Data Protection

Users’ right not to receive unsolicited commercial calls

The Spanish Data Protection Agency (AEPD) has issued a circular clarifying some parts of the content of the General Telecommunications Law. First of all, the law, in accordance with the protection of personal data and privacy, prohibits commercial communications that have not been authorised by the user, generating great controversy as companies have continued to send commercial communications. The AEPD has stated that this law has a period of one year to enter into force from the time it is published in the Official State Journal.

This new regulation implies a substantial change with respect to the legal regime applicable under the derogated General Telecommunications Law, article 48.1.b. of which recognised the right of end users “to oppose receiving unwanted calls for commercial communication purposes that are made by means of systems other than those established in the previous letter and to be informed of this right”, giving priority to the right of end users not to receive such calls and the consequent obligation of those responsible not to make them, unless they can prove the existence of any of the exceptions contemplated in the law.

Real Estate

Law 12/2023 of 24 May on the right to housing

The new Housing Law in Spain establishes significant changes in the real estate sector, such as the obligation of the landlord to pay brokerage fees, the creation of a database of rental contracts, and the possibility of declaring “stressed residential market areas”. It also introduces tax incentives for landlords who rent out their properties and establishes penalties for unoccupied properties.

Definition of large tenant
A definition of large tenant is established, and it is considered as such a person (natural or legal) owner of more than ten urban properties for residential use or owner of a built surface area of more than 1,500 m2 for residential use. This excludes garages and storage rooms. The definition may be modified by the Autonomous Region and replaced by “owner of more than five properties”, when so motivated by the competent administration.

Database of rental contracts
A database of housing rental contracts will be created. This register will be formed with information from bond registers, property registers and other sources of information at state, regional or local level, which will allow the administration to have even more information on rentals and payments.

Limits on rent
The competent administrations will be able to declare housing “stressed residential market areas”, those areas where there is a particular risk of insufficient housing supply. The duration of this declaration will be 3 years and may be extended annually. The declaration of a “stressed residential market area” will require the preparation of a justification report, indicating that one of the following circumstances exists: (i) the average mortgage or rent burden in the family unit plus supplies of the households in that area, exceeds 30% of incomings, (ii) the purchase or rental price of housing in the area has experienced in the last 5 years a percentage of growth of at least 3% more than the CPI (Consumer Price Index) of the autonomous region.

A penalty for owners of empty properties
The different administrations, by cross-referencing their data, will be able to check the use and destination of properties throughout their territorial scope. This collection of information is specially aimed at analyzing unoccupied properties. Local councils may impose a penalty of up to 50% of the IBI (Property tax) quota on residential properties that are permanently unoccupied. Properties will be considered permanently unoccupied if they remain unoccupied, continuously and without justified cause, for a period of more than two years, and belong to owners of, four or more properties destinated for residential use, in addition to any other additional requirements that may be included in the municipal by-laws. The penalty that local councils may impose may be up to 100% when the period of inoccupation exceeds three years. They may even increase this penalty by a further 50% in the case of properties belonging to owners of two or more residential properties that are unoccupied in the same town.

Income tax incentives
The following tax benefits are granted to property owners who may be included in any of these
situations:

• Deduction of 90% of the net rental income. This bonus applies to owners of properties in stressed areas who reduce the rental price by more than 5%.
• Deduction of 70% of the net rental income. This bonus applies to owners who meet the following conditions:
  o Housing located in a stressed residential market area, which is rented for the first time and the tenant is between 18 and 35 years of age.
  o The tenant must be a public administration or non-profit organization and the property is destinated for social renting with a monthly rent lower than that established in the rental subsidy program.
• Deduction of 60% of the net rental income. This applies when the home has been subject to renovation, and this has been completed in the two years prior to the conclusion of the contract.
• Deduction of 50% of the net rental income in other cases.

Business Law and M&A

Royal Decree-Law 5/2023

The “Royal Decree-Law 5/2023 of 28 June” sets out in its first book a completely new regime for structural modifications of commercial companies, both internal and cross-border, intra- and extraEuropean (i.e. outside the European Economic Area). This Royal Decree - Law not only complies with the transposition into Spanish law of the so-called Mobility Directive, but also repeals Law 3/2009 of 3 April and integrates the entire legal regime of structural modifications, both internal and cross-border, into a new regulation. The new regulation will enter into force one month after its publication in the Official State Journal, on July 29th, 2023, although a transitional regime is
established for operations in progress before its entry into force, so that Law 3/2009 will apply to structural modifications whose projects have been approved by the companies involved before July 29th, 2023.

The new law has a structure that differs significantly from the previous standard. For example, it
contains:

• Common provisions applicable to all structural modifications (whether internal or crossborder).
• Specific rules for each type of internal modification.
• General rules for cross-border structural changes for both intra-European and extraEuropean changes.

Main new developments:
Protection mechanisms:

With regards to the protection of creditors, one of the new features is the elimination of the traditional right of opposition. Instead, it is replaced by a system of appropriate safeguards. This new regime is based on the company's offer of guarantees in the draft, without making such an offer mandatory. Additionally, when an independent expert’s report is present, it allows for an independent expert to provide an opinion on the adequacy of any security offered. However, it is not mandatory for the expert to give such an opinion. Furthermore, a procedure is established for creditors to exercise their right to obtain adequate security.

The time limit for exercising this right is one month for internal transactions, and three months for cross-border transactions. The counting of this time limit starts from the publication of the draft terms, rather than from the publication of the merger resolution, as it was previously.
In mergers and split-offs, the possibility of opposing the merger based on discrepancies in the exchange ratio is eliminated. Instead, shareholders who do not vote in favor have the option to seek cash compensation through a court application. This change means that the previous article 38.II of Law 3/2009, which allowed for an expert to be involved in determining such compensation when specified in the bylaws or the resolution of the shareholders’ meeting, is no longer applicable.

The new regulation consolidates various scenarios that previously granted the right of separation or similar mechanisms. It also includes the right for dissenting shareholders in such cases to sell their shares or holdings in exchange for appropriate compensation. If there is an independent expert’s report available, it must provide an opinion on the adequacy of the compensation.

It’s important to note that a disagreement with the offered compensation does not allow to contest the amendment itself. Instead, it enables the dissenting shareholder to request additional cash payment through legal means.
The employees, as is the case for creditors and shareholders, have granted the right to submit comments on the draft structural amendment, which must be taken into account by the board to submit comments on the draft structural amendment.

Main procedural developments
The general structure of the procedure is conserved, the documents required to carry out the operation are extended, with effects on the timing of the operations.

Project:

• All structural modification operations, including transformation, will need the preparation of a structural modification project.
• The project needs to be accompanied by certificates that verify the company’s compliance with its tax and Social Security obligations.
• The explicit mention is made regarding the board's ability to amend the structural modification project.

Preparatory Advertising:
Unless in the case of structural modifications adopted by unanimous universal meeting, moreover the project, an information notice must be published on the website or filed at the Commercial Trade Registry. This notice must be addressed to shareholders, creditors, and employee representatives (or employees if they do not exist) to inform them about the possibility of providing feedback to the company regarding the proposed operation. These observations can be submitted up to 5 business days prior to the general meeting.

Administrators’ report:
The report of the administrators will include two sections, one for the shareholders and another for the employees. These sections can be presented as a single report or separately, depending on the addressee. However, if the shareholders of the participating companies agree, their section of the report may not be issued. The employees’ section of the report will provide an explanation of the implications for labor relations, significant changes in employment terms and conditions, and any impact on the location of business premises, including how these changes affect the company’s subsidiaries.

Independent expert’s report:
Is a crucial component that should encompass the expert’s assessment of the suitability of the cash compensation provided to shareholders. Additionally, upon the directors’ request, the report may also include an evaluation of any guarantees offered to creditors.
As usual, is mandatory for all structural modification operations to ensure transparency and fairness.
However, specific exceptions may be applicable in certain circumstances, allowing for flexibility in the requirement.