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 extrajudicial mechanisms that existed until now (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 or imminent insolvency, or of 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 alienation 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 restructuring plan proposal 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 forming classes of credits for voting on the restructuring plan, an issue that is particularly relevant 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 classes of the same bankruptcy rank.

On the other hand, while public credits were excluded from the pre-bankruptcy agreements existing before the entry into force of Law 16/2022, currently, in the event that the negotiations between the debtor and its creditors result in the restructuring plan, public law credits may be affected, although the following additional requirements must be met:

• That the debtor proves, both at the time of submitting the communication to open negotiations to the court and at the time of requesting judicial approval of the restructuring plan, that he is up to date with his tax and Social Security obligations.

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

If the above-mentioned 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 date of the approval order of the aforementioned plan (the period will be 6 months if a previous deferral or fractioning of the same credits had already been granted), with a maximum limit of 18 months from the date of notification to the court of the opening of negotiations. Under no circumstances will there be any deduction from the amount of said credits.

However, public creditors affected by the restructuring plan could request the termination of said plan with respect to their debts due to non-compliance, which occurs when the payment terms provided for in the plan itself are not met, or when current tax debt or debt to Social Security is generated during the validity of said plan.

Additionally, it is necessary to take into account the special feature of the inclusion in the restructuring plans of loans with guarantees from the Official Credit Institute granted under Royal Decree-Laws 8/2020, of March 17, on extraordinary urgent measures to deal with the economic and social impact of COVID-19, 25/2020, of July 3, on urgent measures to support economic recovery and employment, and 6/2022, of March 29, by which urgent measures are adopted within the framework of the National Response Plan to the economic and social consequences of the war in Ukraine, regarding which their specific regulation is contemplated in the Eighth Additional Provision of Law 16/2022, which makes the vote on restructuring plans that include said loans, in the guaranteed part, subject to the authorization of the Collection Department of the Tax Agency, in the cases and under the conditions set out in said provision.