In recent years we have witnessed numerous exceptional situations. Among the most notable, due to their more global and widespread effects, we find the pandemic caused by the Covid-19 virus in 2020 and the War in Ukraine, following its invasion by Russia on February 24, 2022.

The first led to a generalised crisis not focused on the financial system (unlike the great subprime crisis of 2008), in which the sectors and companies most affected were those most sensitive to mobility restriction measures (hotels, tourism, restaurants, travel agencies or the transport sector). The second led not only to a global and regional geopolitical repositioning, but also, particularly in Europe, to a general increase in prices, to the impact on those sectors most closely linked to and dependent on energy (electricity, gas, oil, coal) and to an increase in the price and scarcity of raw materials.

At the domestic level, numerous containment measures were adopted to mitigate the economic and financial consequences of such events.

For our purposes here, we must highlight the initial creation of two lines of public guarantees owned by the Ministry of Economic Affairs and Digital Transformation (currently, the Ministry of Economy, Trade and Business), managed by the Official Credit Institute (ICO). The first line of guarantees was approved by Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19 , and the second by Royal Decree-Law 25/2020, of July 3, on urgent measures to support economic reactivation and employment .

These lines, known respectively as ICO-Liquidity (with 100 billion euros) and ICO-Investment (with 40 billion euros), were intended to maintain employment and alleviate the economic impact of the pandemic. This was achieved by facilitating access to credit, covering new loans and other forms of financing, together with new investments to be made, through guarantees granted to those companies and self-employed persons who requested it.

These operations included renewals granted by financial institutions to meet financing needs such as salary payments, outstanding supplier invoices, rental of premises, offices and facilities, supply expenses, working capital needs and other liquidity needs, including those arising from the maturity of financial or tax obligations. New investments should be aimed at promoting the growth and sustainability of economic operators, with a particular emphasis on the digital transformation of companies.

Of course, this public guarantee did not extend to loan consolidations and restructurings, nor to the early cancellation or amortization of pre-existing debts. Its purpose could not be to reduce the previous debt, but to guarantee access to the credit required in the new situation. In short, the aim was to guarantee, through ICO guarantees, access to credit for companies and self-employed workers for their new financial needs, not to improve the conditions of their pre-existing debt.

Subsequently, given the new exceptional situation due to the War in Ukraine, a new line of guarantees was created through Royal Decree-Law 6/2022, of March 29, which adopts urgent measures within the framework of the National Plan for response to the economic and social consequences of the war in Ukraine .

The objective of this line, specifically, was to cover the corresponding part of the principal of new financing operations granted by supervised financial institutions to companies and self-employed persons, belonging to all productive sectors with the exception of the financial and insurance sector, which were affected by the economic effects of the war in Ukraine, as well as by the increase in the prices of energy and raw materials as a consequence of this. This line of guarantees as a response plan was endowed with 10 billion euros.

In all these cases, the financial institution decided on the granting of the corresponding financing to the client in accordance with its internal procedures and granting and risk policies, a granting that the public guarantee greatly facilitates.

The question that cannot be avoided is whether these lines of guarantees constituted State Aid, prohibited by the TFEU. De facto they were, without although the European Commission, in view of the exceptional situation, authorized the so-called "Temporary Framework" from March 13, 2020, which was subject to 6 extensions until June 30, 2022, which determined an exception to the State Aid regime, being in accordance with Union Law whether or not such lines of guarantees constituted State Aid.

Let us now move on to the collection of the financing granted. In the event of repayment of the financing by the beneficiary, there is no collection problem, since the payment is made voluntarily. The question arises when there is a breach or when the beneficiary of the aid enters into a situation of bankruptcy and does not pay, not because he does not want to, but because he cannot, something not uncommon after the end of the post-pandemic bankruptcy moratorium.

The Collection Regime is regulated in Article 16 of Royal Decree-Law 5/2021, of March 12, on extraordinary measures to support business solvency in response to the COVID-19 pandemic, which has been completed by the Agreements of the Council of Ministers of May 11, 2021, June 21, 2022 and December 5, 2023 (the latter modified by the Agreement of the Council of Ministers of December 27, 2023), as well as by DA 8 Law 16/2022, of September 5, reforming the TRLC. In the field of the AEAT we must adhere to the very recent Instruction 1/2024, of April 3, of the Director of the Collection Department of the AEAT, on actions to be carried out by the collection bodies in application of the collection regime of certain guarantees granted by the ICO.

And this is where we come to the intervention of the AEAT in relation to these lines of guarantees.  Being a certainly complex regime, in order to give a general overview, we must indicate that we find guarantees in the range “ pari passu” , in which risk is shared with financial institutions on equal terms and without the prerogatives of public credit. It is a very denatured “sui generis” public credit. It is the financial institution that is responsible for claiming the credit, although the AEAT intervenes in the processing of the files of debtors who are holders of credits guaranteed by the ICO through guarantee lines subject to a special collection regime in three cases:

1. When a specific authorization for deferral, fractionation (extension of term) or cancellation is requested.

2. When the debtor is involved in a pre-bankruptcy situation and a restructuring plan is sought to be approved.

3. When the debtor is involved in bankruptcy or a special procedure for micro-enterprises, and a proposal for an agreement or continuation plan is sought to be approved.

In the first two cases, prior authorisation from the AEAT to the financial institution is essential for the financial institution to be able to grant or vote in favour, since failure to obtain this would result in the guarantee being damaged and the debt not being covered by the public guarantee. In the third case, it is the AEAT itself that votes directly for or against the bankruptcy procedure.

All of this is done with the aim of safeguarding the adequacy of the criteria for processing and collecting these guarantees, and maximising the collection of guarantees that have proven to be a safety net during the pandemic, and which, in the end, are still paid for by the public treasury, which always requires managing them with the utmost rigour.