Startups Act · 01

What counts as a startup

Ley 28/2022, preliminary title, articles 1 to 6: the seven conditions a company must meet at once, the ENISA assessment that decides whether its project is innovative and scalable, the registry entry that makes the status effective, and the six events that end it.

Unofficial English translation from the Spanish by Voixa Consultors S.L. Alexander Baranov is responsible for the translation. Source: Ley 28/2022, de 21 de diciembre, de fomento del ecosistema de las empresas emergentes, consolidated text, BOE-A-2022-21739 ↗. Check wording, figures, dates and legal effect against the Spanish original before relying on this reading. Source snapshot: 5 November 2026; the BOE shows no amendment to the Act since its publication on 22 December 2022. The Spanish term empresa emergente is translated as “startup” throughout. The preamble is not reproduced.

Why the status matters more than the label

Nothing in this Act applies to a company simply because it calls itself a startup. Article 5 makes the status, once entered at the Commercial Registry, the necessary and sufficient condition for every benefit that follows — the 15 per cent corporate tax rate and the deferral in articles 7 and 8, the identification route for foreign investors in article 9, the own-quota plan in article 10, the five-day registration and fixed fees in articles 11 and 12, and the three-year suspension of the half-capital dissolution ground in article 13. And getting there runs through an assessment by ENISA under article 4, not through a filing the company makes itself.

Preliminary title. General provisions

Article 1. Purpose

1. The purpose of this Act is to establish a specific regulatory framework to support the creation and growth of startups in Spain, taking into account the distribution of powers in this field between the State and the Autonomous Communities.

2. It likewise establishes a system for monitoring and evaluating its results on the Spanish startup ecosystem.

Article 2. General objectives

The general objectives of this Act are the following:

a) To encourage the creation, growth and relocation of startups in Spain, in particular micro-enterprises and small and medium-sized entrepreneurial enterprises, also setting the conditions that favour their capacity for internationalisation.

b) To attract international talent and capital for the development of the Spanish startup ecosystem.

c) To stimulate public and private investment in startups.

d) To favour the interrelation between companies, funders and territories so as to increase the chances of success of startups, with special attention to encouraging hubs that attract startups in rural areas, and especially in areas that are losing population, in the interest of greater social and territorial cohesion.

e) To bring vocational training and the university closer to startups.

f) To contribute to increasing the transfer of knowledge from the University, the public research bodies and the other public agents of the Spanish Science, Technology and Innovation System to the business world.

g) To eliminate the existing gender gaps in the Spanish startup ecosystem.

h) To support the development of hubs attracting companies and investors.

i) To promote innovative public procurement with startups.

j) To ensure the effectiveness and coherence of the state system of aid for innovation-based entrepreneurship.

k) To promote participatory monitoring of the development of the Spanish startup ecosystem and of the results of this Act.

Article 3. Scope and definitions

1. This Act shall apply to startups, a startup meaning, for the purposes of this Act, any legal person, including technology-based companies created under Law 14/2011 of 1 June on Science, Technology and Innovation, that simultaneously meets the following conditions:

a) Being newly created or, if not newly created, where no more than five years have elapsed since the date of registration of the public deed of incorporation at the Commercial Registry, or the competent Cooperatives Registry, as a general rule, or seven years in the case of biotechnology, energy, industrial and other strategic-sector companies, or those that have developed their own technology designed entirely in Spain, which shall be determined by the order referred to in article 4.1.

b) Not having arisen from a merger, division or transformation of companies that do not qualify as startups. The terms concentration and segregation are considered to be included in those operations.

c) Not distributing, and not having distributed, dividends, or returns in the case of cooperatives.

d) Not being listed on a regulated market.

e) Having its registered seat, registered office or permanent establishment in Spain.

f) Having 60 % of its workforce with an employment contract in Spain. In cooperatives, worker members and work members whose relationship is of a corporate nature shall be counted within the workforce, solely for the purposes of that percentage.

g) Carrying out an innovative entrepreneurial project with a scalable business model, as provided for in article 4.

Where the company belongs to a group of companies as defined in article 42 of the Commercial Code, the group or each of the companies composing it must meet the foregoing requirements.

2. For the purposes of this article, a technology-based company means one whose activity requires the generation or intensive use of scientific and technical knowledge and technologies for the generation of new products, processes or services and for channelling research, development and innovation initiatives and the transfer of their results.

A startup shall be considered innovative where its purpose is to solve a problem or improve an existing situation through the development of products, services or processes that are new or substantially improved compared with the state of the art, and which implicitly carries a risk of technological, industrial or business-model failure.

3. Startups founded or managed, directly or through an intermediary, by persons who are not up to date with their tax and Social Security obligations, or who have been convicted by final judgment of an offence of disloyal administration, punishable insolvency, corporate offences, money laundering, financing of terrorism, offences against the Public Treasury and Social Security, abuse of office, bribery, influence peddling, embezzlement of public funds, fraud and illegal exactions or town-planning offences, as well as those sentenced to the penalty of loss of the possibility of obtaining subsidies or public aid, may not benefit from this Act. Nor may persons who have lost the possibility of contracting with the Administration benefit from it.

Letter c) is permanent, not just for the period of the benefits. The test is “not distributing, and not having distributed” dividends. A company that paid a dividend at any point in its life cannot qualify, and one that pays a dividend while holding the status loses it under article 6.a). Founders who plan to take money out of the company should do it by salary or services, not by distribution, for as long as they want the status.

Sixty per cent of the workforce must be employed in Spain. Letter f) counts employment contracts, so a company whose team works for it from abroad as contractors does not meet the test even with a Spanish registered office. The Act itself does not say how the percentage applies to a company that has no employees yet.

A group is tested as a whole. The last paragraph of paragraph 1 applies the conditions to the group or to each company in it. A Spanish subsidiary of a foreign group that has been trading for more than five years, that is listed, or that pays dividends will struggle to qualify however new the subsidiary itself is.

Article 4. Certification of innovative entrepreneurship and a scalable business model

1. Entrepreneurs who wish to benefit from the advantages and special provisions of this Act must apply to ENISA, Empresa Nacional de Innovación, S.M.E., SA, to assess all the features set out in articles 3 and 6, in addition to the criterion of the innovative and scalable character of their business model. The proposed innovation may relate to the product or to the business. By joint ministerial order, the Ministry of Economic Affairs and Digital Transformation, the Ministry of Industry, Trade and Tourism and the Ministry of Science and Innovation shall jointly determine the criteria for assessing the features in articles 3 and 6, in particular the innovative and scalable character of startups, which may be based on widely accepted national and international references for recognising the innovative and scalable character of a company, together with the procedural measures necessary for the proper conduct of the accreditation process for these companies.

2. The assessment procedure carried out by ENISA shall be completed within a period not exceeding three months, counted from the date on which the application, complete with all the information required, made by the entrepreneurs who wish to benefit from the advantages and special provisions of this Act, has been entered in the electronic register set up for that purpose. Expiry of that period without express notification of a decision entitles the applicant to consider the application granted by positive administrative silence. The running of the maximum period for deciding shall be suspended where the applicant is required to remedy defects in the application or to provide documents necessary for the decision, in accordance with article 22 of Law 39/2015 of 1 October on the Common Administrative Procedure of Public Administrations.

3. The analysis of the degree of innovation of the entrepreneurial project and of the scalability of the business model shall be based on at least the following criteria:

a) Degree of innovation. Having received public funding in the last three years, without having suffered its revocation for incorrect or insufficient performance of the funded activity, shall be taken into account. Expenditure on research, development and technological innovation in relation to the company’s total expenditure during the two preceding financial years, or in the preceding financial year in the case of companies less than two years old, shall also be taken into account.

b) Degree of market attractiveness. Supply and demand in the sector, the generation of traction, and strategies for acquiring users or customers, among other aspects, shall be assessed.

c) Stage of the company’s life. The implementation of prototypes and the achievement of a minimum viable product or the launch of the service on the market shall be assessed.

d) Business model. The scalability of the number of users, the number of transactions or the annual turnover shall be considered.

e) Competition. Competing companies in its field or sector of activity, and differentiation from them, shall be assessed.

f) Team. The experience, training and track record of the team making up the company shall be assessed.

g) Dependence on suppliers, providers and lease contracts. Relations with other economic operators shall be taken into account.

h) Customers. The volume of the company’s customers or users shall be assessed.

i) ENISA or, where applicable, the public body linked to or dependent on the General State Administration to which the Government delegates this function, may refuse accreditation where the business model gives rise to reasonable doubts as to potential reputational, regulatory, ethical or speculative risks.

4. ENISA shall publish on its website a guide or procedural manual setting out its details, together with the documentation to be submitted by interested companies.

5. ENISA may, by agreement, establish arrangements with third-party collaborating entities, a category which includes entities of the Autonomous Communities, for carrying out activities relating to the processing, document management, dissemination and follow-up of applications under this procedure, on the terms set in that agreement and in accordance with the criteria established in the joint ministerial order cited in paragraph 1 of this article. Those agreements shall establish, among other elements, the documentation to be submitted to ENISA by the collaborating entity, and the assessment of the provisions of articles 3 and 6 of this Act.

Silence means yes after three months. Under paragraph 2 an application that ENISA has not decided within three months of being complete is deemed granted. The clock stops whenever ENISA asks for more information, and it starts from the complete application, not the first one — so an incomplete file does not start it at all.

Letter i) is a discretionary refusal ground. ENISA may refuse a company that meets every other criterion where the business model raises “reasonable doubts” of reputational, regulatory, ethical or speculative risk. The Act gives no further definition. Projects in crypto-assets, gambling-adjacent products or lightly regulated financial services should expect this letter to be read against them.

Article 5. Accreditation of startup status

1. Startup status, once registered at the Commercial Registry or the competent Cooperatives Registry, shall be a necessary and sufficient condition for benefiting from the advantages and special provisions of this Act. Nevertheless, as regards the taxation of startups, the tax authorities may verify compliance with, and continued compliance over time with, the requirements established in article 3, for the purposes of applying the tax incentives regulated in chapter I of title I, and without prejudice to any administrative adjustments that may be appropriate.

2. The Commercial Registry shall set up a free online consultation procedure for any person, which shall include at least the date of incorporation and registration of the company, the tax identification number, the name or corporate name, the legal representative, its registered office and its startup status.

Where an administrative body or organisation must verify any requirement, electronic procedures shall be set up for online verification by the registrar or by the person in charge of the competent registry.

3. ENISA shall provide, after consultation with the collaborating entities referred to in paragraph 5 of article 4 of this Act with which it has concluded an agreement, such as the regional entities, the corresponding documentation evidencing compliance with all the requirements for acquiring startup status directly to the Commercial Registry, or to the competent Cooperatives Registry, which shall be recorded on the page opened for the company, provided that those requirements do not entail amending the articles of association.

The competent public bodies or organisations must provide ENISA, the Spanish Association of Registrars and the competent Cooperatives Registry with data on European aid or other aid that cannot be consulted online.

4. If the notary authorising the deed, or the commercial registrar or the person responsible for the competent Cooperatives Registry for its registration, considers that the company has been incorporated in fraud of law, they shall inform the Directorate General for Legal Certainty and Public Faith and the State Tax Administration Agency, notifying the interested party of that transfer of information.

The registry entry does not bind the tax authorities. Paragraph 1 makes the status sufficient for every benefit — but then lets the Tax Agency check, at any later point, whether the article 3 conditions were in fact met and kept, and adjust the tax position if they were not. A company relying on the 15 per cent rate should keep the evidence for each condition, year by year, as if the certification did not exist.

Article 6. End of the application of the advantages and special provisions of this Act

The startup and its investors may not benefit, or shall cease to benefit, from the advantages provided for in this Act where any of the following occurs:

a) It ceases to meet any of the requirements set out in article 3 and, in particular, at the end of the five or seven years from the creation of the startup.

b) The company is wound up before that term.

c) It is acquired by another company that does not have startup status.

d) The company’s annual turnover exceeds ten million euros.

e) It carries on an activity that causes significant harm to the environment in accordance with Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088.

f) Members holding, directly or indirectly, an interest of at least 5 % of the share capital, or administrators of the startup, have been convicted by final judgment of the offences included in article 3.3.

The benefits end for the investors too. The opening words cover “the startup and its investors”. An acquisition by a company that is not itself a startup, under letter c), ends the regime for everyone at once — which a founder negotiating a sale, or an investor relying on a tax benefit tied to the status, needs to price in.

Ten million euros of turnover is a hard exit. Letter d) ends the status the year turnover passes ten million euros, whatever the company’s age. With letter a), the regime therefore lasts five years (seven in the listed sectors) or until that turnover, whichever comes first.

Where this sits

The next page translates titles I and II: the 15 per cent corporate tax rate and the payment deferral, the tax identification route for foreign investors who do not live in Spain, the plan allowing a startup S.L. to hold up to 20 per cent of its own quotas for staff, the five-day registration and the fixed notarial and registry fees, and the three-year suspension of the dissolution ground for losses.

Nothing here is advice on your own position, and this reading is not the official text. Spain publishes no official English version of this Act; where the wording matters to a decision, read it against the Spanish original linked above.