The suspension of the dissolution regime for losses and the duty of the debtor to request the declaration of insolvency proceedings is prolonged
Royal Decree-Law 27/2021, of November 23, which extends certain economic measures to support recovery , published in the BOE of November 24, extends until 2022 the application of certain measures in bankruptcy, corporate , administrative and guarantees and public aid.
The measures that are now being reinforced or modified have their origin in Royal Decree-Law 16/2020 , of April 28, which was later replaced by Law 3/2020 of September 18, on procedural and organizational measures to deal with to COVID-19 in the field of Justice Administration . .
1. Extension of the suspension of the dissolution regime for losses
Royal Decree-Law 27/2021 modifies article 13 of Law 3/2020, extending the exclusion of economic losses for the purpose of calculating the legal cause of dissolution of article 363.1.e) of the Capital Companies Law, until the end of fiscal year 2022.
The previous wording excluded the consideration of the losses of 2020, while, with this new wording, the economic losses of the 2021 financial year will not be taken into account either, for the purpose of determining the concurrence of the cause of dissolution of article 363.1.e) of the aforementioned law.
In accordance with the foregoing, if in the result of the year 2022 there are losses that reduce the net worth of a company to an amount less than half of the share capital, it must be called by the administrators -or may be requested by any partner-, within two months from the close of the 2022 financial year, the holding of a meeting to proceed with the dissolution of the company, unless the capital is increased or reduced to a sufficient extent (or the situation of patrimonial imbalance in another way).
2. Extension of the suspension of the debtor’s duty to request the declaration of bankruptcy
In the bankruptcy area, the most significant novelty is the extension until June 30, 2022, inclusive, of the suspension of the debtor’s duty to request their declaration of bankruptcy. As of that date, the duty to request bankruptcy voluntarily will be re-established and the debtor will have a legal period of two months to request their declaration of bankruptcy. The rule also suspends until June 30, 2022, inclusive, the processing of necessary insolvency applications that have been submitted by creditors since March 14, 2020.
The regulation is aware that, despite the suspension of the duty to request bankruptcy voluntarily, it is possible for the debtor in difficulty to formalize his request for bankruptcy, since the power to avail himself of the bankruptcy procedure is not deactivated (in fact, it never has been). state during the pandemic). In that case, and when two insolvency applications coincide (the one presented by the debtor until June 30, 2022 and the one presented by a creditor, even before), the one presented by the debtor will be processed preferentially.
The royal decree-law ceases to resume the wording of section 3 of article 6 of Law 3/2020, which regulated the temporary specialties related to the communications of opening negotiations with creditors presented prior to December 31, 2021. Thus, The royal decree-law no longer contains the express provision that, in the event of those communications, the debtor would have the duty to request bankruptcy once six months have elapsed since the relevant communication.
The new extension of the insolvency moratorium responds –according to the Statement of Motives of the royal decree-law– to the need to provide legal certainty until the transposition of Directive (EU) 2019/1023, of the European Parliament and of the Council, is completed. of June 20, 2019, which aims to provide the Spanish bankruptcy system with new early restructuring instruments and improve the efficiency of restructuring, insolvency and debt relief procedures.