On September 29, 2022, Law 18/2022, of September 28, 2022, on the creation and growth of companies, was published in the Official State Gazette (BOE).
The purpose of this Law is to promote the creation and growth of companies through the adoption of measures to expedite their incorporation and to facilitate business development. In addition, this law has the purpose to promote the access to more and better means of financing and the reduction of commercial delinquency.
Among the measures adopted in this text, we must highlight the following:
Obligation to issue and send electronic invoices
This Law modifies Law 56/2007, of December 28, 2007, on Measures to Promote the Information Society, and requires the obligation to all businessmen and professionals in their commercial relations to issue and send electronic invoices. They must comply with all the requirements relating to invoicing. This modification contained in Article 12 modifies Article 2 bis of Law 56/2007.
With this modification, the recipients will be allowed to access through electronic means to the invoices of the companies of the last 4 years, being able to read and download them free of charge and without resorting to other means. In addition, this modification not only applies to the term of the contract, because once the contract has been terminated, this right of access will remain in force, unless the recipient wishes otherwise.
These obligations entail the promotion of digitalization, the reduction of transaction costs and the facilitation of transparency. Failure to comply with these obligations is an administrative offence punishable by fines of up to 10,000 euros.
Measures to expedite the creation of companies
Thanks to this measure, the economic cost is reduced and the procedures for the incorporation of companies are simplified, establishing the possibility of incorporating a Limited Liability Company with a share capital of 1 euro, as opposed to the legal minimum of 3,000 euros established until now. In this way, the possibility of incorporating in successive formation regime disappears.
Likewise, the telematic incorporation of companies is facilitated through the single window of the Information Center and Network for the Creation of Companies (CIRCE) and the Single Electronic Document (DUE), guaranteeing a reduction in the time required for their creation and in the notary and registry costs. This measure establishes an informative obligation for notaries and intermediaries who advise and participate in the creation of LLCs, and they must communicate the advantages of using the Entrepreneur Service Points (PAE) and the Information Center and Business Creation Network (CIRCE).
Those companies that wish to incorporate as an LLC with a capital stock of less than 3,000 euros must allocate at least 20% of the profits to legal reserves until the sum of the capital stock and the legal reserve reaches 3,000 euros. In the event of liquidation with insufficient equity to meet the payment of corporate obligations, the shareholders will be jointly and severally liable for the difference between the amount of 3,000 euros and the amount of the subscribed capital.
The application of the DUE to the incorporation of the ordinary LLC implies the repeal of Title XII of the Capital Companies Act, relating to the new company limited by shares.
Measures to prevent late payment
In order to improve the compliance with the Law against late Payment, three new features are established:
The obligation to issue and send electronic invoices in commercial relations is extended to all companies and self-employed persons.
It is established, as an incentive, that companies which do not comply with the payment terms established in the Law to against late Payment, will not be able to access a public subsidy or will not be able to be a collaborating entity in its management. The public procurement regulations are reinforced to guarantee that the awardees pay in time the price agreed with the subcontractors.
A State Observatory of Private Delinquency will be created, which will be in charge of the monitoring and evolution of payment data and the promotion of good practices in this area.
Financial support for business growth
The Law adapts the national regulation to the European crowdfunding regulations, introducing more flexibility for these platforms to provide their services in Europe.
Regarding investment limits, a single individual investment limit per project is established for retail investors, which is set as the higher of an amount of €1,000 or 5% of wealth (excluding real estate and pension funds). In case of retail investors that investing above the limit, they will receive a risk warning and they will have to give their express consent to the crowdfunding service provider. In addition, an investment limit per project of EUR 5 million is set, which may be exceeded up to the limit provided for in the legislation of each Member State. Beyond this limit, the issuance of a prospectus is required.
Finally, a new category, “portfolio management”, has been included to allow the provider of participatory financing services to invest funds on behalf of the investor and reforms have been introduced to boost and improve collective investment and venture capital in Spain.
Improved of the regulation and removal of obstacles to economic activities
Thanks to this new Law, greater cooperation and trust is generated between the Public Administrations and the windows for company complaints are reinforced, speeding up this procedure.
In addition, the catalogue of economic activities exempt from licensing has been expanded to include those activities that have been considered innocuous by at least one Autonomous Community.
Entry into force
In general, the Law will enter into force on 18/10/2022, but three additional deadlines are established: 10/11/2022 for the legal regime of the participatory financing platforms; one year after the approval of the Regulatory Development for article 12, relation to electronic invoicing between entrepreneurs and professionals with an annual turnover of over eight million euros; and after two years of the approval of the Regulatory Development for article 12, relation to electronic invoicing for the rest of entrepreneurs and professionals.