EXPLANATORY STATEMENT

I

The transposition of Community directives, in particular those of the internal market, is now one of the priority objectives set by the European Council. The European Commission submits regular reports to the Competitiveness Council, which are given a high political value as they serve to measure the effectiveness and credibility of the Member States in the implementation of the market. internal.

The fulfilment of this objective is even more important today 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. European, for non-compliances of transposition in time, for which the Commission may ask the Court of Justice of the European Union for the imposition of significant economic sanctions in an accelerated manner (Article 260.3 of the Treaty of functioning of the European Union (TFEU).

Regarding the use of the royal decree-law as an instrument of transposition, it should be noted that the Constitutional Court, in the judgment 23/1993, of 21 January, points out that the decree-law is a constitutionally In order to face problematic economic circumstances, and in its judgment in 1/2012, of 13 January, it endorses the concurrency of the enabling budget of the extraordinary and urgent need of Article 86.1 of the Constitution when they are present " Patent delay in transposition "and the existence of" non-compliance procedures " against the Kingdom of Spain. '

Moreover, this is not the first time that this legal instrument has been used to circumvent the certain and imminent risk of the imposition of economic sanctions for non-compliance with European Union law. Thus, the diktat of Royal Decree-Law 8/2007 of 14 September amending certain articles of Law 23/1992 of 30 July 1992 on private security was justified in the ' existence of an enabling budget, to which the The Court held that the Court's case-law, in which the need for the rule of law, must be of such a nature that it cannot be dealt with by the legislative procedure of urgency, due to the need for its immediacy Budget which is also included in Directive 2009 /109/EC of the European Parliament and of the Council of 16 September 2009, amending Council Directives 77 /91/EEC, 78 /855/EEC and 82 /891/EEC and Directive 2005 /56/EC as regards the reporting and documentation obligations in the case of mergers and divisions.

II

1. The incorporation into Spanish law of the European Union directives on capital companies has generated a continuing process of reform of this sector of the legal order. Since Law 19/1989 of 25 July 1989 on the partial reform and adaptation of commercial law to the Directives of the European Economic Community on companies, which incorporated into national law the Directives until then adopted, until the most recent Law 25/2011 of 1 August, of partial reform of the Law on Capital Societies and of incorporation of Directive 2007 /36/EC of the European Parliament and of the Council of 11 July on the exercise of rights of the shareholders of listed companies, have been going on frequent modifications of the legislation societaria. This reform process for the obligatory Community harmonization has been parallel to the modernization of the law of this class of societies, whose legal regime, passed the duality of laws-the Law of Companies and the Law of Societies of Limited liability-is now contained in the recast text of the Capital Companies Act, approved by the Royal Legislative Decree 1/2010 of 2 July.

the case of mergers and divisions, the first option of the Spanish legislature was to incorporate the content of Directives 77 /855/EEC of 9 October 1978 on mergers of public limited liability companies and the Directive 82/891/EEC of 17 December 1982 on the division of those companies into the special laws governing public limited liability companies and limited liability companies (Articles 6 and 13 of Law 19 /1989 of 25 March 1989). (July), but subsequently, on the occasion of transposition into national law of Directive 2005 /56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of capital companies and Directive 2007 /63/EC of the European Parliament and of the Council of 13 November 2007 amending 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-to approve Law 3/2009 of 3 April, of structural modifications of commercial companies, in which, taking as a model the regime of the Directives, they are regulated, together with the transformation of companies, the merger and division, the global transfer of assets and liabilities and the international transfer of the registered office.

In this process of modernization and improvement of the legal regime of the capital companies has been essential the contribution of the Commercial Law Section of the General Commission of Codification and, within it, of the Company Law, which has been in good measure, the merit of the recognition of the quality of Spanish company law.

2. In recent years, the European Union has embarked on a policy of simplifying the law of capital companies, especially for the reduction of costs and the simplification of charges. Until now, this policy has been translated into Directive 2006 /68/EC of the European Parliament and of the Council of 6 September 2006 amending Council Directive 77 /91/EEC as regards the formation of public limited liability companies. as to the maintenance and modifications of the social capital, the content of which has been incorporated into Spanish law by Law 3/2009 of 3 April (final provision first). The Spanish legislation, for its part, has continued that process, within the limits permitted by the Community Directives, in the aforementioned Law 25/2011 of 1 August, in matters as important as the convocation of the general meeting, the (a) the publication of the annual accounts and the legal system of the liquidation in the press of certain statutory amendments.

The same objective of simplification is in response to Directive 2009 /109/EC of the European Parliament and of the Council of 16 September 2009 amending Council Directives 77 /91/EEC, 78 /855/EEC and 82 /891/EEC and the Directive 2005 /56/EC as regards the obligations of information and documentation in the case of mergers and divisions. The fact that the deadline for transposition into Spanish law of Directive 2009 /109/EC was completed on 30 June 2011 justifies the use of the figure of the royal decree-law. First, because Spanish capital companies must not have a more stringent legal regime than companies governed by the laws of the other Member States, with negative effects, in addition, on competition vis-à-vis the the other legal systems of the Union; and, secondly, the burdensome economic consequences of the fine which the European Union would impose on Spain if the delay in transposition persisted. There are undoubtedly the circumstances of extraordinary and urgent need which, in accordance with Article 86.1 of the Constitution, enable the Government to adopt provisions with a law range by law.

3. The incorporation into Spanish law of the rules of Directive 2009 /109/EC requires, first of all, the amendment of the Capital Companies Act in order to add new exceptions to the requirement for an independent expert report for the assessment of the non-cash contributions in the public limited company, and it requires, in the second place, and above all, the modification of certain articles of Law 3/2009, of April 3, on structural modifications of the commercial societies to end simplify, in accordance with the provisions of that Directive, certain individuals of the legal system of mergers-including cross-border mergers-and divisions. In so far as the system of divisions is governed by reference to the requirements of mergers, without any further exception than those contained in Chapter II of Title III of that Law No 3/2009 of 3 April 2009, the rules relating to mergers are the most affected by this reform.

III

1. In the case of mergers and divisions, Directive 2009 /109/EC simplifies in certain cases the number or content of the documents to be made available to the partners and streamlines these social operations by igniting advertising prior to the merger agreement through the capital companies ' website as an alternative to the deposit of the merger and division projects in the commercial register. In the same vein, it provides that, if the partner accepts it, the communications that the company has to make can be made by electronic means.

The real decree-law incorporates these innovations, especially taking care that this simplification does not affect the proper protection of the creditors and the workers of the society. The incorporation has been carried out taking into account the regulatory framework in which the new developments contained in Directive 2009 /109/EC are inserted, with respect to the general principles of policy and legislative techniques with which This is the very complex Law 3/2009 of April 3, and hence the need to give new wording to different articles of Title II of Law 3/2009, of April 3.

At the same time, for the purpose of facilitating the operation of commercial societies and of enabling the increasingly urgent cost savings, the real decree-law powers the web page and electronic communications; and does so including within Chapter II of the Law of Capital Companies the general legal regime of the website and the express provision of such electronic communications between the company and the partners. As regards the general legal system of that page-which is binding on listed companies-the creation, modification, transfer and deletion of such a page is regulated, the duties of the administrators with respect to what is inserted in it and issues related to the interruption of access are disciplined.

2. The real decree-law is faithful to the traditional configuration of the right of opposition of creditors in Spanish legislation, in which the recognition of this right is not conditioned to the financial situation of the debtor society necessary special protection. In this area, the nature of the minimum protection regime contained in Directives 78 /855/EEC, 82 /891/EEC, 2005 /56/EC and the one now incorporated gives legitimacy to the maintenance of our right to the subjective enlargement of the Community. protected creditors. However, in accordance with the Directive, while preventing the infringement of the duties of the company in the event of legitimate opposition from being liable to affect the effectiveness of the merger or division, the actual decree extends the scope of the creditors in cases where, notwithstanding the express prohibition of the law, the merger or division is carried out without the necessary guarantees in favour of the opposition. The actual decree-law provides, in fact, that, if the merger had been carried out however the exercise, in time and form, of the right of opposition, without the provision of guarantee by the company, the creditor can apply for the registration Mercantile, which, by note of the margin of the registered registration, is registered the exercise of that right, allowing, within six months after the date of this marginal note, to be able to file suit with the Court of the Commercial against the acquiring company or against the new company applying for the provision of guarantee of payment of the credit.

IV

Finally, the royal decree-law amends the wording of the rules contained in the Law on structural amendments relating to the right of separation of the partners in the event of cross-border merger and in case of transfer to the of the registered office. This law recognises the right of separation to the partner in those two cases, but does so "in accordance with the provisions of limited liability companies". With the promulgation of the recast text of the Law of Capital Societies, Law 2/1995, of March 23, of Societies of Limited Liability was repealed, generalizing the regime of the right of separation in it contained. The reference contained in Law No 3/2009 of 3 April 2009 to this repealed regime is, at least, equivocal, and therefore, by an essential legal certainty, it is essential to replace that reference in such a way that the system is the established in the current Title IX of the Capital Companies Act, which is where the exercise of that right is regulated when legal or statutory separation is due.

In its virtue, making use of the authorization contained in Article 86 of the Constitution, on the proposal of the Minister of Justice, and after deliberation of the Council of Ministers at its meeting of the day 16 March 2012,

DISPONGO:

Article 1. Amendment of the recast text of the Law of Capital Societies, approved by the Royal Legislative Decree 1/2010, of 2 July.

One. In Chapter II of Title I, a new section, the 4th section, consisting of Articles 11a, the current wording of which is amended, 11 ter and 11c, is inserted:

" Section 4. Web Page

Article 11a. Web page of the society.

1. Capital companies may have a corporate website. This page will be mandatory for listed companies.

2. The creation of a corporate website must be agreed by the general meeting of the company. In the convening of the meeting, the creation of the website shall be expressly stated on the agenda of the meeting. Unless otherwise provided for in the Staff Regulations, the change, transfer or deletion of the company's website shall be the responsibility of the administrative body.

3. The agreement to create the website will be entered in the open sheet to the company in the competent Mercantile Register and will be published in the "Official Gazette of the Commercial Registry".

The agreement of modification, transfer or deletion of the website will be entered in the open sheet to the company in the competent Mercantile Register and will be published in the "Official Gazette of the Commercial Registry", as well as on the website itself that has been agreed to modify, move or delete for the next thirty days from the insertion of the agreement.

The publication of the company's website in the "Official Gazette of the Commercial Register" will be free.

Until the publication of the website in the "Official Gazette of the Commercial Register" takes place, the inserts that the company makes on the website will not have legal effects.

The social statutes may require that, prior to the entry into the open sheet of the company in the Mercantile Register, these agreements are individually notified to each of the partners.

Article 11b. Publications on the web page.

1. The company will guarantee the security of the website, the authenticity of the documents published on that page, as well as the free access to it with the possibility of downloading and printing of the inserted in it.

2. The burden of proof of the fact of the insertion of documents on the website and of the date on which such insertion took place shall be the responsibility of the company.

3. The administrators have the duty to maintain what is inserted on the website during the term required by law, and they will respond in solidarity with each other and with the society in front of the partners, creditors, workers and third parties of the damages. caused by the temporary interruption of access to that page, unless the interruption is due to fortuitous or force majeure. In order to prove the maintenance of the inserted during the term required by law, the declaration of the administrators shall be sufficient, which may be distorted by any person concerned by any admissible evidence in law.

4. If the interruption of access to the website is greater than two consecutive days or four alternate days, the general meeting which has been convened may not be held to agree on the subject to which the document inserted on that page is concerned, except the total number of days of effective publication is equal to or greater than the term required by law. In cases where the law requires the maintenance of the insertion after the general meeting, if any interruption occurs, the insertion must be prolonged for a number of days equal to that the access would have been interrupted.

Article 11c. Communications by electronic means.

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

Two. Three new points (c), (d) and (e) are added at the end of Article 69, with the following wording:

" (c) When a new company by merger or division has been established, an independent expert report on the draft terms of merger or division has been drawn up.

(d) When the increase in the share capital is carried out in order to deliver the new shares or social units to the partners of the company being absorbed or divided and an expert report has been drawn up independent of the merge or split project.

e) When the increase in the share capital is carried out in order to deliver the new shares to the shareholders of the company that is the subject of a public offering for the acquisition of shares. "

Article 2. Amendment of Law 3/2009, of April 3, of structural modifications of commercial societies.

One. Article 32 is worded as follows:

" Article 32. Advertising.

1. The administrators are obliged to insert the common draft terms of merger on the website of each of the companies involved in the merger. The insertion of the merger project on the website will be published free of charge in the "Official Gazette of the Commercial Register", with the expression of the website in which it appears and the date of the insertion.

The insertion on the website and the publication of this fact in the "Official Gazette of the Commercial Register" shall be made one month in advance, at least, to the date foreseen for the celebration of the general meeting of the agree on the merger. The insertion of the draft merger on the website must be maintained until the end of the period for the exercise by creditors of the right of opposition to the merger.

2. If one of the companies participating in the merger does not have a web page, the administrators are obliged to deposit a copy of the common draft of the merger in the Commercial Registry in which it was registered. The registrar shall inform the central merchant registrar, for his immediate free publication in the "Official Gazette of the Commercial Register", of the deposit and the date on which it took place.

3. The publication of the notice of call for the meetings of the partners to be resolved on the merger or the individual communication of that notice to the partners may not be carried out prior to the publication of the insertion or the deposit of the project in the 'Official Gazette of the Trade Register'. '

Two. In Article 34, the first subparagraph of paragraph 1 and paragraphs 4 and 5 are amended as paragraphs 3 and 4 and read as follows:

" 1. Where any of the companies participating in the merger is anonymous or otherwise committed by shares, the directors of each of the merging companies must apply to the business register for the registered office of the the appointment of one or more independent and distinct experts to issue a separate report on the common draft terms of merger.

However, the administrators of all the merging companies referred to in the previous paragraph may ask the Commercial Registrar to designate one or more experts for the preparation of a single report. The competence for the appointment shall be the business registrant of the registered office of the acquiring company or of the registered office of the joint venture as the domicile of the new company.

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

3. The expert's or experts ' report shall be divided into two parts: in the first, they shall set out the methods followed by the administrators to establish the exchange rate for the shares, units or shares of the company's partners. which are extinguished, explain whether those methods are appropriate, with the expression of the values to which they lead and, if they exist, the special difficulties of assessment, and express the opinion of whether the exchange rate is justified or not; and, in the second, they must express the opinion of whether the assets provided by the extinguishing companies are the same, at least to the capital of the new company or to the amount of capital increase of the acquiring company.

4. The content of the expert's or experts ' report on the draft merger shall be composed solely of the second part in the following cases:

(a) When, in all the companies participating in the merger, all the members with the right to vote have agreed and, in addition, all the persons who, as the case may be, according to the law or the social statutes, are the holders of that right.

(b) Where the acquiring company is a direct or indirect owner of all the shares or units in which the share capital of the company or companies is absorbed. "

Three. A new paragraph 3 is added to Article 36, with the following wording:

" 3. Where one or more listed public limited companies whose securities are already admitted to trading on an official secondary market or on a regulated market domiciled in the European Union participate in the merger, the merger balance may be replaced by the following: the semi-annual financial report of each of them required by the securities market legislation, provided that such report has been closed and made public within six months of the date of the draft merger. The report shall be made available to the shareholders in the same way as the one established for the merger balance. '

Four. Article 39 is worded as follows:

" 1. Prior to the publication of the notice of call for the meetings of the partners to be resolved on the merger or the individual communication of that announcement to the partners, the administrators must insert on the website of the company, with the possibility to download and print them or, if they do not have a website, make available to the members, obligationists, special rights holders and representatives of the workers, at the registered office, the following documents:

1. The Common Merge Project.

2. º Where appropriate, the reports of the administrators of each of the companies on the draft of the merger.

3. º Where appropriate, independent experts ' reports.

4. The annual accounts and management reports for the last three financial years, as well as the corresponding reports of the auditors of the companies in which they were legally enforceable.

5. The merger balance of each of the companies, where it is different from the last approved annual balance sheet, accompanied, if applicable, by the audit report or, in the case of the merger of listed companies, the report Six-month financial year by which the balance sheet would have been replaced.

6. The existing social statutes incorporated in public deed and, where appropriate, the relevant covenants to be entered in public document.

7. The draft constitution of the new company or, in the case of 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 to be made.

8. The identity of the directors of the companies participating in the merger, the date from which they hold their positions and, where appropriate, the same indications of those who are to be proposed as administrators such as consequence of the merger.

2. If the company does not have a website, the members, the debenture holders, the holders of special rights and the representatives of the workers who so request by any means admitted in law shall be entitled to the examination at the address Full copy of the documents referred to in the previous paragraph, as well as the free delivery or dispatch of a copy of each of them.

3. Significant changes to the assets or liabilities occurring in any of the merging companies, between the date of the drafting of the draft merger and the date of the meeting of the shareholders ' meeting to be approved, shall be communicated to the the board of all merging companies. To this end, the directors of the company in which the amendments have been made must be brought to the attention of the directors of the other companies so that they can inform their respective boards. Such information shall not be required where, in each and every company involved in the merger, all the partners with the right to vote and, where appropriate, those who are in accordance with the law or the statutes may legitimately exercise it. that right. "

Five. Article 40 (2) is amended, which shall be amended as follows:

" 2. The publication of the notice of the meeting or the individual communication of that notice to the members shall be carried out at least one month in advance of the date laid down for the conclusion of the meeting; it shall include the minimum particulars the date of insertion of the documents referred to in the previous Article on the company's website or, if the latter does not have a website, the right of all the partners, Holders of special rights and representatives of workers to be examined at home social copy of these documents, as well as to obtain the free delivery or delivery of these documents. "

Six. Article 42 is worded as follows:

" 1. The merger agreement may be adopted without the need to publish or pre-deposit the documents required by law and without the administrators ' report on the draft merger when it is adopted, in each of the companies participating in the merger. the merger, on a universal basis and by unanimity of all voting partners and, where appropriate, of those who in accordance with the law or the statutes may legitimately exercise that right.

2. The information rights of employees ' representatives on the merger, including information on the effects it may have on employment, may not be restricted by the fact that the merger is approved on a joint basis. universal. "

Seven. Article 44 (2) is amended and a new paragraph 4 is added, with the following wording:

" 2. Within that period, the creditors of each of the merging companies whose credit would have been born before the date of insertion of the draft merger on the company's website or the deposit of that project in the Trade Register and is not expired at that time, they may object to the merger until they are guaranteed such credits. If the draft merger has not been inserted on the company's website or deposited in the competent Mercantile Register, the date of birth of the credit must have been before the date of publication of the merger agreement or the individual communication of that agreement to the creditor.

The obligationists may exercise the right of opposition on the same terms as the other creditors, unless the merger has been approved by the assembly of obligationists.

Creditors whose claims are already sufficiently secured shall not be entitled to opposition. "

" 4. If the merger had taken effect in spite of the exercise, in time and form, of the right of opposition by a legitimate creditor, without observance of the provisions of the previous paragraph, the creditor who would have objected may apply for the registration Trade in which the merger has been registered which, by virtue of the margin of registration, shall be recorded in the exercise of the right of opposition.

The Registrar will practice the marginal note if the applicant proves that he has exercised, in time and form, the right of opposition by means of a reliable communication to the company from which he is a creditor. The marginal note shall be cancelled ex officio within six months of its date, unless it has previously been recorded as a preventive note, the case-law case before the Court of Trade against the acquiring company or against the new the company in which the payment of the credit is requested in accordance with this law. "

Eight. Article 45 (1) shall be read as

:

" 1. The merging companies will raise the merger agreement to be published, to which the merger balance of those companies will be incorporated or, in the case of merger of listed companies, the half-yearly financial report for which the balance sheet is would have replaced. "

Nine. Article 50 (2) is worded as follows:

" 2. In the draft terms of merger, the value established for the acquisition of shares or shares shall be recorded. Members who express the wish to transmit the shares or social units to the acquiring company, but who do not agree with the value which they would have entered in the project, may, at their choice and within six months after they have notified their intention to dispose of their shares or units, to choose to apply to the registered office of the acquiring company for the designation of an auditor, other than that of the company, to determine the fair value of its shares or units; or (a) to exercise the relevant judicial proceedings to require that the court be acquired for the fair value to be set in the proceedings. '

Ten. Article 51 (1) is worded as follows:

" 1. Where the acquiring company is a direct holder of ninety per cent or more of the share capital of the company or of the limited liability companies which are to be absorbed, the approval of the company shall not be required. merger by the board of members of the acquiring company, provided that at least one month in advance of the date envisaged for the holding of the board or boards of the companies being acquired which are to decide on the draft terms of merger, or the case of a fully-owned company, to the date envisaged for the formalisation of the absorption, would have been published the project by each of the companies participating in the operation with an announcement, published on the company's website or, if not, in the "Official Gazette of the Commercial Registry" or in one of the newspapers of great circulation in the province in which each of the companies has its registered office, in which the right which corresponds to the members of the acquiring company and to the creditors of the companies participating in the merger to be examined in the registered office the documents indicated in the numbers 1, 3, 3 and 4, and, where appropriate, 2. º and 5. Article 39, as well as obtaining, where it has not been published on the website, in the terms provided for in Article 32, the free delivery or dispatch of the full text of the same.

In the notice the right of the members representing at least one percent of the share capital to demand the holding of the board of the acquiring company for the approval of the absorption, as well as the the right of the creditors of that company to oppose the merger within one month of the publication of the project in the terms laid down in this law. "

Once. Article 62 is worded as follows:

" The partners of the Spanish companies participating in an intra-Community cross-border merger which would have voted against the agreement of a merger whose resulting company has its registered office in another Member State may the separation of the company in accordance with the provisions of Title IX of the Capital Companies Act. '

Twelve. Article 78a is inserted with the following wording:

" Article 78a. Simplification of requirements.

In the case of a division by the formation of new companies, if the shares, shares or shares of each of the new companies are attributed to the members of the company which is divided in proportion to the rights which The report of the administrators on the draft terms of division and the report of independent experts, as well as the balance sheet, shall not be required in the capital of that capital. '

Thirteen. Article 99 is worded as follows:

"Partners who have voted against the agreement to transfer the registered office abroad may be separated from the company in accordance with the provisions of Title IX of the Capital Companies Act."

Final disposition first. Competence title.

This royal decree-law is dictated by the powers that Article 149.1.6. of the Constitution attributes exclusively to the State in matters of commercial law.

Final disposition second. 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 amending Directives 77 /91/EEC, 78 /855/EEC and 82 /891/EEC of the European Parliament and of the Council [2009] is incorporated into Spanish law. Council Directive 2005 /56/EC as regards the obligations of information and documentation in the case of mergers and divisions.

Final disposition third. Entry into force.

This royal decree-law shall enter into force on the day following that of its publication in the "Official Gazette of the State".

Given in Madrid, on March 16, 2012.

JOHN CARLOS R.

The President of the Government,

MARIANO RAJOY BREY