New legislation

Amendment of article 348 bis of Capital Companies Act

Act 11/2018, of December 28, which modifies the Commercial Code, the revised text of the Capital Companies Act approved by Royal Legislative Decree 1/2010, of July 2, and Law 22 / 2015, of July 20, of Audit of Accounts, in the matter of non-financial information and diversity (BOE 29.12.2018) modifies article 348 bis of the Capital Companies Law, modification that will be applicable to all the Boards that are held as of 30.12.2018 (Transitory Provision and Seventh Final Provision). The new wording (1) extends to the groups of companies (Article 42 of the Commercial Code) the application of the right of separation of the partner due to lack of distribution in the form of dividends of at least twenty-five percent of the profits obtained during the previous year that are legally distributable provided that benefits have been obtained during the previous three years; and (2) contemplates cases of exclusion of such separation right that refer to (a) listed companies, (b) sports stock companies (SAD) and bankruptcy situations, refinancing agreements, extrajudicial payment agreements, and the communication to the Court of negotiations aimed at obtaining said measures (Article 5 bis of the Insolvency Act).

The new text is the following:

Article 348 bis.. Right of separation in case of lack of distribution of dividends.
 
1. Except as otherwise provided in the bylaws, after the fifth fiscal year as of the date of registration in the Company’s Commercial Registry, the member who had recorded in the minutes his / her protest due to the insufficiency of the dividends recognized shall have the right of separation in the case that the general meeting does not agree on the distribution as a dividend of at least twenty-five percent of the profits obtained during the previous fiscal year that are legally distributable provided that benefits have been obtained during the previous three years. However, even when the above circumstance occurs, the right of separation will not arise if the total of the dividends distributed during the last five years equals, at least, twenty-five percent of the legally distributable benefits registered in said period.
The provisions of the preceding paragraph shall be understood without prejudice to the exercise of the actions to challenge corporate resolutions and liability that may correspond.
2. For the suppression or modification of the cause of separation referred to in the previous section, the consent of all the partners will be necessary, unless the right to be separated from the company is recognized to the member who has not voted in favor of such agreement.
3. The period for the exercise of the right of separation shall be one month from the date on which the ordinary general meeting of shareholders was held.
4. When the company is obliged to draw up consolidated accounts, the same right of separation must be granted to the partner of the parent, although the requirement established in the first paragraph of this article is not given, if the general meeting of the mentioned company does not agree the distribution as a dividend of at least twenty-five percent of the consolidated positive results attributed to the parent company of the previous year, provided that they are legally distributable and, in addition, consolidated positive results attributed to the parent company during the previous three years have been obtained .
5. The provisions of this article shall not apply in the following cases:
a) In the case of listed companies or companies whose shares are admitted to trading in a multilateral trading system.
b) When the company is in competition.
c) When, under the insolvency law, the company has informed the competent court for the declaration of its insolvency the initiation of negotiations to reach a refinancing agreement or to obtain accessions to an advance proposal for an agreement, or when has informed the court of the opening of negotiations to reach an out-of-court settlement of payments.
d) When the company has reached a refinancing agreement that satisfies the conditions of irrescindibility established in the bankruptcy legislation.
e) In the case of Sports Public Limited Companies.

Organic Act 3/2018, of December 5, on the Protection of Personal Data and Guarantee of Digital Rights

B.O.E. No. 294 dated December 6 publishes the Organic Act 3/2018, of December 5, on the Protection of Personal Data and Guarantee of Digital Rights, which develops, among other constitutional precepts, article 18.4 of the Spanish Constitution, thus limiting the use of information technology to guarantee the honor and personal and family privacy of citizens, as well as the full exercise of their rights. The new Act harmonizes the legal regime in the matter with the provisions of Regulation (EU) 2016/679, and repeals Organic Law 15/1999, of December 13, on the Protection of Personal Data, however, in accordance with the fourteenth additional provision, the regulations on exceptions and limitations in the exercise of rights that had entered into force prior to the date of application of the European regulation and in particular articles 23 and 24 of Organic Law 15/1999 , will remain in force as long as it is not expressly modified, replaced or repealed The text consists of ninety-seven articles structured in ten titles, twenty-two additional provisions, six transitory provisions, a repealing provision and sixteen final provisions, and will come into force daily following its publication in the Official State Gazette.

Supreme Court Judgment 1505/2018

As the reader will not have gone unnoticed, on October 18, 2018, Judgment 1505/2018 of the 3rd Chamber of the Supreme Court, dated October 16, was published, declaring – with two particular votes, one concurrent and the other dissident – that the taxpayer of the Stamp Duty Tax must be the lender, and not the borrower, mainly because the greatest interest in the mortgage guarantee is registered in the corresponding property registry (constitutive requirement) lies precisely on the financing bank entity. Although on the same date, the spokesman of CECA (Spanish Confederation of Savings Banks) argued that the issue was of a tax nature, and not civil-patrimonial, so the claims of the mortgage debtors should be made directly to the regional haciendas – what seems to us legally dubious. However, one day later, the president of the 3rd Chamber announced his intention to convene a plenary session that decides the following (by order) pending appeal on the same matter, in order to confirm or modify this jurisprudential line. In any case, Sentence 1505/2018 would be definitive and binding, and only an ordinary remedy of amparo before the Constitutional Court would be against it, of uncertain prognosis, since the right to legal security is contained in Article 9 of the Constitution, and it does not result in a right or freedom from those included in articles 14 to 29.

From the time being, the Buyer should pay the Stamp Duty of the Mortgage

The Judgment of February 28, 2018 of the Supreme Court (TS) resolves the discussion on the taxpayer of the Tax on Documented Legal Acts (Stamp Duty) on the mortgage in the sense that he is the buyer, and not the bank in favor of whom the mortgage is constituted.

The note published on the website of CGPJ states that:

In the specific cases subject to prosecution, the Supreme Court was already discussing only what was related to the payment of property transfer tax and documented legal acts. The court has estimated in part the appeals filed by the affected consumers and has established that on this tax several situations must be distinguished:

a) For the constitution of the loan, the payment is the responsibility of the borrower. In this regard, it refers to the constant jurisprudence of the Third Chamber, the Contentious-Administrative, of the Supreme Court, which has established that the taxpayer is the borrower.

b) By the stamp of the notarial documents, the corresponding tax to the matrix will be paid in equal parts between the lender and the borrower, and the corresponding one to the copies, by the one who requests them “.

For this reason, it must be inferred that the notarial expenses corresponding to the public deed of mortgage and the registration of the same in the Property Registry, as well as those for processing by administration of this registration, if any, correspond to the bank.

Anyway, this ruling is appealable to the CJEU, among other reasons for not respecting the principle of normative hierarchy in the conflict between the regulatory standard (Article 68 RITPAJD) and the legal standard (29 TRITPAJD).

Royal Decree-Law 18/2017, of November 24, on non-financial information and diversity.

BOE nº287 dated November 25, 2017 publishes Royal Decree-law 18/2017, of November 24, which modifies the Commercial Code, the revised text of the Capital Companies Act approved by Royal Decree Legislative 1/2010, of July 2, and Law 22/2015, of July 20, on Audit of Accounts, regarding non-financial information and diversity.

By virtue of the amendment introduced, the affected texts require the inclusion in the management report of public limited companies, limited liability companies and limited partnerships for actions that, simultaneously, have the status of “public interest” entities whose number average of workers employed during the year exceeds 500 and, additionally, are considered large companies, in the terms defined by Directive 2013/34, of non-financial information of a social and environmental nature.

The inclusion of such information in the management report will affect the “public interest” entities defined in Article 15 of the Auditing Regulations, which include banks, insurance companies, listed companies, investment fund managers and pension funds., as well as, in general, all the large companies.

Royal Decree-Law 15/2017, of 6 October, on urgent measures in of economic operators within the national territory.

This Royal Decree-Law amends, as a matter of urgency, Article 285.2 of Law 1/2000 of Capital Companies, conferring the following wording:

“2. By exception to what is established in the previous section, the administrative body shall be competent to change the registered office within the national territory, unless otherwise provided by the statutes. It shall be considered that there is a contrary provision of the statutes only when they expressly establish that the administrative body does not have this competence.”

The single transitional provision of the Royal Decree-Law – used to provide an authentic interpretation, rather than regulating a transitional regime – states that it will only be understood that there is a contrary provision when such provision has been introduced in the statutes after entry in force of the Royal Decree-law.

Act 48/2015 on State General Budget for 2016

In the area of ​​taxation the Budget Law incorporates various measures.

1. Income Tax for Individuals

In the Income Tax of Individuals maximum deduction allowable limit rises premiums paid to health insurance for purposes of calculating the net return of economic activity in direct estimate and the amount of work remuneration in kind exempt derived from premiums paid by the employer to the employee health insurance, where the person subject to such coverage a person with disabilities.

In addition, on a transitional basis for the years 2016 and 2017, with respect to the initially foreseen for those years is increased, the amount of certain magnitudes which involves overcoming the exclusion of the objective assessment scheme. In particular, they rise to the exercises
2016 and 2017 the limits concerning the gross income obtained in all economic activities and purchase volume.

2. Corporate Income Tax

In the income tax amendment introduced into the method of calculating the tax incentive of reduced income from certain intangible assets, the so-called international “patent box” in order to adapt it to the agreements adopted within EU and OECD.

Moreover, the Corporation Tax Act provides for conversion of certain deferred tax assets in callable receivables from the tax authorities when certain conditions occur. New conditions are now expected to deferred tax assets generated from the entry into force of this Act to acquire the right to conversion. Also, deferred tax assets generated prior to not meet the new conditions will retain the right to conversion, although this will have to pay a financial nature.

3. Wealth Tax

In the Wealth Tax proceeds to extend for
2016 the demand for their assessment, in order to help maintain the consolidation of public finances.

4. Value Added Tax

In the Value Added Tax technical modifications are made to certain exemptions for better adaptation of domestic regulation to Community legislation.

In addition, consistent with the aforementioned transitional regime concerning the limits to the application of objective assessment method in the Income Tax of Individuals in the years 2016 y2017, a transitional regime concerning the limits that determine the exclusion is incorporated the special schemes in the value added tax linked to the above method.

5. Transfer Tax and Stamp Duty

In the transfer tax and stamp duty levied scale transmission and rehabilitation of greatness and nobility titles 1 percent is updated.

6. Excise

In the field of Excise a technical adjustment is incorporated in the exemption for certain installations in the Special Tax on electricity.

In the tax on fluorinated greenhouse gases, as, at present, a considerable number of fluorinated gases subject to the tax has no substitute as efficient and less harmful to the atmosphere, it is considered appropriate to extend for the year 2016 reduction of tax rates applicable in 2015.

7. Fees

As regards rates, given the existing price stability, types of lump sum rates of the State Treasury are maintained, and the types and fixed amounts established for rates levied games chance, betting or gambling in the amounts due for 2015.

The fees payable by the Central Traffic will be adjusted to multiple
10 cent euro immediately above, except when the amount is adjusted multiple of 10 cents.

It remains generally quantify the parameters required to determine the amount of the tax for reserving the public radio. Bonuses applicable in the ports of general interest to occupancy rates, the ship, passengers and merchandise are set, and the correction coefficients applying rates of ship, passengers and merchandise, according to the provisions of the revised text of the Law on State Ports and Merchant Marine, approved by Royal Legislative Decree 2/2011 of 5 September.

2016 also kept the basic amounts of the port fees in the amounts due in 2015.

Finally, the amounts of public property contributions are deducted
airport.

8. Cadastral

In land registry, the revalued upward or downward adjustment to the real estate market is directly linked to the municipal level, with the date of approval of the appropriate paper stock. To this end and in the light of studies conducted for the purpose, different coefficients are set based on the year of entry into force of cadastral values ​​resulting from a process of collective valuation, to be applied to those municipalities that have demonstrated compliance with the legal requirements and are included in the order referred to in that provision.

Act 40/2015, of 1 October, on the Legal Regime of the Public Sector

This new Act covers on the one hand, the basic legislation on administrative legal regime applicable to all Public administrations; and secondly, the specific legal regime of the General State Administration, which includes both so-called institutional management, and peripherical State Administration. This Act also contains the systematic regulation of internal relations between administrations, establishing the general principles of conduct and techniques of relationship between different public subjects.

Act 39/2015, of October 1, on Common Administrative Procedure of Public Administration.

This new law replaces the veteran Law 30/1992, known to all legal operators. According to the constitutional framework, this Act regulates the rights and minimum guarantees that apply to all citizens regarding the administrative activity, both in its exercise of the right to self governance, and the regulatory authority and legislative initiative. Special emphasis is made on the regulation of electronic file processing. The Act is divided into 133 articles, divided into seven titles, five additional provisions, five transitory provisions, one derogatory provision and seven final provisions.

Act 29/2015, of July 30th, on international legal cooperation in civil matters

This Act covers the legislative reference made in Article 177 of the Civil Procedure Act and applies in civil and commercial matters whatever the nature of the court, including civil liability offense and employment contracts. It is based on a general principle favorable to the extensive development of international legal cooperation, even in the absence of reciprocity, but with the possibility its denial  when there is a lasting refusal of cooperation. The Spanish Ministry of Justice is designated as central authority.

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