ENISA emerging company certification (Startups Law): requirements, tax benefits and how to apply

It is the resolution by which ENISA (the National Innovation Company) recognises that a company is an 'emerging company' for the purposes of Ley 28/2022, known as the Startups Law. Without it, there are no benefits: the status of an emerging company registered in the Commercial Registry (or the Cooperatives Registry) is a necessary and sufficient condition to access them (art. 5.1).

The procedure is regulated by Orden PCM/825/2023, in force since 22 July 2023 and unmodified to date. In a single application, ENISA checks the requirements of the law and whether the project is innovative and scalable. It has no cost for the company.

Be careful with the name: 'ENISA' involves three different procedures (the loan, this certification and the report for the entrepreneur residence that the UGE requests ex officio). They are independent and the 'The three ENISAs' table separates them; we have specific guides for the loan and the residence.

At Managora we handle the certification from start to finish: requirements, business plan, responsible declarations, submission as authorised representatives with the notarial power of attorney requested by ENISA and follow-up until the resolution.

Art. 3.1 requires all of them to be met at the same time (the requirements table summarises them): being an already registered commercial company or cooperative, never an autónomo (self-employed worker) nor a company in the process of incorporation; not exceeding 5 years since the registration of the deed (7 in biotechnology, energy and industrial sectors; the Order does not add more sectors); not coming from a merger, spin-off or transformation of non-emerging companies; never having distributed dividends; not being listed on a stock exchange; having a headquarters in Spain and 60% of the workforce with an employment contract in Spain; and having an innovative and scalable project.

Two more limits that are usually overlooked: the annual turnover cannot exceed 10 million euros (art. 6.d), and if the company is part of a group under art. 42 of the Código de Comercio (Commercial Code) (for example, controlled by a holding company of the partners), the group or each of its companies must meet the requirements, with a group responsible declaration.

Furthermore, art. 3.3 excludes emerging companies founded or directed by anyone who is not up to date with Hacienda (the Spanish tax authority) and the Seguridad Social (the Spanish social security system), has a final conviction for crimes such as unfair administration, punishable insolvency, money laundering or against the public treasury, or has lost the possibility of contracting with the public administration.

A dividend distribution or an origin by merger or spin-off cannot be fixed later: that is why it is the first thing we check.

A company is innovative if it seeks to solve a problem or improve a situation with new or substantially improved products, services or processes compared to the state of the art, with a risk of technological, industrial or business model failure (art. 3.2). Innovation can be product or business-based.

The innovative character is directly approved with just one of these conditions (art. 4.3 of the Order): R&D&I expenditure of at least 15% of total expenses in the two previous financial years (or in the previous one, if the company is less than two years old); public R&D&I or innovative entrepreneurship aid, financing or investment in the last 3 years without revocation; a reasoned report from the Ministry of Science; rebates for research staff; an Innovative SME Seal; or AENOR EA0043 or EA0047, or UNE 166.002 certifications. The 2026 ENISA guide adds being a winner or finalist of an innovative company award of at least regional scope. Without any of these, ENISA assesses protectable innovation (patents, software or know-how; trademarks do not count) or innovation in products, processes, services or business models.

For scalability, it looks at market attractiveness, life stage (prototype, minimum viable product, market launch), the business model and its investment plan, competition, the team, dependence on suppliers and clients (art. 5.2 of the Order). Having signed a credit agreement with ENISA in the last 3 years, currently in force and without incidents, grants direct approval (art. 5.3 of the Order).

ENISA can deny the application if it sees reasonable doubts regarding reputational, regulatory, ethical or speculative risks, and it requires truthful and verifiable data: the plan we prepare includes figures and proof for every statement.

According to art. 7.2 of the Order and the ENISA guide: company documentation and definitive NIF card (the provisional one is not valid); deed of incorporation with proof of its registration; annual accounts for the last closed financial year, deposited or, failing that, approved and signed by the administrative body (if there are no accounts yet, the box is ticked); certificates of being up to date with the Tax Agency and the Seguridad Social (or of non-existence as an employer); responsible declaration of compliance with arts. 3 and 6 of the law; group declaration, if applicable; notarial power of attorney or similar document of the person representing the company; and a business plan.

The responsible declaration is signed by the legal representative or the authorised representative, dated at most 3 months before the application; if there are joint representatives, all of them must sign.

The company is responsible for what it submits and must keep proof of each requirement in case ENISA requests it (art. 7.3). To receive the resolution, it must be registered in the Single Enabled Electronic Address (DEHú).

ENISA has a maximum of 3 months to resolve and notify, from the moment the complete application enters its electronic registry (art. 4.2 of the law and art. 6.1 of the Order). If it expires without a notified resolution, the application is understood to be approved by positive silence (art. 8 of the Order). ENISA does not publish on its certification page how long it takes on average.

A request for correction suspends the deadline, and if it is not answered in time, the company is considered to have withdrawn (art. 6.4). If ENISA is going to use data that the company did not provide and that could lead to a denial, it must give it 10 days for written submissions (alegaciones) (art. 6.3).

If it is favourable, ENISA issues the certificate and communicates it itself to the Commercial Registry, which notes it on the company's sheet (art. 5.3 of the law and art. 14 of the Order): the company does not submit anything to the Registry. The benefits apply from the date of certification (art. 9.3 of the Order); before applying the 15%, it is advisable to check that it is already registered.

If it is denied, an appeal (recurso de alzada) can be filed within one month from the notification. Our firm prepares it: send us the resolution as soon as you receive it.

Corporate Tax at 15% (art. 7): in the first period with a positive tax base while being an emerging company and in the following three, as long as it maintains the status. Deferral (art. 8.1): the debt of the first two periods with a positive base is deferred for 12 and 6 months, without guarantees or late payment interests; it is requested when filing the return, on time and being up to date, and it is not valid for complementary returns. Instalment payments (art. 8.2): the ones you do not have to make are those for the period immediately following each of those two, not those for those same two periods.

Stock options (art. 42.3.f of the Ley del IRPF (Personal Income Tax Law)): the delivery of shares or participations to workers of an emerging company is exempt up to €50,000 a year (€12,000 in general). The excess is imputed when going public or selling, and at the latest after 10 years.

Investor deduction (art. 68.1 of the Ley del IRPF (Personal Income Tax Law)): 50% of the subscribed amount with a maximum base of €100,000 a year. It is not exclusive to emerging companies; what is specific to them is that you can invest up to 7 years after incorporation (5 in general) and that the founding partners appearing in the deed do not have the 40% limit. The company issues the certification to the investor and declares it with form 165.

The benefits table includes the rest, such as the rebate on the autónomo fee for whoever controls the emerging company and works simultaneously as an employee, or that losses do not force dissolution for 3 years.

Hacienda can check later that the requirements are still being met (art. 5.1). At Managora we prepare the certification for your investors and form 165.

For the entrepreneur residence, no: it depends on another ENISA report that the UGE requests ex officio within the procedure (art. 70.1 of Ley 14/2013 (the Spanish Entrepreneurs Act)), without having to wait for it or provide it. We explain this in our entrepreneur visa guide.

For the impatriate regime (Beckham Law), it does open a path: that of the highly qualified professional who moves to Spain and provides services to emerging companies, if that remuneration exceeds 40% of all their business, professional and work income (art. 93.1.b.4.º of the Ley del IRPF (Personal Income Tax Law)). The Reglamento del IRPF (Personal Income Tax regulations) requires the qualifications of art. 71 of Ley 14/2013 and considers them fulfilled if you have, before the relocation, the highly qualified professional residence authorisation (art. 113.2); when opting in, you must also prove the registration of the emerging company in the Registry and the services provided to it. We review this on a case-by-case basis. The founder can also enter as a company administrator or through entrepreneurial activity with a favourable ENISA report and entrepreneur authorisation prior to the relocation; if they are an EU citizen or enjoy the right of EU free movement, the prior ENISA report is enough.

In all paths: not having been a resident in Spain in the 5 previous periods, opting in with form 149 within the 6 months following the start of activity recorded in the Seguridad Social registration, and the regime lasts the year in which you acquire tax residence (the first with more than 183 days in Spain after arriving) and the following 5, at 24% up to €600,000 and at 47% for the excess; dividends, interests and capital gains from sales go to the savings scale, from 19% to 30% in 2025. We submit form 149 for you with your mandate.

It is not indefinite: it is valid for 5 or 7 years counted from the registration of the company in the Registry, not from the certification. A company registered on 10 March 2023 and certified in 2026 stops being an emerging company, generally, on 10 March 2028. Requesting it late shortens the years of benefit.

Before that, the benefits end if it stops meeting a requirement of art. 3, is extinguished, is bought by a non-emerging company, exceeds 10 million euros in turnover, causes significant harm to the environment or partners with at least 5% or administrators are convicted of the crimes in art. 3.3 (art. 6).

ENISA then opens an ex officio procedure with 10 days for written submissions (alegaciones) and resolves it in 3 months (art. 11 of the Order). The certification loses effect upon notification, but the benefits are lost from the moment the event occurred.

The company must immediately notify ENISA of any change affecting the requirements (art. 15 of the Order); failing to do so opens the loss procedure (art. 16), and ENISA can carry out annual checks on a sample of companies (art. 17). Typical changes: a dividend distribution, the entry of a company forming a group, the sale to a non-emerging company or going public.