Law 16/2022, of September 5, reforming the consolidated text of the Bankruptcy Law, has meant, among other relevant developments, an important modification of the national preventive restructuring frameworks, as a consequence of the transposition of the Directive (EU ) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on frameworks for preventive restructuring, debt relief and disqualifications, and on measures to increase the efficiency of restructuring, insolvency and debt relief procedures, and amending Directive (EU) 2017/1132 of the European Parliament and of the Council on certain aspects of company law (Restructuring and Insolvency Directive).

Its entry into force has caused the hitherto existing extrajudicial mechanisms (extrajudicial payment agreement and refinancing agreement) to be eliminated, being replaced by a single pre-bankruptcy institution, which is the so-called restructuring plan.

This pre-bankruptcy mechanism can be used by natural or legal persons who carry out a business or professional activity with a certain size (minimum parameters are established for the number of workers, business volume and amount of liabilities) and are in a situation of current insolvency. or imminent, or probability of insolvency and, unlike the previous regime, it can affect public law credits.

One of the ways in which public law credits are affected by the new regulation is that public creditors may be forced to suspend, for a maximum period of three months, the phase of realization or disposal of assets or rights necessary for the continuity of the business or professional activity of the debtor who is negotiating a restructuring plan, in the event that the judge so agrees.

The communication of the proposed restructuring plan to public creditors whose credits could be affected is carried out through the service established in the electronic headquarters of each entity, for which the Tax Agency has created a new service, which can be accessed through this link: Tax Agency: Pre-bankruptcy situations.

For the purposes of the formation of classes of credits for voting on the restructuring plan, an especially relevant issue for the purposes of the approval and subsequent homologation of said plan, it is important to highlight that public law credits are a separate class among the classes of their same bankruptcy rank.

On the other hand, while public credits were outside the existing pre-bankruptcy agreements before the entry into force of Law 16/2022, currently, in the event that the negotiations of the debtor and its creditors bear fruit in the restructuring plan , public law credits may be affected, although the following additional requirements are required:

• That the debtor proves, both at the time of submitting the communication opening negotiations in court and at the time of requesting judicial approval of the restructuring plan, that it is up to date with compliance with tax obligations and with respect to the Social Security.

• That the corresponding credits are less than two years old, computed from the date of their accrual until the date of presentation in court of the communication opening negotiations.

If the aforementioned requirements are met, the public law credits that are pending payment and are affected by the restructuring plan must be fully satisfied within a period of 12 months from the issuance of the approval order of the aforementioned plan (the The period will be 6 months if a previous deferral or installment of the same credits had already been granted), with a maximum limit of 18 months from the date of communication to the court of the opening of negotiations. Under no circumstances will there be a deduction from the amount of said credits.

However, public creditors affected by the restructuring plan could request the resolution of said plan in terms of their credits due to non-compliance, which occurs when the payment deadlines provided for in the plan itself are not paid, or when generate current tax or Social Security debt during the validity of the aforementioned plan.

Additionally, the specialty that involves the inclusion in the restructuring plans of credits with guarantees from the Official Credit Institute granted under Royal Decree-Laws 8/2020, of March 17, of urgent measures must be taken into account. extraordinary measures to address the economic and social impact of COVID-19, 25/2020, of July 3, of urgent measures to support economic reactivation and employment, and 6/2022, of March 29, by which measures are adopted urgent matters within the framework of the National Response Plan to the economic and social consequences of the war in Ukraine, with respect to which their specific regulation is contemplated in the eighth Additional Provision of Law 16/2022, which makes voting subject to restructuring that include said credits, in the guaranteed part, with the authorization of the Collection Department of the Tax Agency, in the cases and with the conditions established in said provision.