ENISA refuses or revokes your startup certification

The case, in five lines

What is brought

A recurso de alzada (an administrative appeal to a higher authority) against the ENISA decision refusing or revoking the startup certification, seeking its annulment and a decision granting the certification or keeping it in force; in a revocation, written submissions during the hearing come first. Once the administrative route is exhausted, a recurso contencioso-administrativo (judicial review). Against the Agencia Tributaria (the Spanish tax agency), a defence during its review of the 15 % rate and a reclamación económico-administrativa (an appeal to the tax appeals board) against the tax assessment or the penalty.

Before which court

The appeal is lodged with ENISA or with the body that decides it: the Order names the Dirección General de Industria y de la Pequeña y Mediana Empresa (the Directorate-General for Industry and SMEs), and since the 2024 restructuring ENISA reports to the Dirección General de Estrategia Industrial y de la Pequeña y Mediana Empresa (the Directorate-General for Industrial Strategy and SMEs), so the statement of appeal rights will say which. Against its decision, express or deemed, judicial review goes to the court named in that statement: as a general rule, the Sala de lo Contencioso-administrativo (administrative-law chamber) of the Tribunal Superior de Justicia de Madrid (the Madrid High Court of Justice) (art. 10.1.n LJCA). The tax side goes to the Agencia Tributaria and, as a general rule, to the tribunal económico-administrativo regional (regional tax appeals board) and the chamber of the Tribunal Superior de Justicia (art. 10.1.d LJCA). The prior negotiation required by article 5 of Organic Law 1/2025 does not apply, as it is specific to civil cases.

Deadline

Application: ENISA decides within three months of the application being complete, failing which it is deemed granted (art. 4.2 of the Law). Revocation: ten working days to make representations and three months to decide from the opening decision (art. 11.1 of the Order). Appeal: one month from notification, after which the decision is final (art. 12.1 of the Order; art. 122.1 LPAC); the Directorate-General decides within three months or the appeal is deemed dismissed (art. 12.2). Judicial review: two months from notification of the express decision or six months from the deemed act (art. 46.1 LJCA). The tax authorities can assess for four years, a limitation period that can be interrupted (arts. 66 and 68 LGT), and their tax assessment must be challenged within one month (art. 235.1 LGT).

Who can bring it

The company that applied for or held the certification, as the interested party, acting through its director or whoever proves authority to represent it, against ENISA and the Directorate-General; before the Agencia Tributaria, the company itself as taxpayer. Whether an investor or employee whose tax advantage depends on the company's status can appeal in their own right is a question of standing examined case by case.

Financial risk

Without an appeal, the decision becomes final and the loss is recorded in the Registro Mercantil, visible to investors and buyers. The biggest financial risk lies with the tax authorities: the difference between 15 % and the rate that should have applied, with late-payment interest (art. 26 LGT), and a possible penalty of 50 % if the offence is minor (art. 191 LGT). In court, losing may mean an order to pay costs.

Refusal and revocation: two different decisions, one appeal

The company applies to ENISA for certification, and ENISA assesses the requirements of articles 3 and 6 of Law 28/2022 and whether the project is innovative and scalable (art. 4.1). Its Dirección de Fomento del Ecosistema Emprendedor (the department for the entrepreneurial ecosystem) handles the procedure and its Consejero Delegado (chief executive) decides, with power to delegate (art. 9 of Order PCM/825/2023). A refusal has three possible sources: a statutory requirement that is not met; the lack of innovative or scalable character, which under the Order must lead to the application being rejected (arts. 4.1 and 5.1); or reasonable doubts about reputational, regulatory, ethical or speculative risks in the business model (art. 4.3.i of the Law; art. 6.2 of the Order).

Revocation is a different procedure. If the certified company stops meeting a requirement, ENISA opens it of its own motion and must issue a reasoned decision within three months, after a ten-day hearing (art. 11.1 of the Order); it does the same where there is a material inaccuracy, falsehood or omission or an unreported change (art. 16), because the company must inform ENISA immediately of any change affecting the requirements (art. 15). A reorganisation may be enough: the wording of article 6.c of the Law covers acquisition by the founders' own holding company, and if that holding controls another company that does not qualify, the group requirement in article 3.1 fails as well.

Against a grant, a refusal or a revocation, the Order provides a single remedy: the recurso de alzada (an administrative appeal to a higher authority), within one month of notification, lodged with ENISA or with the body that decides it, which the Order calls the Dirección General de Industria y de la Pequeña y Mediana Empresa (art. 12.1). The Order has not been amended, but since the 2024 restructuring of the Ministerio de Industria y Turismo (Ministry of Industry and Tourism) ENISA reports to the Dirección General de Estrategia Industrial y de la Pequeña y Mediana Empresa: the statement of appeal rights will say which one to address. It is preferably filed at the Ministry's e-office, and if it comes in through ENISA's register, ENISA must forward it (art. 12.3). It is an alzada and not a reposición (an appeal for reconsideration to the same body) because ENISA's decision does not end the administrative route (art. 121.1 LPAC); the decision on the alzada does (art. 13 of the Order; art. 114.1.a LPAC).

One month to appeal, and three months before silence takes effect

Once the month passes with no appeal, the decision is final for all purposes (art. 122.1 LPAC) and can no longer be disputed through the ordinary route. Since ENISA's decision does not exhaust the administrative route, without an alzada the act that article 25.1 LJCA allows to be taken to court never comes into existence. Decisions arrive through the Dirección Electrónica Habilitada única (DEHú), and the date that counts is the one the notification record proves, not the day someone read the email alert. That date is fixed before anything else, with the record in hand.

The Directorate-General has three months to decide the appeal and notify its decision; if it does not, the appeal is deemed dismissed (art. 12.2 of the Order; art. 122.2 LPAC), because administrative silence is negative in appeal procedures (art. 24.1 LPAC). A decision upholding ENISA's must state its reasons (art. 35.1.b LPAC). Express or deemed, it opens the way to court: two months from notification of an express decision and six months from the day the deemed act arises (art. 46.1 LJCA). How that case is brought is explained in our guide on judicial review; what matters here is what is specific to this case: the court and the tax front.

With a refusal, another period has to be counted first. ENISA has three months from the date the complete application enters its register, suspended while a request to remedy defects is being answered, and if it does not notify a decision within that time the application is deemed granted by positive administrative silence (art. 4.2 of the Law; art. 8 of the Order). A later express decision can only confirm that deemed grant (art. 24.3.a LPAC). So, faced with a late refusal, the filing date, the requests and the answers are reconstructed: if silence took effect, the certificate proving it is requested (art. 24.4 LPAC) and the appeal changes character, because the certification is no longer being sought but defended.

What wins an appeal: misread facts, rule-based criteria and reasoning

The requirements of article 3.1 are facts proved with documents, and an error by ENISA in reading them is the strongest ground. The five years run from registration of the deed of incorporation with the Registry, not from its execution or from certification, and the period is seven years in biotechnology, energy and industry; the Law also mentions proprietary technology designed entirely in Spain, but leaves it to the Order, which does not develop it. Also open to dispute are origin in a merger, demerger or conversion, dividends paid at any time, the 60 % of staff on employment contracts in Spain, the group under article 42 of the Commercial Code and turnover, which cannot exceed ten million euros (art. 6.d).

Innovative character has a rule-based gateway: it is deemed met if the company satisfies at least one objective condition (art. 4.3 of the Order): R&D and innovation spending of at least 15 % of total spending in the two previous financial years, or in the previous one if the company is under two years old; public investment, funding or aid for R&D and innovation or for innovative entrepreneurship in the last three years that has not been revoked; a reasoned report from the Ministry of Science; social security rebates for research staff; the Sello Pyme Innovadora (innovative SME seal); or AENOR certification EA0043 or EA0047, or certification under standard UNE 166.002. Scalability has its own: one or more ENISA credit facilities signed in the last three years, at least one in force and without incidents (art. 5.3). If ENISA refuses despite one of them, it is not exercising technical judgement: it is breaching a rule.

Outside those gateways, the assessment of innovation and scalability (arts. 4.4 and 5.2 of the Order) is technical, and an appeal rarely replaces it. What can be reviewed is how the decision was made. The decision must give reasons (art. 9.2 of the Order; art. 35.1 LPAC): a formula such as 'scalability has not been shown', without saying why, is not reasoning. And if ENISA relied on facts or data the company did not provide, such as a professional profile or registry information, it should have given the company ten days to make representations (art. 6.3 of the Order; art. 82 LPAC). Winning on these grounds usually leads to a fresh assessment, not to the certificate.

Appeal or reapply: weighing time and the effective date

Neither Law 28/2022 nor the Order prevents a new application after a refusal. A complete application obliges ENISA to decide within three months, subject to positive administrative silence (art. 4.2 of the Law); an appeal takes up to three months, subject to negative silence, and may end in litigation. If the refusal came from a business plan without verifiable data, from missing documents or from a deemed withdrawal for failing to answer a request in time (art. 6.4 of the Order), filing again properly is usually faster than appealing. And if a request asks for something hard to gather in ten days, an extension of up to five more days should be requested before the period expires (art. 68.2 LPAC).

The date matters too. The benefits apply from the date of certification (art. 9.3 of the Order), and the 15 % corporate tax rate applies from the first year with a positive tax base in which the company already has the status (art. 7 of the Law): if that year is close, every month counts. The Order does not prevent running both routes at once: lodging the appeal so that the refusal does not become final while preparing a new application that fixes what was missing. The date from which a certification won on appeal would take effect is an issue raised in the appeal itself.

In a revocation, reapplying only helps if the breach can be undone: unwinding the transaction that created the group, restoring the 60 % of staff in Spain or getting up to date with the tax authorities and Social Security (art. 3.3 of the Law). If it cannot, because dividends were paid or the five or seven years have run out, the fight is over the dates and the tax front. The ten-day hearing is the decisive moment: that is when the facts and the date of the article 6 event are contested and everything is filed, because anything held back for the appeal may not be taken into account. If ENISA notifies its decision more than three months after the opening decision (art. 21.3.a LPAC), the question is whether the procedure has lapsed.

Losing the certification does not only affect the future

Several benefits hang on the status. The company pays corporate income tax at 15 % in the first year with a positive tax base and the three following years, as long as it keeps the status (art. 7 of the Law). It may defer, without security or interest, the tax for the first two years with a positive base, by twelve and six months respectively (art. 8.1), and makes no payments on account for the year following each of those two, provided it keeps the status in that year (art. 8.2). The loss extends to investors (art. 6) and to what the third and fourth final provisions tie to the status: the exemption of up to 50,000 euros a year for shares or participations given to employees, which for options requires the conditions to be met when the options are granted, and the rebate on the self-employed contributions of the shareholder who controls the company while also working as an employee elsewhere.

What nobody tells you is the date. The certification loses effect when the decision is notified, but the benefits are lost from the moment the article 6 event occurred (art. 11.2 of the Order): if the group was formed in August and ENISA decides in December, whatever was applied in between is exposed. And the tax authorities do not wait for ENISA: even if the certificate is in force and registered, the Agencia Tributaria can check that the article 3 requirements were met and maintained, and make whatever adjustments are due (art. 5.1 of the Law). Article 8.1 requires the status when the deferral is requested and does not say what happens if it is lost later: it is prudent to make a provision for the deferred tax.

The adjustment is the difference between 15 % and the rate that should have applied, with late-payment interest (art. 26 LGT, the General Tax Act), for as long as the right to assess is not time-barred, which lasts four years (art. 66.a LGT) and is interrupted by any action of the Agencia Tributaria aimed at reviewing, adjusting or assessing the tax and carried out with the company's formal knowledge (art. 68.1 LGT). Failing to pay the tax due is a minor offence, with a 50 % penalty, if the penalty base does not exceed 3,000 euros or there is no concealment, and a serious one, with a penalty of 50 to 100 %, if the base exceeds that figure and there is concealment (art. 191 LGT). A company that applied the 15 % rate with a registered certificate, which the Law declares a necessary and sufficient condition, can argue that it exercised due diligence (art. 179.2.d LGT); the argument weakens if it did not report the change. And regularising on its own initiative, before any request, avoids the penalty, though not the surcharges of article 27 (art. 179.3 LGT).

After the appeal: the court, interim relief and the tax appeal

If the appeal is dismissed, judicial review is brought before the court named in the statement of appeal rights. The decision is taken by a Directorate-General of the Ministry, a central State body ranking below a Secretary of State, and since that act is not assigned to any other court, as a general rule the case goes to the Sala de lo Contencioso-administrativo of the Tribunal Superior de Justicia de Madrid (art. 10.1.n LJCA). If the statement points instead to the administrative-law section of the Tribunal Central de Instancia (the central first-instance court), because the original act is ENISA's (art. 9.1.c LJCA), this is checked before filing. The prior negotiation of article 5 of Organic Law 1/2025 is not required, as it belongs to civil proceedings.

Appealing does not restore the status. ENISA notifies the Registro Mercantil of the loss (art. 14.2 of the Order), whose online search shows whether the company is a startup (art. 5.2 of the Law), and investors, buyers and employees holding options all see it. If waiting for the judgment causes serious harm, such as a funding round that requires the status, interim relief is sought (art. 129 LJCA), which is granted only if enforcement could deprive the claim of its legitimate purpose, after weighing all the competing interests (art. 130 LJCA). Interim relief does not stop the Agencia Tributaria, which carries out its own checks.

With the tax authorities, the route is different. The tax assessment or the penalty is challenged through a reclamación económico-administrativa (an appeal to the tax appeals board) within one month from the day after notification, filed with the body that issued the act, which forwards it to the tribunal (art. 235 LGT); it is normally decided by the tribunal económico-administrativo regional, and the Sala de lo Contencioso-administrativo of the Tribunal Superior de Justicia hears the case afterwards (art. 10.1.d LJCA). Whatever was won against ENISA is filed there as evidence that the company met the requirements. If the revocation is well founded, it sometimes pays to regularise the affected year early and concentrate the defence on the earlier ones. We handle both fronts together, because what is said on one is read on the other.

How we run the case, step by step

1. 1

   Pin down the date and what has arrived

   The notification is downloaded from the DEHú, with its date and its statement of appeal rights, and its nature is identified: the decision opening a revocation procedure with ten days to make representations, a refusal or a revocation already decided. That date is used to count the month for the appeal and, in a refusal, to check whether it arrived after the three-month period for positive administrative silence.

2. 2

   Request the file and read it in full

   ENISA is asked for a copy of the file: the application, the requests and the answers, the assessment and any third-party data it used. That shows whether there is a factual error, whether an objective criterion under articles 4.3 or 5.3 of the Order was ignored or whether the hearing required by article 6.3 was skipped.

3. 3

   Decide between appealing, reapplying or both

   The time an appeal takes is compared with that of a new application, the first year with a positive tax base is identified and, in a revocation, it is assessed whether the breach can be undone. The decision is taken with you, backed by figures, before the deadline.

4. 4

   Make submissions or appeal with full evidence

   The submissions or the appeal are drafted with the facts corrected, the rule breached, the lack of reasons or of a hearing, and the documents proving it. We file the appeal ourselves, under the power of representation you grant us, at the Ministry's e-office; if ENISA's portal does not allow us to file the submissions, your director signs the document we have prepared. You never have to hand us your digital certificate.

5. 5

   Quantify the tax exposure and decide whether to regularise

   The cost of the 15 % rate, the deferred tax and the payments on account not made since the date of the article 6 event is calculated year by year. With that figure in hand, the choice is made between defending what was applied and regularising without waiting for a request, which avoids the penalty (art. 179.3 LGT), and the investors and employees affected are informed.

6. 6

   Take it to court or to the tax appeals board in time

   If the appeal is dismissed, judicial review is brought within two months of notification of the express decision, or six months from the deemed dismissal (art. 46.1 LJCA), before the court named in the statement of appeal rights, as a general rule the Sala de lo Contencioso-administrativo of the Tribunal Superior de Justicia de Madrid, with interim relief where needed. If the tax authorities issue a tax assessment or a penalty, a reclamación económico-administrativa (an appeal to the tax appeals board) is lodged within one month (art. 235.1 LGT).

The law that applies

• Arts. 3 y 6 Ley 28/2022. Defines a startup by requirements that must all be met at once: five years from registration (seven in biotechnology, energy and industry), not arising from a merger, demerger or conversion of a non-startup, not paying and never having paid dividends, not being listed, a seat, registered office or permanent establishment in Spain, 60 % of staff on employment contracts in Spain and an innovative, scalable project, requirements that in a group must be met by the group or by each company; and lists when the company and its investors lose the benefits, among other cases on acquisition by a non-startup or turnover above ten million euros. BOE-A-2022-21739
• Arts. 4.2 y 5.1 Ley 28/2022. ENISA decides within three months of the complete application being filed, suspended while defects are remedied, and positive administrative silence applies; the status entered in the Registry is necessary and sufficient for the benefits, although the tax authorities can check that the article 3 requirements are met and maintained and make any adjustments due. BOE-A-2022-21739
• Arts. 7 y 8 Ley 28/2022. A 15 % rate in the first period with a positive tax base while holding the status and the three following periods, if it is kept; deferral without security or interest of the tax for the first two periods with a positive base, by twelve and six months; and exemption from payments on account for the period following each of them, if the status is kept in that period. BOE-A-2022-21739
• Arts. 4, 5, 6 y 9 Orden PCM/825/2023. Sets the objective conditions that prove innovative character and the direct approval of scalability through an ENISA credit facility, the ten-day hearing if ENISA uses data the company did not provide, and deemed withdrawal if a request is not answered; the chief executive gives a reasoned decision and the benefits apply from the date of certification. BOE-A-2023-16817
• Arts. 11 a 16 Orden PCM/825/2023. Revocation is initiated by ENISA of its own motion and decided within three months after a ten-day hearing, and takes effect on notification although the benefits are lost from the event under article 6 of the Law; an appeal lies within one month to the Dirección General de Industria y de la Pequeña y Mediana Empresa, which decides within three months, with silence meaning dismissal, and ends the administrative route; ENISA notifies the Registry of the loss and the company must report any change immediately. BOE-A-2023-16817
• Arts. 24, 35 y 122 LPAC. An express decision after a deemed grant can only confirm it, and silence in challenge procedures means dismissal; acts restricting rights and acts deciding appeals must give reasons; the alzada is lodged within one month, after which the act is final, and is decided within three months. BOE-A-2015-10565
• Arts. 10.1 y 46.1 LJCA. The administrative-law chambers of the Tribunales Superiores de Justicia hear challenges to the decisions of the regional tax appeals boards that end the tax appeals route and, as a residual rule, to any action not assigned to another court; the claim is brought within two months of notification of the express act ending the administrative route and within six months of the deemed act. BOE-A-1998-16718
• Arts. 66, 179 y 191 LGT. The right to assess is time-barred after four years; there is no liability for an offence where due diligence was exercised, for example relying on a reasonable interpretation, nor where the taxpayer regularises voluntarily, without prejudice to surcharges; failing to pay is a minor offence at 50 % or a serious one at 50 to 100 %, depending on the amount and concealment. BOE-A-2003-23186

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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