The Startup Act (Law 28/2022) gives tax and commercial advantages to the company that ENISA certifies as an emerging company. The main ones: Corporate Income Tax at 15% for four fiscal years, seven years for its investors to subscribe for shares with a tax deduction, employee share grants exempt up to €50,000, and three years without grounds for dissolution due to losses.
To obtain them, the company must be less than five years old (seven in strategic sectors), have an innovative and scalable project, and not exceed €10M in turnover. Certification is free and ENISA must decide within three months. This guide helps you decide whether it is worth applying for it, how to do so, and what advantages you can use from day one.
Can your company qualify as an emerging company? The requirements
The law requires the company to meet all the conditions of article 3 at the same time. If it belongs to a group, the group or each of its companies must meet them (art. 3.1 of Law 28/2022).
| Requirement | What it means in practice | Rule |
|---|---|---|
| Company age | New or less than five years from the registration of incorporation; seven years in biotechnology, energy, industry and other strategic sectors, or with proprietary technology designed in Spain | Art. 3.1.a |
| Origin | Not having arisen from a merger, spin-off or conversion of companies that are not emerging companies | Art. 3.1.b |
| Dividends | Not distributing or having distributed dividends | Art. 3.1.c |
| Market | Not being listed on a regulated market | Art. 3.1.d |
| Registered office | Registered office, registered address or permanent establishment in Spain | Art. 3.1.e |
| Workforce | The 60% with an employment contract in Spain | Art. 3.1.f |
| Innovation and scalability | Innovative project with a scalable business model, evaluated by ENISA | Arts. 3.1.g and 4 |
| Revenue | If annual turnover exceeds €10M, the benefits are lost | Art. 6.d |
Companies founded or managed by anyone not up to date with the Tax Agency or Social Security are excluded. So are those of anyone convicted of corporate, insolvency, money laundering or tax offenses, among others (art. 3.3). Benefits also end if the company is acquired by a company that is not an emerging company or if a director or a shareholder with at least 5% is convicted of those offenses (art. 6 of Law 28/2022).
What it means for you: the origin requirement is easy to overlook. If you are going to reorganize the company before applying for certification, first check whether the transaction rules you out.
How to obtain ENISA certification
The procedure is governed by Order PCM/825/2023 and is processed through the ENISA portal, the National Innovation Company. According to ENISA itself, certification is free of charge for the applicant company.
- Electronic application in the ENISA portal registry, with the documentation: NIF, deed of incorporation, annual accounts for the last fiscal year, certificates of being up to date with the Tax Agency and Social Security, responsible declaration and business plan (art. 7 of Order PCM/825/2023).
- Assessment of innovation. It is deemed met by one of these conditions: R&D&I spending of at least 15% of total expenses or public aid for R&D&I in the last three years. Also valid are a reasoned report from the Ministry of Science, tax relief for research staff, the Innovative SME Seal or certain AENOR certifications. If not, ENISA assesses technological innovation or innovation in product, process or business model (art. 4 of the Order).
- Assessment of scalability. ENISA analyzes market, company stage, business model, competition, team, suppliers and customers. Having signed a credit facility with ENISA in the last three years, with at least one in force and with no incidents, counts as direct approval of this criterion (art. 5 of the Order).
- Resolution in three months. If ENISA does not notify within the deadline, the application is deemed approved by positive silence. The deadline is suspended if they ask you to correct it (art. 4.2 of Law 28/2022).
- Registration. ENISA sends the documentation to the Commercial Registry, which records the status on the company's register page. Registration is a necessary and sufficient condition for the benefits, and the Registry offers a free public search (art. 5 of Law 28/2022).
ENISA may deny the certification if the business model presents reasonable doubts about reputational, regulatory, ethical or speculative risks (art. 4.3.i of Law 28/2022). What it means for you: if your business touches a regulated sector, explain in the business plan what licenses you need and how you will obtain them.
Tax advantages: what you, your investors and your team gain
| Advantage | Payee | Amount | Rule |
|---|---|---|---|
| Rate of 15% in Corporate Income Tax | The company | First fiscal year with positive taxable income and the next three, as long as it maintains the status | Art. 7 Law 28/2022 |
| Deferral of the tax due without guarantees or interest | The company | 12 and 6 months for the first two tax years with a positive tax base | Art. 8.1 Law 28/2022 |
| No installment payments | The company | In the fiscal year following each of those two | Art. 8.2 Law 28/2022 |
| Investment deduction | Individual investors | Seven years from incorporation, instead of five, to subscribe with the general deduction of 50% on a maximum of €100,000 a year; founders without the 40% limit | Art. 68.1 of the IRPF Law |
| Exempt delivery of shares or holdings | Employees | Up to €50,000 per year; the excess is deferred until sale, listing on a market or ten years | Arts. 42.3.f and 14.2.m of the IRPF Law |
| Special regime for relocated workers | Highly qualified professionals providing services to emerging companies | Taxation under Non-Resident Income Tax during the year of relocation and the following five years | Art. 93 of the IRPF Law |
| Reduction in self-employed contributions | Controlling shareholder who also works as an employee | 100% of the tax due for minimum tax base, for up to three years | Art. 38 quinquies Law 20/2007 |
For non-resident foreign investors, the law simplifies entry: a NIF is enough and they do not need a foreigner identity number (art. 9 of Law 28/2022). The investor's deduction and form 165 have their own guide. The taxation of stock options, too.
Example with figures: 15% for four tax years
A company registered in February 2025 obtains certification that year. It has its first positive taxable base in 2026 and maintains the status until 2029: it does not exceed €10 million in turnover and does not reach five years before closing that tax year. Without certification it would not pay the general 25%. If it is not part of a group and does not continue a previous activity, it would be taxed at 15% as a new company in 2026 and 2027. With turnover of between €1 and €10 million, it would later pay 21% in 2028 and 20% in 2029 as a small company (art. 29.1 and the forty-fourth transitional provision of the Corporate Income Tax Law, LIS).
| Tax year | Taxable base | Tax due as an emerging company (15%) | Tax due without certification | Difference |
|---|---|---|---|---|
| 2026 | 80,000 € | 12,000 € | 12,000 € (15 %) | 0 € |
| 2027 | 150,000 € | 22,500 € | 22,500 € (15 %) | 0 € |
| 2028 | 300,000 € | 45,000 € | 63,000 € (21 %) | 18,000 € |
| 2029 | 500,000 € | 75,000 € | 100,000 € (20 %) | 25,000 € |
| Total | 1,030,000 € | 154,500 € | 197,500 € | 43,000 € |
In addition, the tax due for 2026 (€12,000) can be deferred for twelve months and that for 2027 (€22,500) for six months, without collateral or interest. And in 2027 and 2028 there are no installment payments (art. 8 of Law 28/2022). For a company that is starting to make money, that is cash.
Two warnings. The difference changes with your case: it is greater if you do not have the 15% for newly created companies, for example because you are part of a group, and smaller if your turnover in the previous tax year is less than one million euros, because then the scale of 17% and 20%, or 19% and 21% in 2026, applies (art. 29.1 and the forty-fourth transitional provision of the LIS). And the company in the example could not have been incorporated in 2022: it would reach five years in 2027 and lose the 15% without exhausting the four tax years (art. 6.a of Law 28/2022). What it means for you: the clock on the status runs from incorporation, not from the first profit.
Commercial advantages
| Advantage | What it allows | Rule |
|---|---|---|
| Three years without grounds for dissolution due to losses | Losses that leave net equity below half of the share capital do not require dissolution for up to three years from incorporation, unless insolvency proceedings apply. | Art. 13 |
| Treasury shares in the S.L. for remuneration | Acquire treasury shares up to 20% of capital to deliver them to directors, employees or collaborators, with a plan provided for in the articles of association and approved by the general meeting | Art. 10 |
| Registrable shareholder agreements | In the S.L., the shareholders' agreement is registered and has public registry disclosure if it does not contain clauses contrary to law. | Art. 11.2 |
| Fast registration | Five business days to register the company and its acts; six business hours with standard articles of association | Art. 11.1 |
| Reduced fees | €60 for notary and €40 for registration with standard articles, online processing at the Center for Information and Network for Business Creation (CIRCE) and capital below €3,100 | Art. 12 |
| Trial licenses | In regulated sectors, a temporary license of up to one year, with the user's express consent | Art. 15 |
The two advantages of the standard articles of association depend on the Government approving them by royal decree, as required by the twelfth final provision. Among the regulations issued to implement the law listed in the BOE, that royal decree does not appear, so confirm with your notary whether you can already use them (twelfth final provision of Law 28/2022).
For financial projects, controlled testing environments are governed by Law 7/2020 (art. 16.7 of Law 28/2022). If your project touches securities or investment services, the path is the financial sandbox of Law 7/2020, not the testing license.
Certification and financing: what changes in a funding round
The certification is not a loan. ENISA also finances companies with participating loans, but it is a different procedure; what does connect both is that a current policy with ENISA proves scalability (art. 5.3 of Order PCM/825/2023).
The condition is most noticeable in the round. A business angel who subscribes €100,000 can deduct up to €50,000 on their income tax return if they have enough state tax liability, as in any newly created company. What the condition adds is that the window to subscribe with deduction is extended from five to seven years. Founders listed in the deed can deduct even if they exceed 40% of the capital (art. 68.1.3.º of the IRPF Law). If you are preparing the round, also review the phases and instruments in the financing round guide.
If your startup wants to issue tokenized securities
The startup law does not change who can issue securities. The participations of an S.L. are not securities (art. 92.2 of the Companies Act, LSC), so an emerging S.L. cannot tokenize its capital as securities. For tokenized equity you need a public limited company (S.A.), with the shares registered in the register of an ERIR, the entity responsible for administering the registration and record (art. 8 of the Law 6/2023). An S.L. can issue bonds (art. 401 LSC).
If you are already certified as an S.L. and plan to transform into an S.A., keep in mind that the law excludes companies arising from the transformation of non-emerging companies (art. 3.1.b of Law 28/2022). Check with ENISA and your advisor how the transformation affects your certification before registering it.
Another interaction: starting to trade on a multilateral trading facility (MTF) does not by itself remove the status, which only requires not being listed on a regulated market. But it ends the investors' deduction, which requires not being admitted to any MTF, and forces your employees to pay tax on the deferred income from their shares (arts. 68.1.2.º.a and 14.2.m of the IRPF Law). The options according to your corporate form are in tokenized equity or debt for startups and in tokenization for startups and cap table on-chain.
Checklist before applying for certification
- Calculate when you reach five years (or seven) from the registration of incorporation.
- Check that you have not distributed dividends or arisen from a merger, spin-off or transformation of a non-emerging company.
- Check that 60% of the workforce has an employment contract in Spain.
- Gather the simplest proof of innovation you have: R&D&I expenditure, public aid, seal or report.
- Prepare a business plan that explains scalability, market and necessary licenses.
- Request certificates proving you are up to date with the Tax Agency and Social Security.
- After the resolution, check the registration in the Commercial Registry and notify your investors and your tax advisor.
To continue: form 165 and the investor deduction and phantom shares, stock options and ESOP.
If you need a law firm to prepare the transaction, at HokenFi's partner law firms you can request proposals from the platform.
Is your emerging company preparing a round and considering issuing shares or debt in tokenized format? Take the issuance diagnosis (2 min) or request a proposal.
This content is informative and educational. It does not constitute legal, tax, or investment advice. Check the current version of each regulation in the BOE and on EUR-Lex.
HokenFi is a software and infrastructure provider; it does not provide regulated services (CASP, ESI, EAF, or ERIR). This article is informative and does not constitute financial or legal advice.
Frequently asked questions
What are the requirements to be an emerging company?
Being less than five years from the registration of incorporation (seven in strategic sectors), not arising from a merger, spin-off or transformation of non-emerging companies, not distributing dividends, not being listed on a regulated market, having its registered office in Spain, 60% of the workforce with a contract in Spain and an innovative and scalable project. With more than €10 million in revenue, the benefits are lost (arts. 3 and 6 of Law 28/2022).
What is an ENISA certificate?
It is the resolution with which ENISA, the National Innovation Company, recognizes that a company meets the requirements of an emerging company under Law 28/2022. According to ENISA it is free of charge, is resolved within a maximum of three months with positive silence and is registered in the Mercantile Register, which is what gives access to the benefits (arts. 4 and 5 of Law 28/2022).
When do you stop being a startup?
The legal status of emerging company ends five years after incorporation (seven in strategic sectors), when exceeding €10 million in annual revenue, if it is acquired by a non-emerging company, if it is dissolved or if it stops meeting any requirement, such as not distributing dividends. From that moment the benefits of the law are lost (art. 6 of Law 28/2022).
What tax advantages does an emerging company have?
Rate of 15% in Corporate Income Tax during the first fiscal year with a positive tax base and the following three, deferral without guarantees or interest of the tax due for the first two and no installment payments in the following ones. Its investors have seven years to subscribe with the deduction of 50% and its employees receive tax-exempt shares up to €50,000 (arts. 7 and 8 of Law 28/2022 and arts. 42.3.f and 68.1 LIRPF).
Can an S.L. be an emerging company?
Yes. Law 28/2022 applies to any legal entity that meets its requirements, including cooperatives. An emerging S.L. can have treasury shares of up to 20% for remuneration plans and register its shareholders' agreement. What it cannot do is tokenize its capital as securities, because its participations are not securities (art. 92.2 of the Companies Act).
