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Due to the fact that the data on the recovery of the Spanish economy after the pandemic are less optimistic than was initially anticipated, the Government has decided to once again extend Law 16/2020 and the terms of the bankruptcy moratorium.

Through Royal Decree-Law 27/2021, of November 23, in its article 3, the term is extended until June 30, 2022 (inclusive) for the debtor who is in a state of insolvency to request the declaration of competition. In other words, the period for requesting the declaration of insolvency provided by law will not start until July 1, 2022. Furthermore, until that day, the Courts will not accept the necessary bankruptcy requests that had been submitted as of the 14th. March 2020, although the debtors will continue to be able to present the declaration of voluntary bankruptcy, which will be processed in preference to the necessary one.

Finally, and for the sole purpose of determining the concurrence of the cause of dissolution provided for in article 363.1.e) of the consolidated text of the Capital Companies Act, the losses suffered by the companies during the 2020 financial years will not be taken into consideration. and 2021. Only in the event that in the results of the year 2022 there are losses that reduce the equity capital to an amount less than half of the capital, the Meeting may be convened and held to proceed with the dissolution of society for that reason, without prejudice to the fact that the capital can be increased or reduced sufficiently.

In short, with this new Royal Decree-Law, companies are given six more months before they have to request the declaration of bankruptcy in the event that they are in a state of insolvency, and they are also allowed to leave out the losses of the years 2020 and 2021 in order to avoid the dissolution of these companies due to the situation during these two years.

The great dilemma is whether our Courts will consider that the bankruptcy moratorium exempts administrators who, knowing that they were insolvent, continued to borrow and aggravate the insolvency situation, knowing that they could not meet the payments they incurred. Let us hope that their actions are governed by a better criterion than continuing to postpone every six months a situation that, for many companies, is no longer reversed and whose situation is only aggravated by these types of measures.

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