Special Rule to the Legal Structure of Foreign Investment in Spain
- If it is to do with negotiable securities then there is an obligation for companies of investment services or credit entities according to Law 24/1988 of the Securities market to declare the deposit or administration of securities.
- In circumstances where it is to do with non-negotiable securities but where the parties have deposited or registered such securities voluntarily, the obligation of declaration of investment will run alongside the depositary entity or the administrator. In this case the date of the investment will be noted, the date of the deposit or register except in cases of intervention.
- In cases of shares holding a persons name, the subject obliged to declare will be the Spanish company invested in, once there is an awareness of the transmission of the corresponding inscription in the register book (in conformity with article 56 of the Law of Companies). In this case the date of the inscription will be the date the shareholders are registered in the register book.
- In the case of an investment through a subscription to participations towards an investment fund inscribed in the CNMV, this will be declared by the company who is soliciting the investment fund.
- The declaration should be carried out, in conformity with that exposed in the OM of the 28-5-2001, through the normalized printed forms approved by the resolution of the 21st of February of 2002 of the general board of commerce and investments, which came into force last May 1st of 2002, through which the printed declaration of foreign investment forms when the obliged to declare is the investor or the company with foreign participation is approved & which substitutes y abolishes the resolution of May 30th of 2001 dictated by the general board.
The forms which are stated below are the ones exposed in the stated Resolution of the 21st of February, together with the corresponding instructions for their completion, these are the following:
Model A1 Foreign Investment declaration of transferable securities. Monthly or annual summary.
Model A2 Foreign Investment declaration of transferable securities. Monthly operations or annual deposits.
Model DP1 Preliminary declaration of foreign investment preceding from tax havens in limited liability companies, branches or other forms of investment.
Model DP2 Preliminary declaration of foreign investment preceding from tax havens in immovable assets.
Model D-1A: Declaration of foreign investment in limited liability companies, branches or other forms of investments. A model type for every investment in relation to the same title holder, Spanish company or subject branch of the investment and type of operation. Will give place to a new declaration to the investment registry, those investments without or with monetary contribution.
Model D-1B: Declaration of total or partial liquidation of the foreign investment in limited-liability companies, braches and other types of investment. A model type for each liquidation exercise with reference to various declaration of investment documents in the same Spanish company.
Model D-2A: Foreign investment declaration of immovable assets.
Model D-2B: Liquidation declaration of foreign investment in immovable goods (Model D-2A)
Model D-4: Annual report as to the development of the foreign investment in Spanish company’s capital and branches.
The rectification of errors in the declared data through the cited models will be valid through the same models in function of the operation of investment that was declared and in conformity with the development of order norms.
Whichever type of modification in respect of the data that does not contain rectification of data and does not entail the obligation of a new declaration (for example modifications in percentages of foreign participation in operations that does not constitute foreign investment) should be communicated within the period of three months, from the place which the modification was made, and it should be recorded in writing and forwarded to the General Board of commerce and investment, and which will be accompanied by the corresponding supporting authorizing documents.
The printed declaration form for operations of investment in limited liability companies, branches and other forms of investment, which should be carried out with the model D-1A as stated above, before the registry of investment within the period of one month once the investment has been made, come in three specimens:
- The first one — for general board of commerce and investments
- The second one — for the obliged to declare/ or for the Spanish officer authorised to attest commercial documents
- The third one — for the title holder of the investment
Likewise in respect of the acquisition of the rights to subscribe, obligations convertible in stock and other analogous assets that give right to participation in the capital of Spanish companies whose declarations should be carried out in the period of one month from which the acquisition is carried out.
In the same conditions the effective acquisition of shares or equity participations derived from the exercise of the rights in the stated instruments. The said declaration will give place to liquidation through the reviewed model D-1B. In this sense, the regulation of the declaration of the total or partial liquidation of investment operations will be contained in article 18 of the OM of the 28th of May 2001.
The stated registry will duly give back models 2 and 3 to a Spanish officer authorised to attest commercial documents as proof of the corresponding registry and to the title holder of the investment or to the person designated for notification purposes, in the same application form as proof that the investment has been duly declared or liquidated (it is necessary a document for the moment of liquidation of the investment, although in cases of loss the registry will emit certification authorizing the investment).
Together with the application form which precedes the declaration of carrying out the investment, the non-resident title holder should contribute with general character, the following documentation (article 16.1 OM 28-5-2001).
- Authorizing supporting documents of his status of non resident
- Have complied with the requirements that the specific sectorial legislation demands (article 1.2 RD 664/1999)
- Appropriate authorization in suppositions of suspension of the liberalizing regime (Article 10, 11 and additional third disposition
- Authorizing document with previous authorized documentation
- Detailed report outlining the principle characteristics of investment carried out in terms of “other forms of investment”. This report should also accompany in these terms the liquidation declaration form, in which the title holder should have included the number/s of the form/s of the declaration which corresponds with the investment/s which are liquidated.
In the case of foreign investment preceding from tax haves, the preliminary declaration forms should be DP-1 & DP-2. These take two forms:
- Firstly, for the general board of commerce and investments
- Secondly for the title holder of the investment projected.
The preliminary declaration of foreign investment shall have validity for six months counting from its presentation, period in which if the investment is not produced effectively, a new declaration should be presented. In relation to declarations for the investment operations of immovable assets and fulfilment of the declaration form, it is established, independently of the preliminary declaration of the state operation, its declaration of the stated model D-2A which takes the form of three application forms, which correspond to those already seen with model D-1A, determining the second application form for the Spanish officer authorised to attest commercial documents. The period for submission is also of one year.
Finally in respect of the declaration & liquidation of investments of transferable securities, the resolution of the 31st of May of 2001, of the general board of commerce and investment, for the instructions of the presentation of the financial intermediaries of the investment declarations of negotiable securities which are traded in the Spanish stock market & of Spanish investment in transferable securities traded on foreign stock markets, developed the procedures of declaration by the OM 28-5-2001. In this sense and with relation to the foreign investments in Spain, the declarations should be presented before the sub direction of foreign investment, which will be carried out through the following forms:
Model A1: Preliminary declaration of foreign investment in negotiable securities: monthly or annual report. This should be accompanied with the magnetic bracket which contains the information of more than ten operations.
Model A1: Without activity: Declaration of inexistent monthly operations.
Model A2: Declaration of foreign investment in negotiable securities. Monthly operations or annual deposits.
With independence of the declaration, these are obliged to present the ANNUAL REPORTS relative to the development of the investment through the reviewed model D-4:
- The branches in Spain of non-resident companies, whatever be the quantity of the capital or funds.
- The Spanish companies who derive from a group of companies with conformity of that contained in the Real Decree 1815/1991, of the 20th of December, through norms of the formulation of consolidated annual accounts when the participation of non resident´s capital be equal or superior to 50 to 100 or when the participation of a non-resident investor’s capital be equal to 10 or 100.
- The Spanish societies whose capital or own funds are higher than 3.005.060,52 euros in the stated supposition in point 2, having in consideration that in the case of Spanish companies which trade on the stock market, only will be recorded the participation of non residents, where the effects of this are to reach a 50 or 100 percent, the participations of non resident investors that exceed individually 5 to 100 percent of its social capital.
Nevertheless such reports could be required by the general direction of commerce and investments, although the exposed requirements are not required, in situations where Spanish companies who have foreign participation in its capital (OM of the 28-5-2001). The period before the presentation to the General Board of Commerce & Investments of this form, which will be accompanied by a photocopy of the company’s tax statement or the annual accounts of the exercise corresponding to the data collected in the declaration, 9 months after the fiscal year. The stated form comes in two forms:
- For the general board of commerce & investment
- For the deponent company
The declaration of the foreign investment in Spain, just at those Spanish investments abroad and the presentation of annual reports, that are not realized in transferable securities, should be presented by the reviewed approved application form through the resolution of the 21st of February 2002. These forms are free and can be found on the webpage of the ministry of economy (norm/ resolution of the 21st of February of 2002) and can be acquired at the registry of the board of the ministry of economy and the regional direction of economy, with statistic & economic effects, o in whichever entity that is included in the royal decree 772/1999 of the 7th of May, article 2:
- Any administrative organ that belongs to the general administration of the state or related public organisations or dependent entities
- Mail offices
- Diplomatic representations or Spanish consulates abroad
- Any other entity that fulfils the current dispositions.
- Registries of the autonomous communities administration
- Registries of the entities of the local administration always that they have subscribed to the corresponding conventions
Those which refer to transferable securities, the forms are those seen before that are contained in the Resolution of the 31st of May of 2001, for the General Board of Commerce & Investments.
This article is not considered as legal advice