• It replaces the current Commercial Code that was promulgated in 1885
  • It revolves around the concept of the market, an area in which legal-private relations are established between the protagonists of the traffic of goods and services
  • It regulates institutions that did not have specific norms such as the company and businesses on the same or contractual modalities that are currently widespread
  • It compiles the numerous laws that have been enacted on the market for almost 130 years, such as some types of contracts and the accounting standards of entrepreneurs
  • Includes 1,726 articles divided into a preliminary title and seven books
  • It will contribute to increasing legal certainty by clearly delimiting commercial legislation that is the exclusive competence of the State to strengthen market unity.
  • The General Codification Commission has worked on the text since 2006

The Council of Ministers, at the proposal of the Minister of Justice, Alberto Ruiz-Gallardón, and the Minister of Economy, Luis de Guindos, approved today the Draft Law of the Commercial Code with which the Commercial Code that is in force since 1885 will be replaced. The text, in which the General Codification Commission has worked since 2006, is considered essential for effective market unity in the legal-private sphere through commercial legislation that the Constitution attributes to the State.

The promulgation of a Commercial Code that ends the dispersion in the matter was a historical claim of economic operators and will contribute to the recovery of economic activity by increasing legal certainty. This will be achieved through update of existing standards, the regulation of realities that did not have their own and the coordination of the entire regulatory set.

The Draft Law of the Commercial Code revolves around the concept of market, understood as the scope in which they are called by the so-called market operators (companies, entrepreneurs, professionals) legal-private relations, always respecting the rules of consumer protection, especially the consolidated text of the General Law for the Defense of Consumers and Users.

The Code regulates matters that lacked applicable regulations. It is the case of rules about the company and operations or business on it and representation. Also included are several articles on industrial property and different types of contracts, such as supply, mediation, construction, provision of commercial services, operations on intangible goods, provision of electronic services, banking and financing contracts.

For redact the 1,726 articles that the text approved today by the Council of Ministers is taken into account the experience accumulated by the different operators and the ordinances of the countries around us, as well as the work of UNCITRAL and UNIDROIT, given the importance of international trade.

The Commercial Code is structured in a preliminary title, in which the commercial matter is delimited, and seven books. The first delimits the legal regime of the company and the responsibility of the employer, as well as the Mercantile Registry. The following focuses on mercantile societies. The third regulates the law of competition and industrial property. That of obligations and commercial contracts in general It is the fourth and is complemented by the fifth, referred to the contracts in particular. The sixth is that of securities and payment and credit instruments and the seventh establishes a general prescription and expiration regime of commercial obligations.

Preliminary title, the delimitation of commercial matters

The market is conceived as the area where offers and demands for goods and services are crossed through legal-private relations which are subject to special regulation. The protagonists of that traffic are classified in goods producers and service providers -which are the market operators subject to the Code- and consumers.

From there the mercantile statute is configured as the set of rules that establish rights and obligations for entrepreneurs depending on the legal ownership of a company and the activity it performs for the market. It encompasses the rules on the legal-private regime of the company, responsibility and representation of its owner, commercial registry and accounting, as well as, as a whole, the law of commercial companies.

First book: of the entrepreneur and the company

The first book includes the regulation of the companies, the representation of the businessmen, the businesses on the companies and the Mercantile Registry.

The concept entrepreneur It is understood in a broad sense. It covers farmers and artisans, but people who engage in intellectual activities are also considered market operators: liberal, scientific and artistic, provided that their goods or services are destined for the market.. It includes all legal entities that carry out activities provided for in the Code (such as associations and foundations) and entities without legal personality.

Regulates the general capacity requirements of the entrepreneur for the exercise of his activity, in his own name or through his legal representatives. Non-emancipated minors and persons with disabilities may, through their legal representatives, continue the exercise of the activity of the company they receive by donation, inheritance or legacy, or who were exercising at the time of the event determining their disability.

It is also regulated the liability of the limited liability entrepreneur, which includes the exclusion of their habitual residence of the responsibility for carrying out economic activities, as provided in Law 14/2013, of September 27, on Support for Entrepreneurs and their Internationalization.

The commercial representation includes the helpers of the entrepreneur (employees) and the general and singular proxies, depending on whether their powers of attorney extend to all activities or only to certain acts of company traffic.

The company is an organization of diverse elements from which a new value results: goodwill. The real estate and facilities in which the entrepreneur performs his activity are defined as establishments, and distinguishes the principal (center of the developed operations) of the branches (endowed with permanent representation and management autonomy) and others secondary establishments or accessories.

One of the novelties included in the Commercial Code is given in the bankruptcy proceedings, at regulate the transmission of the company as a whole, and, unless otherwise agreed or lack of conformity of the counterparty, will include the assignment of contracts concluded in the exercise of business activity, the assignment of credits generated in that year and the assumption by the acquirer of the debts resulting from the accounting and business documentation, of which the transferor will respond jointly and severally.

The regulation of Commercial register incorporates the technological means, such as the central electronic platform, which will allow public access to consultations, and electronic support for the individual sheet in the carry system, proof of the registrable document or the issuance of certifications or informative notes.

Book two: of mercantile societies

The second book of the Draft Law of the Commercial Code regulate the general provisions applicable to all mercantile companies, to differentiate the two broad categories of companies, those of persons and those of capital. In each of them, there are common and special provisions of a specific type, such as limited partnerships, those of individuals, and limited and limited companies, capital. These also incorporate the rules relating to the European public limited company domiciled in Spain, the issuance of obligations and the limited partnership for shares.

Together with this basic systematic framework, a set of subjects are ordered, such as the annual accounts, the modification of the statutes, the structural modifications, the separation and exclusion of partners. The dissolution, liquidation and extinction of mercantile companies, listed companies and business unions are also regulated.

Among the general provisions are the establishment of the principle of equal treatment of partners under identical conditions, the regulation of the corporate website or the electronic domain of the company. Special care has been taken in the regulation of the modes of adoption of social agreements (including their challenge as a minority right) and the administration of society. On this last issue, the basic rules on the ability to be an administrator, organic competence and power of representation have been incorporated.

In order to regulate capital companies, the order of preference in the practical use of corporate capital types has been invested in favor of the limited company. In addition, many of the regulatory standards will apply interchangeably to both the limited company and the limited company.

The intention is to greater correspondence between the capital of the company and the chosen corporate structure. Therefore, for the limited company, the minimum share capital figure remains at 3,000 euros, while in the limited company it has doubled, 120,000 euros.

The new techniques of telematic and simplified constitution are deepened, and incorporates the special assumption of the limited company with capital below the legal minimum, recently regulated in our law by the law of support to entrepreneurs.

In order to solve the difficulties to proceed to the extinction of the liquidated company in case of lack of assets, a more agile procedure has been arranged that allows (still in the corporate sphere -not bankrupt and, therefore, with lower costs-), to verify if there are possibilities of capital reintegration or coverage of the deficit that justify a declaration of insolvency or if, on the contrary, it should proceed to the extinction and cancellation of the company registration.

Differentiated treatment of listed companies is maintained established in the consolidated text of the Capital Companies Act of 2010 with the proposals made by the Committee of Experts on Corporate Governance. That is, it concentrates the norms that correspond to company law and addresses such significant issues as the prohibition of voting limitations, the right to know the identity of the shareholders, the information prior to the general meeting, the right to submit new proposals for agreement and specialties in the field of information law. Part of these forecasts are of general application to capital companies.

The coordination with the rules of good governance approved by the Council of Ministers a few weeks ago has resulted, among other provisions, in giving a boost to the principle of balanced presence between women and men in the boards of directors of listed companies.

It also deals with the associations and forums of shareholders, the rules of the public request for representation, the conflict of interests, the types of directors, the requirements for the accumulation of positions and their duration, the qualification of the independent director, the internal commissions of the board, the specialties in the matter of remuneration or the special instruments of corporate information.

The regime of business unions, economic interest groups and temporary business unions acquires regulatory relevance in this preliminary draft. The concept of group of companies is based on the control criterion. That is, by subordination or hierarchical structure, with dominant society and dependent or dominated societies. However, there is no need for coordination groups in which two or more independent companies operate under a single direction.

Third book: on competition law and industrial property

The draft includes the regulation of competition in the market, including for the first time certain rules governing business activity in the market –Coordinated with Law 15/2007, of July 3, on the Defense of Competition, to which they refer-, and rules of conduct aimed at businessmen and professionals, but also at any entity that, like the Administration, participates in the market. It also incorporates the rules on actions and on some aspects of the civil procedure that are now contained in Law 3/1991, of January 10, on Unfair Competition.

On the other hand, it is worth noting the incorporation into the draft bill approved today of industrial property standards, as an indispensable instrument for the operation of the market economy based on the principle of free competition.

Book four: of obligations and commercial contracts in general

The need to modernize this sector of commercial activity has led the draft to establish general rules that must be applied to commercial obligations and contracts. As a general rule they have a operative efficiency and will only be imperative in cases where it is expressly provided. They are inspired by the United Nations Convention on Contracts for the Sale of Goods of April 11, 1980, the Principles on International Commercial Contracts for the Unification of Private Law (UNIDROIT) and the work of the Landó Commission on Law European contracts.

These provisions regulate the different phases of the life of the contract, from the pre-contractual phase (not contemplated in our current positive law) until the termination and breach of the contract, through perfection, modification, interpretation and compliance thereof.

Of special interest is the regulation of electronic contracting, which enshrines the principles of functional equivalence, technological neutrality, freedom of pact and good faith. It is also regulated public auction contracting and contracting through automatic machines, as special forms of contracting to which they resort with certain frequency in certain sectors of economic traffic.

As important legal aspects of modern contracting, the Commercial Code also includes the provisions referred to the General Conditions of Contract and the Confidentiality and Exclusive Clauses.

Book five: of commercial contracts in particular

This book includes a large number of commercial contracts that are usually held in economic traffic to boost legal certainty through the establishment of a previously known legal regime. However, some are regulated for the first time at the legislative level, as the financial or the provision of computer services.

In addition, the possibility of considering as commercial, under the principle of freedom of pacts, other contractual types that occur in the market is maintained. To these atypical contracts the rules on commercial obligations and contracts in general provided for in the fourth Book of the draft will apply.

Book six: of securities and payment and credit instruments

Book Six incorporates the regulation of securities and payment and credit instruments as a general legal category. It makes a generalization of the rules contained in the Exchange and Check Law, while taking into account the progressive replacement of paper support with computer support, a circumstance that affects essential aspects such as the legitimacy for the possession of the document or the transmission of the right noted.

The text responds to a unitary concept of the securities in attention to the economic function they fulfill, which is to facilitate and protect the circulation of the right or documented rights. In view of the way in which the securities are circulated, the classic distinction between bearer titles, order titles and nominative titles is followed.

The modernization that is operated in the legal regime of the check, the promissory note and the bill of exchange, is also incorporated into the invoice accepted. Simplification of this regime is carried out by deleting the copies of the bills of exchange and eliminating the intervention figure. And, without prejudice to specialties, there is a single legal regime for the issuance, transmission, guarantee, payment and non-payment of these securities.

For its part, the regime of securities It is carried out on the basis of two elements: on the one hand, a formal element, the serial issue and, on the other, the destination of the movable value to attract the investment under an issuance business.

Also includes this book. for the first time the regulation of cards, whether payment or short-term credit. Emphasis is placed on the obligations of the card issuer in order to establish the guarantees required by the fact that many times one of the contracting parties is not a professional.

Seventh book: the prescription and the expiration of commercial obligations

Finally, the seventh book includes the rules on prescription and expiration whose regulation has taken into account the most modern positions of both national regulations and international traffic.

So it refers to the prescription, a general regime has been established, applicable unless there is express provision to the contrary, which provides for a single limitation period reduced to four years. In order to compute the deadlines, the special assumptions of the periodic and accessory benefits will be taken into account.

Special importance It has the regulation that is made of the suspension of the prescription, its cause and its effects, as well as the novelties introduced in its interruption. Unlike what happens in the law still in force, I know recognizes the interruption of the prescription by extrajudicial requirement only once to avoid that a credit with indefinite duration can be maintained, by means of successive extrajudicial requirements. The effects of the interruption and its application to joint and several co-debtors and co-debtors of an indivisible debt are also determined.

It is also the first time that expiration is generally regulated in its fundamental aspects: effects, validity or nullity of the agreements on it and determination of when its application is ex officio.

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