Royal Decree-Law 5/2023 of 28 June, among others, transposes in Spain Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019. As a result of this transposition, Directive (EU) 2017/1132 is amended concerning cross-border transformations, mergers, and divisions of companies. Furthermore, it entirely repeals Law 3/2009 regarding structural modifications of commercial companies.
The regulation entered into force on 29 July 2023 and applies to internal and cross-border, i.e., intra- and extra-European, structural changes. The term structural change of a commercial company covers transformation, merger, division (including spin-off), and global transfer of assets and liabilities (17 2023). The term transformation includes the so-called international transfer of registered office, now known as cross-border transformation, as well as internal transformation, which is when a Spanish company changes its corporate form but maintains its nationality.
Relevant aspects of the new law on structural modifications
The following are some of the most crucial aspects of the law as to the regulation contained in the repealed Law 3/2009.
New structure
Royal Decree-Law 5/2023 deals first with domestic transactions and then with cross-border transactions, the latter ones divided into intra- and extra-European transactions. These categories, in turn, are subdivided into general provisions applicable to all structural modifications, followed by specific rules for each type of modification. The analysis of the interplay between these general and specific provisions is crucial to understanding the regulations for a particular structural modification.
Scope of application
The new law regulates extra-European mergers and cross-border divisions, which until now lacked an explicit legal regime. The anticipated outcome hereof entails simplifying the identification of the legal framework for these operations and streamlining their implementation.
Documentation
The new legislation broadens the scope and intended recipients of documents needed for structural modifications. These changes primarily impact the draft, the directors’ report, and the independent expert’s report.
Protection of shareholders
Royal Decree-Law 5/2023 maintains the rights of separation or disposal hitherto in force, limiting them to shareholders who vote against the transformation but granting them also to holders of non-voting shares.
Protection of creditors
Royal Decree-Law 5/2023 eliminates the creditors’ right of opposition in the terms provided for in Law 3/2009. It replaces it with a right to adequately guarantee their claims if there is a risk that they will not be satisfied per the provisions of the relevant draft.
In short, Royal Decree-Law 5/2023 introduces numerous new features concerning the previous regulation on structural modifications of commercial companies, both in terms of structure and content. Although the inspiring principles and the general procedure retain their essence, each specific structural modification requires a detailed study of the new relevant applicable regulations.
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