Mergers are a strategic corporate transaction aimed at consolidating assets, simplifying structures, and generating legal and economic efficiencies. These goals become especially valuable in times of market uncertainty and adjustment.
Restrictive interpretation by commercial registries
Royal Decree-Law 5/2023 (RD 5/2023) introduced significant amendments compared to the repealed Structural Modifications Act, which commercial registries have tended to interpret restrictively in the context of mergers.
The DGSJFP’s position: flexibility and efficiency
By contrast, the Directorate-General for Legal Security and Public Faith (Spanish governing body for Notaries and Commercial Registries – DGSJFP) has adopted a more flexible approach, aligned with the objectives of the European directives transposed by RD 5/2023.
In its Resolution of 16 December 2024, the DGSJFP overturned a decision by a registrar in Seville who had refused to register the merger of an absorbing company with a wholly-owned subsidiary.
The registrar had required proof that employees had received the directors’ report (as set out in Article 9.2 of RD 5/2023). Although Article 53 exempts directors from preparing and making the report available, registries had interpreted this exemption as applying only to the directors’ report for the shareholders.
The DGSJFP has now clarified that, in the case of an intragroup merger where the absorbed company has no employees, this procedure is not required, since the regulation itself exempts both the directors’ report for the shareholders and for the employees.
Intragroup mergers: open questions
This resolution should, however, be approached with some caution: in this particular case, the absorbed company had no employees. Doubts remain as to whether the exemption will still apply in intragroup mergers where the absorbed company has staff.
Tax and Social Security certificates: key clarifications
Another relevant point introduced by RD 5/2023 is the obligation for companies involved in a merger to prove that they are up to date with their tax and Social Security obligations.
Initially, doubts arose as to whether certificates were required at all three levels—state, regional, and local.
The DGSJFP Resolution of April 2, 2025, resolved this issue by overturning a registrar’s refusal in Madrid to register a merger. The Directorate-General clarified that Article 40 of RD 5/2023 refers exclusively to state-level tax obligations, thereby avoiding the disproportionate burden of obtaining regional and local certificates.
Conclusion: a trend toward simplification
The recent resolutions of the DGSJFP establish a clear direction to facilitate mergers in Spain, removing unnecessary formalities and focusing control on what truly matters. This development aligns with the broader objective of EU legislation: to promote flexibility and streamline structural modifications.
Frequently Asked Questions
RD 5/2023 updates the framework for structural modifications, introducing greater flexibility and aligning Spanish law with European directives.
The DGSJFP has relaxed the requirements, exempting the directors’ report for employees when the absorbed company has no employees.
No. The DGSJFP has clarified that only state-level tax compliance must be demonstrated, as provided for in Article 40 of RD 5/2023.
Recent rulings confirm a trend toward simplification and the reduction of administrative burdens in merger operations.
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