- The board of directors will be competent to decide the change of registered office, unless the Statutes say otherwise
- For the current Bylaws, a modification will be required that expressly indicates that the council is not competent
The Council of Ministers has approved a Royal Decree Law (RDL) of urgent measures regarding the mobility of economic operators within the national territory. The rule clarifies who are the competent bodies to approve the change of registered office by companies that so decide. Procedures are facilitated so that unless there is an express statement to the contrary by the Company's Bylaws, the Board of Directors will be competent to approve it.
The RDL intends to give full effect to article 285 of the Consolidated Text of the Capital Companies Law by clarifying its content, in order to facilitate its application. In that 2010 norm, it was established that any modification of the statutes would be the competence of the general meeting and that, unless otherwise provided in the same Statutes, the administrative body would be competent to change the registered office within the municipal term. In a later regulation of May 2015, the scope of application was extended to the entire national territory and it was established that "… except as otherwise provided in the statutes, the administrative body shall be competent to change the registered office within the national territory" .
The decision of the Council of Ministers today makes explicit that the "contrary provision" will exist only when the Statutes "expressly provide that the administrative body does not have this competence." In other words, an express mention of the Company's Bylaws will be required so that the board of directors is not the competent body to decide on the transfer of the company's headquarters. The RDL also contains a transitory provision to refer to the transfers of addresses of companies whose Statutes had been approved before this reform. In this case, it will be understood that there is a “contrary provision” to the Statutes when “after the entry into force of this RDL, a statutory amendment has been approved that expressly declares that the administrative body does not possess the competence to change the registered office. "
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 as well as to respect the prohibition of adopting measures that hinder the freedom of establishment of economic operators, both precepts set forth in the Constitution. . It also responds to the demand of large business sectors in the face of difficulties arising for the normal development of their activity in a part of the national territory.