The objective was clear: to provide a more structured and harmonised regulatory text for this type of process. However, as is often the case, theory does not always match practice. And what appears to be orderly regulation on paper can, in reality, generate more questions than answers in law firms and registries.

Independent expert reports: scope of application

Specifically, we are referring to the application of Article 42 of RDL 5/2023 with regard to the need for an independent expert to prepare a report on the Merger Project, in juxtaposition with Article 53 of the same legal text. The question is specific: when the acquiring company has incurred debts in the previous three years to acquire control of the acquired company, is the intervention of an independent expert necessary, even if this is a simplified merger between companies of the same group in which the acquired company is wholly owned directly by the acquiring company?

Articles 42 and 53: how they interact

In this case, two articles come into play:

• Article 42, which establishes the obligation to appoint an independent expert, even in unanimous merger agreements, in cases where companies are involved in the merger in which one has incurred debts in the three years immediately prior to acquiring control of the other or acquiring its essential assets.
• Article 53, which exempts from this report when the absorbed company is wholly owned by the absorbing company.

At first glance, it might be thought that Article 53, as it regulates what it calls ‘special functions’, takes precedence over Article 42 of RDL 5/2023. However, according to the practical interpretation of the Barcelona Commercial Registry, and in line with a prudent application of the law, Article 42 should be applied as a priority when the conditions set out therein are met. In other words, even in the case of a merger between companies within the same group, if there was a prior debt to acquire control of the absorbed company, the intervention of an independent expert is mandatory.

Interpretation issues: what if the debt no longer exists?

But what happens if that debt no longer exists when the Merger Plan is drafted? The text of Article 42 does not clarify this, as it refers to debts that have been incurred, without indicating whether they must be outstanding at the time the Merger Plan is drawn up. However, in practice, the registries are interpreting that if the debt was repaid before the draft was drawn up, the obligations of Article 42 do not apply.

We understand that this resolution by the registries is logical, as imposing conditions for a debt that no longer exists would seem disproportionate or even meaningless, but the lack of clarity in the wording can lead to confusing interpretations or even unnecessary blockages in the process.

Practical impact on companies and transactions

There is no doubt that the requirement for reports by independent experts seeks to protect partners and creditors, bringing transparency to transactions that can have a significant economic and financial impact. However, it is also true that, in practice, this requirement represents a significant burden for companies: deadlines are extended, processes become more expensive, and a layer of complexity is added that is not always proportional to the actual risk.

That is why many companies legitimately seek ways to minimise the impact of these requirements. Not to hide information or evade responsibilities, but to be able to execute mergers more efficiently, especially when their accounts have already been audited and the operations are internal and controlled.

The importance of preliminary analysis in group reorganisations

This reinforces the need to carry out a preliminary study of the planned operation before undertaking organisational restructuring within corporate groups, which will allow us to streamline the process, both in terms of time and cost.

Our expertise in corporate restructuring

Durán-Sindreu has extensive experience in providing legal advice on corporate restructuring processes and has professionals who specialise in such processes.