Knowing the measures to boost the creation and growth of companies is essential in the crisis situation in which we find ourselves. Law 18/2022 aims to boost business creation and growth through the adoption of various measures that come into force on October 19, 2022. But with some exceptions.
Measures to boost business creation and growth
We are going to see a summary of all these measures.
Electronic invoicing in the private sector
Article 12 of Law 18/2022 amends Article 2 bis of Law 56/2007 on measures to promote the Information Society to establish the following. All businessmen and professionals shall be obliged to issue, send and receive electronic invoices in their commercial relations with other businessmen and professionals. The recipient and the issuer of electronic invoices must provide information on the status of the invoice.
The technological solutions and platforms offered by companies providing electronic invoicing services to entrepreneurs and professionals must guarantee their interconnection and interoperability free of charge. Likewise, the issuing and receiving companies’ own electronic invoicing solutions and platforms must meet the same criteria of interconnection and interoperability free of charge with the rest of the electronic invoicing solutions. The procedure for accrediting the interconnection and interoperability of the platforms will be determined by regulation.
During a period of four years from the issuance of the electronic invoices, the recipients may request a copy of the same without incurring additional costs.
The invoice recipient may not oblige the issuer to use a predetermined electronic invoicing solution, platform or service provider.
The computer or electronic systems and programs that manage the invoicing processes and store electronic invoices must comply with the requirements referred to in Article 29.2.j) of the General Tax Law 58/2003, and its regulatory development.
Regulatory development
For businessmen and professionals whose annual invoicing is over 8,000,000 euros, these new developments in electronic invoicing will take effect one year after the regulatory development is approved. For the rest of the businessmen and professionals, it will take effect two years after the regulatory development is approved.
The entry into force of article 12 of Law 18/2022 is subject to obtaining the Community derogation to art. 218 and 232 of Directive 2006/112/EC.
The technical and information requirements to be included in the electronic invoice will be determined by regulation. For the purpose of verifying the payment date and obtaining the average payment periods. The minimum interoperability requirements among the providers of technological solutions for electronic invoices. And finally, the security, control and standardization requirements of the devices and computer systems that generate the documents.
The deadline for approving these regulatory developments will be six months from the publication in the BOE of Law 18/2022.
Measures to boost business creation
Among the measures to promote the creation and growth of companies, there are some more specific ones.
The minimum capital stock of a Limited Liability Company (SRL) is of €1 when before it was of €3,000. As indicated in the Crea y Crece Law.
Additionally, two specific rules are introduced to be applied by SRLs as long as their capital does not reach €3,000.
The first one is that an amount equal to at least 20% of the profit must be allocated to the legal reserve until it reaches the amount of €3,000 together with the capital stock.
And, secondly, that in the event of liquidation, if the company’s assets are insufficient to meet the payment of corporate obligations, the partners will be jointly and severally liable for the difference between the amount of €3,000 and the amount of the subscribed capital.
The reduction of the minimum capital stock required to €1, entails the elimination of the possibility of creating companies under the successive formation regime. Companies subject to this regime prior to October 19, 2022 may choose to amend their bylaws to cease to be subject to it and be governed, as long as their share capital does not reach the figure of €3,000. As long as they do not amend their bylaws and do not reach the share capital figure of €3,000, the companies will continue to be subject to the rules of paragraph 2 of the second transitory provision of Law 18/2022, in line with those of the suppressed article 4 bis of the TRLSC.
Repeals Title XII of the TRLSC relating to the new limited liability company and the additional provisions that complement it. Establishes a transitional regime for new companies existing as of October 19, 2022, which will be governed by the provisions regulating limited liability companies and will use the name SRL, as established in the third provision of Law 18/2022.
Contribution of notaries
Notaries and intermediaries involved in the creation of SRLs must inform the founders of the advantages of using the Entrepreneur Attention Points (PAE) and the Information Center and Business Creation Network (CIRCE), for their incorporation and the completion of other formalities linked to the start of their activity.
All notaries must be available in the Electronic Notarial Agenda and be able to carry out the incorporation of companies through CIRCE.
Limited Liability Entrepreneur
With the amendment of Article 8 of Law 14/2013, the limitation of liability is extended to the productive equipment assets attached to the operation and those they replace duly identified in the Movable Property Register and with the limit of the aggregate turnover volume in the last two fiscal years.
The founders of an LLC may opt for the incorporation of the company by means of a public deed with a standardized form and standard bylaws. The simplified models of the standardized model articles of association and of the powers of attorney in the standardized format must be available in all the official languages in all the Autonomous Regions. It is specified that the publication of the registration of the company in the Official Gazette of the Mercantile Registry will be exempt from the payment of fees.
The Ministry of Justice will regulate by ministerial order the deed of incorporation of LLCs with a standardized format and with codified fields for those LLCs that are incorporated by means of the Single Electronic Document (DUE) and that adopt the board of directors formula as their management system.
The final registration of the deed of incorporation of the LLC by means of a public deed with standardized format without standard bylaws will be made within 5 days from the day following the date of the filing entry.
Civil companies, due to their purpose, which do not have a mercantile form, incorporated in accordance with the common, foral or special law applicable to them, may be registered in the Mercantile Registry in accordance with the general rules of its Regulations insofar as they are applicable, and the first registration will include the circumstances established in the eighth additional provision of Law 18/2022.
Common Benefit and Common Interest Companies
The figure of Benefit and Common Interest Companies is recognized as those capital companies that voluntarily decide to include in their bylaws their commitment to the explicit generation of positive social and environmental impact through their activity, and their submission to higher levels of transparency and accountability in the performance of the aforementioned social and environmental objectives, and the taking into consideration of the relevant stakeholders in their decisions. The criteria and methodology for the validation of this new business figure will be contemplated by means of regulatory development.
Measures to reduce commercial defaults
For the calculation of the average supplier payment period to be included in the management report of companies that cannot present an abridged profit and loss account, the eighth additional provision of the TRLSC (RD Leg 1/2010) clarifies that the date of receipt of the invoice cannot be understood as the starting date of the payment period except for the cases expressly indicated in Law 3/2004 on combating late payment in commercial transactions.
Listed companies will publish on their website, in addition to their average payment period to suppliers, the monetary volume and number of invoices paid in a period lower than the maximum established in the regulations on late payment and the percentage that they represent over the total number of invoices and over the total monetary payments to their suppliers, as established in the third additional provision of Law 15/2010 amending the Law on measures to combat late payment. This same information must be published by unlisted companies that do not present abridged annual accounts on their website, if they have one. In both cases, this information will be included in the notes to their annual accounts.
Public Sector Contracts
In relation to Law 9/2017 on Public Sector Contracts. Strengthens the regulations to ensure that awardees pay in time the price agreed with subcontractors.
For contracts subject to harmonized regulation and, in addition, in those whose estimated value is equal to or greater than €2,000,000. When the subcontractor or supplier exercises against the main contractor, in court or arbitration, actions aimed at the payment of invoices after the deadline, the contracting body, without prejudice to its full effects, will proceed to the provisional retention of the final guarantee, which may not be returned until the contractor proves the full satisfaction of the rights declared in the final court or arbitration decision that ends the dispute.
In works contracts and service contracts whose estimated value exceeds €5,000,000. And in those in which the amount of the subcontracting is equal to or greater than 30% of the contract price in which the Public Administrations are obliged to verify compliance with the payments. The contractor must provide in each work certification, certificate of payments made to subcontractors of the contract.
When, by means of a final judicial or arbitration decision, the non-payment by the contractor to a subcontractor or supplier linked to the execution of the contract within the terms established in the Law is accredited, and said delay in payment is not due to the breach of any of the contractual obligations assumed by the subcontractor or supplier in the execution of the service, the penalty may reach up to 5% of the contract price, and may be repeated each month while the non-payment persists until it reaches the joint limit of 50% of said price. The definitive guarantee shall be liable for any penalties imposed for this reason.
Modification of the General Law on Subsidies
So that compliance with payment deadlines becomes a criterion for access to public subsidies, in certain cases.
In subsidies of more than €30,000. When the applicants are only subjects included in the scope of application of Law 3/2004. Companies that fail to comply with the payment deadlines established in the aforementioned Law will not be able to obtain the status of beneficiary or collaborating entity. This circumstance must be accredited.
When the beneficiary of a public subsidy is a company. The eligible expenses incurred in its commercial operations must have been paid within the payment deadlines stipulated in the applicable sectorial regulations. Or, failing this, in those established in Law 3/2004.
It amends Law 3/1991 on Unfair Competition to consider as an act of unfair competition the repeated non-compliance with the rules against late payment in commercial transactions.
Other measures to boost business creation and growth of companies
With the purpose of eliminating obstacles to economic activities, it introduces improvements in some regulatory norms.
Firstly, it excludes from the scope of application of Law 20/2013 on guaranteeing the unity of the market to matters in the field of taxation. And it creates the Observatory of Good Regulatory Practices.
Additionally, it amends Law 12/2012 on urgent measures for the liberalization of trade and certain services. Expanding the catalog of activities exempt from licensing, urging the new Sectorial Conference for Regulatory Improvement and Business Climate to develop a new standard ordinance for the exercise of retail commercial activities and provision of services. As well as promoting the adoption, in coordination with other Sectorial Conferences, of standard ordinances for acts of control and municipal intervention in other economic activities.
It also introduces in Law 5/2015 on the promotion of business financing the new legal regime of participatory financing platforms. Distinguishing between those that are harmonized by EU law and those that are not harmonized. It also regulates the possibility that such platforms may group investors such as an SRL, whose corporate purpose and sole activity consists of holding the shares of the company in which it invests or granting loans to such company, an entity subject to the supervision of the CNMV, the Bank of Spain or the DGSFP, as well as other figures that are commonly used for these purposes in other EU countries. These amendments come into force as of November 10, 2022.
Authorized providers of crowdfunding services must submit to the CNMV the documentation justifying that they comply with the requirements established in Article 12 of Regulation (EU) 2020/1503, in order to be able to continue providing the crowdfunding services included in the scope of application of said Regulation as of November 10, 2022.
Other measures
Amends Law 35/2003 regulating Collective Investment Institutions (CIIs) to abolish the mandatory quarterly report. The management company, for each of the investment funds it manages. And investment companies must indicate in each prospectus whether they will provide quarterly information on a voluntary basis.
In addition, any communication to unitholders or shareholders must be sent by telematic means. Unless the necessary information has not been provided or the preference to receive it physically has been expressed in writing. In this case, it shall be sent in paper form, always free of charge.
The Management Companies of Collective Investment Institutions (SGIIC) may take the form of a public limited company or a limited liability company. Among their activities, European long-term investment funds (ELTIFs), and other collective investment vehicles regulated by EU regulations under the terms of Law 22/2014 are added.
It amends Law 22/2014 on venture capital entities. And introduces the figure and requirements of collective investment entities of closed-end type of loans. Whose main object consists in the investment in invoices, loans, credit and commercial effects of usual use in the field of mercantile traffic.
Venture Capital Entities (ECR) may extend their main purpose to investment in financial entities. Provided that their activity is mainly based on the application of technology to new business models, applications, processes or products.
It also makes the investment diversification regime for RCEs more flexible. In order to adapt them to international industry standards and practices. And it reduces the initial disbursement of these companies from 50% to 25% of the subscribed share capital. The rest of the share capital subscribed at the time of incorporation must be paid up within 12 months of registration with the CNMV.
In addition, it relaxes the requirement for companies subject to the activity of the ECR-Pyme to have a maximum of 250 employees. It raises this maximum to 499.
