In the Boletin Oficial del Estado (the BOE, or Official Reporter for the State) published on May 26 the Royal Decree-Law 19/2012, of May 25, on urgent measures to liberalize trade and certain services, which was put into effect on May 27. Among other objectives, the standard aims to reduce the administrative burdens that hinder or impede the retail market- specifically, the rule is aimed at small and medium-sized businesses and supplemental services- as well as an attempt to boost the sector, allowing for a more flexible system to open up an industry which involves the lowest common denominator for the entire state, all to help foster economic recovery in an environment of falling consumption in context of the current economic crisis.
In particular, the measures introduced in this statement consist essentially of removing all necessary measures of approval or a prior municipal license in regards to environmental protection, safety or public health related to commercial establishments or other establishments with a surface of 300 square meters, replacing the previous assessment with a subsequent check approved by a signed declaration or affidavit. This flexibility also extends to some jobs related to the refurbishment of these facilities, for whose implementation will require the submission of a signed declaration or advanced notice, as appropriate.
Who are the beneficiaries? What activities are affected?
The measures will apply to the retail businesses and the provision of certain services, specified in the Annex of the standard (promotional activities or rental real estate can be found in this section), established in permanent spaces located in any part of the country, and whose retail floor and sales area does not exceed 300 square meters. The Autonomous Communities has the oversight to expand the area or the services concerned. In the Annex, based on the national classification of economic activities, the scope of this rule extends to the following groups:
- In retail, it may include: grocery stores; warehouses; greengrocers; butchers; fruit; poultry; meats; fish; bakery; confectionary; ice cream; candy stores; wineries; vending machines; textile apparel; fur; herbal and beauty products; perfumes; drugstores; home furnishings; furniture; electronics; hardware stores; building materials and sanitation; DIY; automotive sales and accessories; optical; orthopedic; musical instruments; antiques; book stores; stationery; toys; jewelry; and plants
- In the small cottage industry, footwear, and textiles
- In service activities including: travel agencies; real estate development activities; repair and mending clothes; shoe repair; barber shops; beauty salons; beauty schools and photocopying and framing services. They exclude those activities in the aforementioned establishments that have an impact on the artistic heritage or is for the exclusive use and occupation of public property.
Assumptions for license unenforceability
For the initiation and development of commercial activities and previously-mentioned services, it may not be required by the government or public sector entities to enforce the prior procurement of a license for facilities, for the operation or other commercial activities, or other similar or analogous cases that are subject to previous authorization to exercise and develop commercial activities or even the possibility of opening the establishment concerned.
- Changes in the ownership of commercial and service activities are also not subject to a license. In such cases, the only requirement is prior notification to the competent authority which is solely for informational purposes.
- No license or authorization shall be required prior to the execution of construction relating to the refurbishment of premises of commercial businesses which do not require the preparation of a blue print in accordance with the Law on Building Ordinances. Some exceptions may include construction works which specifically conform to regulations in force, those works which continue to be regulated, those that require a prior licenses, general requirements and the ability for the conferment by the relevant regulations.
Affidavits or Advance Notices
Licenses are no longer enforceable, and have been replaced by affidavits, or by advance notices that, in the case of several businesses, may be processed together. In any case, the declarant must be in possession of the proof of payment of the corresponding tax where required. Affadavits or notices must contain an explicit statement of compliance of those requirements that are enforceable in accordance with current regulations, including being in possession of the proyect, signed by a competent technician, in the event that the construction must be completed as is required by the Law of Building Ordinances.
Subject to an Overarching System of Control
The submission of the affidavit or the advance notice will enable the impact of release, from that moment, for the carrying out of any commercial activity. However, this does not preempt the situation and the effective accommodation of the establishment conditions applicable by the regulations nor limit the carrying out of administrative activities of testing, inspection, sanctions, and, in general, control corresponding to the Administration. For implementating the verification of the requirements and circumstances referred to in the section about affidavits or advance notices, the local government may privately collaborate with legally-accredited entities, through which the totality or part of the verification may be carried out. In any case, interested parties, for the purpose of assessing the requirements expressed in the affidavits or advance notices, will be free to use (or not use) the services of such entities.
What about pending applications that were submitted prior to the adoption of this standard?
The rule provides for transitional arrangements for the proceedings initiated before the entry into force of this rule (May 27, 2012) whose purpose is to obtain licenses or authorizations that conformed with the previous legislation. The applicant may choose to continue processing this application under the current regulations at the time of submission or restart the process for an application which conforms to the new regulation.
This article is not considered as legal advice