New Law on structural changes in corporations

3 July 2023

Royal Decree-Law 5/2023 transposes the Mobility Directive and significantly modifies the legal framework governing structural changes (modificaciones estructurales) in corporations:

  • repealing Law 3/2009 in its entirety;
  • bringing cross-border structural changes into line with the Mobility Directive; and
  • creating a new framework applicable to both domestic and cross-border structural changes, although using the regulation of cross-border transactions as the starting point.

The public consultation phase helped solve some of the problems with the preliminary draft law that were hindering the approval of simplified structural changes – which are actually the most common type.

In what concerns structural changes, the new law enters into force on 29 July 2023 and will apply to any draft terms (proyectos) that the affected companies have not approved prior to that date. Although it is not at all clear, this could reasonably be interpreted as also including draft terms that have been formulated but not yet approved by the general shareholders’ meeting. Otherwise, this would mean that – despite the one-month period before the law comes into effect – some structural changes that are already underway but not yet approved by the general shareholders’ meeting (e.g. experts have already been appointed) – would have to be adapted to the new framework, which would not be the most reasonable interpretation.

Below is an initial commentary on the new law.

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