Incorporation of a company

With the entry into force of Law 11/2023 (HERE you can consult it), at last, it is a reality the possibility of incorporating a company through a 100% telematic process, that is, without having to physically go to a Notary to formalize the deed of incorporation of our new company.

We will now see how to access this option and the steps to follow.

How can I start the process to incorporate a company in the Notarial Citizen Portal?

In order to start the process that will allow us to create a new capital company through an entirely online procedure, the first thing to take into account is that, for this to be possible, the founding partner (or partners, if there are several) must be registered in the Citizen's Notarial Portal (HERE), which is the web page created by the Spanish Notary's Office to implement all these telematic novelties of Law 11/2023.

To register, if you wish, HERE you can find an explanatory article in our blog, where we detail all the steps you have to follow. It is also necessary to point out that, in order to be able to carry out this whole process 100% online, we will need a qualified digital certificate that allows us to identify ourselves and digitally sign documents, as well as a computer with updated, with webcam, and that has the AutoSignature software(HERE you can download it). In any case, to know more details about these technical aspects, you can find them in the linked article.

What legal aspects should I take into account beforehand?

Undoubtedly, among the novelties that Law 11/2023 brings us, the possibility of incorporating companies through a 100% telematic process stands out to a great extent, as this is an initiative that can contribute greatly to the dynamization of the business and entrepreneurial fabric.

However, before we dive into this new process of online incorporation of a company, from a legal point of view, it is necessary to make some preliminary clarifications, since it must be taken into account that:

• For the time being, it will only be possible to incorporate limited liability companies (SL) through this fully online procedure, so that it is not possible to incorporate an SA online.
• Likewise, as a second major requirement, it will be necessary that the contributions of the partners be monetary (i.e. with money), , since in the case of non-monetary contributions, the law does not allow the use of the telematic procedure. 

Having said this, as regards the form of accreditation of this contribution of money, the member must take into account that the law establishes that the monetary contributions must be made by means of an electronic payment instrument widely available in the European Union, which must allow the identification of the person who made the payment, and which must also be provided by an electronic payment service provider or financial entity established in a Member State.

So, as we can see, the future entrepreneur who wants to establish a new company through this new 100% telematic procedure, must take into account that he/she can only resort to it in case he/she wants to establish an SL (an SA is not possible) and that, likewise, the contributions made by the partners to the capital stock of the new company must be made in the form of monetary contributions (that is, money; and not goods, such as machinery, computer equipment, vehicles, etc.).

What are the steps involved in the online incorporation process of an SL?

If you choose to incorporate an SL through this new 100% online modality, the main steps of the process, in a very summarized form, will be the following ones:

1. First of all, through the Citizen's Notary Portal, you must send your request to your trusted Notary. In it, as we will explain below, you will have to fill in a form with all the necessary data to create the new company (such as its name, the identity of the partners, the share capital contributed, the address, etc.).
2. Secondly, once the chosen Notary receives your request, he/she will proceed to draw up the deed of incorporation of the new SL based on the information you have provided, which you will be able to review in time to verify that everything is correct. In this phase of the process, even, if necessary, you will be able to maintain a previous videoconference with the Notary so that he can advise you on all the aspects that you need and doubts that you want to solve previously.
3. Finally, you will have to arrange, by mutual agreement with your Notary, a day and time that suits you to video-sign the deed of incorporation of the company, so that, at that time, you will have to connect to the notarial portal, hold a videoconference with the Notary where you will read the deed of incorporation and, finally, sign it digitally with your digital certificate. 

How do I fill out the application form for the incorporation of my new SL in the Notarial Citizen Portal?

To start the process of requesting the incorporation of a new S.L., the incorporating partner must access the PNC with its user and, once inside the PNC, access the "Mercantile" section (left side of the screen).

And, once in this section, select the option "Incorporation of companies", which will take us to the following screen, where we must click on the green "Start application" button.

Once inside our new application, we will have to fill in all the basic information of the future company, which, broadly speaking, can be grouped in the following key points:

1. Management that we want to delegate to the Notary.
2. Corporate name of the new company and identity of the partners.
3. Capital stock to be contributed and distribution among the partners.
4. Other information of interest about the bylaws.
5. Expanded information and selection of Notary Public.
6. Summary and confirmation.

We will now develop each of these phases so that the future businessman or entrepreneur knows in detail how to proceed.

Delegated procedures with the notary

In this first screen, as you will see, the form allows us to delegate to our trusted Notary a multitude of legal procedures that are necessary to create the new company. These formalities are as follows:

• The application for a company name certificate (to reserve the name of your future company).
• The application for the provisional and definitive NIF of your company.
• The elaboration of the Articles of Incorporation of the new company.
• The liquidation of taxes derived from the incorporation.
• The management of the registration of the new company in the Commercial Registry.

Undoubtedly, in my opinion, delegating all these procedures to our trusted Notary Public is the best possible option, since he/she is a professional specialized in these procedures, who will be able to do them in a much easier, faster and more agile way, thus saving us time and money that we can use for more profitable tasks for the new business adventure.

To complete this screen, select with the blue "tick" all the procedures that you want to delegate and, finally, click on the "next" button (bottom right) to continue with the procedure.

Corporate name and partner information

In this second phase of the procedure, we will begin to inform all the necessary data to create our future company. Specifically, we will have to inform about:

1. Company name: This is the name we want our future company to have. 

Here, the form allows us to inform up to 5 possible corporate names or names for our company (for example, "Talleres Mecánicos XXXXL"), which we will have to inform in order, from highest to lowest preference. The need to inform 5 possible names is due to the fact that the selected Notary will consult the availability of these names in the Central Mercantile Register, so that he will reserve the first of them that is available.

2. Registered office: This is the physical place where the company's activity will be carried out or where its effective center of management will be located (such as, for example, the location of the offices or the premises where the company's economic activity will be carried out).

In this section we will have to inform data such as street, number, town, province and postal code.

3. Corporate purpose: That is, the activity to which the company will be dedicated.

Here, to fill in the information, the form has some drop-down fields where we must select the sector or specific activity that our future company will have, and also, we also have the option to provide more detail with a box where we can add free text with information of interest to the Notary.

We must also inform the CNAE of the new company (HERE you can find all the existing ones). In this sense, it is necessary to know that the CNAE, or National Classification of Economic Activities, is a numbering system whose purpose is to group and classify all the producing units (companies, self-employed) according to the economic activity they develop.

4. Identity of the partners: Where we must inform the identity of the constituent partners of the new company.

Here, by default, the data of the person who is making the application will appear, so that if, for example, it is a sole proprietorship created only by the person who is making the application, we will not have to do anything else. On the contrary, if the company is to have more partners, we will have to select the option of "Add partner" and inform the identity or identities of those other partners (informing their name and surnames, DNI, gender, date of birth, marital status, telephone, Email and address).

Once all the information has been completed, select the "next" button (bottom right) to continue with the process.

Corporate name and partner information

In this third phase of the process, the partners must report on the key economic aspects of the future company. Specifically, we must report on:

• Share capital and number of contributions: That is, the money that the partners contribute to the new company and the way in which they divide this capital(for example, a classic SL can be constituted with 4,000 euros divided into 4,000 social participations of nominal value 1 euro). 
• Distribution of capital among the partners: In the event that the new company is formed by 2 or more partners, it must be informed what amount each partner contributes and, therefore, what percentage of the capital stock will correspond to him/her(so that, following our example, if each partner contributes 2,000 euros, each partner will be entitled to 2,000 shares of capital stock).
• Accreditation of the social contributions: Here, the partners must inform if they make monetary contributions:
• ~By means of a bank certificate (this is, for those cases in which it is decided to create a new bank account in a bank, in the name of the company in constitution, to deposit in the same one the capital stock that the partners contribute (in which case, the bank where we open that account will give us a certificate to credit the reality of the contribution). In this case, the form already gives us the possibility of attaching the PDF of this bank certificate, if the partners have already made this step and they have the same one.
• ~Or, they are jointly and severally liable to the company, that is to say, if the contribution of the monetary capital is not accredited with this bank certificate, the partners can affirm that they have contributed the corresponding money, but since they cannot accredit it, they will be jointly and severally liable to the company for the reality of this contribution.

Once all the information has been completed, select the "next" button (bottom right) to continue with the process.

In any case, it should be noted that the NCP form gives the option of indicating that the corporate contributions are made through non-monetary contributions, in which case, as indicated above, the incorporation of the corporation cannot be carried out through the 100% online procedure, but must be carried out in person at the Notary's office to sign the corresponding deed.

Other information related to the bylaws

In this fourth phase of the process, the partners must report on other relevant aspects of the future company, such as:

• The existence of special voting rights or special covenants (in case they exist, we will select the "tick" of the corresponding option, and a free text field will be generated so that we can report them).

• Administration system: Where we must inform, based on a drop-down menu, how the future company will be administered (i.e., whether it will have a sole administrator, several joint or several administrators, etc.), whether the position of administrator will be remunerated or not, as well as the identity of the administrators (where we must select the person or persons who will assume such positions).

• Corporate web page: Informing if the company will have a web page and it is already created.
• Date of commencement of operations and closing date of the fiscal year: that is, from when the company will be operational (normally, from the same day of incorporation), and the date on which it will be considered to close its fiscal year (normally, on most occasions, this date coincides with the end of the calendar year, that is, December 31).

Once all the information has been completed, select the "next" button (bottom right) to continue with the process.

Extended information and notary selection

In this last phase of the process, members have the opportunity to:

• Add additional information of interest to the Notary, in the form of comments with free text.
• Possibility of requesting advice by videoconference with the Notary, to solve all the doubts that the entrepreneur has in this respect (in which case, the Notary, once he receives the request, will generate a videoconference appointment, the day and hour that suits you both, so that you can have a videoconference call and comment with him, directly, all the doubts and aspects to clarify that are necessary).
• To express the will to formalize the granting of the deed of incorporation by telematic means (that is, to do the whole process 100% online without the need to physically go to the Notary's office to sign the deed on paper).

Likewise, we must also select our trusted Notary with whom we want to carry out the incorporation of our new SL.

Once all the information has been completed, select the "next" button (bottom right) to continue with the process.

Summary and confirmation

Finally, a last summary screen will appear, with all the information we have provided in our application, which we can review to confirm that all of it is correct, so that, if so, we will only have to select the "Send" option (green button at the end on the right) to complete the process.

If this has been done correctly, a screen will appear informing us that the request has been successfully completed. We will also receive an Email and SMS confirmation.

Once I have submitted the application to create my new SL, how will the incorporation process be completed?

Once your application is completed, the selected Notary Office will receive it, and based on the information provided, will proceed to prepare the draft deed of incorporation of SL.

If any further information is missing, the Notary's office will contact you (through the NCP itself in the "my requests" and "my messages" sections) or, if necessary, by telephone or email.

Once the draft of the deed is completed, if you wish, you will be able to review it to verify that everything is correct and, also, if you need it, as it has already been mentioned, you will be able to make a previous videoconference with the Notary to solve possible doubts.

Finally, when the draft is already closed and correct and all the doubts have been cleared, in agreement with the Notary's office, a day and hour will be fixed to celebrate the act of the video signature, that is to say, the online signature of your deed of incorporation.

On that day, you will have to access the PNC and connect to a video call programmed by the Notary's Office, in order to perform, firstly, the complete reading of your deed with the Notary and, secondly, the signature of the same with your qualified digital certificate, thus being duly granted and authorized that public document, once it is also digitally signed by the Notary in question.

Subsequently, having delegated all the additional formalities, the chosen Notary will be in charge of the remaining pending tasks (such as obtaining the definitive NIF, the liquidation of the accrued taxes, as well as the registration of the new company in the Commercial Registry).

Finally, once the procedure is concluded, the Notary will deliver you your authorized copy of the deed of incorporation of your new SL, in the form that you have chosen (because now, this can have a physical support in paper, "as always", or on the contrary, it can also be issued in electronic format).

What are the advantages of incorporating my SL online through the Notarial Citizen Portal?

As we have just seen, the possibility of incorporating an SL 100% online is a very useful alternative for businessmen or entrepreneurs, since any person, from home, with his computer, following a simple procedure, can create his new company, something that is very easy to do:

• It is convenient and time-saving, as it will allow you to dedicate your time, as a new entrepreneur, to the most important tasks of your new business venture (such as perfecting your product, attracting new customers, designing marketing strategies, etc.).
• Because you can formalize your new company with the Notary of your choice, in an easy, fast and simple way, so that, for example, if your trusted Notary is from Barcelona, but you are an entrepreneur from Madrid, you can sign online with that Notary in Barcelona without the need to travel (with the consequent saving of time and money that this can mean).
• Because thanks to this way, if you need it, you can make a video consultation with your trusted Notary to solve all the doubts and concerns you may have in this regard, which will allow you to start your new entrepreneurial adventure with much more useful information.
• Because thanks to this process, you will be able to receive at your home the draft of your deed of incorporation of SL, to be able to review it in depth, calmly and without haste, how, when and with whom you want.

In short, as we can see, this online process will save you a lot of time and will give you much more facilities and comfort, because thanks to it, you will be able to create an SL 100% online, without having to waste time and money in unproductive trips, which will allow you to be much more efficient and profitable.

I have legal doubts about the incorporation of a new capital company, where can I find interesting information to help me solve them?

If you have doubts about the incorporation of your new company, beyond the advice that, of course, your Notary will give you, HERE you can find the corresponding section of our web page, where you will be able to find a lot of interesting information about the incorporation of a capital company, requirements, aspects to take into account, etc., which, without a doubt, will be very useful for you to know in depth everything you need to know when creating a new company.

Can I video-sign online the incorporation of my SL?

Indeed, as we have already explained in the previous sections, the incorporation of an SL with monetary contributions, as of November 9, 2023, is fully possible, so yes, right now, from your home, without moving, you can create an SL before a Notary, with a 100% online process, thanks to a sophisticated and secure video-signature process.

If in the end I have any problems, can I sign in person the incorporation of my SL?

Of course, there is no problem at all. If you have already started your application, you have sent the form with all your data, and finally, for any reason (for example, a technical problem with your computer, your digital certificate, etc.) you cannot video sign your deed of incorporation, and you wish to sign it in a "traditional" way, that is, in person at the notary's office with your trusted Notary, there is no problem at all. 

You simply have to communicate it to your Notary, find a day and time that suits you both, and formalize the "traditional" signing, in person, of your deed of incorporation of SL.

Once my SL is created, will I be able to video-sign more of my company in the future?

In fact, in my opinion, the most interesting thing about this online incorporation of your SL, is that once you become familiar with the process, in the future, many of the legal and corporate procedures of your company will also be 100% online.

This is due to the fact that Law 11/2023 allows, since November 9, 2023, the video-signing of many of the day-to-day activities of any company, such as, for example:

• Commercial policies.
• Appointments.
• Commercial powers of attorney of all kinds provided for in commercial legislation.
• The execution of any other corporate act (provided that in the case of contributions of the partners to the capital stock they are monetary), such as a change of registered office, change of corporate name, capital increase, etc.
• Powers of attorney (known as powers of attorney for lawsuits, which we will need when we have to face a trial and need to hire a lawyer and attorney).
• Powers of attorney to act before public administrations.
• Special powers of attorney for specific acts. 
• Revocation of powers of attorney.
• Letters of payment and cancellations of guarantees (such as, for example, a mortgage cancellation).
• The minutes of the general meeting and the minutes of reference in the strict sense (or of manifestations).

In short, as we see, the important thing is that, if you get used to relate 100% online with your trusted Notary, once your company is created, most of the corporate acts and legal procedures of your company can be done 100% online with your Notary, which will give you a lot of agility with the procedures, as well as a saving of time and money to perform all these legal actions of your new company.

Once my SL is created, if I am the administrator of it, how can I register as such in the Notarial Citizen Portal?

Once the company has been created, if you, as administrator, need to carry out procedures on behalf of the company in the Citizen's Notarial Portal, you must carry out the following actions:

• First of all, of course, the natural person representing the company (for example, its sole administrator or attorney-in-fact) must register as a natural person through the PNC, as we have explained in our blog(HERE you can consult the specific article). 
• Once this is done, the next step is to link your personal user (already registered) with that of the company. This linking must be done in person at a Notary's office, with all the official documents of the legal entity (articles of incorporation, appointment of officers, etc.), in order to validate your representation and powers to act on behalf of the same, linking your identity document to the NIF of the company or legal entity. This procedure requires a double accreditation and should only be carried out once a greater legal security is operational.
• Once this link has been made at the Notary's office, thirdly and lastly, when the representative of the company accesses the Notarial Portal, he/she must inform the company's address, must validate an alternative cell phone and e-mail address or use the same ones he/she uses as a private individual.

Likewise, in order for the representative of the SL to be able to video-sign through the Citizen's Notary Portal on behalf of his company, he must obtain a digital certificate of representation, i.e., a digital certificate of the company itself. Once this certificate has been obtained, it must be validated in the Notarial Citizen Portal.

Can I video-sign the incorporation of my SL without sending the form through the Notarial Citizen Portal?

Of course, there is no problem with that. 

If you are clear about the process, all the information gathered and you are familiar with the operation of the video signature in the Notarial Citizen Portal, you can contact your trusted Notary Office by any means (e.g. Email), send them all the documentation and information necessary to prepare the draft of the deed, so that, once everything is ready, the Notary Office simply creates a video signature appointment to which you must connect to sign the deed of incorporation of the new SL, without having to waste time filling in all the fields of the form provided by the PNC.

How long will it take for my new company to be registered in the Commercial Registry?

In order to facilitate the procedures for entrepreneurs, the new regulation has provided for standardized model bylaws and standardized articles of incorporation, which greatly expedites the process, since in this case, the law provides that the registration of the new company in the Commercial Registry will be carried out within six working hours from the day following the date of the filing entry.

‍Inall other cases, the qualification and registration shall be carried out within a maximum period of five working days from the day following the date of the filing entry or, as the case may be, the date of return of the document withdrawn.

Is there any exception in which the Notary may require the physical presence of the partners to incorporate the new SL?

In fact, the new regulation, in spite of all that we have commented on the possibility of incorporating an SL 100% online, as a safeguard, also foresees certain exceptions, so that, for example, if the Notary, in order to avoid identity falsifications or to verify the capacity of the grantors, considers it convenient, he may require the physical appearance of the interested party only once in order to clear those doubts and thus guarantee the legality and legal security of the operation.

How can I resolve any doubts I may have about this process of video-signing an SL?

Of course, if you have any doubts about this process, the team of Notaría Jesús Benavides is at your disposal to solve them. You can contact us through our website (HERE) and, with pleasure, our specialists in the matter will try to help you with the whole process, if indeed you have the possibility and intention to incorporate your new SL in our Notary's office.