B Law & Tax
16 April 2023

Learn about the EU directive on digital tools and processes in company law, its benefits for businesses, and its implementation in Spain. Discover how this directive is driving the digital transformation of the European business sector.

In 2023, a bill is expected to be approved to incorporate Directive (EU) 2019/1151 of the European Parliament and of the Council into Spain. This directive aims to improve interconnection between registers, public and free access to information in the Mercantile Registry and enable the online establishment and regulation of companies. The use of digital tools and processes in notarial and registration proceedings would make corresponding acts simpler, faster, and more efficient in terms of cost and time.

The directive requires that a company can be formed online, without the need for physical presence before any authority or submission of paper documents. Models will be provided for the types of companies listed in Annex II BIS, on registration portals or websites accessible through the single digital gateway. Member States may also provide online models for the formation of other types of companies.

Member States must maintain their freedom of systems but establish rules for controlling the identity and capacity of applicants to combat fraud and offer guarantees on the reliability and credibility of documents and information. Such controls may include videoconferences or other online means that offer real-time audiovisual connection.

Adapting notarial action to the new online incorporation system is necessary. Electronic identification is required to identify signatories in the videoconference, and the Directive establishes the need to verify identities through electronic identification means and appropriate checks.

Germany has already published a transposition law and has amended the Authentic Documents Regulatory Law and the Limited Liability Companies Law, admitting simplified formation with standard statutes and formation without physical presence subject to notarial regulations, only for limited liability companies with cash contributions. Italy has also proceeded to transpose the Directive.

In Spain, the transposition of Directive (EU) 2019/1151 has not yet been approved, which has generated criticism from various actors in the legal and business spheres. In this regard, the Spanish government is expected to approve a transposition law shortly, allowing for the online establishment and regulation of companies and facilitating public and free access to certain information in the Mercantile Registry, as well as improving interconnection between registers. Additionally, the necessary requirements are expected to be established to conduct notarial certification via videoconference and electronic identification of signatories, as established by the Directive.

In conclusion, 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 represents an important advance in the modernization and digitization of the business sector in the European Union. This directive is expected to improve efficiency, transparency, and security in business operations while reducing administrative burdens and promoting shareholder participation and corporate social responsibility.

The implementation of this directive is a complex process that requires the collaboration of Member States and economic and social agents involved in the field of company law. As implementation progresses, challenges and opportunities will be identified, and adjustments can be made to achieve effective implementation of the envisaged measures.

In summary, Directive 2019/1151 represents a major step forward in the digitization and modernization of the business sector in the European Union and is a further demonstration of the EU’s commitment to promoting an efficient, competitive, and sustainable business environment.

Marta Ortiz Fuentes

B Law & Tax International Tax & Legal Advisors.


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