The new regulation of structural modifications (RDL 5/2023)

BOE Nº154 of 29 June 2023 publishes Royal Decree Law 5/2023 (RDL), which deals with a series of heterogeneous matters, including structural modifications of commercial companies. The sole repealing provision of the RDL repeals Law 3/2009, and replaces the regulation of this matter with the precepts contained in Book I of the RDL, transposing Directive (EU) 2019/2121 into Spanish law.

Book I of the RDL is structured in four titles:

Title I refers to the generic limitations and exclusions applicable to structural modifications; the common provisions applicable to them (the drafting of the structural modification project, the reports of the management body and independent experts, the preparatory publicity of the agreement, the approval of the planned operation, the unanimous agreement on the structural modification, the publication and challenge of the agreement, the protection of shareholders and creditors and the effectiveness of the registration and validity of the registered operation); the specific provisions applicable to each type of structural modification (transformation, merger, spin-off and global assignment of assets and liabilities.

Title II deals with the specific regulation of each structural modification. It should be noted that the “international transfer of domicile” is now called “cross-border transformation”; and that, in the case of spin-offs, the liability regime is modified in the sense that, for the debts of the company being spun off, the companies benefiting from the spin-off will be jointly and severally liable, limiting the liability of the spun-off company to the net assets remaining therein; a modification made with the aim of avoiding the high rate of insolvency of the spun-off companies.

Title III deals with intra-European cross-border structural modifications and Title IV with extra-European structural modifications.

Book I of the RDL will enter into force on 29 July 2023, and will apply to structural modifications whose drafts have not yet been approved by the companies involved.

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