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

The first gave rise to a generalized 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 (hospitality, tourism, restaurants, travel agencies or the transport sector). The second gave rise not only to a global and regional geopolitical repositioning, but also, particularly in Europe, to a general increase in prices, the impact of those sectors most linked to and dependent on energy (electricity, gas, oil, coal ) and an increase in prices and shortages of raw materials.

Domestically, numerous containment measures were adopted in order to alleviate the economic and financial consequences of such events.

As far as we are concerned 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, Commerce 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 address 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 (endowed with 100,000 million euros) as well as ICO-Inversion (endowed with 40,000 million 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, along with the new investments to be made, through a guarantee granted in favor of those companies and self-employed workers who requested it.

These operations included renewals granted by financial entities to meet financing needs such as the payment of salaries, supplier invoices pending settlement, rentals of premises, offices and facilities, supply expenses, working capital needs and other needs. of liquidity, including those derived from maturities of financial or tax obligations. For their part, new investments should be aimed at promoting the growth and sustainability of economic operators, placing special emphasis on the digital transformation of companies.

Of course, this public guarantee did not cover the unifications and restructuring of loans, nor the cancellation or early amortization of pre-existing debts. Its purpose could not be to reduce the previous debt, but rather to guarantee access to the credit required in the new situation. In short, it was about guaranteeing access to credit for companies and the self-employed through ICO guarantee for their new financial needs, not about improving the conditions of their pre-existing debt.

Subsequently, given the new situation of exceptionality thanks to the War in Ukraine, a new line of guarantees was created through Royal Decree-Law 6/2022, of March 29, by which urgent measures are adopted in the framework of the National Response Plan 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 the new financing operations granted by supervised financial entities to companies and the self-employed, belonging to all productive sectors with the exception of the financial and insurance sector, who were affected by the economic effects of the war in Ukraine, as well as by the increase in energy and raw material prices as a result of it. This line of guarantees as a response plan was endowed with 10,000 million euros.

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

An issue 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 March 30. June 2022, which determined an exception to the State Aid regime, such guarantee lines being in accordance with Union Law whether or not they constituted State Aid.

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

The Collection Regime is regulated in Art 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 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. Within the scope of the AEAT we must comply with 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 for 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 entities in equality of conditions and without the prerogatives of public credit. It is a very distorted “sui generis” public credit. The financial entity is in charge of 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 lines of guarantees subject to a special collection regime in three cases. :

1. When a singular authorization for postponement, fractionation (term extensions) or withdrawal is requested.

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

3. When the debtor is involved in bankruptcy or a special procedure for microenterprises, and it is intended to approve a proposed agreement or continuation plan.

In the first two cases, prior authorization from the AEAT to the financial entity is essential so that the financial entity can grant or vote in favor, since failure to obtain it would result in damage to the guarantee and the debt would not be covered by the guarantee. public. In the third case, it is the AEAT itself that votes directly in favor or against in the bankruptcy procedure.

All of this with the purpose of safeguarding the adequacy of the processing and collection criteria for these guarantees, and maximizing the collection of guarantees that have proven to be a safety net during the pandemic, and that in the end, continue to be borne. from the public treasury, which always requires managing them with the utmost rigor.