The current Spanish Insolvency Law raises directors’ liability levels. Hence, directors must not only manage the company but also address legal aspects to prevent liability in insolvency proceedings.
The Council of Ministers has endorsed a draft amending Spain’s insolvency proceedings law, previously modified by Royal Decree 3/2009. The amendments, introduced to expedite and reduce costs, aim to position insolvency proceedings as a tool not only for winding up but also for attempting to save the company.
The strict reading of Article 97.2 may harm a creditor with a debtor-specific guarantee, as it implies automatic extinguishment without additional criteria. Unfortunately, the current wording doesn’t support a discretionary judge interpretation, posing a risk of guarantee extinguishment without due consideration.
The recent Spanish Bankruptcy Law expands the examination of company managers’ liability, supplementing existing provisions in the Public Limited Company and Limited Liability Company Laws, as well as the Criminal Code, within the context of corporate crime. It introduces a classification section in bankruptcy proceedings where the judge assesses the involvement of company managers in the company’s bankruptcy situation.
The Spanish legal system offers creditor protections for companies that cease commercial operations but remain inactive, failing to undergo the necessary dissolution and liquidation processes. Typically insolvent, these companies neglect corporate debts and obligations by discontinuing trading, abandoning the business premises, not filing annual accounts with the Commercial Registry, neglecting tax payments, and failing to fulfill other corporate obligations mandated by law.
Spain’s Insolvency Law safeguards creditors in instances of director misconduct or negligence during company insolvency, ensuring confidence in the legal framework’s protection for creditors.
This article delves into crucial aspects of insolvency and debt collection proceedings in Spain. It highlights the practical challenges faced by economic actors, emphasizing the decision-making process between liquidation and reaching agreements with creditors, which can be influenced by the type of creditor involved. The article also briefly touches on the limited effectiveness of insolvency proceedings in family debt cases.
In Spain, the Insolvency Law 22/2003 underwent recent reform with Royal Decree Law 3/2009 (March 27), responding to the global economic crisis. Originally enacted during economic prosperity, the law’s deficiencies over six years prompted modifications in the reform.
In recent years, Spain has witnessed a surge in leveraged buy-outs (LBOs), where a majority share of a target company is acquired using loans guaranteed by its assets or repaid through its cash flows. In some cases, the acquisition cost is deferred and paid by the target company itself, often through a merger with a special purpose vehicle created by the investor. This strategy shifts the burden of the acquisition cost to the target company.
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