05 July 2023

Structural Modifications Law: Summary of the Royal Decree-law 5/2023

Royal Decree-Law 5/2023, dated June 28, will enter into force on July 29, 2023. This decree transposes the Mobility Directive and completely revokes Law 3/2009 on Structural Modifications of Companies. In the following, we will summarize the general aspects and the main changes introduced by this law.

The new Structural Modifications Law

The need to transpose Directive 2019/2121, known as the Mobility Directive, is based on the removal of restrictions on the freedom of establishment of companies and entrepreneurs of Member States. This freedom of establishment is one of the fundamental principles of European law, regulated in Articles 49 and 54 of the EU Treaty on the Functioning of the European Union (TFEU).

On June 29, Royal Decree-Law 5/2023, which adjusts the Structural Modifications to the Mobility Directive, was published in the Official State Gazette. In its general part, it unifies the protection mechanisms for shareholders, creditors and employees that apply to all Structural Modifications, both internal and crossborder. In addition, it establishes special provisions for each type of Structural Modification.

Common guarantee system for internal structural modifications.

The new regulation will affect mergers, spin-offs, global transfers of assets and liabilities, and transformations of Spanish companies. In the preparatory phase, the main novelty consists of the obligation to demonstrate that the company is up to date with all its tax and Social Security obligations. In addition, the right of opposition of the creditors is replaced by the presentation of adequate guarantees in the Project. Additionally, the deposit of a notification in the Mercantile Registry informing shareholders, creditors and employees of the possibility of submitting observations on the transaction up to five working days before the meeting is held (except in the case of amendments adopted by a universal meeting) will be required. Likewise, the directors’ report must be addressed to both shareholders and employees (or their representatives) and must be available to both one month prior to the approval of the structural modification resolutions.

Changes in Cross-Border Structural Modifications

Cross-border structural modifications include cross-border transfers (hereinafter referred to as “cross-border transformations”), mergers, spin-offs and global transfers of assets and liabilities, both of companies incorporated under the law of a Member State (intra-European) and of companies from third countries (extraEuropean), when companies subject to Spanish law are involved in such operations.

These structural modifications will be subject, in addition to the common provisions on mechanisms for the protection of creditors, shareholders and employees, to specific provisions for each type of operation. Likewise, before the transaction is carried out, a certificate must be issued to demonstrate its legality. In Spain, this legality control function will be performed by the Mercantile Registrar


The purpose of the Mobility Directive was to facilitate cross-border transactions between Member States. However, the Structural Modifications Law, approved through the Royal Decree-Law, has introduced changes in internal operations and has been criticized for its lack of clarity and for extending the procedures for simple internal operations2 , as well as including requirements that are difficult to comply with, such as the obligation to prove that all tax obligations are up to date.

B Law & Tax International Tax & Legal Advisors.

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