To that end, Article 4.1 of Law 17/2009 on freedom of access to and exercise of service activities provides that `service providers may establish themselves freely in Spanish territory in order to carry out a service activity, without restrictions other than those established in accordance with the provisions of that law`, while paragraph 2 of that article provides that `any person established in Spain: a service provider lawfully carrying out an activity may be carried out throughout the territory of the service. “The law considers that a trader is intended for all those who have the legal capacity to conclude contracts and be registered in the commercial register, to perform their own commercial acts and to make them their usual profession. A trader is the person who usually does a job that also helps in the economy. It is also the name given to the owner of a trading system. In commercial law, the term merchant refers to its subjective object of study, that is to say the persons subject to specific regulations of this branch of law. In this sense, traders are persons who regularly engage in one of the activities that the law considers to be commercial (“commercial acts”). Habituality is an essential element of the definition: any person who carries out an occasional trade (for example, making purchases in a store) is not a trader, but only a person who regularly negotiates is considered a trader from the point of view of commercial law. Therefore, all commercial and industrial companies established under the Commercial Code (in short, all commercial companies: companies, limited liability companies, general partnerships, limited partnerships, limited partnerships, limited partnerships, etc.), as well as all natural persons who have the legal capacity to carry on business, are usually involved. Foreigners and companies registered abroad may trade in Spain, subject to the laws of their country, in terms of contractual capacity and the provisions of the Commercial Code, in all matters related to the establishment of their branches in Spanish territory, their commercial activities and the jurisdiction of the courts of the country. [10] In particular, professionals (natural or legal persons) from other countries of the European Union are subject to Article 12(1) of Law 17/2009, according to which “service providers established in another Member State may provide services on Spanish territory within the framework of the freedom to provide services without services other than those established in accordance with the provisions of this Law”. In this sense, and as regards natural and legal persons from third countries of the EU, the general principles of freedom of establishment and freedom to provide services enshrined in Articles 43 and 49 of the Treaty establishing the European Community transposing the Services Directive apply.
According to article 16 of the current Mexican Commercial Code, all traders are bound by the following: merchant, abbreviation of Commercial Code, is any natural person who engages in commercial exchanges (the ordinary and expensive supply of goods and services to third parties) who has the capacity to trade and is not subject to a prohibition of trade under the provisions of the Commercial Code or any law. a special person or any legal person established in a form of trade, whatever its commercial purpose. In any event, all requirements relating to the taking up or pursuit of a service activity must meet the following criteria[13] These principles were developed at Community level by Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (commonly referred to as the Bolkestein Directive). such as Frits Bolkestein, European Commissioner for the Internal Market, its promoter in 2004; or the Services Directive[1][2], the objective scope of which, in accordance with Article 50 of the Treaty on the European Community, includes the following activities: Spain transposed the Services Directive into national law by promulgating Law 17/2009 of 23 November. on free access to and exercise of service activities. In accordance with these principles, service activities (i.e. traditional businesses or commercial) are not subject to authorisation, except in exceptional cases and where the following conditions are met:[11] This prohibition also extends to restrictions on the opening of branches, branches or subsidiaries by nationals of a Member State established in the territory of another Member State. (a) be non-discriminatory; (b) be justified by an overriding reason in the public interest; (c) are proportionate to the overriding reason in the public interest; (d) be clear and unambiguous; (e) be objective; (f) be published in advance; (g) be transparent and accessible. However, the Administration may make the exercise of a commercial (commercial) activity subject to the fulfilment of an obligation of prior communication or declaration of responsibility. In general, with the exception of the exceptions provided for by law[12], any activity the exercise of which depends on obtaining a prior permit or the execution of a prior notification or a declaration of responsibility may be carried out for an indefinite period throughout the national territory.
The provision of services or, what is the same thing, the regular performance of commercial acts, or in other words, commercial activity, therefore results from free access in Spain throughout the national territory, without more restrictions than those that could be established in the aforementioned Law 17/2009. All this is in line with the constitutional recognition of the freedom to conduct a business[9], the implicit mandate to liberalise services provided for in Articles 52 to 54 of the Treaty on the European Community and the guarantee of the freedom to conduct a business contained in Article 16 of the Charter of Fundamental Rights of the European Union. According to the Commercial Code and without prejudice to the provisions of special laws, they may not carry out commercial activities[7] According to 3.1 of the aforementioned Law 17/2009, a service is “any economic activity on its own account that is normally carried out for remuneration within the meaning of Article 50 of the Treaty on the European Community”.