- The board of directors shall be competent to decide the change of registered office, unless the Bylaws say otherwise
- For the current Statutes, a modification will be required that expressly states that the council is not competent
The Council of Ministers has approved a Royal Decree Law (RDL) of urgent measures on 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 the companies that so decide. The procedures are facilitated so that unless there is an express declaration to the contrary by the Company Bylaws, the Board of Directors will have the authority 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 rule of the year 2010 it was established that any modification of the bylaws would be the responsibility of the general meeting and that, unless otherwise provided by the same Bylaws, the administrative body would be competent to change the registered office within the municipality. In a subsequent rule, of May 2015, the scope of application was extended to the entire national territory and it was established that “… unless otherwise provided in the bylaws, the administrative body shall be competent to change the registered office within the national territory” .
The decision of the Council of Ministers today specifies that the “contrary provision” will exist only when the Statutes “expressly provide that the administrative body does not hold this competence”. That is, an express mention of the company bylaws will be required so that the board of directors is not competent to decide the transfer of the company's headquarters. The RDL also contains a transitory provision to refer to the transfers of domiciles of companies whose Statutes had been approved before this reform. In this case, it will be understood that there is a “provision contrary” to the Statutes when “after the entry into force of this RDL a statutory modification has been approved that expressly declares that the administrative body does not have 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 impede the freedom of establishment of economic operators, both precepts contained in the Constitution . It also responds to the demand of large business sectors in the face of difficulties arising for the normal development of its activity in a part of the national territory.
