ADAPTATION OF STATUTES OF PROFESSIONAL SOCIETIES.
REVIEW OF THE FIRST TRANSITIONAL PROVISION ACT 2 / 2007. José Ángel García Valdecasas
Butrón Registrar of Companies. Granada.
REVIEW OF THE FIRST TRANSITIONAL PROVISION ACT 2 / 2007. José Ángel García Valdecasas
Butrón Registrar of Companies. Granada.
I. Introduction. Whenever
occurs a substantial change of company law that affects a specific social form, occurs in a corresponding manner, the need to adapt the companies that are sheltered under the corporate form to the new rules. This happened in 1989 with Law 19/1989 of July 25 for the partial reform and adaptation of corporate law to the EC Directives in respect of companies, which profoundly affected both the corporation and the limited again to happen in Act 2 / 1995 of March 23 the affecting to the limited partnership. In all these rules are established what was called the legal adaptation so that the statutory rules of previously existing societies could not be applied against the mandatory provisions of new laws and also established a mandatory adapt their statutes to which was granted certain deadline with penalties for companies that run past have not done the imperative to adapt their laws to the new laws. Following these precedents
the recent Law 2 / 2007 of March 15, professional societies also provides, in its first transitional provision, the need for pre-existing professional societies to register or, where appropriate, adapt its statutes or rules of operation adopted the new standard. In the following lines, and from a very practical, we will try to give some rules and guidelines to successful adaptation or pseudo professional societies adapt to Law 2 / 2007, since it is close to completion within a year given for this (will be June 15, 2008).
II. Situation today.
first thing we have to ask is whether under existing law prior to Act 2 / 2007 there could be professional societies to which they are apply the new rules.
From a strict perspective, only the particular civil society having as its object the exercise of a "profession or art, in terms of art. CC 1678, could be considered as a true professional society. The rest of corporations registered with the Commercial Registries professional order or the like, in reality were not professional societies because they do not exist in our law to the recent Law 2 / 2007. Its object, more or less exactly, only in very exceptional cases, be accommodated to the demands of the new law in all other cases must be re-drafting terms shall see later. Therefore, only civil society can be predicated a true adaptation to the new law, an adaptation of course be carried out through an initial registration of the company, as we shall see, except in the case of a registered civil society Registration during the brief period of time that was current in art. RRM 269 bis, introduced by the reform of RRM 4 September 1998 and annihilated by the STS, 3rd room of 24 February 2000.
relation to the rest of the companies registered in RRMM we have to ask is what is, or what agreement should be adopted, for the purpose of the company, drawn up more or less clear, in terms of mediation, continue to be written in a way that is acceptable to the new legal regulations, ie as simply expressing their own professional view that the activity of the company or its corporate purpose is the activity itself professional concerned (cf. RDGRN of March 1, 2008).
Prior to June 16, 2007, we have said, could not exist in our society right professional sense. However there were many professional societies were formed by an object of this class. In response, the DGRN, at first, came to demand that is clearly expressed in the article on the subject of society that it was the "mediation or mediation" in the activities described therein (RDGRN of 04/23/1993). On this basis came RRMM enrolling in partnerships with business objects mediation. However, in a much earlier time, the DG, in response to practical and legal logic, stated that since in Spain there was no professional society, companies that have the object and it was understood that they were mediators and therefore not was strictly necessary to include the word "mediation or mediation" in the article on the social order (Vid. RDGRN of June 2, 1986). Thus in this resolution was considered admissible object expressed as follows: "Provide all sorts of services and advice to companies or individuals, accounting, tax, legal, administration, management and representation." Also on this basis, then, as we have seen, contradicted by subsequent resolutions were many societies and registered in RRMM. With the resolution of the DGRN of December 21, 2007, although for other reasons, return to this doctrine, meaning that if the company is not professional, even if an object to be carried out by professionals, the company is actually mediation or mediation in these activities.
therefore view it as today we can find in the RRMM with two types of objects relating to professional societies:
a) that in his view expressed that it was "mediation or brokering" and
b) Any others reviewed under DGRN doctrine of 1986, expressed directly that they were intended professional activity in question, but never or rarely expressed with such clarity, because it is normal the object was more or less descriptive of the professional activity or even that it will be included in non-business activities.
In the same sense and within categories above, we can also find three other variants:
a) Companies, as well as intermediate or directly, only watched as their own professional activity outside the descriptively expressed or a more specific and accurate.
b) Any other activity which together own professional activities contemplated a number of other more or less connected with the main object, and
c) Even we can find other companies which have as their first activity, place occupies in the item in question, one other than his own professional, included in some other sections of some other activity very professional.
This is a complex situation, as the object of such society, there is currently in RRMM. However, in view of adaptation, we believe that we must distinguish between only two types of companies:
a) Those who express and express their view, really came true acting as professional societies, ie as expressed in art. 1 of the Special Act that "you were attributable to the company the rights and obligations inherent in the exercise of professional activities as head of the legal relationship established with the client, but only in the economic aspect of that relationship. This does not mean they were professional societies, but as professional services billed on behalf of society, in fact acting as such professional societies, subject of course to the professional's own responsibility to the client that demanded its own services and the responsibility of society . And
b) Any other companies that really were of medium or intermediate, so that was the professional the services billed to the customer and the company that billed the professional means put at his disposal or the activity carrying out in favor of it. Obviously
second classification result not from the books of the RM, in which we only meet with the five different classes of objects outlined above, but must be taken into account by managers and partners when deciding if it is applicable or not DT 1 ª. 1 of the Act, shall proceed or not to adapt their laws and social structure of the new regulations. Moreover, the second classification may or may not coincide with the first, ie companies that may exist in order for mediation to operate as true professional societies and companies can be directly order as true professionals operating media company or agency. Obviously though by the Commercial Registrar or notary that receives the query will not be known in which of the above groups is a given society when advising should clearly explain the possible situations and reasons that should lead to partners and managers to ensure the adaptation or not society.
What is clear is that if the company intends to adapt to the new law, it must be normal and have to adjust your view to the requirements of Articles 1, 2 and 3 thereof. So today it is also clearly DGRN Resolution of March 1, 2008.
Well, we can ask: Does this accommodation or adaptation of the object of pseudo professional societies that exist today can mean changing the subject of society, with attendant consequences in certain social types of advertising or may even assume, as held in a careful work on the subject, Antonio Ripoll Soler, a place of social order?
In our view, with some qualifications and depending on the form of expression of currently registered objects, which can take many different forms, "in any object that adaptation will involve a replacement of the objects of the company, or not a modification.
Here: The legislature can not be issued a standard empty of content and if you set that standard contained in adaptatoria DT precept 1st is because he knew, as we all know, that although until the adoption of Act 2 / 2007 there could be truly professional society actually existing societies with objects acting as true professionals pseudo professional society. So if we assume that the new Act applies to companies of our classification first, always acting in fact as true professional societies, ie outside of which we have stated under letter a) of our second classification professional societies, changing the subject or even if we call object replacement for professional mediation is an act required by part of society and of course for all members who knew how to act in their society, and this adaptation of the object is just that, an adaptation but not a change, much less a replacement for the purpose of the company. This was well understood DGRN itself, that successful resolution of August 18, 1993 came to establish, just before a course of adapting the object of a society Reform Act of 1989, that in terms of objects must be distinguished between the course of change in the sector of economic activity in which it operates in society, in which case they should be required advertising required by art. 150 of the Companies Act, and the realization the order or determination of the main activities, which can not be considered modifications. Well, if so, can hardly be regarded as a substitute object that a company registered professional pseudo suit their business to the extent permitted by law, ie that the previous concrete activities described in the article on the social order now specified in the sense that it will be the professional's own question that even before the professionally exercised through society. And we consider that it is applicable to any class of pseudo professional societies exist in the Registry, ie the case of mediators, of improper professional societies, major joint ventures or joint ventures secondary. Moreover, if the company had expressed its purpose as supports RDGRN 1986 is even clearer that there is no replacement or modification of objects, but a simple updating of the regulations imposed a mandatory all companies that directly carry out professional activities. Apart from this
doctrine almost unanimously, starting from the Chamber in its never good manual praise on "Studies of Corporations" estimated that the existence of true replacement of objects, it must be total so that the society that was dedicated to a specific activity now proceed to focus on something totally different and can hardly be said that an existing company in order related to a particular profession, whether expressed in other ways and is also obliged to do so imperative , the object can be replaced by a different one when in reality will follow, and usually in the same way, performing the same activity. We shall return to this issue.
III. Rules for governing.
The only rule that, under Act 2 / 2007, deals with what might be called adaptation of existing companies to the new law is the DT 1 st, under the heading of "Deadline for entry in the Register," says
"1. Companies formed before the entry into force of this Act and as may be applicable under the provisions of art. 1.1, must adapt to the provisions of this Act and apply for registration, or adaptation, if any, in the Register, within one year from the entry into force of this.
2. Within the period specified in the preceding paragraph without having been complied with in it has not entered in the RM of document. With the exception of titles relating to adaptation to this Act, the dismissal or resignation of administrators, managers, CEOs and liquidators, and the revocation or renunciation of powers as well as the dissolution of the company and appointment of liquidators and the seats ordered by the judicial or administrative authority.
3. After the period of 18 months from the entry into force of this Act has occurred without adaptation and presentation in the Register, the company shall be dissolved as of right, immediately canceling the registrar office for the seats dissolved partnership. "
is also related to the adaptation of the DT 3 rd that under the heading "Tax and tariff reductions," says
"During the period of one year from the entry into force of this Act, the acts and documents necessary for societies to adapt established prior to its provisions shall be exempt from Transfer Tax, in its corporate and operational modalities of stamp duty, and enjoy the reduction required by the Council of Ministers of Justice proposal on the rights of Notaries and Mercantile Registrars have lost as a result of the implementation of the respective tariffs. "
Tax exemption is purely fictional as only adaptation will entail the amendment of bylaws that not having an act intended to amount or valuable, it will not be subject in any case, corporate transactions and stamp duty. In contrast, the tariff reduction itself has been illustrated by RD olds to 30% of the rights that correspond to the Scriptures is always presented to the Trade Register before the deadline set.
The DT1 th at Section 1, contains a double statement: On the one hand proclaims the need for registration in the Register of those professional societies, mainly civilians, to be so applicable to the art. 1.1 of the Act, are currently operating without registration, and other claims will need to adapt pseudo those other professional societies already recorded in the Register, and being so equally applicable to art. L 1.1 of the Act, those wishing to continue as professional societies under the umbrella of the new standard. Both types of companies covered by the TD, although of course the requirements will change, depending on whether a new registration or a mere adaptation to the law. Then we'll see.
Moreover struck by the absence, within the rules adaptatorias the new law, than in the past have called "legal adaptation." Indeed, both the Law 19/1989 of July 25 for the partial reform and adaptation commercial law to the EC Directives concerning companies, such as Law 2 / 1995 to amend the limited partnership, contained a transitional provision, the second in the first case and the first in the second, under the which the provisions of the deed or bylaws of the existing corporations or limited its entry into force would be ineffective and therefore could not be applied contrary to the precepts of the new legislation. Obviously this was only applicable legal adjustment to the mandatory rules of the new laws for when it was operative rules of the above statutes companies maintain their full effect. Law 2 / 2007, in transitional provision does not contain a provision similar to that considered, perhaps by estimating the legislature that given the variety of companies that may be affected by the new rule and doubts that arise by reason of the order of society itself, as we have seen above was not advisable as radical rule that would have effectively deprived many times statutes affecting negatively to the shareholders of those companies and creating doubt and confusion among lawyers about when a statutory provision was repealed and if not, not be in for a truly professional company. Thus the diversity of existing societies with a view more or less close to the provisions of art. 1.1 of Law 2 / 2007, may continue to operate under their own statutes, regardless of the changes introduced by the Act
DT On the 3 rd, the tax exemption established herein, is purely fictional as the adaptation will only entail the amendment of laws, that not having an act intended to amount or valuable, it will not be subject in any case, corporate transactions and stamp duty. In contrast, the tariff reduction itself has been illustrated by RD 1131/2007 of 30 August-olds to 30% of the rights that correspond to the Scriptures is always presented to the Trade Register before the deadline set. Note also that this rule, both for Notaries as Registrars, is only applicable to companies incorporated prior to June 15, 2007, date of entry into force of the law, so that the acts or documents necessary for societies civilians are not registered can register at the Registry and obviously the inscription itself, in no case shall the reduction established.
IV. Companies which is applicable to the obligation of adaptation.
This is a fundamental point in this area as the first transitional provision of the Act says it clearly. It will apply only mandatory registration or, where appropriate, mandatory adaptation, the companies which apply to them the art. 1.1 of the law itself This should lead us to examine in detail what the requirements under this article to see a company as a professional.
requirements required by art. 1.1 to consider that a company is professional are:
1 º. Object professional expressed it in any of the forms acceptable to the entry into force of the Law 2 / 2007 and before have we seen, as the pure object professional as we set the law and clarified the RDGRN of March 1, 2008, before its entry into force was not possible.
2 º. University degree or professional qualification the exercise of which is necessary to prove an official university.
3 º. Requirement that the exercise of the profession is required by the professional registration.
4 º. Own acts of professional activities are carried out directly under the corporate name or corporate name and you are assigned to the company the rights and obligations relating to the exercise of professional activity as a holder of an established relationship with the client.
Of the above requirements are the first three goals, while the latter is completely subjective. That is, to the registrar, to the notary or any other operations other than society will be relatively easy to appreciate the existence of the three first requirements when faced with an existing company and not registered, civil society, a society or previously registered in the Register. But the latter requirement is essential for assessing a company's professional assessment will be impossible for operators outside the company. That is, compliance with this requirement will depend on how society itself operates in the market for professional services and therefore their knowledge is reserved exclusively to the board of the company itself and the members hold shares, stocks or shares social. This will have a great importance when we discuss the implications of the unsuitability of existing professional societies in the commercial registry. Later we shall see.
V. General requirements for adaptation. We will collect
then we might consider the general requirements for successful adaptation to the new Act, ie those to which all societies are of the kind they are, and then deal with the peculiarities of some of them.
adaptation The general requirements are:
1. Deed.
2. Full identification of partners, the circumstances required under art. 38 of RRM, distinguishing those who are professionals and who do not meet this quality.
3. Share in the capital or assets of the company for each one of them. This fee must be expressed according to the kind of society concerned. It may not exist in civil society and collective. Case of corporations or limited, must be identified by its number of shares held for each partner.
4. Professional school to which they belong and the number of college.
5. College certification attesting to the above, in which the professional is properly identified, at least for the NIF, and stating his current qualification for the exercise of the profession.
6. The adequacy of the subject or professional activity to the new Law
7. The appointment of the board of directors whether the existing do not meet the conditions set forth in art.
4.3 of the Act 8. The establishment of ancillary services by partners. This last point may not be strictly necessary in the case of partnerships (civil, collective and limited partnerships) in respect of professional partners who are themselves industry, as industry partners as such recorded in writing and the provision of their services to society.
9. According to the General Meeting or Assembly of shareholders of the company that aims to adapt, adopted with a quorum which, if any, are payable to the company concerned and taking into account that the agreement will require and will be about changing the bylaws or, where appropriate, of the deed of incorporation . The law does not establish special quorum adaptatorio agreement.
10. The bylaw amendments or rules of operation of the company contained in its charter, which are necessary to ensure that the same are inconsistent or conflict with rules that are mandatory of Law 2 / 2007.
11. By the Register, notify the fact of adaptation to college or respective professional bodies, including in such notification all the requirements of section 2 of art. 8 of Act 2 / 2007.
VI. Adaptation of civil societies.
As we have said is civil society that can more adequately meet the requirements of art. 1.1 of the Act, namely to develop a professional activity as a direct way, in the sense that "the acts proper to it are executed directly under the trade or corporate name and you are assigned to the company the rights obligations relating to exercise of professional activity as head of the legal relationship established with the client. "
These civil societies can be in two situations: public deed or in simple private document of the tax paid or not (cf. Art.1667 CC) ..
In the first case, all partners must take the adaptation agreement by its appearance in the writing itself. I also believe that the agreement would be taken adaptatorio General Assembly members, attesting to their agreement, by analogy with corporations, the board exists as the writing itself that documents the existence of the company or any of the partners, they all can, in terms of the CC, may be managers.
If civil society is not constituted by public deed, it seems in every way indispensable to grant deed which appear all the members of the company concerned.
In both cases, and unless civil society is established and registered in the RM, annulled under Article 269 bis of the RRM, is also essential to unite for writing the Central Trade Register certificate that is not registered in the name of society. This certificate is inexcusable in accordance with art. RRM 413 of the same is true for not only corporations but all registrable in the RM entity of any sort whatsoever.
civil societies do not require, as their regulation in the CC, approval of bylaws, statutes that are not required by Law 2 / 2007. Thus, in writing, simply enter the specifications required in the art. 7 of Act 2 / 2007 and also the following, some with an optional nature, arising out of civil regulation:
1. Name of the company covered by the certificate of the Central RM.
2. Address of society.
3. Subject to the same expressed in the form to be discussed later for limited liability companies.
4. It is not necessary to record the duration of the company in view of art. Cc 1680., Or the date of commencement of operations in the light of art. 1679 of the Code.
5. Although not strictly necessary to be convenient to express the close of the fiscal year.
6. Pacts on income of the partners in accordance with articles 1689 and thus to avoid that if partners are professionals that are comparable to the CC industry partners, their share is equal to the least it has made. This agreement shall comply with the provisions of art. 10 of Law 2 / 2007.
7. It will not be possible to implement the provisions of art. CC 1695, ie does not specify how to manage the company, in which case all partners are considered agents, as Art. 7 and 8 of the Act clearly required, both for writing and for registration, the designation of the person or persons initially be responsible for the administration or representation of society.
8. Quorum of adoption of the agreement. Must be unanimous as is clear from Art. RRM 218 of stating this for the transformation of civil society in limited partnership.
VII. Adaptation of partnerships.
as specialties of the limited partnerships we review the following:
1. Names. Notwithstanding the provisions of art. 6 of Act 2 / 2007 allowing the professional society has an objective or subjective term, it is clear in the light of Articles 126, 146 and 147 of the C.com. that, in the case of partnerships or limited partnerships, the denomination must be subjective anyway. Moreover, in the case of unlimited liability, professional partner is one of the backers, his name may in no case be part of the name of the company. This means that in matters of corporate name and despite the standard of art. 1.3 of Act 2 / 2007, it is preferred for reasons of public order company, the above mentioned Articles of C. Com.
2. Directors of the Company. As civil society is not possible applicability of art. 129 of C. Com. That is an indispensable condition for the adaptation of the partnership or limited as a professional society's designation of the person or persons responsible for the administration and representation of society. So too is the art. 209.9 th of RRM. In limited partnerships must also be noted that although the limited partner is professional is in any case be appointed administrator flatly forbid the art. 148, p. 4 of C. Com.
3. Distribution of profits and losses. As in the civil societies must be provided in the form of distribution of profits and losses as provided in Art. 10 of the Special Act, thereby avoiding the applicability of art. 140 and 141 of C. Com. respect to the industrial partner may be just the professional partner. Profiled also in the partnerships, and since it is not necessary in the same the existence of social capital, if it is agreed how to distribute the profits and losses would not apply the last paragraph of art. 10 of Law 2 / 2007, which establishes this as a benchmark for distribution when nothing has been agreed in writing or anything available to the articles of association.
4. Quorum for the adoption of the Adaptation Agreement. In the absence of standards in the Commercial Code governing the formation of assemblies of members in these societies, we must be what they say about it the articles of association or, if the charter. However it is almost universal opinion in the doctrine that the agreements in partnerships that aim to change structure of society or may affect the social contract, require unanimity. Therefore both those under the bylaws or writing rules to adopt resolutions, as if no such rules, the adaptation of a simple partnership or limited to Law 2 / 2007, will require unanimity of all partners. That also follows the art. RRM 217 of that for the registration of the transformation of a partnership or limited partnership into a corporation or limited, strictly requires unanimity of all general partners, referring to the limited partners as to read the charter and if it were limited by shares, it is obvious that apart from the charter, for the limited partners, will be to sit equally to the LSA. In the same vein, art. 212 of the RRM.
VIII. Adaptation of corporations.
As adaptatorio agreement specials on corporations establish the following:
1. If the shares are bearer must be agreed at the AGM conversion into registered by virtue of art. 17.1 to) of the Act 2 / 2007.
2. If the statutes governing agreements increase or decrease of social capital should be taken into account the provisions contained in art. 17.1 b, c and d) or to exclude its application or to modalized.
3. In an interesting paper published in this website, just entry into force of Law, signed by the Notary of Moixent, Antonio Soler Ripoll, posed this problem, as pointed out earlier in this study on the adaptation of the object of societies current interim existing professional society itself, involved a replacement of objects of the company and whether the agreement had not been taken and unanimously Universal Board, would apply to art. 147 of the LSA arising in favor of members who had not voted for the agreement regulated the right to withdraw that provision.
As we saw earlier, and while recognizing the original and based on this approach, hardly an adaptation of the object of a society for professional pseudo current law may be considered as a replacement of the object of that society. In this adaptation of the object is not going to happen, as I said the R / DGRN outlined above, no change in the industry or sector of economic activity in which the Company operates. Will simply try to replace the term mediation and the enumeration of the different activities more or less complete it within the purpose of society, by the exercise of the profession concerned. Substitution mediation by the exercise itself, the vast majority of cases, will simply adapt to the legal reality, the real business of the company, as this de facto, as aptly expressed in his work Ripoll Soler said, itself was already a professional activity. And the substitution of a list of activities more or less related to a particular profession, for the mere expression of the activity of the professional in question is nothing more than an exercise in adaptation to the Act, required the same and should not have detrimental consequences for society or for members who wish to continue with it. The same can be said of the removal of such other activities within the purpose unrelated to the professional order of society.
is a different question concerning the possible applicability of the object to the adequacy of existing professional society of art. 150 of the Companies Act as we know it requires any replacement or modification of the social order "is published in two newspapers of wide circulation in the province, without which advertising can be enrolled in the Registry. At this point I think that they can not set rules. If the above object of the society as reflected in the record merely expressed in a descriptive way, as was usual, more concise or activity the professional in question, we believe that no advertising shall be binding art. 150 of the LSA. The case clear in this case would be to audit companies and by law should be expressed that way, though not clear in the art.6.3 of Law 19/1988 of July 12 if the object should be unique or no. But if the object, as was also usual, apart from activities that included other professionals typically occur in connection therewith, were not themselves professional or may be performed by other professionals or even amateurs, ie the For purely mixed objects, they apply the aforementioned understand art. 150 because in this case, the adequacy object will involve not only the strict enforcement of the law but the removal of a number of activities, more or less numerous than before he could develop society. The clear example here would be the architects, that while they used to express their view, the imposition of their professional body, to a much needed, added to that object, usually the promotion and real estate construction. Therefore, in these cases that there is an alteration or modification of objects by suppression of activities, the company shall, before granting the adaptation writing, publishing the amendment of corporate purpose in the manner aforesaid.
More questions we raised the issue, also raised by Soler Ripoll in the reference work on the profound change that occurs in the system of transfer of shares of professional partners. As we know, Article 12 of the Act provides that the condition of professional membership is not transferable except with the consent of all professional partners, although the statutes may provide that the transfer may be authorized by a majority of those partners. Here there occurs a substantial change in the regime of the actions of the partner or business associates. That is a stock that naturally were freely transferable or were limited only in certain circumstances specified in the statutes, will become full or limited transferable. Understand why in this case and unless the express consent of the member concerned by their affirmative vote on the adaptation of society to Law 2 / 2007, that shareholder may exercise the right conferred by art. 147 of the Companies Act and therefore during the period of three months from the publication of the agreement in BORME not be subject to Art. 12 of Law 2 / 2007 or, where appropriate, statutory restrictions to the transfer of shares are set to a limited extent in the statutes as cited under Art. 12 of the Act, however, and even in this case, if the transmission of shares in professional pseudo was already limited by the statutes of the same, you may consider to what extent the new restrictions requiring the consent of the majority of professional members substantially affect the system of transmission of shares. Indeed it could well be that registered the statutes of the society and include restrictions on the free transferability of shares, even of greater importance than the limitations under art. 12 may be established in the statutes of the company adapted. In these cases it is obvious that only in the event that the new restrictions were clearly superior to existing partners professionals who had not attended the Board had voted against or have abstained, may exercise the right granted to them by art. 146 of the LSA. This should be special warning by the notary deed authorizing the adaptation of the transcendence that might have on the viability of society, but such notice is required for enrollment in the RM, or the effects of This is due certify compliance with any requirement in this regard. That is against the Register, the fact that there are members who voted against, have been or not been present at the Board, shall prevent the registration of the adaptation of society professional, although the previous regime of transfer of shares would be completely free.
remains finally the question of what the quorum necessary to agree at the AGM of the society to adapt pseudo professional society to the new Law also Law 2 / 2007, no doubt by the many companies that can be affected, is silent on this point, unlike what happened in the other major adaptations of companies occurred in Spain since 1989. In this connection are, in principle, an adaptation of the Law 2 / 2007 of a corporation that did not imply greater or lesser extent, a modification of statutes, beginning the article on the subject of society. Therefore, the quorum shall be the regular bylaws amending any provisions of art. 103 of the Companies Act or, where appropriate, the special that, within the allowable limits established by the statutes of the society. Thus we see that the Law 2 / 2007, unlike the other major laws did adaptatorias of our company law does not facilitate the transition to the new regime, but leaves the regulation of the society concerned.
IX. Adaptation Limited Partnership. Because according to statistics from the Association of Registrars and Commercial Property, almost 99% of companies are currently in Spain, are of this social form, a phenomenon that started and maintained with minor variations since 1990, the vast majority of professional societies adaptations that occur in the RRM will be of limited partnerships.
therefore be, in relation to this social form, where we stop and where to focus our attention in regard to the matters that must be adjusted, subject to limited liability companies. Moreover, even if it involves a repetition of what has been said before, we will review in connection with the adaptation of these companies most of the requirements for a limited partnership may be considered appropriate to the new law
Therefore we can consider the conditions necessary for the adaptation of an existing limited partnership to the Law 2 / 2007 are:
1 º. Of the General Agreement of the society adopted the necessary quorum to amend statutes, ie the affirmative vote of more than half of the votes attaching to shares that divides the capital, except that the statutes strengthened the company displayed a quorum (See Section 53.2, a) of the LSRL).
2 º. New wording of the order of society in the terms we already know.
3 º. Partner relationship, both professional and non-professional, with the shares that correspond to each of them and their numbers.
4 º. Professional Association certificates which identify the professional, at least for your ID, and stating your current authorization for the exercise of the profession concerned. At this point the DGRN in the aforementioned decision of March 1, 2008, considered to be sufficient for the notary of faith that has been made that certificate, which are the above data, without requiring that it is attached to the array and insert into their copy.
5 º. Appointment of board of directors if the existing currently does not meet the requirements of article 4.3 of the Law 2 / 2007. If only part of the board does not meet these requirements, simply put it back together to the extent necessary to carry them out. This means that if an administrator or the administrators are not business associates must be completed or added to the board of directors as necessary for three-quarters are professional partners. If it is the sole director who is not professional partner will undoubtedly be dismissed by appointing a professional partner as such. The same will happen if it's board of directors and the CEO or CEOs do not meet the requirement of professional partners.
6 º. Recomposition of social capital to the extent necessary to comply with the requirements of art.4.2 of Law 2 / 2007. This point will be of great importance because many companies registered professional order that the composition of capital does not comply with the requirements of that three-quarters belong to professional partners. This restructuring of the company's capital, is outside the Registry, but should be taken into account by both the authorizing Notary when you provide the documentation necessary for the execution of the deed of adaptation, such as business advisers dealing it. Failure to comply with these requirements will be necessary as a preliminary operation, the proceed to the transfer of shares or, where appropriate, increased social capital, which is necessary to reach the end intended by the law in this respect if they were husband and wife company by 50% or another different proportion from that required in Article 4.2 of the Act, and one of them lacked the professional character is not necessary, any sales suffice merely an agreement between spouses whereby you give in accordance with art. 35 of the LSRL, ownership for the exercise of shareholder rights to professional spouse sufficiently to comply with the standard comment. This transfer of ownership may be in the same agreement adaptatorio, so it will not be needed freelance writing. Ie as an agreement prior to the adjustment in the same General Meeting agreed that the spouses determine the ownership of the shares, all acquisitions, the effects of having per partner to a spouse who attend quality professional membership.
7 º. Amendment of the Articles of Association. As we said before is really hard for a pre-existing limited partnership may become a professional society without changing its bylaws. Normal and desirable will be repealed completely and utterly the previous articles of association and approve a new constitution in place covering all fields required by the new law, however we will note below the points or ends it will be necessary to tweak the existing statutes to ensure that they are adapted to the requirements of the new Act Here:
a) Name of the company. Must be added to the previous name of the company's name "professional" or the abbreviation "p". You do not need to order a new certificate of title to the RMC, as it is a case similar to that occurs when a society is changing social or where a company is disqualified as an employment or a New Enterprise company ceases to be such . The RRM only referred to in Article 418 if mergers or splits in the companies resulting from the merger or division can use the name of which is terminated without requiring re-certification to Central Registry. But even if it provides the raison d'etre is the same and moreover, under art. 408.3 says that "to determine whether there is identity between two names will be dispensed with directions on how those social or other use of which is made necessary by law", it is clear that the requirement for a certificate. For the adaptation is a clear case of application of this article. The name is already covered by its corresponding license and registration in the Register and all we do now is to add an indication, the professional, as required by law This leads us to consider it unnecessary to request a new certificate of corporate name to RMC. Separate question is whether the name, being subjective, does not meet the requirement of art. 6.2 of the Law 2 / 2007. In this case it will be necessary as part of the agreement adaptatorio, change the name of the company for a new name that logically should be covered in the certificate.
b) Duration of the Company. Will be time to decide if the company continues to be of indefinite duration, with the consequence of separation "ad nutum" professional partners, or whether it is better to set a time limit to avoid such a separation. Establishing some form of life of the company, will be critical in regulating the right of separation of members and should be taken into account in drafting the articles of association.
c) social capital. Although not required by law is advisable to specify in the article of the articles of association dedicated to the establishment of social capital, which holdings are public and which are not specifying the numbering of them.
d) Transfer of shares. We Double opt for a variant. Or not establish anything in the articles of association on the subject in which case the shares of non-professional members are subject to the provisions of art. 29 of the LSRL and professionals to the art. 12 of the Act such special or regular transmission separately for each class of shares taking into account these Articles. The same we say of the transmission mortis causa.
e) Establishment of ancillary services by professional partners. Is a point of regulation required in the bylaws of the professional societies (cf. Art.17.2 of Law 2 / 2007). In its regulation we must take into account Articles 22 to 25 of the LSRL. Now in the item on the transfer of units with ancillary in no case shall apply Article 24 of the LSRL, but the art. 12 of the special law under art. 1.3 of the law itself takes precedence.
f) Meetings. Special care with the representation in the General Meeting which will be necessary to consider the provision of art. 4.5 of the Law 2 / 2007 whereby professional members may only grant a proxy to act even professional partners within the corporate bodies. This requires a waiver for this type of partners, the general rules laid down in Art. 49 of the LSRL.
g) resolutions. As a specialty is the approval of the final distribution of benefits that must be by an absolute majority of the capital, including in this the majority of the voting rights of professional partners. Therefore be taken into account because it represents, in this limited aspect, a repeal of the rule-making social arrangements established in the art. 53.1 of the LSRL.
h) Body of representation and administration. No specialty because its regulation may all conform to the rules. The specialty emerges, as we know, at the time of appointment and quality have professional managers, at least in its 3 / 4 parts.
i) dissolution and liquidation. Also in this section shall be considered the standard of art. 4.5 of the Special Act provides for mandatory dissolution as a cause breach of the requirements regarding ownership structure and composition of the board. So will not suffice in the article, if any, being devoted to the dissolution, the statutes are sent without the Law 2 / 95 it would be incomplete in this regard.
8 º. Questions concerning the possible existence of the right of separation of current members as a result of adaptation of the object of society and new restrictions placed on transfer of shares professional partners for the establishment of ancillary services.
In these three cases, the art. 95 of the LSRL, letters a), c), f), grant the partner of limited companies the right to withdraw from the company.
Point on the social order or rather to its adaptation to the new law, we have argued that in any case there is a true object of the replacement of previously existing society and therefore in any case be no right of separation for these professionals are members or not. Elaborating
, their size, as already mentioned above, as a pointer to the House in Commercial Law Studies, a distinction must clearly two different situations for the purpose of considering whether or not a replacement for the purpose of the company. To the author's real distinction is in question or not homogenous with the existing activities above or in the case of heterogeneous activities they performed and of society. In the first case, although it has been a change or rather a modification of the social order, it is clear that there is no replacement for such as new activities to be undertaken by the company are related to previously existing. In contrast, if the activities resulting from the amendment are heterogeneous, there is no doubt that given the assumption of substitution of the object of society, emerging in this case the right of separation of art. 95 of the LSRL.
In our view, if the company adapts its statutes and its own configuration to the new Law 2 / 2007, conducted as it can not be otherwise (cf. DT 1 and art. 1 of the Act), professional activities it seems that the adequacy of those activities to the new law, in no case can be estimated with the characteristics required of the House to consider that there is a genuine replacement purpose. The company will continue doing the same activities that previously had been playing well in a completely identical if the rights and obligations of the professional action your service is directly attributable to the company, or an indirect way if the company simply acted as a mediator between the client and the professional serving in the same, although in this case, rather than mandatory adaptation can be discussed voluntary adaptation. So one might say or think that in this case itself is a replacement object for the mediation is passed to the direct exercise of the profession concerned, but even in this case must be recognized that the activity of the company was close or homogeneous , says of the House, with the new company's activities.
Finally we noted that in the opinion of the author cited the right separation of partners in these cases should also be interpreted narrowly as its exercise is a disturbance in the functioning of society, which can be serious if it intends to separate the partner holding a considerable share of the capital of the company. Thus, in his view, the exercise is irrelevant if the issue is to expand or restrict corporate transactions and therefore we also believe that no such right if the issue is to comply with a legal requirement, adequacy of the object to the new law, which is considered necessary by the legislature to provide clarity to the relationships of clients or service users of the existing professional pseudo society today.
More questions offered by the other two cases in which the art. 95 gives the partner of a limited right of separation.
respect to new restrictions that will suffer the interests of professional members, who say otherwise unless the articles of association, will require the consent of other professional partners, they are of such entity entering fully in the case referred to in art. 95 c) of the LSRL. However also in these cases allows the statutes provide that the transmission may be authorized by a majority of professional partners, we must carefully consider the above statutory restrictions in society, to ponder whether or not that right. If the above statutory restrictions on the free transferability of shares that may be widespread under art. 30.4 of the LSRL, even a total ban on broadcasting for the manor of five years from the constitution of the society are such that compared with intrasmisibilidad actually declared in the art. 12 of the Act are very similar or identical lead to practical results, also in this case, there is the right professional partner separation. That is to say at this point can not set rules about whether or not the right of separation as this will depend ultimately the provisions in the statutes of the society and what within the limits of art. 12, is set to the new. Finally
on ancillary services, if they were not previously established in the bylaws, its own legal enforcement will lead, no doubt, to the professional partner can be separated from society because nobody can be forced to make a specific activity against their will.
To conclude this section we can say it in the three points discussed above, but will also qualify if the Board is not universal and the agreements had not been taken unanimously, whether or not the right to carry out separation registration of the adaptation of society to the new law, in practical terms the question for the partners concerned is not of great importance, given the existence in the new Act a right to withdraw ad nutum (cf. Article 13) professional partners if society, as is normal, it is indefinite. Even if time is also determined by the professional partner may exercise its right to withdraw if it concurs, as the art. 13 of the Act with great imprecision generating potential problems just cause.
9. Special reference to the New Enterprise Limited Company. As we know the New Enterprise Limited Company is a subspecies of the limited partnership, characterized primarily by its supersonic system formation and registration in the Commercial Register. In return the company is endowed with certain characteristics that limit the freedom of the founding partners in various aspects of the structure of society. One of these is that relating to social order and give its special formulation can be problematic if a limited company New company wants to become a professional limited company, to retain the character of New Enterprise.
Indeed as we know precisely to facilitate the process of incorporation New Enterprise, it must have an object appraised mandatory provision in articles of association. This object appraised as configured in the art. 132 of the LSRL, is of great generality and mandatory form must be included in the articles of association. One of the possible activities constitute the object is the activity of "professionals." Well, if a company New Enterprise with generic object of "professionals" want, if it actually carries on that activity, to become professional society must, elation enr society in order to adopt a double deal: For a party must delete the object society, all other activities that would normally bounce off the object of these societies, given that professional societies must, as sole and exclusive know (Cfr.art. 2 Law 2 / 2007. And of the other party shall, pursuant to Art. 1 of the Act itself, played by the often cited R / DGRN of March 1, 2008, specify the professional class in question. It is here where we have to ask if the specification or specification of the objects of the company, will lead to the same that simultaneously with its adaptation as a professional society, should also adopt the agreement of limited partnership continue as normal or orthodox in the terms foreseen in art. 144 of the LSRL, with total modification of their statutes to the general provisions for all limited liability companies.
If rigidly interpret the aforementioned literal art. 132 of the LSRL, it seems that there will be no choice if we want a New Limited Liability Company, becomes a professional society, which also take the agreement of limited partnership continue as normal, it will no longer meet one of the requirements for constitution as that of which the company is endowed with a generic object that facilitates the change of sector of economic activity without changing its bylaws, resulting in cost savings for society. But considering that another objective of the art. 132 of the LSRL was also to facilitate the incorporation of the company, avoiding a registration unfavorable rating could delay the implementation of the same, we can estimate that since the target has already been completed there should be no inconvenience to change the social order in that it requires the art. 1.1 of the LSP. However, even though this interpretation may seem reasonable, it is to host an obstacle in their own art. 132 of the LSRL. Is your point 3, which tells us so bluntly that "in no case be included in the social order those activities ... involves the exercise sole and exclusive purpose. " In view of the latter rule seems quite impossible that a limited company New Enterprise, is born as ad initio professional society or along of life can be transformed or adapted to Professional Societies Act, without giving prior or simultaneous adoption of the resolution of the continuity of its normal operations as a limited company. In the same sense spoke Madrid Ignacio Alonso in a cycle of lectures on various professional societies held at the Association of Registrars in the month of May. All this is also a consequence is that when art. LSRL 132 of the support as an object of the new company of "professionals" clearly is referring to such activity as a mediator and not as professional activity directly within the meaning of art. 1.1 of the LSP.
In our view the legislature of 2007, forgot to outline the features of the new professional society, to take into account the existence of society New Company, which own and mandate of the legislature of 2003 could provide vocational subject without even having to specify the type of professionals that concerned. It would therefore be highly desirable to amend the oft-cited article 132 of the LSRL in the sense of allowing the professional society of 2007 could use the advantages of society Pyrrhic New Company limited, but perhaps the legislature did not do given the limited social success of this form. Finally to finish
reviews that Yanes Yanes in his "Commentary on the Law of Professional Societies" does not consider the New Enterprise Limited Company, one of the social forms which are not suitable to house a professional society. For him only the Economic Interest Groupings and service cooperatives are not suitable for use as social forms in the professional society. However, as we have seen, neither the New Enterprise Limited Company is suitable or fit for her, as a sort of limited partnership, you can set up a company or professional.
X. Consequences of mismatch. The consequences of mismatches are provided in the DT 1 st in paragraphs 2 and 3, according to which: "2. Has elapsed in the previous section without having been complied with in it has not entered in the Register any documents. With the exception of titles relating to adaptation to this Act, the dismissal or resignation of administrators, managers, general managers and liquidators, and the revocation or renunciation of powers as well as the dissolution of the company and appointment of liquidators and seats ordered by the judicial or administrative authority. 3. After the period of eighteen months from the entry into force of this Act has occurred without adaptation and presentation on the Register, the company shall be dissolved as of right, immediately canceling Commercial Registrar ex officio seats for the dissolved company. "
As we see the consequences of mismatches are the same as already used by the legislature in the Law 19/1989 of 25 July adequacy of our corporate law to Community rules and that later, though more limited , because it suppressed the dissolution of right, re-use in the Law 2 / 1995 approving the new Limited Partnership Act.
The consequences are twofold: On one side of the Registry closed over a year since the entry into force of the law has not proceeded to the adequacy of the societies to which they are applicable art. 1.1 of the new law, a period that ends next June 15, 2008. And on the other hand, the full solution for the same company after 6 months from the previous deadline.
The closure of the Register, a year after the entry into force of the law, has a number of exceptions which are also the same as already reflected in the above modifying laws of our great corporate rates. These exceptions reflect the need to avoid causing harm to persons wishing to opt out of society, they encounter the problem that managers fail to meet their most basic obligations to convene the General Board for the fulfillment of the law is includes also the dissolution of society, as it is understood that in this circumstance the adaptation to a new law is meaningless. At this point we note the lack of an explicit reference to the liquidation and extinction of the society, then, interpreted the DT 1 ª literally only solution would be closing, should proceed to the adaptation to register the liquidation and extinction of society subsequent closure of the road open to society in the RM. This makes no sense and therefore also the liquidation operations are merely a consequence of the solution should fall outside the closure ordered by the coach of that deal.
The full solution, Within 18 months after the entry into force of the Act, is a much more drastic sanction the closure seen above, a penalty that also existed for corporations that fail to reach the minimum capital of 60,101.21 euros at 31 December 1995, penalty had to be tempered by the doctrine of its repeated resolutions DGRN came to allow, under certain conditions, the revival of the society, or what was more logical, the liquidation of the same for the dissolution process been concluded.
What happens to these measures, given the configuration of the existing professional societies in the RM, and the existence a purely subjective condition (direct attribution to the society of rights and obligations of occupation), which we have seen, to see if a company previously registered or not you apply the art. 1.1 of the Act, it will be quite impossible for the Registrar of Companies, both implement the closure of the Register a year since the entry into force of the law, such as dissolving a company registered, after 18 months from the entry into force. Effectively and as they fall outside the scope of the Act the intermediate, the media and communication gains (See Explanatory Memorandum), the registrar before a professional society with a view more or less clear, you can not assume the responsibility of imposing sanctions that society-closure or dissolution, unless he is certain beyond any doubt that the society, the reality of the facts, worked or will continue to function as a true professional society.
It seems far more effective for the purpose of forcing companies to adapt existing laws to the new standard, DA 2 nd on the extent of the liability regime. By virtue of this provision those companies or entities or individuals acting in the service market as a true professional society with a common name or through the issuance of bills, drafts or receipts under that name, will be subject to liability for the art. 11 of the Act, namely that the professional acts that respond partners have made and the company itself, or other public entity, and moreover, if these professionals do not adopt a corporate responsibility for the actions of one professional they will contaminate responsibility to everyone else (Cfr.DA, 2 ª .3). Therefore, this rule should lead to more adaptations and even constitutions "ex novo" corporation, that the sanctions DT 1 st for the purposes of forced to submit to the law to all professionals, corporations or not acting like professionals under the protection of a form or name.
XI. Conclusions.
1. As with all new legislation, while the new social form in the tissue unheated professional, will not reach full force and effect, both the formation of new professional societies, including the adaptation of existing provisions thereof. Phenomenon may occur similar to what happened with the sole proprietorship, which after years of weak and timid implementation, today, a fairly high percentage of companies that are registered with the Commercial Registries are single. When the professional will appreciate the advantages of being subjected to a secure and clear legal framework, the professional society will reach its optimum development.
2. Only in the case of companies accessing the registry for the first time as professional societies, are going to need the certificate of designation of the Central Registry. To those already registered they will have to add the name to the name of "professional" or the abbreviation "P".
3. Although you can always get an adaptation of an existing company to the new law through some change in statutes, it seems advisable, given the complexity of the new law, that adaptation is performed by passing a statute entirely new or at most by recasting usable with the previously registered.
4. In societies civil and personal agreement must be unanimous, in the words and views.
5. The New Enterprise Limited Company, having professional order can not adapt to the LSP, without previously or simultaneously adopt the agreement of limited partnership continue as normal.
6. The sanctions provided for failure to adapt will be irrelevant, except for those few cases where it clearly appears from the record that the company complies with all requirements of art. 1.1 of the Act will not suffice, of course, that the registrar, by reputation, it has verified the existence in the society concerned, the requirement that we have called subjective to set up a company professional.
Jose Angel Garcia Valdecasas
Butrón
Registrar of Companies. Granada.
May 2008.
occurs a substantial change of company law that affects a specific social form, occurs in a corresponding manner, the need to adapt the companies that are sheltered under the corporate form to the new rules. This happened in 1989 with Law 19/1989 of July 25 for the partial reform and adaptation of corporate law to the EC Directives in respect of companies, which profoundly affected both the corporation and the limited again to happen in Act 2 / 1995 of March 23 the affecting to the limited partnership. In all these rules are established what was called the legal adaptation so that the statutory rules of previously existing societies could not be applied against the mandatory provisions of new laws and also established a mandatory adapt their statutes to which was granted certain deadline with penalties for companies that run past have not done the imperative to adapt their laws to the new laws. Following these precedents
the recent Law 2 / 2007 of March 15, professional societies also provides, in its first transitional provision, the need for pre-existing professional societies to register or, where appropriate, adapt its statutes or rules of operation adopted the new standard. In the following lines, and from a very practical, we will try to give some rules and guidelines to successful adaptation or pseudo professional societies adapt to Law 2 / 2007, since it is close to completion within a year given for this (will be June 15, 2008).
II. Situation today.
first thing we have to ask is whether under existing law prior to Act 2 / 2007 there could be professional societies to which they are apply the new rules.
From a strict perspective, only the particular civil society having as its object the exercise of a "profession or art, in terms of art. CC 1678, could be considered as a true professional society. The rest of corporations registered with the Commercial Registries professional order or the like, in reality were not professional societies because they do not exist in our law to the recent Law 2 / 2007. Its object, more or less exactly, only in very exceptional cases, be accommodated to the demands of the new law in all other cases must be re-drafting terms shall see later. Therefore, only civil society can be predicated a true adaptation to the new law, an adaptation of course be carried out through an initial registration of the company, as we shall see, except in the case of a registered civil society Registration during the brief period of time that was current in art. RRM 269 bis, introduced by the reform of RRM 4 September 1998 and annihilated by the STS, 3rd room of 24 February 2000.
relation to the rest of the companies registered in RRMM we have to ask is what is, or what agreement should be adopted, for the purpose of the company, drawn up more or less clear, in terms of mediation, continue to be written in a way that is acceptable to the new legal regulations, ie as simply expressing their own professional view that the activity of the company or its corporate purpose is the activity itself professional concerned (cf. RDGRN of March 1, 2008).
Prior to June 16, 2007, we have said, could not exist in our society right professional sense. However there were many professional societies were formed by an object of this class. In response, the DGRN, at first, came to demand that is clearly expressed in the article on the subject of society that it was the "mediation or mediation" in the activities described therein (RDGRN of 04/23/1993). On this basis came RRMM enrolling in partnerships with business objects mediation. However, in a much earlier time, the DG, in response to practical and legal logic, stated that since in Spain there was no professional society, companies that have the object and it was understood that they were mediators and therefore not was strictly necessary to include the word "mediation or mediation" in the article on the social order (Vid. RDGRN of June 2, 1986). Thus in this resolution was considered admissible object expressed as follows: "Provide all sorts of services and advice to companies or individuals, accounting, tax, legal, administration, management and representation." Also on this basis, then, as we have seen, contradicted by subsequent resolutions were many societies and registered in RRMM. With the resolution of the DGRN of December 21, 2007, although for other reasons, return to this doctrine, meaning that if the company is not professional, even if an object to be carried out by professionals, the company is actually mediation or mediation in these activities.
therefore view it as today we can find in the RRMM with two types of objects relating to professional societies:
a) that in his view expressed that it was "mediation or brokering" and
b) Any others reviewed under DGRN doctrine of 1986, expressed directly that they were intended professional activity in question, but never or rarely expressed with such clarity, because it is normal the object was more or less descriptive of the professional activity or even that it will be included in non-business activities.
In the same sense and within categories above, we can also find three other variants:
a) Companies, as well as intermediate or directly, only watched as their own professional activity outside the descriptively expressed or a more specific and accurate.
b) Any other activity which together own professional activities contemplated a number of other more or less connected with the main object, and
c) Even we can find other companies which have as their first activity, place occupies in the item in question, one other than his own professional, included in some other sections of some other activity very professional.
This is a complex situation, as the object of such society, there is currently in RRMM. However, in view of adaptation, we believe that we must distinguish between only two types of companies:
a) Those who express and express their view, really came true acting as professional societies, ie as expressed in art. 1 of the Special Act that "you were attributable to the company the rights and obligations inherent in the exercise of professional activities as head of the legal relationship established with the client, but only in the economic aspect of that relationship. This does not mean they were professional societies, but as professional services billed on behalf of society, in fact acting as such professional societies, subject of course to the professional's own responsibility to the client that demanded its own services and the responsibility of society . And
b) Any other companies that really were of medium or intermediate, so that was the professional the services billed to the customer and the company that billed the professional means put at his disposal or the activity carrying out in favor of it. Obviously
second classification result not from the books of the RM, in which we only meet with the five different classes of objects outlined above, but must be taken into account by managers and partners when deciding if it is applicable or not DT 1 ª. 1 of the Act, shall proceed or not to adapt their laws and social structure of the new regulations. Moreover, the second classification may or may not coincide with the first, ie companies that may exist in order for mediation to operate as true professional societies and companies can be directly order as true professionals operating media company or agency. Obviously though by the Commercial Registrar or notary that receives the query will not be known in which of the above groups is a given society when advising should clearly explain the possible situations and reasons that should lead to partners and managers to ensure the adaptation or not society.
What is clear is that if the company intends to adapt to the new law, it must be normal and have to adjust your view to the requirements of Articles 1, 2 and 3 thereof. So today it is also clearly DGRN Resolution of March 1, 2008.
Well, we can ask: Does this accommodation or adaptation of the object of pseudo professional societies that exist today can mean changing the subject of society, with attendant consequences in certain social types of advertising or may even assume, as held in a careful work on the subject, Antonio Ripoll Soler, a place of social order?
In our view, with some qualifications and depending on the form of expression of currently registered objects, which can take many different forms, "in any object that adaptation will involve a replacement of the objects of the company, or not a modification.
Here: The legislature can not be issued a standard empty of content and if you set that standard contained in adaptatoria DT precept 1st is because he knew, as we all know, that although until the adoption of Act 2 / 2007 there could be truly professional society actually existing societies with objects acting as true professionals pseudo professional society. So if we assume that the new Act applies to companies of our classification first, always acting in fact as true professional societies, ie outside of which we have stated under letter a) of our second classification professional societies, changing the subject or even if we call object replacement for professional mediation is an act required by part of society and of course for all members who knew how to act in their society, and this adaptation of the object is just that, an adaptation but not a change, much less a replacement for the purpose of the company. This was well understood DGRN itself, that successful resolution of August 18, 1993 came to establish, just before a course of adapting the object of a society Reform Act of 1989, that in terms of objects must be distinguished between the course of change in the sector of economic activity in which it operates in society, in which case they should be required advertising required by art. 150 of the Companies Act, and the realization the order or determination of the main activities, which can not be considered modifications. Well, if so, can hardly be regarded as a substitute object that a company registered professional pseudo suit their business to the extent permitted by law, ie that the previous concrete activities described in the article on the social order now specified in the sense that it will be the professional's own question that even before the professionally exercised through society. And we consider that it is applicable to any class of pseudo professional societies exist in the Registry, ie the case of mediators, of improper professional societies, major joint ventures or joint ventures secondary. Moreover, if the company had expressed its purpose as supports RDGRN 1986 is even clearer that there is no replacement or modification of objects, but a simple updating of the regulations imposed a mandatory all companies that directly carry out professional activities. Apart from this
doctrine almost unanimously, starting from the Chamber in its never good manual praise on "Studies of Corporations" estimated that the existence of true replacement of objects, it must be total so that the society that was dedicated to a specific activity now proceed to focus on something totally different and can hardly be said that an existing company in order related to a particular profession, whether expressed in other ways and is also obliged to do so imperative , the object can be replaced by a different one when in reality will follow, and usually in the same way, performing the same activity. We shall return to this issue.
III. Rules for governing.
The only rule that, under Act 2 / 2007, deals with what might be called adaptation of existing companies to the new law is the DT 1 st, under the heading of "Deadline for entry in the Register," says
"1. Companies formed before the entry into force of this Act and as may be applicable under the provisions of art. 1.1, must adapt to the provisions of this Act and apply for registration, or adaptation, if any, in the Register, within one year from the entry into force of this.
2. Within the period specified in the preceding paragraph without having been complied with in it has not entered in the RM of document. With the exception of titles relating to adaptation to this Act, the dismissal or resignation of administrators, managers, CEOs and liquidators, and the revocation or renunciation of powers as well as the dissolution of the company and appointment of liquidators and the seats ordered by the judicial or administrative authority.
3. After the period of 18 months from the entry into force of this Act has occurred without adaptation and presentation in the Register, the company shall be dissolved as of right, immediately canceling the registrar office for the seats dissolved partnership. "
is also related to the adaptation of the DT 3 rd that under the heading "Tax and tariff reductions," says
"During the period of one year from the entry into force of this Act, the acts and documents necessary for societies to adapt established prior to its provisions shall be exempt from Transfer Tax, in its corporate and operational modalities of stamp duty, and enjoy the reduction required by the Council of Ministers of Justice proposal on the rights of Notaries and Mercantile Registrars have lost as a result of the implementation of the respective tariffs. "
Tax exemption is purely fictional as only adaptation will entail the amendment of bylaws that not having an act intended to amount or valuable, it will not be subject in any case, corporate transactions and stamp duty. In contrast, the tariff reduction itself has been illustrated by RD olds to 30% of the rights that correspond to the Scriptures is always presented to the Trade Register before the deadline set.
The DT1 th at Section 1, contains a double statement: On the one hand proclaims the need for registration in the Register of those professional societies, mainly civilians, to be so applicable to the art. 1.1 of the Act, are currently operating without registration, and other claims will need to adapt pseudo those other professional societies already recorded in the Register, and being so equally applicable to art. L 1.1 of the Act, those wishing to continue as professional societies under the umbrella of the new standard. Both types of companies covered by the TD, although of course the requirements will change, depending on whether a new registration or a mere adaptation to the law. Then we'll see.
Moreover struck by the absence, within the rules adaptatorias the new law, than in the past have called "legal adaptation." Indeed, both the Law 19/1989 of July 25 for the partial reform and adaptation commercial law to the EC Directives concerning companies, such as Law 2 / 1995 to amend the limited partnership, contained a transitional provision, the second in the first case and the first in the second, under the which the provisions of the deed or bylaws of the existing corporations or limited its entry into force would be ineffective and therefore could not be applied contrary to the precepts of the new legislation. Obviously this was only applicable legal adjustment to the mandatory rules of the new laws for when it was operative rules of the above statutes companies maintain their full effect. Law 2 / 2007, in transitional provision does not contain a provision similar to that considered, perhaps by estimating the legislature that given the variety of companies that may be affected by the new rule and doubts that arise by reason of the order of society itself, as we have seen above was not advisable as radical rule that would have effectively deprived many times statutes affecting negatively to the shareholders of those companies and creating doubt and confusion among lawyers about when a statutory provision was repealed and if not, not be in for a truly professional company. Thus the diversity of existing societies with a view more or less close to the provisions of art. 1.1 of Law 2 / 2007, may continue to operate under their own statutes, regardless of the changes introduced by the Act
DT On the 3 rd, the tax exemption established herein, is purely fictional as the adaptation will only entail the amendment of laws, that not having an act intended to amount or valuable, it will not be subject in any case, corporate transactions and stamp duty. In contrast, the tariff reduction itself has been illustrated by RD 1131/2007 of 30 August-olds to 30% of the rights that correspond to the Scriptures is always presented to the Trade Register before the deadline set. Note also that this rule, both for Notaries as Registrars, is only applicable to companies incorporated prior to June 15, 2007, date of entry into force of the law, so that the acts or documents necessary for societies civilians are not registered can register at the Registry and obviously the inscription itself, in no case shall the reduction established.
IV. Companies which is applicable to the obligation of adaptation.
This is a fundamental point in this area as the first transitional provision of the Act says it clearly. It will apply only mandatory registration or, where appropriate, mandatory adaptation, the companies which apply to them the art. 1.1 of the law itself This should lead us to examine in detail what the requirements under this article to see a company as a professional.
requirements required by art. 1.1 to consider that a company is professional are:
1 º. Object professional expressed it in any of the forms acceptable to the entry into force of the Law 2 / 2007 and before have we seen, as the pure object professional as we set the law and clarified the RDGRN of March 1, 2008, before its entry into force was not possible.
2 º. University degree or professional qualification the exercise of which is necessary to prove an official university.
3 º. Requirement that the exercise of the profession is required by the professional registration.
4 º. Own acts of professional activities are carried out directly under the corporate name or corporate name and you are assigned to the company the rights and obligations relating to the exercise of professional activity as a holder of an established relationship with the client.
Of the above requirements are the first three goals, while the latter is completely subjective. That is, to the registrar, to the notary or any other operations other than society will be relatively easy to appreciate the existence of the three first requirements when faced with an existing company and not registered, civil society, a society or previously registered in the Register. But the latter requirement is essential for assessing a company's professional assessment will be impossible for operators outside the company. That is, compliance with this requirement will depend on how society itself operates in the market for professional services and therefore their knowledge is reserved exclusively to the board of the company itself and the members hold shares, stocks or shares social. This will have a great importance when we discuss the implications of the unsuitability of existing professional societies in the commercial registry. Later we shall see.
V. General requirements for adaptation. We will collect
then we might consider the general requirements for successful adaptation to the new Act, ie those to which all societies are of the kind they are, and then deal with the peculiarities of some of them.
adaptation The general requirements are:
1. Deed.
2. Full identification of partners, the circumstances required under art. 38 of RRM, distinguishing those who are professionals and who do not meet this quality.
3. Share in the capital or assets of the company for each one of them. This fee must be expressed according to the kind of society concerned. It may not exist in civil society and collective. Case of corporations or limited, must be identified by its number of shares held for each partner.
4. Professional school to which they belong and the number of college.
5. College certification attesting to the above, in which the professional is properly identified, at least for the NIF, and stating his current qualification for the exercise of the profession.
6. The adequacy of the subject or professional activity to the new Law
7. The appointment of the board of directors whether the existing do not meet the conditions set forth in art.
4.3 of the Act 8. The establishment of ancillary services by partners. This last point may not be strictly necessary in the case of partnerships (civil, collective and limited partnerships) in respect of professional partners who are themselves industry, as industry partners as such recorded in writing and the provision of their services to society.
9. According to the General Meeting or Assembly of shareholders of the company that aims to adapt, adopted with a quorum which, if any, are payable to the company concerned and taking into account that the agreement will require and will be about changing the bylaws or, where appropriate, of the deed of incorporation . The law does not establish special quorum adaptatorio agreement.
10. The bylaw amendments or rules of operation of the company contained in its charter, which are necessary to ensure that the same are inconsistent or conflict with rules that are mandatory of Law 2 / 2007.
11. By the Register, notify the fact of adaptation to college or respective professional bodies, including in such notification all the requirements of section 2 of art. 8 of Act 2 / 2007.
VI. Adaptation of civil societies.
As we have said is civil society that can more adequately meet the requirements of art. 1.1 of the Act, namely to develop a professional activity as a direct way, in the sense that "the acts proper to it are executed directly under the trade or corporate name and you are assigned to the company the rights obligations relating to exercise of professional activity as head of the legal relationship established with the client. "
These civil societies can be in two situations: public deed or in simple private document of the tax paid or not (cf. Art.1667 CC) ..
In the first case, all partners must take the adaptation agreement by its appearance in the writing itself. I also believe that the agreement would be taken adaptatorio General Assembly members, attesting to their agreement, by analogy with corporations, the board exists as the writing itself that documents the existence of the company or any of the partners, they all can, in terms of the CC, may be managers.
If civil society is not constituted by public deed, it seems in every way indispensable to grant deed which appear all the members of the company concerned.
In both cases, and unless civil society is established and registered in the RM, annulled under Article 269 bis of the RRM, is also essential to unite for writing the Central Trade Register certificate that is not registered in the name of society. This certificate is inexcusable in accordance with art. RRM 413 of the same is true for not only corporations but all registrable in the RM entity of any sort whatsoever.
civil societies do not require, as their regulation in the CC, approval of bylaws, statutes that are not required by Law 2 / 2007. Thus, in writing, simply enter the specifications required in the art. 7 of Act 2 / 2007 and also the following, some with an optional nature, arising out of civil regulation:
1. Name of the company covered by the certificate of the Central RM.
2. Address of society.
3. Subject to the same expressed in the form to be discussed later for limited liability companies.
4. It is not necessary to record the duration of the company in view of art. Cc 1680., Or the date of commencement of operations in the light of art. 1679 of the Code.
5. Although not strictly necessary to be convenient to express the close of the fiscal year.
6. Pacts on income of the partners in accordance with articles 1689 and thus to avoid that if partners are professionals that are comparable to the CC industry partners, their share is equal to the least it has made. This agreement shall comply with the provisions of art. 10 of Law 2 / 2007.
7. It will not be possible to implement the provisions of art. CC 1695, ie does not specify how to manage the company, in which case all partners are considered agents, as Art. 7 and 8 of the Act clearly required, both for writing and for registration, the designation of the person or persons initially be responsible for the administration or representation of society.
8. Quorum of adoption of the agreement. Must be unanimous as is clear from Art. RRM 218 of stating this for the transformation of civil society in limited partnership.
VII. Adaptation of partnerships.
as specialties of the limited partnerships we review the following:
1. Names. Notwithstanding the provisions of art. 6 of Act 2 / 2007 allowing the professional society has an objective or subjective term, it is clear in the light of Articles 126, 146 and 147 of the C.com. that, in the case of partnerships or limited partnerships, the denomination must be subjective anyway. Moreover, in the case of unlimited liability, professional partner is one of the backers, his name may in no case be part of the name of the company. This means that in matters of corporate name and despite the standard of art. 1.3 of Act 2 / 2007, it is preferred for reasons of public order company, the above mentioned Articles of C. Com.
2. Directors of the Company. As civil society is not possible applicability of art. 129 of C. Com. That is an indispensable condition for the adaptation of the partnership or limited as a professional society's designation of the person or persons responsible for the administration and representation of society. So too is the art. 209.9 th of RRM. In limited partnerships must also be noted that although the limited partner is professional is in any case be appointed administrator flatly forbid the art. 148, p. 4 of C. Com.
3. Distribution of profits and losses. As in the civil societies must be provided in the form of distribution of profits and losses as provided in Art. 10 of the Special Act, thereby avoiding the applicability of art. 140 and 141 of C. Com. respect to the industrial partner may be just the professional partner. Profiled also in the partnerships, and since it is not necessary in the same the existence of social capital, if it is agreed how to distribute the profits and losses would not apply the last paragraph of art. 10 of Law 2 / 2007, which establishes this as a benchmark for distribution when nothing has been agreed in writing or anything available to the articles of association.
4. Quorum for the adoption of the Adaptation Agreement. In the absence of standards in the Commercial Code governing the formation of assemblies of members in these societies, we must be what they say about it the articles of association or, if the charter. However it is almost universal opinion in the doctrine that the agreements in partnerships that aim to change structure of society or may affect the social contract, require unanimity. Therefore both those under the bylaws or writing rules to adopt resolutions, as if no such rules, the adaptation of a simple partnership or limited to Law 2 / 2007, will require unanimity of all partners. That also follows the art. RRM 217 of that for the registration of the transformation of a partnership or limited partnership into a corporation or limited, strictly requires unanimity of all general partners, referring to the limited partners as to read the charter and if it were limited by shares, it is obvious that apart from the charter, for the limited partners, will be to sit equally to the LSA. In the same vein, art. 212 of the RRM.
VIII. Adaptation of corporations.
As adaptatorio agreement specials on corporations establish the following:
1. If the shares are bearer must be agreed at the AGM conversion into registered by virtue of art. 17.1 to) of the Act 2 / 2007.
2. If the statutes governing agreements increase or decrease of social capital should be taken into account the provisions contained in art. 17.1 b, c and d) or to exclude its application or to modalized.
3. In an interesting paper published in this website, just entry into force of Law, signed by the Notary of Moixent, Antonio Soler Ripoll, posed this problem, as pointed out earlier in this study on the adaptation of the object of societies current interim existing professional society itself, involved a replacement of objects of the company and whether the agreement had not been taken and unanimously Universal Board, would apply to art. 147 of the LSA arising in favor of members who had not voted for the agreement regulated the right to withdraw that provision.
As we saw earlier, and while recognizing the original and based on this approach, hardly an adaptation of the object of a society for professional pseudo current law may be considered as a replacement of the object of that society. In this adaptation of the object is not going to happen, as I said the R / DGRN outlined above, no change in the industry or sector of economic activity in which the Company operates. Will simply try to replace the term mediation and the enumeration of the different activities more or less complete it within the purpose of society, by the exercise of the profession concerned. Substitution mediation by the exercise itself, the vast majority of cases, will simply adapt to the legal reality, the real business of the company, as this de facto, as aptly expressed in his work Ripoll Soler said, itself was already a professional activity. And the substitution of a list of activities more or less related to a particular profession, for the mere expression of the activity of the professional in question is nothing more than an exercise in adaptation to the Act, required the same and should not have detrimental consequences for society or for members who wish to continue with it. The same can be said of the removal of such other activities within the purpose unrelated to the professional order of society.
is a different question concerning the possible applicability of the object to the adequacy of existing professional society of art. 150 of the Companies Act as we know it requires any replacement or modification of the social order "is published in two newspapers of wide circulation in the province, without which advertising can be enrolled in the Registry. At this point I think that they can not set rules. If the above object of the society as reflected in the record merely expressed in a descriptive way, as was usual, more concise or activity the professional in question, we believe that no advertising shall be binding art. 150 of the LSA. The case clear in this case would be to audit companies and by law should be expressed that way, though not clear in the art.6.3 of Law 19/1988 of July 12 if the object should be unique or no. But if the object, as was also usual, apart from activities that included other professionals typically occur in connection therewith, were not themselves professional or may be performed by other professionals or even amateurs, ie the For purely mixed objects, they apply the aforementioned understand art. 150 because in this case, the adequacy object will involve not only the strict enforcement of the law but the removal of a number of activities, more or less numerous than before he could develop society. The clear example here would be the architects, that while they used to express their view, the imposition of their professional body, to a much needed, added to that object, usually the promotion and real estate construction. Therefore, in these cases that there is an alteration or modification of objects by suppression of activities, the company shall, before granting the adaptation writing, publishing the amendment of corporate purpose in the manner aforesaid.
More questions we raised the issue, also raised by Soler Ripoll in the reference work on the profound change that occurs in the system of transfer of shares of professional partners. As we know, Article 12 of the Act provides that the condition of professional membership is not transferable except with the consent of all professional partners, although the statutes may provide that the transfer may be authorized by a majority of those partners. Here there occurs a substantial change in the regime of the actions of the partner or business associates. That is a stock that naturally were freely transferable or were limited only in certain circumstances specified in the statutes, will become full or limited transferable. Understand why in this case and unless the express consent of the member concerned by their affirmative vote on the adaptation of society to Law 2 / 2007, that shareholder may exercise the right conferred by art. 147 of the Companies Act and therefore during the period of three months from the publication of the agreement in BORME not be subject to Art. 12 of Law 2 / 2007 or, where appropriate, statutory restrictions to the transfer of shares are set to a limited extent in the statutes as cited under Art. 12 of the Act, however, and even in this case, if the transmission of shares in professional pseudo was already limited by the statutes of the same, you may consider to what extent the new restrictions requiring the consent of the majority of professional members substantially affect the system of transmission of shares. Indeed it could well be that registered the statutes of the society and include restrictions on the free transferability of shares, even of greater importance than the limitations under art. 12 may be established in the statutes of the company adapted. In these cases it is obvious that only in the event that the new restrictions were clearly superior to existing partners professionals who had not attended the Board had voted against or have abstained, may exercise the right granted to them by art. 146 of the LSA. This should be special warning by the notary deed authorizing the adaptation of the transcendence that might have on the viability of society, but such notice is required for enrollment in the RM, or the effects of This is due certify compliance with any requirement in this regard. That is against the Register, the fact that there are members who voted against, have been or not been present at the Board, shall prevent the registration of the adaptation of society professional, although the previous regime of transfer of shares would be completely free.
remains finally the question of what the quorum necessary to agree at the AGM of the society to adapt pseudo professional society to the new Law also Law 2 / 2007, no doubt by the many companies that can be affected, is silent on this point, unlike what happened in the other major adaptations of companies occurred in Spain since 1989. In this connection are, in principle, an adaptation of the Law 2 / 2007 of a corporation that did not imply greater or lesser extent, a modification of statutes, beginning the article on the subject of society. Therefore, the quorum shall be the regular bylaws amending any provisions of art. 103 of the Companies Act or, where appropriate, the special that, within the allowable limits established by the statutes of the society. Thus we see that the Law 2 / 2007, unlike the other major laws did adaptatorias of our company law does not facilitate the transition to the new regime, but leaves the regulation of the society concerned.
IX. Adaptation Limited Partnership. Because according to statistics from the Association of Registrars and Commercial Property, almost 99% of companies are currently in Spain, are of this social form, a phenomenon that started and maintained with minor variations since 1990, the vast majority of professional societies adaptations that occur in the RRM will be of limited partnerships.
therefore be, in relation to this social form, where we stop and where to focus our attention in regard to the matters that must be adjusted, subject to limited liability companies. Moreover, even if it involves a repetition of what has been said before, we will review in connection with the adaptation of these companies most of the requirements for a limited partnership may be considered appropriate to the new law
Therefore we can consider the conditions necessary for the adaptation of an existing limited partnership to the Law 2 / 2007 are:
1 º. Of the General Agreement of the society adopted the necessary quorum to amend statutes, ie the affirmative vote of more than half of the votes attaching to shares that divides the capital, except that the statutes strengthened the company displayed a quorum (See Section 53.2, a) of the LSRL).
2 º. New wording of the order of society in the terms we already know.
3 º. Partner relationship, both professional and non-professional, with the shares that correspond to each of them and their numbers.
4 º. Professional Association certificates which identify the professional, at least for your ID, and stating your current authorization for the exercise of the profession concerned. At this point the DGRN in the aforementioned decision of March 1, 2008, considered to be sufficient for the notary of faith that has been made that certificate, which are the above data, without requiring that it is attached to the array and insert into their copy.
5 º. Appointment of board of directors if the existing currently does not meet the requirements of article 4.3 of the Law 2 / 2007. If only part of the board does not meet these requirements, simply put it back together to the extent necessary to carry them out. This means that if an administrator or the administrators are not business associates must be completed or added to the board of directors as necessary for three-quarters are professional partners. If it is the sole director who is not professional partner will undoubtedly be dismissed by appointing a professional partner as such. The same will happen if it's board of directors and the CEO or CEOs do not meet the requirement of professional partners.
6 º. Recomposition of social capital to the extent necessary to comply with the requirements of art.4.2 of Law 2 / 2007. This point will be of great importance because many companies registered professional order that the composition of capital does not comply with the requirements of that three-quarters belong to professional partners. This restructuring of the company's capital, is outside the Registry, but should be taken into account by both the authorizing Notary when you provide the documentation necessary for the execution of the deed of adaptation, such as business advisers dealing it. Failure to comply with these requirements will be necessary as a preliminary operation, the proceed to the transfer of shares or, where appropriate, increased social capital, which is necessary to reach the end intended by the law in this respect if they were husband and wife company by 50% or another different proportion from that required in Article 4.2 of the Act, and one of them lacked the professional character is not necessary, any sales suffice merely an agreement between spouses whereby you give in accordance with art. 35 of the LSRL, ownership for the exercise of shareholder rights to professional spouse sufficiently to comply with the standard comment. This transfer of ownership may be in the same agreement adaptatorio, so it will not be needed freelance writing. Ie as an agreement prior to the adjustment in the same General Meeting agreed that the spouses determine the ownership of the shares, all acquisitions, the effects of having per partner to a spouse who attend quality professional membership.
7 º. Amendment of the Articles of Association. As we said before is really hard for a pre-existing limited partnership may become a professional society without changing its bylaws. Normal and desirable will be repealed completely and utterly the previous articles of association and approve a new constitution in place covering all fields required by the new law, however we will note below the points or ends it will be necessary to tweak the existing statutes to ensure that they are adapted to the requirements of the new Act Here:
a) Name of the company. Must be added to the previous name of the company's name "professional" or the abbreviation "p". You do not need to order a new certificate of title to the RMC, as it is a case similar to that occurs when a society is changing social or where a company is disqualified as an employment or a New Enterprise company ceases to be such . The RRM only referred to in Article 418 if mergers or splits in the companies resulting from the merger or division can use the name of which is terminated without requiring re-certification to Central Registry. But even if it provides the raison d'etre is the same and moreover, under art. 408.3 says that "to determine whether there is identity between two names will be dispensed with directions on how those social or other use of which is made necessary by law", it is clear that the requirement for a certificate. For the adaptation is a clear case of application of this article. The name is already covered by its corresponding license and registration in the Register and all we do now is to add an indication, the professional, as required by law This leads us to consider it unnecessary to request a new certificate of corporate name to RMC. Separate question is whether the name, being subjective, does not meet the requirement of art. 6.2 of the Law 2 / 2007. In this case it will be necessary as part of the agreement adaptatorio, change the name of the company for a new name that logically should be covered in the certificate.
b) Duration of the Company. Will be time to decide if the company continues to be of indefinite duration, with the consequence of separation "ad nutum" professional partners, or whether it is better to set a time limit to avoid such a separation. Establishing some form of life of the company, will be critical in regulating the right of separation of members and should be taken into account in drafting the articles of association.
c) social capital. Although not required by law is advisable to specify in the article of the articles of association dedicated to the establishment of social capital, which holdings are public and which are not specifying the numbering of them.
d) Transfer of shares. We Double opt for a variant. Or not establish anything in the articles of association on the subject in which case the shares of non-professional members are subject to the provisions of art. 29 of the LSRL and professionals to the art. 12 of the Act such special or regular transmission separately for each class of shares taking into account these Articles. The same we say of the transmission mortis causa.
e) Establishment of ancillary services by professional partners. Is a point of regulation required in the bylaws of the professional societies (cf. Art.17.2 of Law 2 / 2007). In its regulation we must take into account Articles 22 to 25 of the LSRL. Now in the item on the transfer of units with ancillary in no case shall apply Article 24 of the LSRL, but the art. 12 of the special law under art. 1.3 of the law itself takes precedence.
f) Meetings. Special care with the representation in the General Meeting which will be necessary to consider the provision of art. 4.5 of the Law 2 / 2007 whereby professional members may only grant a proxy to act even professional partners within the corporate bodies. This requires a waiver for this type of partners, the general rules laid down in Art. 49 of the LSRL.
g) resolutions. As a specialty is the approval of the final distribution of benefits that must be by an absolute majority of the capital, including in this the majority of the voting rights of professional partners. Therefore be taken into account because it represents, in this limited aspect, a repeal of the rule-making social arrangements established in the art. 53.1 of the LSRL.
h) Body of representation and administration. No specialty because its regulation may all conform to the rules. The specialty emerges, as we know, at the time of appointment and quality have professional managers, at least in its 3 / 4 parts.
i) dissolution and liquidation. Also in this section shall be considered the standard of art. 4.5 of the Special Act provides for mandatory dissolution as a cause breach of the requirements regarding ownership structure and composition of the board. So will not suffice in the article, if any, being devoted to the dissolution, the statutes are sent without the Law 2 / 95 it would be incomplete in this regard.
8 º. Questions concerning the possible existence of the right of separation of current members as a result of adaptation of the object of society and new restrictions placed on transfer of shares professional partners for the establishment of ancillary services.
In these three cases, the art. 95 of the LSRL, letters a), c), f), grant the partner of limited companies the right to withdraw from the company.
Point on the social order or rather to its adaptation to the new law, we have argued that in any case there is a true object of the replacement of previously existing society and therefore in any case be no right of separation for these professionals are members or not. Elaborating
, their size, as already mentioned above, as a pointer to the House in Commercial Law Studies, a distinction must clearly two different situations for the purpose of considering whether or not a replacement for the purpose of the company. To the author's real distinction is in question or not homogenous with the existing activities above or in the case of heterogeneous activities they performed and of society. In the first case, although it has been a change or rather a modification of the social order, it is clear that there is no replacement for such as new activities to be undertaken by the company are related to previously existing. In contrast, if the activities resulting from the amendment are heterogeneous, there is no doubt that given the assumption of substitution of the object of society, emerging in this case the right of separation of art. 95 of the LSRL.
In our view, if the company adapts its statutes and its own configuration to the new Law 2 / 2007, conducted as it can not be otherwise (cf. DT 1 and art. 1 of the Act), professional activities it seems that the adequacy of those activities to the new law, in no case can be estimated with the characteristics required of the House to consider that there is a genuine replacement purpose. The company will continue doing the same activities that previously had been playing well in a completely identical if the rights and obligations of the professional action your service is directly attributable to the company, or an indirect way if the company simply acted as a mediator between the client and the professional serving in the same, although in this case, rather than mandatory adaptation can be discussed voluntary adaptation. So one might say or think that in this case itself is a replacement object for the mediation is passed to the direct exercise of the profession concerned, but even in this case must be recognized that the activity of the company was close or homogeneous , says of the House, with the new company's activities.
Finally we noted that in the opinion of the author cited the right separation of partners in these cases should also be interpreted narrowly as its exercise is a disturbance in the functioning of society, which can be serious if it intends to separate the partner holding a considerable share of the capital of the company. Thus, in his view, the exercise is irrelevant if the issue is to expand or restrict corporate transactions and therefore we also believe that no such right if the issue is to comply with a legal requirement, adequacy of the object to the new law, which is considered necessary by the legislature to provide clarity to the relationships of clients or service users of the existing professional pseudo society today.
More questions offered by the other two cases in which the art. 95 gives the partner of a limited right of separation.
respect to new restrictions that will suffer the interests of professional members, who say otherwise unless the articles of association, will require the consent of other professional partners, they are of such entity entering fully in the case referred to in art. 95 c) of the LSRL. However also in these cases allows the statutes provide that the transmission may be authorized by a majority of professional partners, we must carefully consider the above statutory restrictions in society, to ponder whether or not that right. If the above statutory restrictions on the free transferability of shares that may be widespread under art. 30.4 of the LSRL, even a total ban on broadcasting for the manor of five years from the constitution of the society are such that compared with intrasmisibilidad actually declared in the art. 12 of the Act are very similar or identical lead to practical results, also in this case, there is the right professional partner separation. That is to say at this point can not set rules about whether or not the right of separation as this will depend ultimately the provisions in the statutes of the society and what within the limits of art. 12, is set to the new. Finally
on ancillary services, if they were not previously established in the bylaws, its own legal enforcement will lead, no doubt, to the professional partner can be separated from society because nobody can be forced to make a specific activity against their will.
To conclude this section we can say it in the three points discussed above, but will also qualify if the Board is not universal and the agreements had not been taken unanimously, whether or not the right to carry out separation registration of the adaptation of society to the new law, in practical terms the question for the partners concerned is not of great importance, given the existence in the new Act a right to withdraw ad nutum (cf. Article 13) professional partners if society, as is normal, it is indefinite. Even if time is also determined by the professional partner may exercise its right to withdraw if it concurs, as the art. 13 of the Act with great imprecision generating potential problems just cause.
9. Special reference to the New Enterprise Limited Company. As we know the New Enterprise Limited Company is a subspecies of the limited partnership, characterized primarily by its supersonic system formation and registration in the Commercial Register. In return the company is endowed with certain characteristics that limit the freedom of the founding partners in various aspects of the structure of society. One of these is that relating to social order and give its special formulation can be problematic if a limited company New company wants to become a professional limited company, to retain the character of New Enterprise.
Indeed as we know precisely to facilitate the process of incorporation New Enterprise, it must have an object appraised mandatory provision in articles of association. This object appraised as configured in the art. 132 of the LSRL, is of great generality and mandatory form must be included in the articles of association. One of the possible activities constitute the object is the activity of "professionals." Well, if a company New Enterprise with generic object of "professionals" want, if it actually carries on that activity, to become professional society must, elation enr society in order to adopt a double deal: For a party must delete the object society, all other activities that would normally bounce off the object of these societies, given that professional societies must, as sole and exclusive know (Cfr.art. 2 Law 2 / 2007. And of the other party shall, pursuant to Art. 1 of the Act itself, played by the often cited R / DGRN of March 1, 2008, specify the professional class in question. It is here where we have to ask if the specification or specification of the objects of the company, will lead to the same that simultaneously with its adaptation as a professional society, should also adopt the agreement of limited partnership continue as normal or orthodox in the terms foreseen in art. 144 of the LSRL, with total modification of their statutes to the general provisions for all limited liability companies.
If rigidly interpret the aforementioned literal art. 132 of the LSRL, it seems that there will be no choice if we want a New Limited Liability Company, becomes a professional society, which also take the agreement of limited partnership continue as normal, it will no longer meet one of the requirements for constitution as that of which the company is endowed with a generic object that facilitates the change of sector of economic activity without changing its bylaws, resulting in cost savings for society. But considering that another objective of the art. 132 of the LSRL was also to facilitate the incorporation of the company, avoiding a registration unfavorable rating could delay the implementation of the same, we can estimate that since the target has already been completed there should be no inconvenience to change the social order in that it requires the art. 1.1 of the LSP. However, even though this interpretation may seem reasonable, it is to host an obstacle in their own art. 132 of the LSRL. Is your point 3, which tells us so bluntly that "in no case be included in the social order those activities ... involves the exercise sole and exclusive purpose. " In view of the latter rule seems quite impossible that a limited company New Enterprise, is born as ad initio professional society or along of life can be transformed or adapted to Professional Societies Act, without giving prior or simultaneous adoption of the resolution of the continuity of its normal operations as a limited company. In the same sense spoke Madrid Ignacio Alonso in a cycle of lectures on various professional societies held at the Association of Registrars in the month of May. All this is also a consequence is that when art. LSRL 132 of the support as an object of the new company of "professionals" clearly is referring to such activity as a mediator and not as professional activity directly within the meaning of art. 1.1 of the LSP.
In our view the legislature of 2007, forgot to outline the features of the new professional society, to take into account the existence of society New Company, which own and mandate of the legislature of 2003 could provide vocational subject without even having to specify the type of professionals that concerned. It would therefore be highly desirable to amend the oft-cited article 132 of the LSRL in the sense of allowing the professional society of 2007 could use the advantages of society Pyrrhic New Company limited, but perhaps the legislature did not do given the limited social success of this form. Finally to finish
reviews that Yanes Yanes in his "Commentary on the Law of Professional Societies" does not consider the New Enterprise Limited Company, one of the social forms which are not suitable to house a professional society. For him only the Economic Interest Groupings and service cooperatives are not suitable for use as social forms in the professional society. However, as we have seen, neither the New Enterprise Limited Company is suitable or fit for her, as a sort of limited partnership, you can set up a company or professional.
X. Consequences of mismatch. The consequences of mismatches are provided in the DT 1 st in paragraphs 2 and 3, according to which: "2. Has elapsed in the previous section without having been complied with in it has not entered in the Register any documents. With the exception of titles relating to adaptation to this Act, the dismissal or resignation of administrators, managers, general managers and liquidators, and the revocation or renunciation of powers as well as the dissolution of the company and appointment of liquidators and seats ordered by the judicial or administrative authority. 3. After the period of eighteen months from the entry into force of this Act has occurred without adaptation and presentation on the Register, the company shall be dissolved as of right, immediately canceling Commercial Registrar ex officio seats for the dissolved company. "
As we see the consequences of mismatches are the same as already used by the legislature in the Law 19/1989 of 25 July adequacy of our corporate law to Community rules and that later, though more limited , because it suppressed the dissolution of right, re-use in the Law 2 / 1995 approving the new Limited Partnership Act.
The consequences are twofold: On one side of the Registry closed over a year since the entry into force of the law has not proceeded to the adequacy of the societies to which they are applicable art. 1.1 of the new law, a period that ends next June 15, 2008. And on the other hand, the full solution for the same company after 6 months from the previous deadline.
The closure of the Register, a year after the entry into force of the law, has a number of exceptions which are also the same as already reflected in the above modifying laws of our great corporate rates. These exceptions reflect the need to avoid causing harm to persons wishing to opt out of society, they encounter the problem that managers fail to meet their most basic obligations to convene the General Board for the fulfillment of the law is includes also the dissolution of society, as it is understood that in this circumstance the adaptation to a new law is meaningless. At this point we note the lack of an explicit reference to the liquidation and extinction of the society, then, interpreted the DT 1 ª literally only solution would be closing, should proceed to the adaptation to register the liquidation and extinction of society subsequent closure of the road open to society in the RM. This makes no sense and therefore also the liquidation operations are merely a consequence of the solution should fall outside the closure ordered by the coach of that deal.
The full solution, Within 18 months after the entry into force of the Act, is a much more drastic sanction the closure seen above, a penalty that also existed for corporations that fail to reach the minimum capital of 60,101.21 euros at 31 December 1995, penalty had to be tempered by the doctrine of its repeated resolutions DGRN came to allow, under certain conditions, the revival of the society, or what was more logical, the liquidation of the same for the dissolution process been concluded.
What happens to these measures, given the configuration of the existing professional societies in the RM, and the existence a purely subjective condition (direct attribution to the society of rights and obligations of occupation), which we have seen, to see if a company previously registered or not you apply the art. 1.1 of the Act, it will be quite impossible for the Registrar of Companies, both implement the closure of the Register a year since the entry into force of the law, such as dissolving a company registered, after 18 months from the entry into force. Effectively and as they fall outside the scope of the Act the intermediate, the media and communication gains (See Explanatory Memorandum), the registrar before a professional society with a view more or less clear, you can not assume the responsibility of imposing sanctions that society-closure or dissolution, unless he is certain beyond any doubt that the society, the reality of the facts, worked or will continue to function as a true professional society.
It seems far more effective for the purpose of forcing companies to adapt existing laws to the new standard, DA 2 nd on the extent of the liability regime. By virtue of this provision those companies or entities or individuals acting in the service market as a true professional society with a common name or through the issuance of bills, drafts or receipts under that name, will be subject to liability for the art. 11 of the Act, namely that the professional acts that respond partners have made and the company itself, or other public entity, and moreover, if these professionals do not adopt a corporate responsibility for the actions of one professional they will contaminate responsibility to everyone else (Cfr.DA, 2 ª .3). Therefore, this rule should lead to more adaptations and even constitutions "ex novo" corporation, that the sanctions DT 1 st for the purposes of forced to submit to the law to all professionals, corporations or not acting like professionals under the protection of a form or name.
XI. Conclusions.
1. As with all new legislation, while the new social form in the tissue unheated professional, will not reach full force and effect, both the formation of new professional societies, including the adaptation of existing provisions thereof. Phenomenon may occur similar to what happened with the sole proprietorship, which after years of weak and timid implementation, today, a fairly high percentage of companies that are registered with the Commercial Registries are single. When the professional will appreciate the advantages of being subjected to a secure and clear legal framework, the professional society will reach its optimum development.
2. Only in the case of companies accessing the registry for the first time as professional societies, are going to need the certificate of designation of the Central Registry. To those already registered they will have to add the name to the name of "professional" or the abbreviation "P".
3. Although you can always get an adaptation of an existing company to the new law through some change in statutes, it seems advisable, given the complexity of the new law, that adaptation is performed by passing a statute entirely new or at most by recasting usable with the previously registered.
4. In societies civil and personal agreement must be unanimous, in the words and views.
5. The New Enterprise Limited Company, having professional order can not adapt to the LSP, without previously or simultaneously adopt the agreement of limited partnership continue as normal.
6. The sanctions provided for failure to adapt will be irrelevant, except for those few cases where it clearly appears from the record that the company complies with all requirements of art. 1.1 of the Act will not suffice, of course, that the registrar, by reputation, it has verified the existence in the society concerned, the requirement that we have called subjective to set up a company professional.
Jose Angel Garcia Valdecasas
Butrón
Registrar of Companies. Granada.
May 2008.
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