Pre-emption right and market competitiveness: insights from Spanish company law

Abstract

The paper examines recent reforms concerning capital increases and shareholders’ pre-emption right, focusing on a comparative analysis among European, Italian and Spanish corporate law. Within the broader EU framework aimed at strengthening capital markets, the article explores the simplifications introduced by Spain’s Law No. 5/2021, which significantly reformed the rules on the exclusion of pre-emption rights and on authorized capital increases. The comparative overview highlights a general trend towards greater flexibility and a more prominent role for the board of directors, with the aim of expediting capital-raising operations while maintaining adequate shareholder protection. The study concludes by emphasizing the need for a European-level reconsideration of the pre-emption right’s function, seeking a balance between investor safeguards and market competitiveness.