Nota sobre la reforma de la ley de sociedades profesionales para el reconocimiento en España de las sociedades profesionales de otros estados miembros de la Unión Europea

Abstract

The 2/2007 Professional Corporation Act, of 15th March (LSSPP) regulated the common practice of professional activity on the basis of the professional qualifications of the members. This objective is the manifestation of the duality existing between the corporation aspect and the professional aspect of professional corporations. The LSSPP Act intends to create a new type of member of a professional corporation, adding, in this way, to the physical persons who develop a particular professional activity and not to the regulation of a new corporation type. In its original form, the LSSPP Act does not include any reference to the possibility for foreign professional corporations to act in Spain, not even those corporations constituted in other member states of the European Union. This oversight is now being palliated by means of the seventh additional amendment and by modifying the second final provision of the LSSPP Act, according to the content of the Bill for the Modification of different laws and their adaptation to the law of free access to service activities and their practice. Despite the good intentions of the amendment, the norm in project is confusing and unnecessary. Besides, it is contrary to the European Community law, since the Spanish legislator is not qualified to establish the conditions in which a corporation of a member state is entitled to the freedom of establishment and services. However, the legislation of the member state where the profession is practiced is entitled to settle the conditions for the professional activity, whether by means of physical or legal personality, on the terms on which the jurisprudence of the Court of Justice of the European Communities validates limitations justified by general interest; in this respect, the norm in project is unclear and insufficient.