Law 16/2022, of September 5, reforming the consolidated text of the Bankruptcy Law, has established, in its Eighth Additional Provision, the regulation of the specialty that entails the affectation of the different bankruptcy and pre-bankruptcy mechanisms to credits with guarantees from the Official Credit Institute ( ICO ) granted by virtue of Royal Decree-Laws 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19, 25/2020, of July 3, on urgent measures to support economic reactivation 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.

The special collection regime applicable to credits with guarantees granted by the ICO under the aforementioned Royal Decree-Laws is contemplated, in general, in article 16 of Royal Decree-Law 5/2021, of March 12, applying in the procedures provided for in the consolidated text of the Bankruptcy Law the specialties included in the aforementioned Eighth Additional Provision of Law 16/2022, of September 5.

Regarding these credits, their specific regulation and the intervention of the Tax Agency are contemplated in a different way depending on the specific mechanism that is being used to try to affect them. Thus, in particular, two systems are distinguished in the standard.

In the first of these, when it comes to carrying out the vote regarding restructuring plans (pre-bankruptcy mechanism) that include said credits, the right to vote is the responsibility of the financial institution holding the principal guaranteed credit, which will exercise it separately for the guaranteed part and for the part not guaranteed by the ICO .

However, in the part of the principal credit that has been guaranteed by the ICO , the favorable vote on the plan by the financial institution is subject to the prior authorization of the person in charge of the Collection Department of the Tax Agency.

The eighth Additional Provision of the consolidated text of the Bankruptcy Law was amended by Royal Decree-Law 20/2022, of December 27, to clarify that such authorization would not be necessary when the requirements provided for in the Agreements of the Council of Ministers adopted under the European Temporary Framework and article 16.2 of Royal Decree-Law 5/2021, of March 12, which established general authorizations for financial institutions so that they could grant more favorable conditions for the repayment of loans guaranteed by the ICO (mainly, the extension of the maturity period of the guarantees to eight or ten years, as the case may be) provided that certain requirements were met.

Specifically, the Agreement of the Council of Ministers of June 21, 2022 instructed the ICO to extend, when the conditions established in its Annex I are met, the expiration of the guarantees granted to companies and self-employed persons pursuant to article 29 of Royal Decree-Law 8/2020, of March 17, and article 1 of Royal Decree-Law 25/2020, establishing that the maximum term of the guarantee from the date of formalization of the guaranteed operation may not exceed ten years in the case of guarantees that meet the conditions for the limited amounts of aid in section 3.1 of the European Temporary Framework, nor eight years for guarantees that meet the conditions established for loan guarantees in accordance with section 3.2 of the European Temporary Framework. Therefore, if these circumstances occur, it is not necessary for financial institutions to obtain authorization from the head of the Tax Collection Department of the Tax Agency to vote in favor of restructuring plans. Such authorization will be necessary in the rest of the cases, and financial institutions must certify, at the time of submitting the authorization request to the Tax Agency, the non-compliance with the aforementioned conditions and attach a reasoned report justifying their proposal.

On the other hand, the second system is applicable in the cases of continuation plans in the special procedure for micro-enterprises or bankruptcy proceedings , in which the right to vote, as well as the adhesion or opposition to the proposals for an agreement, in the part of the principal credit guaranteed by the ICO , is the responsibility of the Tax Agency.

In these cases, the order declaring bankruptcy and the order opening the special procedure for micro-enterprises of the guaranteed debtor result in the subrogation of the Ministry of Economic Affairs and Digital Transformation for the part of the principal credit guaranteed.

Both prior authorisations in cases of restructuring plans, as well as votes on continuation plans and adhesions or objections to proposals for agreements made by the Tax Agency are understood to be issued exclusively with respect to credits derived from public guarantees and will have the exclusive effects provided for in the aforementioned Eighth Additional Provision of the consolidated text of the Bankruptcy Law, without prejudice to any subsequent liabilities that may arise from administrative or judicial proceedings, and will not affect or bind the voting rights derived from the remaining public credits classified as ordinary whose management corresponds to the Tax Agency in the procedure in question.