Employee share plans in Spain: regulatory overview
A Q&A guide to employee share plans law in Spain.
The Q&A gives a high level overview of the key practical issues including, whether share plans are common and can be offered by foreign parent companies, the structure and rules relating to the different types of share option plan, share purchase plan and phantom share plan, taxation, corporate governance guidelines, consultation duties, exchange control regulations, taxation of internationally mobile employees, prospectus requirements, and necessary regulatory consents and filings.
To compare answers across multiple jurisdictions, visit the Employee share plans Country Q&A tool.
This Q&A is part of the global guide to employee share plans law. For a full list of jurisdictional Q&As visit www.practicallaw.com/employeeshareplans-mjg.
It is very common to remunerate employees, especially executives, with company shares or share options. Employee share plans are usually designed to:
Align employees' goals with the company's goals.
There are no specific labour law provisions concerning share-linked awards and legislation has not created any form of employee share plan.
General guidance on share plans has resulted from certain court decisions, although the courts acknowledge that the rules of each plan require analysis on a case-by-case basis:
The remuneration participants receive when stock units or shares vest is classed as salary. Participants may receive this remuneration by the receipt of shares of common stock, cash, or a partial payment of cash and a partial payment in shares of common stock.
The remuneration from share plans attributable to the 12 months before a dismissal must be taken into consideration when calculating a severance or termination payment.
Once a company has granted shares under a plan, the plan becomes a contractual benefit. As a general rule, an employer cannot alter contractual benefits without a significant reason. Any company decision to amend or withdraw the benefit of a share plan would need to be based on financial, technical, organisational or production grounds as defined by law. The company must follow a set procedure to ensure that all affected parties are heard and are able to raise any appropriate issues.
It is lawful to offer a share plan for shares in a foreign parent company. In fact, the first share plans offered in Spain were for shares in foreign parent companies for the benefit of employees of their Spanish subsidiaries.
Although share plans may provide that foreign law governs their terms and interpretation, share plans must comply with minimum legal requirements established by Spanish legislation and case law. For example, Spanish law requires that benefits from share plans be classified as salary for the purpose of calculating termination payments.
The Spanish subsidiary is responsible for complying with any formal obligations arising from participation in share plans. For example, the subsidiary pays any social security contributions that arise.
Share option plans
There are no specific labour law provisions concerning share-linked awards.
Share option plan
Under an option plan, employees are granted options to buy the company's shares at a fixed price. Clearly, employees will only exercise an option if that price is less than the market value of the shares when they exercise the option. The exercise of the option must take place within a set period. Companies use share option plans to:
Retain employees who are good performers.
Attract potential employees by offering a potentially valuable remuneration package.
If an employee exercises an option at the end of the vesting period, he receives either:
The difference between the value of the shares on the date of the grant and their value at the maturity date.
The shares themselves in return for the payment of the option price. The option price is usually the market value of the shares on the date of the grant.
Share option plans can be:
Discretionary with options only granted to some employees.
Granted to all employees.
Options in some share option schemes may only be exercisable if certain conditions are met. The conditions generally relate to performance objectives, see Question 6.
Phantom share options
In phantom share option plans, options over shares are not granted. Instead, a cash award is made equivalent to the gain the employee would have made if the employee had exercised options over real shares. See Question 16.
Types of company. All companies can offer their employees share option plans. Granting share options is a highly popular method of aligning the aims of employees with those of the company to maximise the value of the company's shares.
Following the economic and financial crisis, share option plans are not as common as they were due to the increased uncertainty of the future value of shares. The increased uncertainty makes share plans less attractive to employees.
By law, the transfer of shares is restricted in certain types of companies such as limited liability companies. A shareholder wishing to transfer his shares must inform the company's managers and the transfer must be approved in a general shareholder meeting. Other shareholders can refuse the transfer in certain circumstances specified in the company's bye-laws or the Spanish Corporation law. Such companies cannot therefore take advantage of these types of plans.
For medium and small companies, share option plans are less advantageous due to the administrative costs of implementing a plan. However, in the last few years, growing companies, particularly those in the technology and information sectors, have started to use share plans as a way to build employee loyalty without paying high salaries at a time when cash flow is an issue.
Popularity. Share options are popular, especially within large and listed companies.
Share option plan
Discretionary/all-employee. Companies can grant options to all employees regardless of whether they are executives. However, to avoid a selection process that employees and the courts might consider unfair or discriminatory, companies use objective grounds when deciding to which employees they will grant shares. These include:
Asking for an initial contribution. The company can require interested employees to pay a part of the price of the shares. This can be a means of limiting the availability of the plans to certain categories of employees (for example, executives).
The company's global performance.
The employee's individual performance.
The maintenance of the shares for a period.
The employee's length of service with the company.
The Spanish Constitution and Statute of Workers prohibits discrimination on the grounds of birth, race, gender, religion, opinion, or any other personal or social status, including: civil status, age, language, political ideas or being part of a trade union.
Non-employee participation. A regulation dated December 2014 specifically recognises that non-employee directors may be remunerated with "shares or other concepts related to their evolution." This means that the remuneration may consist of shares or options to purchase shares, but also of cash the amount of which varies depending on the value of the shares in the market.
However, companies are unlikely to remunerate consultants in this way. Consultants are professionals who are not part of the company and charge a specific price for their services.
Maximum value of shares. There is no restriction on the maximum value of shares under option. The company decides the maximum value of shares under option and this is set out in the plan document.
Market value. The option exercise price is usually equal to market value of the shares on the date of the grant. However, options may be granted at a higher or lower exercise price.
Share option plan
The tax treatment varies depending on whether the employee can transfer the option:
If the option is not transferable, the employee is subject to tax on the exercise of the option. Most plans in Spain grant non-transferable options and so there is no tax on grant.
If the option is transferable, the employee is taxed on the market value of the option on the date of the grant.
Share option plan
There are no tax or social security implications when the vesting conditions set by the company are met, unless the option is taxable at that point under the general rules, see Question 5.
Share option plan
Employees. Employees are liable to income tax when they exercise a share option.
Tax does not apply to the first EUR12,000 of gains from a share option exercise in each year, if:
The company offers the share option plan to all employees on the same terms.
The employee receives actual shares on exercise and not the equivalent in cash.
The beneficiaries are current company employees.
Employees, together with their spouses and relatives up to the second degree of consanguinity, do not hold 5% or more of the share capital of the company.
The shares are held for at least three years after the exercise of the option.
The amount of the gain that exceeds EUR12,000 in each year is treated as salary under tax law. A 30% reduction (40% until 2014) applies to reduce the taxable amount when both:
It has been generated over a period exceeding two years (that is, the option was held for more than two years).
A gain is not made under the plan regularly or recurrently.
There is no reduction in the taxable amount if the employee earned other income in the past five years that:
Took more than two years to accrue.
Benefited from the reduction in the taxable amount.
The company pays social security contributions on behalf of employees. The contribution is calculated by applying a specified rate to a monthly social security base amount.
The base amount for the calculation is the aggregate monthly salary the employee receives, plus any annual amount not accrued on a monthly basis. The aggregate includes remuneration received from share option plans. The remuneration is pro-rated over the 12-month period of the calendar year in which either the delivery of the shares acquired takes place or when the cash payment is made.
There is a cap of EUR3,606 for 2015 on the monthly amount on which social security contributions are calculated.
If the normal monthly salary of a participant in the share option plan exceeds the maximum monthly contribution cap, the salary the employee obtains from the plan does not incur higher social security contributions.
Companies. For corporate income tax purposes, the share-based remuneration paid to the employee is:
A non-deductible expense if the employee receives, in cash, the difference between the market value of the share at the date of the grant and the date of the exercise.
A deductible expense when the employee exercises the option if the shares are actually given to the employee.
The rules in the bullets above apply from 1 January 2015.
Share option plan
When the employee sells the shares acquired by exercising a share option:
Any profit is liable to capital gain tax.
There are no tax implications for the company.
There are no social security contributions.
The association between the employee and the company in relation to the share option ends on the exercise of the option. The share then becomes part of the employee's personal wealth and taxed accordingly.
Share acquisition or purchase plans
The following types of share-based plans exist, although no specific laws or regulations apply:
Employee stock ownership plan
Under an employee stock ownership plan, employees receive free shares or pay a price for the shares that is lower than market value. The shares in the plan are provided as part of the employees' remuneration as an alternative to receiving cash.
Executives are the usual beneficiaries of share plans as shares entitle them to vote and take part in the general meeting of the company. The plans are seen as a good way to retain employees and link their goals with the company's goals: the higher the value of the share, the higher the value of their remuneration.
Restricted share plan
There are two types of restricted share plan:
Where delivery of the shares to the employee is dependent on the satisfaction of conditions. Conditions may include: company performance, the share price reaching a certain value, the employee's performance, the employee remaining in service, the company's growth reaching a target.
Where the sale of the shares the employee acquires under this plan cannot take place until a certain period has elapsed. That is, the employee who acquires shares under this plan is unable to sell them for the period set out in the plan.
Deferred stock unit plan
With a deferred stock unit plan, the company contracts to provide the employee a certain amount of free shares each year for a limited number of years. A single contract provides for the employee to be remunerated in this way each year with shares. That is the difference between this plan and the employee stock ownership plan.
Acquisition or purchase
Employee stock ownership plan
Discretionary/all-employee. To avoid a discrimination claim or possibly invalidating the plan, the shares should either be offered to all employees or, if offered to only some employees, offered on the basis of objective criteria.
Non-employee participation. Companies may award shares to non-employee directors to gain their commitment to the company and align goals. As with share options, it is unusual to pay consultants with shares, as they are professionals who do not form part of the company's workforce.
Maximum value of shares. There is no maximum value of shares that can be awarded to employees. However, there is a specific type of corporation in which all employees are shareholders and which is governed by specific regulations that specify the maximum value of shares that can be awarded.
Payment for shares and price. Employees either pay nothing for the shares or buy the shares at a discount to market value.
Restricted share plan
Discretionary/all-employee. To ensure the plan is not considered discriminatory, it is always better to establish objective criteria for selecting which employees are offered restricted shares.
Non-employee participation. Shares can be awarded to non-employee directors to gain their commitment with the company and align goals. If the restricted share plan award is conditional on remaining with the company, the plan will be unsuitable for consultants.
Maximum value of shares. There is no maximum value of shares that can be awarded to employees.
Payment for shares and price. These shares can be awarded to employees at:
A discount to market value.
Deferred stock unit plan
Discretionary/all-employee. Companies should take care not to select employees to benefit from a deferred stock unit plan based on criteria that could be considered discriminatory.
Non-employee participation. Shares can be awarded to non-employee directors, but deferred stock plans are not usually suitable for consultants as vesting occurs if the beneficiary is with the company on a certain, future, date.
Maximum value of shares. There is no maximum share award.
Payment for shares and price. The main characteristic of this plan is the deferred award of shares to the employee. Deferred shares can be awarded to employees at no cost, at a discount to the market value, or at full price. The price the employee pays might vary if it is not stipulated in the contract.
Employee stock ownership plans and restricted share plans
Employee stock ownership plans and restricted share plans that do not vest on the expiry of a period of time are subject to tax in the same way as share option scheme, see Question 8.
Therefore, a gain resulting from the award of the shares is exempt up to EUR12,000 when the conditions set out in Question 8 are met. The amount of the gain in excess of EUR12,000 is considered salary and a reduction of 30% applies.
The total value of shares awarded to employees forms part of the remuneration on which the level of social security contributions is based. This value is divided pro rata over the 12 months of the year.
Deferred stock unit plans
Shares awarded under deferred stock unit plans are ineligible for the 30% reduction since they are not considered irregular income; the award is of a certain number of shares every year.
Restricted share plan
If shares vest when time-based conditions are fulfilled, the signing of the agreement under which the employee joins the plan has no tax or social security implications.
The employee is subject to tax and social security contributions at the point she is effectively awarded the shares, which is when the vesting conditions are met.
The tax and social security implications for restricted share plan awards are the same as those for the exercise of share options, see Question 8.
The employee is liable for capital gains tax on the sale.
Phantom or cash-settled share plans
Only one type of phantom or cash-settled share plan exists. In a phantom share plan, the employee is given a cash equivalent of the difference between the market value of the share on the grant date and the value on the vesting date. A phantom share plan may be appropriate when an employer does not wish the individual to join the company as an employee, but still wishes to motivate her.
Phantom share plans are unusual, but any company can offer a phantom plan. Employees are granted unreal or fictitious options (phantom options) and are not entitled to receive or buy shares. The plan is structured so that participants receive the same financial reward they would have received if they had been granted a share option, exercised it later, and immediately sold the shares acquired.
Phantom share plan
Discretionary/all-employee. Phantom share options can be granted on a discretionary basis if employees are not selected using criteria that may be discriminatory.
Non-employee participation. Phantom share plans can be offered to non-employees.
Maximum value of awards. There is no maximum limit on the value of phantom shares granted to employees.
Phantom share plan
The special characteristic of this plan is that the employee is given actual cash and not a share option or share. Therefore, the first EUR12,000 is not exempt, but the 30% reduction does apply to the amount in excess of that if the vesting period is over two years and the other requirements are met. See Question 8.
The employee must make social contributions on payments from phantom share plans on the same basis as for remuneration from share option plans. See Question 8.
Corporate governance guidelines, market or other guidelines
There is no obligation to consult either employee representatives or trade unions to implement a share plan. However, collective bargaining agreements can provide that the agreement of the employees' representatives is required if the company implements, modifies or withdraws these plans.
However, employee representatives are entitled to issue a non-binding report prior to the company implementing decisions on incentive schemes (Article 64.1.5. f, Statute of Workers). As share plans could be considered as incentive plans, it is advisable to ask the employee representatives to issue a report. The employee representatives must issue the report within 15 days. After this time, the employer has fulfilled the legal requirement regardless of whether the employee representatives finally issue a report. Reports are rarely issued in practice.
When share-related plans only apply to some managers, companies do not usually inform employee representatives. Although administrative sanctions and claims relating to these plans could be brought before the courts, this is rare in practice.
As rewards under share plans are classed as salary, a withdrawal or change is considered a substantial change to working conditions. If the change affects a certain number of employees in the company, informing and previously consulting the employees' representatives is compulsory.
Following a decision it made on 3 May 2012, the Supreme Court now places importance on the wording of share plans that relates to the termination of employment contracts. The court considers that if the employment contract is terminated a reasonable time before the vesting period under the plan ends, the termination of the employment contract is not fraudulent. The court considers the company's aim in those circumstances is to terminate the contract and not to prevent the employee from benefitting from the plan. The employee has no right to potential gains under the plan.
Previously, the Supreme Court had established that companies were not entitled to overturn the employee's right to exercise any share option unless a valid contractual reason existed (decisions of the Supreme Court dated 24 and 25 October 2001). The Supreme Court applied this principle regardless of the wording of share plans. The court considered that if a company makes a unilateral decision to terminate the employment contract that does not affect the fulfilment of a share plan contract. Any termination of employment for a reason other than the employee's resignation or breach of contract (fair disciplinary dismissal) did not result in depriving the employee of the benefits of a share incentive plan, as this would imply leaving the fulfilment of the obligations arising from a plan to the company's sole discretion.
When calculating termination payments, the element of the salary relating to remuneration from share plans in the twelve months preceding a dismissal must be taken into account.
The calculation of termination payments does not take into account any gain employees might make when they sell the shares obtained under a share plan.
A Spanish-resident employee must notify the General Directorate of Commercial Policy and Foreign Investments of the potential exercise of foreign share options or vesting of share awards as this represents a foreign investment.
Spanish residents who open or close bank accounts in a foreign country must notify the Bank of Spain within one month. They must also periodically notify the Bank of Spain of the transactions that take place in the account.
Internationally mobile employees
Filing and prospectus requirements apply to public offers.
The offer of and participation in an employee share scheme may constitute a public offer of shares, although exemptions may apply, see Question 30. Whether an employee share plan is a public offer depends on the Law 24/1988 of 24 July on the Securities Market, and Royal Decree 1310/2005 of 4 November on the partial development of Law 24/1988 relating to the admission to the listing of securities in official secondary markets and public offers of securities and their prospectus requirements.
The Securities Market Law and Royal Decree 1310/2005 define a public offer of securities as any communication, to any person by any means, with sufficient information on the terms of the offer and the related securities for an investor to decide whether or not to invest.
The existence or lack of publicity and the means of communication used to offer the securities to potential investors are irrelevant for identifying whether or not there is a public offer of securities.
The filing regulations on public offerings apply to any selling practice that constitutes a public offer of securities.
A public offer of securities cannot take place without either:
The prior publication of a prospectus approved by the National Securities Market Commission (Comisión Nacional del Mercado de Valores).
The passporting of a prospectus approved by another competent authority when securities are offered to the public or admitted to trading (Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading ). This prospectus will be accepted in Spain, if it fulfils the requirements of Royal Decree 1310/2005. These are:
the issuer is validly incorporated under the laws of the country in which it has its registered office and is operating in accordance with its memorandum and articles of association or equivalent documentation; and
the securities comply with the legal regime to which they are subject.
The obligation to publish a prospectus does not apply to the following types of offers, which are not considered to be public offers for these purposes and benefit from a full exemption from the regime:
Offers of securities addressed solely to qualified investors.
Offers of securities addressed to fewer than 150 natural or legal persons, other than qualified investors in each member state.
Offers of securities addressed to investors who each acquire securities for a total consideration of at least EUR100,000 for each separate offer.
Offers of securities with a denomination of at least EUR100,000 for each unit.
Offers of securities of a total consideration within the European Union of less than EUR5 million. The limit is calculated over a period of 12 months.
Exemption from filing requirements
The National Securities Market Commission has traditionally upheld the view that share-related awards offered to a restricted number of employees with no advertising or promotional activities in Spain do not qualify as a public offering and are not therefore subject to any filing requirements.
Exemption from prospectus requirements
Royal Decree 1310/2005 provides an exemption from the prospectus requirement, if all the following apply:
The securities are offered or awarded to current or former employees or executive directors of a company or another company within the group.
The company is located within the EU.
The company provides a report with sufficient information on the offer.
For a company from outside the EU to be exempt from the prospectus requirement, two additional requirements must be met:
The same document required from EU companies must be provided in a language commonly used in the international financial environment.
The European Union must have adopted a decision of equivalence between the legal and supervision regulations in the other country and in the EU in accordance with Directive 2003/71/EC.
Other regulatory consents or filings
There are no specific legal provisions regarding employee share plans. However, companies must have a data protection policy that includes any share plan as it will relate to matters that concern an employee's privacy.
The company must inform the employee that his data will be used for the specific purpose of the plan only.
There are no legal formalities applicable to employee share plans. However, any documentation must be in a language commonly used in the international financial environment.
It is advisable and good practice to provide the information in the language most in use in the company and the employee's native language.
E-mail or online agreements
There is no law to prevent employees from signing share plan agreements by e-mail, but it is advisable to have a paper version.
There is no requirement to notarise share plans.
The company must provide evidence of the employee's consent to participate in the plan and his agreement with its terms. It is therefore advisable to obtain written consent from the employee.
Developments and reform
Trends and developments
Despite the need for the legal regulation of employee share plans, presently only general practice serves as guidance, although there is some case law emerging from claims brought by employees. While there have been many legislative reforms over the last two to three years, share plans are still not regulated.
There are no proposals for reform as there are no regulations or law to be reformed.
Spanish Official Gazette
Description. Website of the Spanish Official Gazette.
Spanish case law database
Description. Official website of the Spanish case law database.
Sergio Ponce Rodríguez, Partner
Professional qualifications. Spain, Lawyer
Areas of practice. Employment and social security law; pensions and benefits.
Advising Spanish and foreign companies on the drafting and termination of employment contracts, particularly for senior executives.
Advising Spanish and foreign companies on labour law issues relating to merger, acquisition and corporate restructuring transactions, and outsourcing procedures.
Advising on redundancy procedures and collective bargaining agreements.
Advising clients on their employment disputes, representing them at court, and negotiating out-of-court settlements.
Advising on remuneration, pensions and other benefits.
Professional associations/memberships. Madrid Bar Association; Spanish Employment Lawyers Forum (FORELAB).
Publications. A list of publications can be found at: www.uria.com/en/abogados/SPR?iniciales=SPR&seccion=publicaciones