José María Marín Quemada, president of CNMC / luis Seville
The National Commission on Financial Markets and Competition (CNMC) believes the Government should review several aspects of the new Commercial Code. The regulator has thoroughly studied the bill with the Ministry of Justice intends to replace the current Commercial Code, which dates from 1885 and among other things, the report calls for a thorough review articles that allow the Government veto certain cross-border mergers of companies, the agency believes are not well defined and justified reasons to activate vetoes
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The report points to be specified on the power of the Executive to avoid vetoes “discretion”
Among the 1,727 items in the new Code, the possibility of which is collected Government opposes or impose conditions “for reasons of public interest” cross-border mergers between a Spanish company and other extra-if it involves, for example, that the headquarters of the company ending up outside the Spanish borders. According to the draft picks, “the legal rules that allow the Spanish Government or other competent administrative authorities oppose or impose conditions on grounds of public interest to an internal merger, shall also apply to cross-border mergers where at least one of the merging companies is subject to Spanish law and the new company will be used or the acquiring company is domiciled in another State not member of the European Union. “
The CNMC warns, But maybe that article that simply is not necessary, since they are decisions that must be analyzed by agency as CNMC itself, after the Government only ratified. If the Executive insists on including their veto, the controller calls for at least well defined limitations to avoid “discretion”.
believes that “these powers of intervention in business decisions must be solidly justified” because they influence the freedom of the employer and may be in contradiction with other Community legislation. And the government is not justifying these cases, the regulator said. “Do not even develop minimally causes that could be invoked by that, beyond the public interest. Would be recommended these powers to subordinate objectives, express and sufficiently justified (…) requirements in order to avoid the existence of a as broad margin of discretion “he warns.
The controller also adds that” in any case, the motivation of the government’s decision should also respond to a test for assessment of his fitness for the principles of necessity , proportionality and least restrictive. “
More fault the new Commercial Code
The CNMC, in his report criticizes other elements of the Code also consider little justified. For example, warns that doubling the minimum capital to create a corporation, raising it from 60,000 to 120,000 euros, may constitute an “economic barrier to access” new market.
In particular, The Commercial Code states that “the limited partnership minimum capital amount remains at $ 3,000 coming established since 1995,” but that the corporation “has risen to double, 120,000 euros, understanding that this measure is currently more according to the role assigned to each type and therefore contribute to a better correspondence between the amount contributed and the corporate structure chosen. “This reasoning does not convince the CNMC, who believes that” the preamble offers no justification sufficiently reasonable “and calls for” introduced this limitation, suits the evaluation test of the principles of necessity, proportionality and least restrictive “ div id =>. “ The regulator says that doubling the minimum share capital for the corporation can be an “economic barrier to access”
Throughout the report, the regulator stresses also other changes deemed necessary, many related to possible conflicts with standards of competence, which is borne by monitoring the CNMC itself. “From the point of view of efficient competition and economic regulation, the proposed regulation would present negative implications for understanding and consistent application of the rules of competition in Spain which should be corrected and, if appropriate, avoided,” says . “There would be a clear risk of lack of coordination between the law applicable to the competition from the perspective of public sanctioning and rules contained in this proposed code rules,” he insists.
also asked to review some terms included in the bill because it does not coincide with those used in other standards and national legislation, for example those related to business, market operators or competitive acts.
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