11/18/2021 at 08:33 CET
David Page / Cristina Gallardo
Since the start of the pandemic, the Government has been bankruptcy moratoriums avoid an escalation of closures of companies hit by the shutdown or decline in activity during the crisis. Since April 2020, in the midst of the first state of alert, these moratoriums have been extended which allow companies that would be viable under normal commercial conditions not to file for bankruptcy and that their creditors cannot activate it either.
The objective of the measure, as proposed by the Executive, is to maintain business activity and employment while returning to pre-crisis activity levels. That is to say, give legal instruments to companies to avoid a cascade of bankruptcies of companies and facilitate refinancing and out-of-court settlements.
The current bankruptcy moratorium will end next December 31st and with professional associations, they are starting to mobilize to obtain a new extension of the measure. Entrepreneurs and self-employed people are calling for an extension of the suspension of the obligation to file for bankruptcy to avoid a wave of business failures early next year and the collapse of the jurisdictions responsible for handling bankruptcy.
From the employer CEOE and the Federation of Workers associations Self employed (TO) It is specified that the Ministry of Economic Affairs, commanded by Vice-President Nadia CalviÃ±o, will have to extend the moratorium on bankruptcy beyond this year due to the huge number of companies still in difficulty and which are still covered by aid systems (in particular ERTEs linked to Covid, now extended until the end of next February while working on a new ERTE system which is permanent).
âEnding the bankruptcy moratorium under the current economic circumstances does not make sense. It must be maintained until we see the behavior of companies after the aid is withdrawn and until the economic recovery is complete. Otherwise, the courts will be overwhelmed & rdquor;, he argues Celia Ferrero, ATA Vice-President. âThe moratorium is expected to be maintained throughout 2022,â penalty. An extension of a whole year in line with the previous extension, approved by the Government in mid-March and until the end of 2021, but which may be excessive.
However, CEOE and ATA both handle another scenario that they consider almost inalienable for practical and operational reasons: extend the moratorium at least until the entry into force of the reform of the bankruptcy law prepared by the ministries of justice and economic affairs and which will be used to transpose the European directive on corporate restructuring.
Although businessmen and the self-employed reject some of the measures included in the Government’s bill (the maintenance of the privilege of public debts with the Treasury and Social Security in the event of restructuring or second chance, the absence an early warning system, eliminate the figure of the bankruptcy administrator in micro-enterprise bankruptcies& mldr;), recognize that the settlement will include advances such as the development of restructuring plans as pre-bankruptcy instruments, some improvements to the second chance mechanism or changes to streamline the bankruptcy process. Therefore, employers understand that it makes no sense to end the bankruptcy moratorium if the law reform is in effect.
The government rush
The new regulations are still at the draft stage and await the opinion of the General Council of the Judiciary (CGPJ), the Tax Council and the Council of State, the final bill must be approved by the Council of Ministers and then processed by the Cortes. The maximum deadline for transposing European Directive 2019/1023 expires in July 2022. In the best case, this is the period within which it can be expected to come into force, and therefore the moment when Au Initially, the employers believe that the end of the bankruptcy moratorium should be postponed.
Different business sources and the legal sector, however, doubt that the planned ceiling will be reached, despite the fact that the Ministry of Justice and Ministry of Economic Affairs They have a particular interest in carrying out the reform of the bankruptcy law that they introduced in early August and which, as a result, triggered an emergency procedure to speed up approval times. The government is justifying the rush because it is one of the most important reforms in the Recovery, Transformation and Resilience Plan and because it is essential at a time when many companies are still in the process. difficulty after the seizure.
Due to this haste, the Government’s request for a mandatory report to the CGPJ was formulated to be completed in “Emergency period”, that is, within 15 days. But the body of judges has already communicated to the Government that this request requires too short a timeframe on the part of the members who must give the opinion.
Sources of the CGPJ specify to EL PERIÃDICO DE ESPAÃA, a newspaper belonging to the same communication group as this media, that the commitment is to have the report ready before the end of this year, and for this the work has been entrusted to members Mar Cabreajas and Juan Manuel FernÃ¡ndez, who are already working on the text. For its part, Tax advice it is only confirmed that he plans to include the discussion of his mandatory report in a future plenary session.
The bill has 245 pages, 755 new articles and 11 additional provisions. With such a regulatory deployment and such complexity, businessmen and independents complain that the Government did not consult them during the preparation time of the preliminary draft (despite the fact that the Community directive currently being drafted). transposition was approved more than two years ago by the EU institutions) and that it did not grant them 15 working days to present your allegations in full month of vacation (between August 4 and 25) because it is an emergency procedure.
âDuring these two years, the Spanish companies were not consulted nor any initiative of the ministries concerned. [el de Justicia y el de Asuntos EconÃ³micos] publicize the project or seek the opinion of the Spanish business sector & rdquor ;, says CEOE in the document of allegations of the project. “Acceptable democratic conduct, the aim of which was to normative quality I would have advised to have the technical advice of Spanish companies & rdquor ;.
From the Register of Forensic Economists (REFOR), a body specializing in the General Council of Economists of Spain (CGE) in insolvency matters, it has been criticized as “Not serious & rdquor; that for a law of this magnitude, only 15 working days were granted in August, a period which he described as “ridiculous.” Despite the understanding of the government’s eagerness to undertake the reforms initiated in Brussels in the recovery plan, we consider that a reform which affects the survival of our companies deserves a period of reflection a little longer â, declares Valentin Pich, president of the CGE.