On May 8, 2023, Directive (EU) 2019/1151 of the European Parliament and of the Council on the use of digital tools and processes in the field of company law was definitively transposed into Spanish law. Law 11/2023, also known as the Digitalization Law, incorporates numerous legislative innovations, including measures to promote digitalization in notarial, registry and corporate actions.
In this regard, the Digitalization Law provides for the amendment of numerous regulations, including: the Notaries Act, the Commercial Code, the Capital Companies Act and the Mortgage Act.
What specific innovations will we find thanks to this new regulation?
New Rules on Notarial Matters:
Among the novelties in notarial matters, the Digitalization Law brings changes to the Notary Law, some of them long awaited. Among these modifications, the introduction of the new Article 17 ter stands out, which will allow the notarial authorization of a multitude of acts through videoconference, such as commercial policies, the incorporation of companies and appointments, the granting and revocation of powers of attorney, corporate acts, notarial minutes of general meetings, notarization of signatures, cancellation of guarantees, or the granting of powers of attorney for procedural representation and for actions before the Administration.
In addition to this change, numerous new features are introduced, which give shape to a new way of carrying out notarial activity. These new features include: the electronic appearance of the interested party (modifying Article 32 of the Notary Law) in the electronic notary’s office, the issuance of authorized copies with the electronic signature of notaries, and the creation of electronic notarial protocols.
However, the entry into force of this series of novelties at the notarial level will not take place until November 9, 2023, i.e. 6 months after the publication of the law in the BOE.
New rules on registration matters:
In the area of registry activity, numerous changes are incorporated that will affect these services and involve amendments to the Mortgage Law and Law 24/2001 on fiscal, administrative and social measures. Specifically, some of the novelties that the Digitalization Law brings us are the following:
- The registry publicity will always be issued in electronic format and support, without prejudice to its transfer to paper if necessary (amendment of Article 222 of the Mortgage Law).
- A single, general, nationwide electronic office is created, which will be available to all persons and will allow access to all registry information and services available (amendment of Article 240 of the Mortgage Law).
- Titles subject to registration may be submitted in physical or electronic format.
- It will be possible to submit the application for registration in person at any registry (Property, Commercial or Movable Goods).
- In addition, certain rights of the interested parties are recognized, such as not having to provide documentation or data that are already registered in other registries, as well as the possibility of accessing their file electronically.
The new registry novelties introduced by the new Law will come into force as of May 9, 2024, that is, 12 months after its publication in the Official State Gazette.
New rules on corporate matters:
Finally, as introduced at the beginning of this article, the Digitalization Law incorporates important new features in the corporate field, through multiple changes in the Capital Companies Law, the Entrepreneurs Law, as well as in the Commercial Code. Specifically, the new Law provides a very relevant novelty (through the new Article 22 bis of the Capital Companies Law), such as the possibility of incorporating a limited liability company electronically, as well as the online performance of the other registrable operations. However, this novel tool is subject to certain limitations, among which are:
- The online incorporation of an S.L. cannot be carried out when the partners make non-cash contributions.
- Monetary contributions must be made through an electronic payment instrument widely available in the European Union, which must enable the person who made the payment to be identified (Article 40 ter of the Capital Companies Act).
- In the case of using standardized articles of association and standardized deeds in the electronic incorporation of an S.L., the new Article 40 quater of the Capital Companies Law establishes that the qualification and registration will be carried out within 6 business hours. In all other circumstances, the period shall be 5 days.
- The new Article 40 quinquies allows the notary to require the physical appearance of the interested party at the time of incorporation, in order to verify his exact identity and/or check his capacity or effective powers of representation.
It should be noted that the online procedures will be carried out through the so-called “notarial electronic office”, by videoconference and by means of a qualified electronic signature. In addition, apart from the new rules on the incorporation of companies, an amendment has been introduced to Article 213 of the Capital Companies Act (which deals with the prohibitions to be a director of a company), whereby any disqualification or relevant information for the purpose of disqualification in force in another EU Member State may be taken into consideration.
In contrast to the changes in notarial and registry matters, the new developments in the corporate field have already come into force as of May 10.
This publication does not constitute legal advice.
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