Guide to Doing Business in Asturias 2024
EN

Incorporation of commercial companies

As anticipated when introducing this section, the most common commercial companies in Spain are SLs and SAs, endowed with common features and issues specific to each specific type.

Hence, the main common features, nuanced with the differentiating elements of each corporate type, of SLs and SAs, have been listed below:

  • They have their own legal personality different from that of their members and the possibility of establishing a single-member capital company is allowed, in other words, one with only one member.
  • The liability for the company's debts is limited, except in very specific, exceptional cases, to the share capital.
  • They must have corporate articles of incorporation (with certain mandatory mentions):
    • The articles of incorporation of the S.A. cannot prohibit the sale of shares to outside third parties (as they are open companies), although they may regulate a certain procedure to be followed before the sale to a third party (non-member).
    • SLs, on the contrary, cannot have corporate articles of incorporation that allow the free sale of shares to third parties (non-members).
  • Our legal system recognises the validity and legal effectiveness of agreements between members which regulate matters not provided for in the articles of incorporation or strengthen majorities to reach specific resolutions (shareholder agreements).
  • They must have a minimum share capital (€60,000 in the S.A. and €3,000 in the S.L.). Upon incorporation:
    • The disbursement of the subscribed share capital, upon incorporation or in the event of an increase, may not be complete and the minimum may be 25% of the subscribed share capital, with the rest being disbursed within a period of five years.
    • In SLs, it must be fully disbursed when the deed of incorporation is granted (except in cases where the regulations allow incorporation with lower share capital, as a result of Law 18 enacted on 28 September 2022 on the creation and growth of companies) or the carrying out of an increase in share capital.
  • The share capital can come from monetary contributions (cash or bank transfer) or non-monetary (for example, real estate), although:
    • In the S.A., a report from an independent expert must be provided on the appropriate valuation of non-monetary contributions, although the cases included in article 69 of Royal Legislative Decree 1/2010 of 2 July which approves the consolidated text of the Corporations’ Act (LSC) may be replaced by a report from the directors.
    • In SLs, an independent expert report is not required (but, in any case, the substitute report of the directors is required) on non-monetary contributions, although the founders and members are jointly and severally liable for the authenticity of the non-monetary contributions made. In other words, the obligation is replaced by a liability regime for whosoever made the contribution, who will be responsible for the amount granted to it.
  • They must have a shareholder registration book and the S.A. too in the case of so-called registered shares. Likewise, their books of minutes (of the bodies) and of members must be legalised annually before the Registrar of Companies and Land Registry of Asturias.
  • They have governing bodies: the general meeting and the administrative body (which must be elected by the general meeting and, except as provided in the articles of incorporation, may be made up of natural or legal persons who are not members).
  • The general meeting must be held in the place designated in the articles of incorporation (or, failing that, in the municipal area of the registered office) and, in addition:
    • The minimum period that must elapse between the convening and the holding of the general meeting is one month in the case of SAs and fifteen calendar days in the case of SLs.
  • The administration of companies can be entrusted to a sole director, to several directors acting jointly or severally or to a board of directors (which must have a minimum of three members, with no maximum limit in the S.A. and with a maximum of 12 in the S.L.):
    • In the S.A., the term during which they will hold office will be common to all and indicated in the corporate articles of incorporation, but it may not exceed six years and four in listed companies (although re-election for equivalent periods is permitted) and when joint administration is entrusted to two directors, they will act jointly, whilst when more than two directors are entrusted, they will form a board of directors.
    • In the S.L., the appointed directors hold office for an indefinite period and the corporate articles of incorporation may establish different ways of organising the administration, attributing to the shareholders' meeting the power to alternatively opt for any of them without the need for any statutory amendment).
  • The members (they must have a NIE (foreigner identification number) or NIF (Tax ID number)) and the directors (if they have control of the company and/or if they receive remuneration for the position, must be registered with Social Security and be residents in Spain) may be legal entities, but they must designate a natural person representative.
  • The administrative body has the obligation to prepare the annual accounts (balance sheet, profit and loss account, report, director’s report and statement of non-financial information, where applicable) within three months following the close of the financial year and submit them to the approval of the general meeting together with the management of the directors and the distribution of the earnings within six months following the close of the financial year (31 December, unless otherwise provided for in the corporate articles of incorporation). Once submitted to the general meeting, they will be registered with the Registrar of Companies of Asturias.
  • General meetings must meet (physically or electronically) on a mandatory basis within the first six months of the financial year (and at any other time at the request of the directors or members who have the capacity to request it), to approve the accounts for the closed financial year and the management of the administrative body. If this is provided for in the corporate articles of incorporation, general meetings may be held in person, electronically or by combining both options.
  • The grounds for dissolution are common and share the grounds for the removal and exclusion of members.

 

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