Aquaculture: overview of the M&A practice in Spain16 March 2023

Spanish aquaculture’s growth potential makes it an attractive target for both domestic and international investors and, as a result, we are seeing numerous transactions successfully completing in the sector. Industry players have been driving activity so far but a growing volume of private equity and investment funds are now specifically targeting aquaculture investments.

It should be noted that most of these investments are being made via the acquisition of established aquaculture companies rather than the creation of new ones, likely due to the licensing and regulatory burdens that establishing a new business would entail. As competition grows in this sector, mergers and acquisitions are also expected to increase. In addition, according to Law 23/1984, of 25 June, on Marine Fish Farming (Ley 23/1984, de 25 de junio, de Cultivos Marinos) only Spanish citizens and companies can benefit from concessions or authorisations to use the public domain to develop their activities. In practice therefore, a local presence will be required.

Recent highlight deals in the sector include the acquisitions of:

• a stake in Galician Marine Aquaculture by Portugal’s Acuinova-Actividades Piscícolas S.A;
• a 33.3% stake in seafood firm Inlet Seafish by Japan’s Maruha Nichiro Corporation;
• frozen seafood company Elba and a controlling stake in salmon processor Ahumados Domínguez by Iceland’s Seafood International;
• Iberconsa by Platinum Partners from Portobello Capital; and
• seafood processor and distributor Caladero from Mercadona and a majority stake in Greek seabass and seabream company Kefalonia Fisheries by Grupo Profand, partially owned by Corporación Financiera Alba since late 2021.

In terms of new opportunities, Galician lender Abanca acquired 97.76% of Nueva Pescanova and was reportedly searching for financial partners. The latest news indicate that the chosen partner may be Cooke, who is said to be negotiating the acquisition of a majority stake in the company. Conversely, newspaper El Español reported in late September 2022 that Angulas Aguinaga, a Basque group which already carries out 35% of its activity overeseas, is looking to further its international presence via acquisitions, according to CEO Ignacio Muñoz. The group’s majority shareholder (51.1%) is PAI Partners, who recently acquired Nakulas, Copesco, Sefrisa and Italian company Deligusti. They bought their stake from Portobello, who retain the remaining 49.9% of Angulas Aguinaga.

The Spanish M&A markets has been reliably active in recent years (especially in sectors such as real estate, energy, tourism, IT and telecom) and is expected to remain so. The considerable interest from international investors is reflected in the high number of cross -border deals subject to Spanish law, which has caused domestic M&A to become more sophisticated. One example is that representation and warranty (“R&W”) insurance policies are becoming increasingly popular among manufacturing operators.

Acquisition structure

In Spain there are two basic procedures for acquiring a privately held enterprise or business, understood as an organised set of elements (i.e., a commercial or industrial production unit, with organised capital and labour resources), they are:

• the purchase of all shares of a company, which can be either a Spanish limited liability company (“S.L.”) or corporation (“S.A.”) that own the target business (referred to as a share deal); or
• the purchase of all a company’s assets and liabilities (referred to as an asset deal). The company is acquired in a single purchase agreement, but each of the assets, rights and obligations making it up must be transferred according to the applicable law governing them, which means complying with different requirements to transfer each of them.

The most common way to structure a business acquisition is through a share deal. Asset deals are less common and are usually used as an alternative when only some and not all of the target business is acquired.

The content of business acquisition agreements is not predefined by Spanish law and will depend on the terms negotiated by the parties, although the general provisions of Spanish civil and commercial law will apply. It is also notable that many clauses included in M&A contracts are imports from English or US law. For example, Spanish purchase agreements now usually contain a long list of R&W made by the seller to the purchaser on various issues relating to the target company or the transferred assets and liabilities, accompanied by the former’s declaration to the latter that they are true and accurate.

Although the sale of companies in Spain is usually subject to Spanish law, it can also be governed by foreign law, provided compulsory Spanish legal requirements are complied with.

Acquisition process

The typical acquisition process in bilateral transactions begins with the signing of a non-disclosure agreement and the negotiation and signing of a letter of intent or a memorandum of understanding, which establish the terms of the envisaged transaction on a non-binding basis and, generally, regulate a period of exclusivity to carry out a due diligence of the business and to negotiate a satisfactory agreement during a certain period of time.

Upon a successful negotiation, the transaction is usually documented in a share purchase agreement and a closing deed granted before a notary to comply with compulsory Spanish legal requirements (in the case of acquiring the quotas of an  S.L. or where shares of an S.A. are represented by bearer certificates) or with standard market practice (in the case of an acquisition of shares of an S.A. which is not represented by bearer certificates). The signatories to the agreement will need to be duly represented by powers of attorney which, if granted abroad, need to be legalised or stamped with the Hague’s Apostille. Both seller and buyer will have to disclose their beneficial owners in case they are legal entities and will require getting a Spanish or foreign identity card (NIE/NIF). Likewise, the payment of the transaction will need to be duly evidenced.

Foreign investment obligations

Except for certain sectors (including national defence and security, airline carriers, gambling, TV and radio), M&A transactions carried out by international investors are not subject to any restrictions in Spain. Foreign investments must be reported to the General Directorate for Trade and Investments, but only for administrative, statistical and financial purposes. Additionally, if an acquisition is leveraged and debt is provided from abroad, additional post-deal filings with the Bank of Spain may be required.

Competition law

Businesses in Spain are subject to EU and Spanish competition law. When a business combina­tion has a community dimension, the provisions of Council Regulation (EC) 139/2004 of 20 January on the control of concentrations between undertakings are applicable. When a business combination does not have a community dimension, the main applicable legislation is formed by the Law 15/2007 of 3 July, on the Defence of Compe­tition and its development. In accordance with said legislation, transactions that fulfil either of the following thresholds are subject to mandatory referral to Spain’s National Markets and Competition Commission:

• that, as a result of the transaction, a market share of 30% or more of the relevant product market in Spain or a relevant geographic market within Spain, is acquired or increased; or
• that the aggregated turnover in Spain of the parties to the transaction exceeded €240m in the last financial year, provided that at least two of the parties each have an individual turnover exceeding €60m.

Employment

Acquirers should also consider the employment law regulations in the Workers’ Statute and in any applicable collective bargaining agreements. Purchasing a business through acquisition of all a company’s shares or quotas does not involve changing the employer. Consequently, there is no change in employment relationships. However, if a business or enterprise is transferred in a way that changes its legal ownership, it becomes a case of employer succession, regulated under Article 44 of the Workers Statute and imposing an obligation on the new employer to assume the old employer’s position and continue existing employment contracts.

HOW CAN WFW HELP?

Our maritime corporate, finance and regulatory expertise is second to none. With 25+ years’ experience in all practice areas relevant, directly or indirectly, to aquaculture, no firm is better placed than WFW to help you navigate the complex legal requirements surrounding this growing industry in Spain.