the individual entrepreneur final reduced

the indivdual entrepreneur

an adult indidual with full legal capacity to manage their wn assets who runs a business in their own name- either personally or under a representative

corresponds to self employed under the special social security regime for the self employed

essential elements indivual entrepreneur

1. legal capacity= must have the capacity to freely dispose of their assets (adult and not under guardship)to ensure they can borrow contract sell and assume business risk

2. habitual excercise of business activity= continous and regular not occasional or isolated

3. activities carried out in own name=contracts directly (or through representative) with third parties and is personally liable for all risks (debts obligations)

hisotrical evolution of entrepreneur

no definition of entrepreneur in the commercial code:

merchant= old narrower term for habitual trader (goods) in commerce found in the commercial code

entrepreneur= modern broader term encompassing anyone running an organised business actvity (services, technology , industrialial,agricutural)

legal basis- freedom of enterprise

a consitutional right in spain recognised in article 38 of the spanish consitution guaranteeing the ability to enage in economic activity within a market economy

Practical use

1. small scale business= sole proprietorship (cheap,easy flexible)

2. expansion= SL/SA company (safer, more professional, protects personal assets through limited liability)

requirements: legal capacity

1. require legal capacity- the ability to hold rights and duties (natural person from birth/legal persons)

2. require capacity to act- the ability to indendantly enter into legal transactions (over 18 and not under guardship/curatorship)

minors and incapacitated exception (article 5ccom)

with the purpose if preserving the ocntintuity of business they may contiue the business of their:

1. parents

2. their legal predecessors

this applies only to 

1. businesses already in existence

2. businesses affected by supervening incapacity (the entrepreneur become incapactated later)

wards guardianship (insolvency+ entrepreneurship)

• the guardian acts on wards behalf (no judcial auhtorisation needed) but the business remains in the entreprenurs name

• if they are without trading capacity they must appoint agents to manage the business transactions

• if the ward goes bankrupt they are declared insolvent but the guardian may also be liable if they acted negligeently or culpably

requirements- habitual excercise

habitual excericse= repeated performance + publicity (advertising+ commercial registry)

• modern devlopment: registering for the tax on economic acitivties

requirements:own account activity

being an entreprenur on your own account= legal/regulatory compliance+ unlimited finacial liability

absolute prohibitions

absolute=broad legal restrictions on direct or indirect business activity for certain government offcials and professionals to protect third parties

consequences of AP breach

act still legally binding+adminstrative sanctions (fines/suspension)

restrcive prohibitions

= narrow legal restrictions on specifc commercial activtes aimed at preventing conflicts of interest or unfair competition within a business, 

consequence of RP breach

• acts still legally effective

• civil sanctions (dismissal)

the married business man old system

• the commercial code articles 6-12 had a special property responsibility regime for married entrepreneurs

  • eg- a non trading spouse had to give consent for the other spouse to engage in business + marriage created a seperate special business liability regime

• law 16/2022 repealed articles 6-12ccom + chnaged article 1365cc removing reference to merchant spouse and ccom rules

married business man new rules 

• art 1365cc now governs maritial property busines

• either spouse can use maritial assets for business activities with no need for consent from non trading spouse

• there is no special limitation or restrictiin unique to married entrepreneurs-general rules of liability apply

the foreign business man- dual legal framework

1. international treaties=set rights and protections

   1. equal treatment principle-foreign=nationals

   2. most favoured nation principle- foreign=foreign

   3. eu membership

   4. wto membership

2. spanish commercial code= sets Spanish domestic commercial laws, which set practical rules and may impose additional limitations

   1. legal capcacity

   2. estbalishment rules

   3. commercial operations

   4. corut juristction

   5. restrictions

the foreign business man- aquiring entrepenruship

1. froeigners gain entreprenurship status in spain like spanish nationals through contnuous business actvity or owning a public establishment

2. registration in the commercial reigstry after being considered an entrepreneur formalises the business

3. for foreign businesses moving to spain mandatory spanish acts/circumstances must be recorded at frist registration + file annual accounts for the last year

4. aminstrative and legal frameworks regulate foreign investment, residence and reporting obligations

eu/eea/swiss businessmen special regime

EU/EEA/Swiss businessmen beenfit from a simplified regime based on the pricniple of free movment, making it easier to establish and run a business in spain compared to non eu nationals:

1. stay for up to 3 months with passport/id only

2. residence for 3+ months can run business with registration in central registry

3. permanent residence for 5+years with a certificate from immigration office