)

•  Forces all commercial companies to include expressly in the annual accounts report your average period of payment to suppliers.

 

The listed trading companiesThey must also publish their PMP on their website and in their annual accounts, the monetary volume and number of invoices paid in a period less than the maximum established in the delinquency regulations and the percentage that they represent over the total number of invoices and over the total monetary payments to your suppliers. (art 9 L18/2022)

trade liberalization

The Trade Liberalization Measures Law is amended, expanding the catalog of license-exempt economic activities. Activities that have been considered safe by at least one autonomous community are included in the list of basic state regulations.

 are added the following activities to Annex to Law 12/2012, of December 26:

• Group 857. Rental of measuring devices.
• Group 922. Cleaning services.
• Heading 843.3 Technical services for prospecting and geological studies.
• Heading 843.4 Technical surveying services.
• Group 846. Market research companies.
• Group 847. Comprehensive postal and telecommunications services.
• Heading 849.4 Custody, security and protection services.
• Heading 849.5 Courier, delivery and mail delivery and handling services
• Heading 849.6 Personnel placement and supply services.
• Heading 849.8 Personnel-intensive multiservices.
• Heading 849.9 Other independent services, NCOP ( 8 L18/2022)

market unit

Likewise, Law 20/2013, of December 9, on the guarantee of market unity, is amended, introducing clarifications in its wording, derived from the experience accumulated in the years of application, and reinforcing the operator protection mechanisms, expanding legitimation capacity and improving transparency, as well as inter-administrative cooperation mechanisms. (art. 6 L18/2022)

Reinforcement of financing

The regulation incorporates measures to improve alternative financing instruments for business growth to bank financing.

In the field of crowdfunding, the Law Creates and Grows adapts the regulation to European regulations, introducing more flexibility for these platforms to provide their services in Europe. In addition, it reinforces investor protection and the creation of vehicles to group investors and thus reduce management costs is allowed.

To expand the universe of eligible business projects, the investment thresholds per project are raised (from 2 to 5 million euros) and the investment limits for retail investors are modified, which become the highest of 1,000 euros or 5% of the wealth. (Article 14 L18/22. Repeal of Title V of Law 5/2015, of April 27, on the promotion of business financing).

Also:

• Calls are regulateddebt funds”. (New article 4 bis of Law 22/2014, of November 12)
• It expressly includes the investment in fintech as the main object of venture capital. (art. 9 of Law 22/2014, of November 12)
• The content of the mandatory investment ratio.
• The concept of computable assets is replaced by investable in the investment limitation and diversification of venture capital entities (“ECR”) and ECR-SMEs. (art. 14 of Law 22/2014, of November 12)
• The percentage of share capital is reduced from 50% to 25% that must be disbursed at the time of the constitution of the venture capital companies and the term to fully disburse the rest is reduced.

additional provisions

Of the thirteen additional provisions approved in the law, those referring to:

Civil Societies

Civil companies by their object that do not have a commercial form constituted in accordance with the common, foral or special law that is applicable to them may register in the Commercial Registry in accordance with the general rules of its Regulations insofar as they are applicable.

In the first registration of civil companies, the following circumstances shall be stated:

1. 1st The identity of the partners.
2. 2nd the name of the company in which the expression "Civil Society" must appear.
3. 3rd The purpose of the company.
4. 4th The administration regime.
5. 5th The term of duration if it had been agreed
6. 6th The other lawful agreements that have been stipulated.

 

The appointment, dismissal and resignation of administrators, general powers, their modification, extinction or revocation, the admission of new partners, as well as the separation or exclusion of existing ones, the transfer of shares will be registered in the sheet open to the company. between the partners, and the judicial or administrative resolutions that affect the administration system of the company

Civil companies constituted in accordance with civil, regional or special rights will be governed in everything related to them by the rules of said rights that are applicable to them, and their registration in the Mercantile Registry will only be possible once the legal requirements established by said civil, regional or special rights that will be of prevailing application to the regulation of the Mercantile Registry.

Societies of Benefit and Common Interest

They are those capital companies that voluntarily decide to include in their bylaws:

• His commitment to the explicit generation of positive social and environmental impact through your activity.
• His submission to higher levels of transparency and accountability in performance of the aforementioned social and environmental objectives, and the consideration of the relevant interest groups in their decisions.
• Through regulatory development, the criteria and validation methodology of this new business figure will be contemplated, which will include a performance check of the company, subjecting both the criteria and the methodology to the most demanding standards.

Transitional rules and entry into force

The Eighth Final Provision establishes as day of entry into force of the norm on October 19, except:

• Chapter V on the legal regime of participatory financing platforms that will enter into force as of November 10, 2022

• Article 12, relating to electronic invoicing between businessmen and professionals, which will take effect for businessmen and professionals whose annual turnover is greater than eight million euros, one year after the regulatory development is approved. For the rest of the businessmen and professionals, this article will take effect two years after the regulatory development is approved. The entry into force of article 12 is subject to obtaining the community exception to articles 218 and 232 of Council Directive 2006/112/EC of November 28, 2006, on the common system of value added tax .

 

The Transitory dispositions They refer to:

• Procedures regarding market unity initiated prior to the indicated entry into force
• The system established for Successive Foundation Limited Liability Companies
• The conversion of new companies existing before October 18, 2022
• The transitory period regarding participatory financing services provided in accordance with Law 5/2015, of April 27, on the promotion of business financing.
• The survival of agreements for the establishment of Service Points for Entrepreneurs (PAE).
• The functions of the Council for Market Unity

Other regulatory modifications

The first, second and third Final Provisions amend the following regulations:

• Law 41/1999, of November 12, on payment and securities settlement systems
• Law 10/2010, of April 28, on the prevention of money laundering and terrorist financing
• Law 10/2014, of June 26, on the organization, supervision and solvency of credit institutions

regulatory development

The Seventh Final Provision empowers the Ministries of Economic Affairs and Digital Transformation and of Finance and Public Function, so that within a period of 6 months they determine the technical and information requirements to be included in the electronic invoice in order to verify the payment date and obtain the average payment periods, the minimum interoperability requirements between the providers of technological solutions for electronic invoices, and the security, control and standardization requirements of the devices and computer systems that generate the documents.

These technical requirements must take into account the current reality of the use of structured electronic invoices based on global standards in order to minimize, as far as possible, the compliance and adaptation effort of companies that already use structured electronic invoices based on said standards.

Prior to the approval of the regulatory development, the Government will open a period of public exposure of the regulation governing electronic invoicing, for the purpose of presenting allegations by the interested parties.

More regulatory deployment

Within 6 months from the entry into force of this Law, that is, before April 19, 2023:

• The adaptation of the standard ordinance for the exercise of retail commercial activities and the provision of services will be promoted in accordance with the provisions of Law 12/2012, of December 26, on urgent measures for the liberalization of trade and certain services.
• A modification of Royal Decree 962/2013, of December 5, which creates and regulates the State Council for small and medium-sized enterprises, will be approved, so that the State Council for SMEs includes representatives of specialized associations in the field of delinquency.
• An inter-ministerial working group will be set up whose task will be to analyze the necessary measures to enable the information from the Mercantile Registry to be provided in an open format that allows it to be downloaded and facilitates its processing.
• Appropriate legal measures will be promoted to make it possible to modify the reference price system by introducing elements that increase competition and value the contributions that represent an incremental benefit in the use of medicines.

3 months from the entry into force of this Law:

Quarterly, a list will be drawn up specifying, for each notary, the number of appointments received through the Notarial Electronic Agenda, the number of rejected appointments and the number of authorized copies of the deed of incorporation sent to the Mercantile Registry. or to the Registry of Cooperatives through CIRCE.

And without temporal determination: 

• The Ministry of Justice will regulate by ministerial order the deed of incorporation of limited liability companies with a standardized format and with codified fields for limited liability companies that are constituted by means of the Single Electronic Document (DUE) and that adopt the council formula management as a management system.
• The Institute of Accounting and Auditing of Accounts will issue a resolution with the adaptations that are necessary so that commercial companies not included in article 2.1 of the Organic Law 2/2012, of April 27, on Budgetary Stability and Financial Sustainability adequately apply the methodology for calculating the average period of payment to suppliers determined by the Ministry of Finance and Public Function. This resolution will require a report prior to its approval by the Ministry of Finance and Public Function.