Law Article 13 3/2020 of 18th September on procedural and organisational measures to deal with COVID-19 in the Administration of Justice established that the company is not to consider the financial losses of 2020 and 2021 to determine its net wealth and assess whether there are grounds for dissolution (*).
Thus, companies with losses in 2020 and 2021 will not consider them when calculating whether they are in cause of dissolution. Most times, this will avoid the obligation of the administrators to request the dissolution of the company within the legal period of two months and their corresponding responsibility.
However, Article 13 does not establish a temporary limit on the suspension of the cause for dissolution.
Thus, the commercial legislator remains with the doubt raised by this article since its introduction into the Spanish system. Namely, it is uncertain whether the company should consider the financial year losses of 2020 and 2021 when calculating its situation in 2022 to determine if it incurs in the mentioned cause for dissolution.
The Preamble to Royal Decree-Law 27/2021, of 23rd November, suggests that the financial losses of 2020 and 2021 do not compute, as if non-existent. In contrast to other provisions of this law, the suspension does not have a marked temporary limit.
In our view and although this rule – like all COVID-19-related rules – is essentially temporary in nature, the fact that the legislator has not delimited the suspension temporarily, as with Article 6, indicates that it is not intended to be limited.
Therefore, it is not understandable that the suspension of this ground for dissolution should be limited. If this were the case, the rule would become meaningless if the 2022 financial year were to count as if there had been no such suspension.
Given the uncertainty caused by the lack of specificity, we recommend the rebalancing of the assets and liabilities of the companies that need it before the end of the 2022 financial year.
Álvaro Gómez Férnandez
(*) When lower than half of the capital following Article 363.1 e) of the Spanish Companies Act.
This article is not considered legal advice