In any case, the established procedure is based on the imposition of certain obligations on Notaries and Registrars consisting, on the one hand, in the obligation of telematic processing and, on the other, in carrying out procedures (request for a provisional Tax Identification Number or definitive), also in electronic format and within certain deadlines for the fulfillment of said obligations.
The incorporation of companies with the characteristics described and with the aforementioned telematic procedure is linked to the reduction of costs, specified in the setting of notarial and registry fees, as well as the exemption of publication fees.
From this point of view, the cost reduction provided for in sections one and two of article 5 of Royal Decree-Law 13/2010 will not apply when any of the budgets that, respectively, are required relative to the corporate type, to the subjective composition, the capital stock, the administration system and –where appropriate– adaptation of the statutes to one of those approved by the Ministry of Justice.
The streamlining and speed in the constitutive process is linked to the set of obligations of Notaries and Registrars, among which the telematic processing stands out. However, and unlike the structural and typological aspects of the company that is constituted (social type, physical person status of the partners, social capital, administration system and standard statutes) it cannot be interpreted that any breach of the duties that the The debated legal provision imposes on Notaries and Registrars precisely to expedite the constitution of limited liability companies by telematic means, the consequence of which is the exclusion of the regime in that disciplined one. Therefore, it must be concluded that even when the Notary to whom all the necessary information has been provided authorizes the deed of incorporation after the period of one business day from the receipt of the negative certification of denomination issued electronically by the Central Mercantile Registry. –Or on the same day, in the case of Statutes adapted to those approved by the Ministry of Justice–, the Registrar cannot for this reason refuse to perform the qualification and registration in the abbreviated period legally established. In this sense, it cannot be understood that the breach of an obligation imposed on the Notary to achieve said speed up prevents the qualification and registration of the deed in the shortened period when all the other requirements that are properly part of the act of incorporation have been met. of the society. A different matter is that disciplinary responsibility may arise from said Notary when the delay in the performance of his function is attributable to him, but this cannot imply the paralysis of the constitutive process or the non-application of the regime provided for in the aforementioned Royal Decree-Law 13/2010 .
For the same reasons, it cannot be understood that the fact of an eventual breach of the Registrar in the qualification and registration of the deed in the shortened period – depending on the case, 3 business days or 7 hours following the telematic reception of the deed – could have as a consequence the inapplicability of the legal regime and, therefore, that it is exempted from other obligations provided for in it or from the reduction of costs established for the constitution of limited liability companies by telematic means (issuance, the same day and upon request of the interested party, of certification certifying the correct registration of the company and the appointment of the administrators designated in the deed, referral to the Notary authorizing the deed of incorporation, of the notification that the registration has been proceeded with the corresponding registry data ; exemption from the payment of fees for the publication of the company’s registration in the Official Gazette d the Commercial Registry). AND