With the March 2020 pandemic, we have suffered a constant drip, even weekly, of regulations related to a multitude of areas. Many of these regulations are directly related to the indebtedness and financing of companies, and necessarily, to their economic viability. And also, of course, with the insolvency of those business projects.
We have successive rules that encourage recourse to credit, that is, indebtedness. In particular, the Royal-Decree-Law 8/2020, of March 17, which creates the Covid-19 guarantee lines in its article 29. We could summarize that it is invited to borrow (with State endorsement for 80% of the credit risk), with the sole condition that the applicant company’s own debts are paid. Subsequently, another rule arises, Royal Decree-Law 34/2020, of November 18, which allows the extension of the maturities of these Covid-19 loans, as well as the extension of the grace period of the previous credits. And finally, we have Law 5/2021, of March 12, which establishes multiple measures related to business solvency, and which corrects some errors in the previous regulations.
Basically, and if we pay attention to all the regulations issued, especially their explanations, the legislator tells us that going into debt is good to overcome the economic effects of the pandemic. As if that were not enough, many entrepreneurs – especially SMEs and freelancers – perceive and transmit in a dangerous way a misconception of enormous importance: that these Covid-19 loans will be paid by the State if the employer cannot repay them. Major error, because the unpaid debt will be demanded and increased in the costs of each operation (20% easily) against the main debtor, its guarantors, guarantors and accessory counter-guarantees (real estate, movable or those that touch). In other words, borrowing is not free, it never has been.
Subsequently, the Consolidated Text of the Bankruptcy Law is published – which was more than five years late – and successive rules are issued to implement a kind of bankruptcy moratorium. Moratorium that what comes to do in reality is to shield the debtor from the necessary bankruptcy declarations and partially protect him from the harmful consequences that the bankruptcy qualification could entail due to delay in requesting the voluntary bankruptcy.
Well, in this context, we find Law 5/2021, of March 12, which establishes frankly relevant legal measures to take into consideration since, first of all, it conditions its own measures to reinforce the solvency of Viable companies (those that are not viable cannot qualify).
Second, it defines for the first time in our positive law (in the explanatory memorandum, yes), the concept of viable companies, defining them as those whose operating value is higher than the liquidation value.
Likewise, it advocates restructuring the liabilities of previous companies to maintain, above all, employment.
On the other hand, it regulates through the so-called clause seems step the effects of defaults on operations guaranteed by Covid-19 loans.
Finally, it creates a line of direct aid with character, now, totally finalist and with a limited time frame (between March 1, 2020 and December 31, 2021), only for companies that, in 2019, had not declared a negative net result (another error), and as long as they maintain their activity as of June 30, 2022.
Additionally, we highlight art. 16, which regulates the so-called collection regime for guarantees derived from Covid-19 loans. Basically, it is clarified that the amounts owed will be recovered by normal means through the different credit institutions, without being able to modify the terms of the operation without the express approval of the AEAT. The regime of art. 116 bis and 10.1 of Law 47/2003, of November 26, General Budgetary.
What is very new and interesting is that these credits may be affected by the pre-bankruptcy and bankruptcy institutes (something logical, due to the nature of the guarantee itself and the effects derived from the guarantee), but above all because they are considered included as an exonerable liability for an unmet liability waiver benefit.
Finally, the Sixth Additional Provision regulates a specific regime of civil liability for the improper application of the measures established in this regulation.
What can and should be relevant for solving business solvency problems is the following: not everything goes, we have passed – we continue to pass – a limit situation that has allowed the legislator to be very flexible, postponing the declaration of bankruptcies. creditors and promoting access to credit. But it must be done responsibly. Otherwise, at the end of the story, the consequences will be very negative for entrepreneurs. In bankruptcy, or outside of it.
Gerardo Seguro Muñoz, partner of Acode Abogados.
– .
