Royal Decree-Law 15/2017 of 6 October on Urgent Measures Regarding the Mobility of Economic Operators Within the National Territory

OFFICIAL STATE GAZETTE No. 242 Saturday, October 7, 2017 Sec. I. Page 97565 I. GENERAL PROVISIONS HEAD OF STATE 11501 Royal Decree-Law 15/2017, of October 6, on urgent measures regarding the mobility of economic operators within the national territory. I The traditional rule regarding the modification of the articles of association of commercial companies is that the competence to adopt such decisions lies with the general meeting. However, Article 105 of the Commercial Register Regulation of December 14, 1956, already provided that the relocation of the company's domicile "within the same municipality" would not have the character of a statutory modification for such purposes, unless there was a contrary agreement in the articles. This criterion was adopted by the legislator when, in Article 149 of the consolidated text of the Law on Joint Stock Companies, approved by Royal Legislative Decree 1564/1989, of December 22, the power to agree on the relocation of the domicile within the same municipal term was attributed to the administrators, unless the articles provided otherwise, without prejudice to leaving it subject to the mandatory recording in a public deed and registration. Law 9/2015, of May 25, on urgent measures in insolvency matters, advanced in this line by modifying Article 285(2) of the consolidated text of the Capital Companies Law, approved by Royal Legislative Decree 1/2010, of July 2, expanding the competence of the administrative body to changes of registered address within the national territory, but again limiting such competence to the condition that there be no contrary provision in the articles. II More than two years having passed since the approval of the reform, and taking into account that the favorable evolution of the economic situation has favored a growing process of acceleration of the geographical mobility of our companies, discrepancies in its interpretation have been detected. These divergences have slowed down the registration of the change of registered address in the Commercial Register, depriving the reform, at least in part, of its sought-after effectiveness. Thus, there is an interpretative line that considers that the provision contained in the company's articles attributing to the general meeting the power to agree on the change of registered address constitutes a "contrary provision" to the competence of the administrative body. This provision often constitutes a mere transcription of the traditional competence historically provided for in commercial legislation, prior to the aforementioned legislative reform. In contrast to this line, there is an interpretative criterion that is more in line with the purpose pursued by the reform introduced by Law 9/2015, according to which the mere reproduction in the articles of the supplementary legal regulation is indicative of the shareholders' will to be subject to the supplementary regime in force at any given time. In this case, such a "contrary provision" would only exist when the articles have been modified subsequently to expressly depart from the supplementary legal regime. III Starting from the described situation, and with the object of guaranteeing that a norm manifestly dynamic for business activity can deploy all its potential and, therefore, can be applied with the greatest possible speed when it is deemed necessary to adopt this operational decision, it is essential to provide Article 285 of the Capital Companies Law with a clear wording, according to which there are no doubts that the general rule is that the change of registered address within the national territory is a competence that originally belongs to the administrative body of the company and that only if the shareholders consider that this rule should be modified should they establish it in the articles, expressly denying this competence to the administrative body. Therefore, the only article of this royal decree-law modifies the aforementioned provision giving it a wording in accordance with these requirements. Additionally, a transitional provision is introduced that regulates the regime of the articles that had been approved before the entry into force of the reform, in which it will be considered that there is a contrary statutory provision only when, subsequent to the entry into force of this royal decree-law, a modification had been approved that expressly declares that the administrative body does not hold the competence to change the registered address within the national territory. IV The extraordinary and urgent need for the measure is justified by the requirement to guarantee the full validity of the principle of freedom of enterprise enshrined in Article 38 of the Constitution, as well as to respect the prohibition of adopting measures that hinder the freedom of establishment of economic operators provided for in Article 139 of the Constitution. Consequently, it must be avoided that interpretative divergences and corporate controversies delay the effectiveness of the relocation of the domicile within Spanish territory in order to consolidate the unity of the market. This need is especially pressing considering the increase in corporate movements that occurs in the last quarter of each year, as our companies make strategic planning decisions whose implementation often requires the relocation of the registered address and that, in the current context, may be motivated by the special circumstances characterizing the moment when this norm is to enter into force. For all the above, the circumstances of extraordinary and urgent need required by Article 86 of the Spanish Constitution as an enabling premise for resorting to this type of norm concur in the measures adopted, due to their nature, purpose, and the context in which they are issued. By virtue thereof, in exercise of the authorization contained in Article 86 of the Constitution, upon the proposal of the Minister of Economy, Industry and Competitiveness and after deliberation of the Council of Ministers in its meeting of October 6, 2017, I HEREBY ORDER: Sole Article. Modification of the consolidated text of the Capital Companies Law, approved by Royal Legislative Decree 1/2010, of July 2. Article 285(2) of the consolidated text of the Capital Companies Law, approved by Royal Legislative Decree 1/2010, of July 2, shall be worded as follows: "2. As an exception to what is established in the preceding paragraph, the administrative body shall be competent to change the registered address within the national territory, unless there is a contrary provision in the articles. A contrary provision in the articles shall be considered to exist only when the articles expressly establish that the administrative body does not hold this competence." Sole Transitional Provision. Regime of articles approved before the entry into force of this royal decree-law. For the purposes provided for in Article 285(2) of the consolidated text of the Capital Companies Law, in the wording given by this royal decree-law, it shall be understood that there is a contrary provision in the articles only when, subsequent to the entry into force of this royal decree-law, a statutory modification had been approved that expressly declares that the administrative body does not hold the competence to change the registered address within the national territory. Final Provision First. Competence Title. This royal decree-law is issued under the provisions of Rules 6th and 13th of Article 149.1 of the Spanish Constitution, which attribute to the State exclusive competence over commercial and procedural legislation and the bases and coordination of the general planning of economic activity, respectively. Final Provision Second. Entry into Force. This royal decree-law shall enter into force on the day of its publication in the "Official State Gazette". Given in Madrid, on October 6, 2017. FELIPE R. The President of the Government, MARIANO RAJOY BREY cve: BOE-A-2017-11501 Verifiable at http://www.boe.es

OFFICIAL STATE GAZETTE No. 242 Saturday, October 7, 2017 Sec. I. Page 97566 national territory is a competence that originally belongs to the administrative body of the company and that only if the shareholders consider that this rule should be modified should they establish it in the articles, expressly denying this competence to the administrative body. Therefore, the only article of this royal decree-law modifies the aforementioned provision giving it a wording in accordance with these requirements. Additionally, a transitional provision is introduced that regulates the regime of the articles that had been approved before the entry into force of the reform, in which it will be considered that there is a contrary statutory provision only when, subsequent to the entry into force of this royal decree-law, a modification had been approved that expressly declares that the administrative body does not hold the competence to change the registered address within the national territory. IV The extraordinary and urgent need for the measure is justified by the requirement to guarantee the full validity of the principle of freedom of enterprise enshrined in Article 38 of the Constitution, as well as to respect the prohibition of adopting measures that hinder the freedom of establishment of economic operators provided for in Article 139 of the Constitution. Consequently, it must be avoided that interpretative divergences and corporate controversies delay the effectiveness of the relocation of the domicile within Spanish territory in order to consolidate the unity of the market. This need is especially pressing considering the increase in corporate movements that occurs in the last quarter of each year, as our companies make strategic planning decisions whose implementation often requires the relocation of the registered address and that, in the current context, may be motivated by the special circumstances characterizing the moment when this norm is to enter into force. For all the above, the circumstances of extraordinary and urgent need required by Article 86 of the Spanish Constitution as an enabling premise for resorting to this type of norm concur in the measures adopted, due to their nature, purpose, and the context in which they are issued. By virtue thereof, in exercise of the authorization contained in Article 86 of the Constitution, upon the proposal of the Minister of Economy, Industry and Competitiveness and after deliberation of the Council of Ministers in its meeting of October 6, 2017, I HEREBY ORDER: Sole Article. Modification of the consolidated text of the Capital Companies Law, approved by Royal Legislative Decree 1/2010, of July 2. The article 285.2 of the consolidated text of the Capital Companies Law, approved by Royal Legislative Decree 1/2010, of July 2, shall be worded as follows: "2. As an exception to what is established in the preceding paragraph, the administrative body shall be competent to change the registered address within the national territory, unless there is a contrary provision in the articles. A contrary provision in the articles shall be considered to exist only when the articles expressly establish that the administrative body does not hold this competence." Sole Transitional Provision. Regime of articles approved before the entry into force of this royal decree-law. For the purposes provided for in Article 285.2 of the consolidated text of the Capital Companies Law, in the wording given by this royal decree-law, it shall be understood that there is a contrary provision in the articles only when, subsequent to the entry into force of this royal decree-law, a statutory modification had been approved that expressly declares cve: BOE-A-2017-11501 Verifiable at http://www.boe.es

OFFICIAL STATE GAZETTE No. 242 Saturday, October 7, 2017 Sec. I. Page 97567 that the administrative body does not hold the competence to change the registered address within the national territory. Final Provision First. Competence Title. This royal decree-law is issued under the provisions of Rules 6th and 13th of Article 149.1 of the Spanish Constitution, which attribute to the State exclusive competence over commercial and procedural legislation and the bases and coordination of the general planning of economic activity, respectively. Final Provision Second. Entry into Force. This royal decree-law shall enter into force on the day of its publication in the "Official State Gazette". Given in Madrid, on October 6, 2017. FELIPE R. The President of the Government, MARIANO RAJOY BREY cve: BOE-A-2017-11501 Verifiable at http://www.boe.es http://www.boe.es OFFICIAL STATE GAZETTE D. L.: M-1/1958 - ISSN: 0212-033X