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 involves the impact of the different bankruptcy and pre-bankruptcy mechanisms on credits with guarantees from the Official Credit Institute ( ICO ) granted under Royal Decree-Laws 8/2020, of March 17, on extraordinary urgent measures to address the economic and social impact of the 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 the 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 them, 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 entity that owns the credit. principal endorsed, which will be exercised separately by the party endorsed and by the party not endorsed by the ICO .

However, in the part of the main credit that has been guaranteed by the ICO , the vote in favor of the plan by the financial entity is subject to the prior authorization of the person holding the Department. of Collection of the Tax Agency.

The eighth Additional Provision of the consolidated text of the Bankruptcy Law was modified 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 are met. under the protection of the European Temporary Framework and article 16.2 of Royal Decree-Law 5/2021, of March 12, which established general authorizations for financial entities so that they could grant more favorable conditions for the return of credits guaranteed by the ICO (mainly, the extension of the maturity period of the guarantees to eight or ten years, depending on the case) provided that certain requirements were met.

Specifically, the Agreement of the Council of Ministers of June 21, 2022 instructed ICO to extend, when the conditions established in its Annex I were met, the expiration of the guarantees granted to companies and self-employed under 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 for 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 Agency's Collection Department to vote in favor of the restructuring plans. Such authorization will be necessary in the rest of the cases, and the financial entities must precisely 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 that justifies their proposal.

On the other hand, the second system is the one applicable in cases of continuation plans in the special procedure for microenterprises or bankruptcy proceedings , in which the right to vote, as well as accession or opposition to the agreement proposals, in the part of the main 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 microenterprises of the guaranteed debtor produce the subrogation of the Ministry of Economic Affairs and Digital Transformation for the part of the guaranteed main credit.

Both prior authorizations in cases of restructuring plans, as well as votes on continuation plans and accessions or oppositions to agreement proposals 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 the subsequent responsibilities that may result from administrative or judicial procedures, and will not affect or bind the right to vote derived from the remaining public credits classified as ordinary whose management corresponds to the Tax Agency in the procedure in question.