Spain — Powers of Representation of Companies

Summary

One of the issues when setting up a (subsidiary) company in Spain which creates more practical difficulties is the question of powers of attorney: What is a power of attorney, are they necessary and how do they work? In Spain this question is of practical relevance and its operation does not always coincide with what happens in other countries. In this commentary, we will give you some ideas on how to act with these powers of attorney when setting up a company.

What is a power of attorney? A power of attorney allows a person (attorney-in-fact or representative) to act on behalf of a company. The attorney-in-fact may, for example, sign a contract on behalf of a company if that company has given him or her the power (authority) to do so. For example, borrowing money from a bank.

To do this the company will have two types of representatives: an «organic representative» (the directors) and «voluntary representatives» (attorneys-in-fact).

First, a company must have at least one director

The director(s) is the «organic representative». In other words, he/she is an organ (management body) of the company, represents it and can contract on its behalf.

This «organ» may be a single person (a single director), it may be several persons acting individually or jointly, or it may be a board of directors («collegial body»). The power of representation resides in the «organ». It is the body that represents the company and not necessarily its members.

The first task, therefore, is to decide on the structure of the body, and this is taken when the company is incorporated, although it can be changed later. In this way, the sole director will have all the powers to represent the company, the individual directors will also have them if they are «joint and several” or will have to act jointly if they are «joint» directors, and the board will also have them, but as a body (not each director individually).

This last remark (the powers are held by the body and not necessarily by its members) is important when the company is managed by a board of directors. The fact that there is a board of directors does not imply that each member has the powers to represent the company, but that they are held by the body as a whole. The board may, however, delegate them. When the board delegates the powers to one of its directors (it is possible, but not obligatory to appoint one), the latter becomes a «managing director» (Consejero Delegado). This director may then represent the company in all matters delegated to him/her.

Secondly, in addition to the directors, the company may have (not compulsory) other «proxies» (empowered person)

These are the «voluntary representatives», i.e. appointed «at the will» of the company.

A proxy is someone to whom the company gives powers to represent it. Powers to do certain things.

As we said at the beginning, in Spain, acting by proxy is quite strict, so that a company cannot normally be represented by anyone who does not have the power to do so. For example, if the company authorises (empowers) a person only to sign banking contracts, he/she will not be able to sign contracts with employees.

The powers granted to a person must therefore be express. If a person is authorised to open a bank account, he/she is not supposed to be able to borrow money. And in this way, the powers serve as a framework for action: what the attorney-in-fact can do and what the limits are. And sometimes these limits come from the power itself (opening a bank account does not authorise borrowing) or can be quantitative (borrowing, but only up to 100,000 euros), or temporary (borrowing, but until 31 December 2025) or even requiring more than one person to act (borrowing, but co-signing with person «Z»). And, of course, a combination of all of them: attorney-in-fact «X» can take out loans by signing with attorney-in-fact «W» up to 100,000 euros, and with attorney-in-fact «Z» up to 1,000,000 euros.

When setting up a company in Spain, it is therefore highly advisable to think about how the powers are to be granted, especially if the administrative body does not reside in our country. As we have seen from experience, it is not uncommon to set up a company by appointing an administrator resident abroad without appointing a proxy in Spain. This is legally valid, but, in a way, it hinders the functioning of the company: the only person to sign contracts and represent the company resides abroad, which, from a practical point of view, will be a major disadvantage.

The procedure for empowering a person is simple. All it takes is a decision of the administrative body, formalisation before a notary and registration in the Commercial Register. In this way, anyone can verify that the person appointed can represent the company in that particular act. This does require a person of trust to be found (an employee, a resident partner, a third party), but the risk can be modulated by the limitation possibilities described above.

In conclusion

When setting up a company in Spain, if the administrator will not be resident in Spain, consider how to organise the powers of attorney, whom to empower and how to limit, if necessary, their powers.

And the powers of attorney that you will need most and most urgently are:

• (a) those that will allow you to contract with banks (opening and managing bank accounts),
• (b) those relating to employees (hiring, registration with social security, payment of salaries),
• (c) those for supply contracts (electricity, water, telephone) and other general contracts (rental, vehicles, distribution contracts); and
• (d) managing the company’s electronic signature (relations with public administrations, tax payments).

Failure to take this decision in a timely manner could delay or hinder the activity being started.

And if in doubt, it is best to consult a local lawyer.