Royal Decree-Law 9/2012, 16 March, Simplification Of The Reporting And Documentation Of Mergers And Divisions Of Companies Of Capital.

Original Language Title: Real Decreto-ley 9/2012, de 16 de marzo, de simplificación de las obligaciones de información y documentación de fusiones y escisiones de sociedades de capital.

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EXHIBITION of reasons I transposition in term of Community directives, especially in the internal market, constitutes today one of the priority objectives set by the European Council. The European Commission submits regular reports to the competitiveness Council, which is given a high political value in that they serve to measure the effectiveness and the credibility of States members in the implementation of the internal market.

The fulfilment of this goal is now even more priority in view of the new scenario designed by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, for breaches of transposition in term, for which the Commission may ask the Court of Justice of the European Union important economic sanctions at an accelerated pace (260.3 article of the Treaty of the functioning of the Union European - TFEU-).

Regarding the use of the Royal Decree-law as an instrument of transposition, it should be noted that the Constitutional Court, in decision 23/1993, of 21 January, States that decree-law is a constitutionally legitimate instrument to deal with problematic economic circumstances, and in its decision 1/2012, of 13 January, endorses the concurrence of the budget enabling the extraordinary and urgent need for article 86.1 of the Constitution when converge «the patent delay in transposition» and the existence «procedures of non-compliance against the Kingdom of Spain».

On the other hand, is not the first time that has to resort to this legal instrument to evade the risk of certain and imminent economic sanctions for the breach of the law of the European Union. Thus, the dictates of Royal Decree Law 8/2007 of 14 September, whereby amending certain articles of the law 23/1992 of 30 July, private security, is justified in the 'existence of a budget enabling, it referred to the case law of the Constitutional Court, where the origin of the standard need there be of such a nature that it can not be answered by way of urgent legislative procedure due to the demand for its immediacy. Budget which also concurs in the directive 2009/109/EC of the European Parliament and of the Council of 16 September 2009, by which modify directives 77/91/EEC, 78/855/EEC and 82/891/EEC of the Council, and Directive 2005/56/EC as regards the reporting and documentation requirements in the case of mergers and divisions.

II 1. The incorporation into Spanish law of the European Union directives in the field of venture capital has led to a continued process of reform in this sector of the legal system. Since the Law 19/1989, of 25 July, reform partial and adaptation of the commercial law to the directives of the European Economic Community company, which incorporated in block to the right internal policies until then approved, up to the most recent law 25/2011, of 1 August, partial reform of the companies act of Capital and incorporation of Directive 2007/36/EC the European Parliament and the Council, of 11 July, on the exercise of the rights of shareholders of listed companies, have been going on frequent changes in corporate legislation. This process of reform for forced Community harmonisation has been parallel to the modernization of the law of this kind of societies, whose legal regime, overcome the duality of laws - the Corporations Act and the companies act of responsibility limited - is contained in the revised text of the companies act of Capital, approved by Royal Legislative Decree 1/2010 now , 2 July.

In the field of mergers and spin-offs, the first choice of the Spanish legislator consisted of incorporating the content of the directives 77/855/EEC of 9 October 1978 concerning mergers of public limited liability companies, and Directive 82/891/EEC of 17 December 1982, relating to the Division of these societies, special laws regulating public limited companies and limited liability companies (articles 6 and 13 of the law) (19/1989 of 25th July), but later, on the occasion of the incorporation into domestic law of Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005, cross-border mergers of companies of capital, and Directive 2007/63/EC of the European Parliament and of the Council of 13 November 2007 concerning modification of the third and the sixth directive, it was decided - following the solution already advocated by the proposal for a code of commercial companies of 2002 – by passing the law 3/2009, of 3 April, structural modifications of commercial companies, in which, taking as a model the regime's policies, regulate, along with the transformation of societies fusion and the Division, the global transfer of assets and liabilities and the international transfer of the registered office.

The contribution of the section of commercial law of the General Commission of codification and, within it, of the paper by law of societies, which has corresponded, in good measure, merit of the Spanish law of corporations having recognized quality has been essential in this process of modernization and improvement of the legal regime of the companies of capital.

2. in recent years, the European Union has embarked on a policy of simplification of the corporate law of capital, especially for cost reduction and simplification of loads. Up to now this policy has resulted in Directive 2006/68/EC of the European Parliament and of the Council of 6 September 2006, which was amended Directive 77/91/EEC, of the Council, with regard to the Constitution of the Corporation, as well as maintenance and modifications of social capital, whose content has been incorporated into Spanish law 3/2009 law , 3 April (first final provision). Spanish law, for its part, has continued the process, within the margins allowed by the Community directives, in the aforementioned law 25/2011, of 1 August, in matters as important as the convocation of the general meeting, advertising in press of certain statutory amendments, the deposit of the annual accounts and the legal regime of the liquidation.

The same objective of simplification is the directive 2009/109/EC of the European Parliament and of the Council of 16 September 2009, to modify directives 77/91/EEC, 78/855/EEC and 82/891/EEC, the Council, and Directive 2005/56/EC in what refers to the obligations of information and documentation in the case of mergers and divisions. The fact that the term of incorporation into Spanish law of Directive 2009/109/EC has finalized June 30, 2011, justifies the recourse to the figure of the Royal Decree-law. Firstly, because Spanish capital companies should not have a legal regime more rigorous than the companies subjected to the laws of the other EU countries, with negative effects, in addition, in the competition against the other jurisdictions of the Union; and, secondly, by the burdensome economic consequences of the fine to the EU it would impose on Spain should persist the delay in transposition. Concur, therefore, without a doubt, the circumstances of extraordinary and urgent need that, according to article 86.1 of the Constitution, enabled the Government to take measures with the rank of law by Royal Decree-law.

3. the incorporation into Spanish law of Directive 2009/109/CE standards requires, firstly, the modification of the Capital companies act in order to add new exceptions to the requirement to report of independent expert for the valuation of non-monetary contributions in the company, and requires, in second place, and above all , the amendment of some articles of the law 3/2009, of 3 April, on structural modifications of commercial companies in order to simplify, as provided in this directive, some individuals of the legal regime of mergers - including the cross-border - and the divisions. Insofar as the regime of the divisions is regulated by reference to the requirements of the mergers, more unqualified than those contained in chapter II of title III of the aforementioned law 3/2009, of 3 April, the rules relating to mergers are the most affected by this reform.

III 1. In the field of mergers and Division, directive 2009/109/EC simplifies in certain cases the number or content of the documents that have to be made available to partners and streamlines corporate operations prior to the merger agreement advertising by channeling through review of capital companies as an alternative to tank projects of merger and spin-off in the register. In the same line, provided that, if partner accepted it, communications that had to make the society may be made by electronic means.
Royal Decree-law incorporates these innovations, especially taking care that this simplification does not affect the proper tutelage of creditors and workers of the society. The incorporation has been carried out taking into account the regulatory framework in which are inserted the innovations contained in Directive 2009/109/EC, with respect to the General principles of policy and legislative techniques that was prepared the very complex law 3/2009, of 3 April; and hence the need for redrafting various articles of title II of the Act 3/2009, of 3 April.

At the same time, in order to facilitate the functioning of commercial companies and enable the increasingly urgent cost savings, Royal Decree-law power website and electronic communications; and he does it including within chapter II of the companies act of Capital the general legal regime of the website and these electronic communications between the company and the partners express forecast. In what refers to the regime of that page - which has mandatory for listed companies - legal general, regulates the creation, modification, transfer and the removal of the same, establish the duties of managers with respect to the inserted in it and will discipline issues relating to the interruption of access.

2. the Royal Decree-law is faithful to the traditional configuration of the right to opposition by creditors in Spanish law, in which the recognition of this right is not conditioned to do the financial situation of the debtor company required a special guardianship. In this matter, the character of minimum protection regime that has the content of directives 78/855/EEC, 82/891/EEC and 2005/56/EC and which now incorporates gives legitimacy maintaining the subjective extension of protected creditors entitled. But, according to the directive, and to avoid infringement of the duties carried out by the society in case of legitimate opposition may affect the effectiveness of the merger or Division, Royal Decree-law extends the possibilities of action of creditors in cases where, despite the express prohibition of the law , the merger or the Division are carried out without the provision of the necessary guarantees in favour of the opponent. Royal Decree-Law provides, in effect, that if fusion had been conducted but the realization in time and form, of the right of opposition, without warranty by society, the creditor may request of the register that, by note aside from the practiced registration, become noted the exercise of that right, allowing that within the six months following the date of this marginal note, you can file lawsuit before the Court against the acquiring company or the new company commercial requesting the provision of guarantee of the payment of the claim.

IV Finally, Royal Decree-Law amends the wording of the rules contained in the Act of modifications concerning the right of separation of the partners in the case of cross-border merger and in case of transfer abroad of the registered office. This law recognizes the right of separation to partner in these two cases, but does so «pursuant to the limited liability companies». With the enactment of the revised text of the companies act of Capital was repealed the law 2/1995, of 23 March, limited liability companies, generalizing the regime of the right of separation in it contained. The reference contained in the Act 3/2009, of 3 April, that repealed regime is, when less, ambiguous, so, by a basic imperative of legal certainty, is essential to replace this remission, in a way such that the regime to be the established in the current title IX of the companies act of Capital, which is where regulates the exercise of this right when he attends cause legal or statutory separation.

By virtue, making use of the authorisation contained in article 86 of the Constitution, on the proposal of the Minister of Justice, and after deliberation by the Council of Ministers at its meeting of March 16, 2012, available: article 1. Modification of the revised text of the companies act of Capital, approved by Royal Legislative Decree 1/2010 of 2 July.

One. Is introduced in chapter II of title I a new section, the 4th, made up of articles 11 bis, whose current wording is changed, 11 ter and quater 11: «section 4 page web article 11 bis.» Website of the society.

1. the capital companies may have a corporate web site. This page will be mandatory for listed companies.

2. the creation of a corporate web site must be agreed by the general meeting of the society. The call of the Board, the creation of the web site shall contain expressly in the agenda of the meeting. Except statutory provision to the contrary, modification, transfer or the Suppression of the society website will be responsibility of the Board of Directors.

3. the creation of the web site agreement shall be recorded on the leaf open society in the competent commercial register and shall be published in the "Official Gazette of the register mercantile".

Agreement modification, transfer or withdrawal of the website shall be recorded on the leaf open society in the competent commercial register and shall be published in the "Official Gazette of the register mercantile", as well as the website itself that it has agreed to modify, move, or delete during thirty days counted from the inclusion of the agreement.

The publication of the website in the "Official Gazette of the register mercantile" society will be free.

Until the publication of the website in the "Official Gazette of the register mercantile" takes place, the inserts that make society website will not have legal effects.

The bylaws may require that before any made recorded in sheet open to the company in the commercial register, these agreements notified individually to each of the partners.

Article 11 ter. Publications on the website.

1. the society will ensure the security of the website, the authenticity of the documents published on this website, as well as free access to it with the possibility to download and printing of the inserted in it.

2. the burden of proof of the fact of the insertion of documents on the website and the date on which this insertion has taken place shall be responsible to the society.

3. administrators have a duty to keep the inserted on the website during the term required by law, and will respond jointly among themselves and with the society against members, creditors, employees and third parties for any damages caused by the temporary discontinuance of access to that page, unless the interruption is due to unforeseen circumstances or force majeure. For the maintenance of the inserted during the term required by law will be sufficient Declaration of administrators, which can be averted by any interested party by any legally admissible evidence.

4. If the interruption of access to the website was more than two consecutive days or four alternate, may be not held general meeting had been convened to agree on the matter to which it relates the document embedded in that page, unless the total of days of effective publication was equal or superior to the term demanded by the law. In cases where required by law the maintenance of insertion after held the general meeting, if there is disruption, prolong is the inclusion for a number of days equal to which access had been interrupted.

Article 11 c. Communications by electronic means.

Communications between the company and the partner, including remission of documents and information, may be made by electronic means when the partner had expressly accepted it."

Two. Added three new letters c), d) and e) at the end of article 69, with the following wording: «c) when in the formation of a new company by merger or demerger has produced a report by the independent expert on the draft merger or scission.

d) when the increase of the share capital is carried out in order to deliver new shares or participation certificates to members of the society absorbed or split and it had a report of independent expert on the draft merger or scission.

(e) when the increase of the share capital in order to deliver the new shares to the shareholders of the company that is the subject of a public offer for acquisition of shares.»

Article 2. Modification of law 3/2009, of 3 April, structural modifications of commercial companies.

One. Article 32 is worded as follows: «article 32. Advertising.

1. administrators are required to insert the common draft terms of merger in the web page of each of the companies involved in the merger. The fact of the inclusion of the draft terms of merger in the web page will be published for free in the "Official Gazette of the register mercantile", with expression Web page containing and the date of the inclusion.
The inclusion on the website and the publication of this fact in the "Official Gazette of the register mercantile" should be made a month in advance, at least to the date for the holding of the general meeting has agreed the merger. The inclusion of the draft terms of merger in the website should be kept pending deadline for the exercise by the creditors of the right of opposition to the merger.

2. If any of the companies involved in the merger was web page, administrators are required to deposit a copy of the common draft terms of merger in the commercial register in which it was registered. The deposit is made, the Registrar shall notify central mercantile recorder, for immediate free publication in the "Official Gazette of the register mercantile", the fact of the deposit and the date in which has taken place.

3. the publication of the notice of convocation of the meetings of partners who have to solve on the merger or individual notification of that ad partners may not be before the insertion or the warehouse of the project in the "Official Gazette of the register mercantile".»

Two. In article 34, the first subparagraph of paragraph 1 is modified and present paragraphs 4 and 5 become paragraphs 3 and 4, and is worded as follows: ' 1. when any of the companies involved in the merger is anonymous or limited by shares, the managers of each of the merging companies must apply for corresponding to the domicile mercantile Registrar the appointment of one or more independent experts and various» , so that, separately, to issue report on the common draft terms of merger.

However the foregoing, the administrators of all the merging companies provided for in the preceding paragraph may ask the mercantile Registrar to appoint one or more experts for the preparation of a single report. The competition for the appointment will correspond to the mercantile Registrar of the registered office of the acquiring company or which appears on the common draft terms of merger as home of the new society.

2 appointed experts may obtain from the companies involved in the merger, without limitation, all information and documents that create useful and carry out all the checks that they consider necessary.

3. the report of the expert or experts will be divided into two parts: in the first, shall expose the methods followed by administrators to set the type of an exchange of shares, participations or quotas of members of societies that are extinguished, explain whether such methods are adequate, with expression of the values that lead and , if any, special valuation difficulties, and to express the opinion of whether or not the type of an Exchange is justified; and, in the second, they must express the opinion of whether the World Heritage provided by societies that are extinguished is equal, at least, the capital of the new company or the amount of the increase of the capital of the acquiring company.

4 the content of the report of the expert or experts on the draft terms of merger shall consist only by the second party in the following cases: to) when, in all the companies involved in the merger, so all members with right to vote and, in addition, all persons who, in his case, according to the law or the Bylaws have agreed they were owners of this right.

(b)) when the acquiring company own directly or indirectly, of all the shares or participations that splits the share capital of the company or companies being acquired.»

3. Added a new paragraph 3 to article 36, with the following wording: «3. If one or several corporations listed companies whose securities are already admitted to trading on a regulated market, domiciled in the EU or an official secondary market participate in fusion, fusion balance may be replaced by the financial report of each one of them demanded by the legislation on securities market» always to said report, has been closed and made public within the six months prior to the date of the draft terms of merger. The report will be available to shareholders in the same manner as provided for the balance of merger.»

Four. Article 39 is drafted as follows: "1. before the publication of the notice of convocation of the meetings of partners who have to solve on the merger or the individual communication of that ad partners, administrators must be inserted on the web site of the society, with the possibility to download them and print them or, if no web page» make available to partners, debenture holders, holders of special rights and the representatives of the workers, at the registered office the following documents: 1 the common draft terms of merger.

2. where appropriate, the reports of the directors of each of the companies on the draft terms of merger.

3 where appropriate, the reports of the independent experts.

4th annual accounts and reports for the last 3 years management as well as the reports of the Auditors of the accounts that were legally enforceable.

5th balance of merger of each of the companies, when it is different from the last annual balance sheet approved, accompanied, if payable, audit or, in the case of merger of listed companies, report half-yearly financial report that the balance would have replaced.

6 the existing articles of Association incorporated into public deed and, where appropriate, the relevant covenants that will be included in document public.

7th articles of incorporation of the new company project or, if it's an absorption, the full text of the statutes of the acquiring company or, in the absence thereof, of the writing by which it is governed, including prominently the modifications that have to be introduced.

8 the identity of the managers of the companies involved in the merger, the date from which carry out their functions and, where appropriate, indications of who will be proposed as administrators as a result of the merger.

2 If the society had no website, members, holders, holders of special rights and the representatives of workers who so request it by any means accepted in law they are entitled to examination at the registered office of a full copy of the documents referred to in the preceding paragraph, as well as the delivery or free shipping of a copy of each of them.

3. the important changes of the asset or liabilities occuring in any of the companies that merge, between the date of preparation of the draft terms of merger and the meeting of the Board of partners that have adopted it, shall be communicated to the Board of all the merging companies. For this purpose, administrators of the society in which changes have occurred should put them to the attention of the administrators of the remaining societies so that they can inform their respective boards. This information will not be payable when, in all and each one of the companies involved in the merger, agreed it by all members with right to vote and, where appropriate, who according to the law or the statutes to legitimately exercise that right."

5. Amending paragraph 2 of article 40, which happens to have the following wording: «2. the publication of the convocation of the Board or individual notification of that ad partners, will have to be made a month in advance, at a minimum, the expected date for the holding of the meeting;» You must include minimal mentions of the draft terms of merger legally required; «and it shall contain the date of inclusion of the documents referred to in the previous article on the website of the company or, if it had no website, the right which corresponds to all partners, debenture holders, holders of special rights and worker representatives to examine at the registered office copy of these documents, so as to obtain delivery or shipping free of them.»

6. Article 42 is worded as follows: ' 1. the merger agreement may be adopted without publishing or previously deposit the documents required by the law and without report of administrators on the draft terms of merger where adopted, in each of the companies involved in the merger, universal joint and unanimously by all members with voting rights and» , if any, of those who according to the law or the statutes to legitimately exercise that right.

2. the rights of the representatives of the workers information about the merger, including information on the effects that could have on employment, not may be restricted by the fact that the merger be approved on universal Board.»

7. Paragraph 2 of article 44 is modified and added a new paragraph 4, with the following wording:
«2. inside of that period, the creditors of each of the companies that merge whose credit had been born before the date of inclusion of the draft terms of merger in the website of society or deposit of that project in the register and is not expired at that time, they may oppose the merger until such loans are guaranteed to them.» If the draft terms of merger had not inserted on the web site of the society or deposited with the competent commercial register, the date of birth of the credit must have been earlier than the date of publication of the agreement of merger or the individual communication of that agreement to the creditor.

Bondholders may exercise the right of opposition in the same terms as the remaining creditors, except that the merger has been adopted by the Assembly of the debenture holders.

Creditors whose loans are already sufficiently guaranteed will not have right to opposition."

«4 fusion had taken effect despite exercise, in time and form, of the right to opposition by legitimate creditor, without observance of the provisions of the preceding paragraph, the creditor which had opposed may request of the mercantile registry that the fusion that, by note aside from the practiced inscription, is made to be the exercise of the right of opposition is entered.

The Registrar will practice the marginal note if the applicant would have exercised, in a timely manner, the right of opposition by means of reliable communication society of what was creditor. The marginal note will be canceled ex officio six months from its date, unless previously been recorded by preventive annotation, the filing of demand before the commercial court against the acquiring company or the new company that requested the provision of guarantee of the payment of the claim in accordance with the provisions of this law.»

8. Article 45 paragraph 1 is worded as follows: ' 1. the merging companies will raise the merger agreement adopted a public deed, to which the fusion of those balance will be incorporated or, in the case of merger of listed companies, the semi-annual financial report that the balance would have replaced.»

9. Paragraph 2 of article 50 is worded as follows: ' 2. the draft terms of merger must include the value set for the acquisition of the shares or participation certificates. " Partners that manifest the will transmit the shares or participation certificates to the acquiring company, but which were not in accordance with the value which they had recorded in the project, can, at your choice and within a period of six months since they reported their willingness to dispose of their shares or participations, choose to request the appointment of an auditor of the accounts of the Mercantile Register corresponding to the domicile of the acquiring company «, distinct from the society, so determine the fair value of their shares or participations, either exercise the corresponding legal actions to demand that it acquires them by fair value that is set in the procedure.»

10. Paragraph 1 of article 51 is worded as follows: ' 1. when the acquiring company was owner direct 90 per cent or more of the share capital of the society or corporations or limited liability, which will be the subject of absorption, not necessary the approval of the merger by the Board of the acquiring company partners» , whenever a month in advance at least to the date scheduled for the celebration of the Board or boards of companies being acquired which should decide on the draft terms of merger, or, in the case of fully-owned, the date scheduled for the formalization of the absorption, has had published the project by each of the companies participating in the operation with an ad published on the website of the company or, if not there, in the «Official Gazette of the register mercantile» or in one of the newspapers of wide circulation in the province in which each of the companies is domiciled, which is made to contain the right corresponding to the members of the acquiring company and the creditors of the companies involved in the merger to examine at the registered office documents indicated in numbers 1, 3rd and 4th, and, where appropriate, 2nd and 5 of paragraph 1 of article 39, as well as to get, when you have not published on the website, in the terms provided for in article 32, the delivery or shipping free for the full text thereof.

Ad must be mentioned in the right partners who represent at least one per cent of the share capital to demand the holding of the Board of the acquiring company for the approval of absorption, as well as the right of creditors of that society to oppose the merger within a month since the publication of the project on the terms laid down in this law.»

Eleven. Article 62 is worded as follows: "members of participating Spanish companies in intra-Community cross-border mergers which had voted against the agreement of a merger, the resulting company is domiciled in another Member State may separate from the society in accordance with the provisions of title IX of the companies act of Capital.»

12. Is inserted article 78 bis, with the following wording: «article 78 bis.» Simplification of requirements.

In the case of Division by the formation of new companies, shares, participations or contributions of each of the new companies are attributed to members of the society that splits proportionally to the rights that were in the capital of this will not be necessary the report of administrators on the draft terms of Division or the report of independent experts as well as either the Division balance.»

13. Article 99 is worded as follows: "members who had voted against the agreement of transfer of the registered office abroad may separate from the society in accordance with the provisions of title IX of the companies act of Capital.»

First final provision. Skill-related title.

This Royal Decree is issued under cover of the article 149.1.6 powers. ª of the Constitution attributed exclusively to the State in the field of commercial law.

Second final provision. Incorporation of Community law.

By this Royal Decree-Law Directive 2009/109/EC of the European Parliament and of the Council of 16 September 2009, by which modify directives 77/91/EEC, 78/855/EEC and 82/891/EEC of the Council, and Directive 2005/56/EC are incorporated into Spanish law in what refers to the obligations of information and documentation in the case of mergers and divisions.

Third final provision. Entry into force.

The present Royal Decree will enter into force the day following its publication in the "Official Gazette".

Given in Madrid, on March 16, 2012.

JUAN CARLOS R.

The Prime Minister, MARIANO RAJOY BREY

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