The Supreme Court ruled in its Judgment of July 2, 2019 that public credits (Treasury, Social Security, FOGASA) were included in the exoneration system provided for in the already repealed Bankruptcy Law, so that debtors could request their deferred payment in 5 years after the declaration of the contest.
Despite this resolution, the legislator, when preparing the Consolidated Text of the Bankruptcy Law, modified the criteria of the Supreme Court, establishing in art. 497 that "Requests for postponement or fractioning of the payment of public law credits will be governed by the provisions of its specific regulations. "
In other words, the new bankruptcy law eliminated the possibility of exonerating public credits through the payment plan, contrary to the criteria established by the Supreme Court.
Fortunately, the Commercial Courts have not been slow to react against the drafting and application of the new bankruptcy law, providing that art. 497 should not be applied, without the need for its declaration of unconstitutionality, since an excess of “ultra vires” has been committed by the legislator in the drafting of the norm.
In other words, having modified the text, the legislator would have exceeded the delegation granted, which only allowed him to recast the Bankruptcy Law.
The first Courts that "have rebelled" against the legislator have been the Mercantile Court 7 of Barcelona in its Order dated September 8, 2020; the Mercantil 3 de Barcelona in its Order dated September 22, 2020; and Mercantil 13 de Madrid in its Order dated October 6, 2020.
We have no doubt that the majority of commercial courts in Spain will follow this "rebellious" line of inapplication of art. 497 of the new bankruptcy law, which Ribelles Abogados celebrate for being logical and above all, justice.
It is a criterion whose application we have already requested, so we will soon also know in what terms the Commercial Courts of Valencia pronounce themselves.
