Administrative simplification in the area of company incorporation

Transposition of the Services Directive (2009)

An important milestone possibly significantly affecting processes for the creation of companies is the transposition of Directive 2006/123/CE from the European Parliament and the Council, dated December 12th, 2006, relating to services in the single market (Services Directive).

In order to carry out a correct transposition of the Directive, Spain opted to draw up a “horizontal” transposition act promoting the extensive application of the general principles in the Directive with few restrictions (Law 17 dated November 23rd, 2009, on free access to service activities and their exercise). The process of transposition has affected a considerable number of rules that need to be amended in accordance with the provisions of the Directive and the umbrella act. This process has first led to the amendment of several laws through Law 25 dated December 22nd, 2009, for the adaptation of various items of legislation to conform to Law 17 dated November 23rd, 2009, on free access to service activities and their exercise.

This Act introduces amendments to several laws to facilitate and improve applications for permits and licences in the company creation process. The following amendments are worthy of note:

• The Local Regime (Regulation of Bases) Act (Law 7 dated April 2nd, 1985). Article 70 bis introduces the possibility for service providers to be able to carry out the steps relating to a service activity through a single contact point, remotely and electronically, unless it is necessary to carry out an inspection of the site or equipment to be used for the provision of the service. The Act also establishes the information obligations marked by the Services Directive.
  Article 84 of the same Act introduces the possibility for Local Corporations to use it for prior notifications or affidavits. As for the prior licences referring to access to and exercise of service activities, regard will be had for the Act’s stipulations on free access to service activities and their exercise¹.
• Public Administrations (Legal Regime) and Common Administrative Procedure Act (Law 30 dated November 26th, 1992). Two articles are added (39 bis and 71 bis) and article 43 is redrafted.
  Article 39 bis indicates that, when the Public Administrations establish measures limiting the exercise of rights or requiring the fulfilment of requirements for engaging in an activity, they must choose the least restrictive measure, explain the need for the protection of public interest and justify its adaptation to achieve the goals pursued, with the sempiternal presence of the principle of no-discrimination in treatment.
  The new drafting of article 43 generalizes the principle of positive administrative silence and the new article 71 bis regulates prior notification and affidavits².

1   Article 6 (Authorization procedures) of the Act on free access to service activities and their exercise indicates that “The procedures and steps for obtaining the authorizations referred to in this Act must be duly regulated, clear and unambiguous, objective and impartial, transparent, proportional to the goal of general interest and must be published in advance. In any case, the provisions contained in the Public Administrations (Legal Regime) and Common Administrative Procedure Act (Law 30 dated November 26th, 1992) must be respected, as well as ensuring general application of the principle of positive administrative silence and that the circumstances in which administrative silence is deemed negative constitute valid exceptions foreseen in a legislative instrument with the rank of an Act of Parliament warranted by imperious reasons of general interest.”

2   Article 7 of the Act on the free access to service activities and their exercise stipulates that the giving of formal notification or an affidavit or the granting of an authorization will allow applicants to access a service activity and exercise it indefinitely (with a series of exceptions).