When addressing the authorized, political and financial issues of administrative concessions, the central query is to find out what’s the public impulse mechanism and the way the cash is recovered. It’s what determines that the rule and success of public contracts is fulfilled and that, consequently, within the case of unreal planning of the infrastructure, it isn’t the general public funds that acts as an important supporter of personal funding. What’s related to remember is that it isn’t an issue of supporting sellers by means of loans or not, however of the situations below which this assist is materialized. And, particularly, if the return of public cash is sufficiently assured.
Inside this downside, participative loans play a preponderant function. It may be stated that they represent the important supply of public financing of the concessions; regardless of the issues they pose. In reality, within the personal financing market, this determine is usually used as a mechanism to assist innovation, to corporations which can be within the strategy of improvement. Due to this fact, its use as a car to assist massive infrastructures shouldn’t be with out its difficulties.
Participative credit are presently listed within the Royal Decree Law 7/1996, of June 7, on urgent measures of a fiscal nature and for the promotion and liberalization of economic activity, Article 20 of which defines them as these during which “the lender will obtain a variable curiosity relying on the exercise of the borrowing firm. The standards for figuring out stated evolution could also be: web revenue, enterprise quantity, complete fairness or some other freely agreed by the contracting events. As well as, they’ll be capable to agree on a hard and fast curiosity whatever the evolution of the exercise ”.
Ranging from this rule, the issues seem in order that the determine of the participatory mortgage could be thought of, from the angle of the Public Administrations and the integrity of public cash, a superb instrument for supporting concessionaires. In reality, the world during which they’ve been developed, that of the toll roads, is exactly one of many ones that has posed probably the most issues and, with it, the restoration of probably the most uncertain public cash. Based on the Supreme Courtroom ruling of July 13, 2011, the particular regime that seems within the regulation solely consists of complementary components of its nature of mortgage and, subsequently, of the duty to return it in accordance with the situations that it has stipulated. It’s a mortgage and is topic to its important guidelines, whose principal obligation is the return of the principal and curiosity within the agreed time. In different phrases, when an individual, pure or authorized, requires capital, they will get hold of it in many alternative methods, but when they accomplish that within the type of a mortgage, their important obligation is reimbursement. Which isn’t altered by article 20 of the Royal Decree-Legislation (…). This rule doesn’t outline the participative mortgage; Guidelines are given on the curiosity and the non-compulsory penalty clause and the supply is added that the precedence of credit (if this arises) is positioned after the frequent collectors and, as well as, imposes the consideration of personal funds for the needs of business legislation (which doesn’t stop the duty to return the borrowed capital) ”.
Participative loans are thought of the corporate’s personal funds. As said by the Common Directorate of Taxes in its Binding Session of June 26, 2007 “it doesn’t appear cheap to contemplate collaborating loans as a part of the capital inventory. It’s not even clear whether or not it’s personal funds –not enforceable liabilities– or third-party funds –– enforceable liabilities–, since, on the one hand, though it’s true that letter d) of article 20 of Royal Decree-Legislation 7 / 1996 determines that collaborating loans might be thought of accounting fairness, it additionally specifies that they are going to be thought of such for the needs of capital discount and liquidation of corporations supplied for in business laws “
These loans are, in precept, thought of subordinated loans, that’s, these whose fee is subordinated to the fee of different loans which can be preferential.In reality, we should consider that, in accordance with the provisions of article 20. 1 c) of RD-L 7/1996, which regulates participatory credit, these “as a way to the precedence of credit, might be positioned after frequent collectors”, with which they have to be attributed, essentially, the character of subordinated mortgage, until expressly said in any other case within the contract, since article 247 offers that “participatory, subordinated or different loans” could also be granted. With this, the actual potentialities of assortment could be fairly restricted for the lender, relying on the quantity of the remaining loans and the property of the corporate, which interprets right into a retention of a part of the danger within the fingers of the Administration that has granted the concession and, as well as, the credit score to the person. On this manner, people who have been granted for the toll roads which can be going to be rescued won’t have the choice of being collected.
The second problematic function impacts the chances for early reimbursement. When granted by the Public Administration, they have to be distinctive and “until expressly stipulated on the contrary, the concessionaire won’t be able to amortize the borrowed capital upfront, until the anticipated amortization implies the fee by the concessionaire of the online current worth of the anticipated future advantages. in keeping with the economic-financial plan reviewed and accredited by the competent physique of the Administration on the time of the return of the capital ”.
As a consequence of the 2 earlier notes, they’ve a blended nature between the capital of the corporate and the mortgage, though they’re really nearer to being thought of part of the capital. They’re thought of personal funds for monetary or accounting functions, they’re subordinated for the needs of precedence in chapter. And, as well as, the Administration that lends will solely cost curiosity if there are advantages.
From a authorized perspective, it’s debatable whether or not the regime that these public funds obtain is cheap. They’re eminently public funds however the therapy they obtain is that of personal legislation financing devices, with the potential harm to public pursuits that will ensue. Because of this, collectors for loans of this kind are in a scenario of danger fairly near that of shareholders.
Spanish follow has additionally not been very passable. In a number of the highways that are actually damaged, we see facets which can be examples of public mismanagement: a) the lender solely costs if there’s a dividend for the shareholder, that’s, aggravating the authorized regime; b) the prohibition of early reimbursement is included and c) it’s placing that the overall quantity of the mortgage reaches 3 times the overall quantity contributed by the freeway concession firm. And, d) on this case, we can not neglect the peculiar type of reimbursement of the mortgage, which takes so long as potential in time as an alternative of getting an amortization that’s extra rational for the overall curiosity.
Throughout the processing of Legislation 9/2017, on Public Sector Contracts, collaborating loans have been the topic of debate. Particularly, modification 706, introduced by the Socialist Parliamentary Group, proposed that: “in no case might contracting authorities or different public sector entities grant collaborating loans to public works concessionaires”.
The modification was not accepted and, subsequently, they proceed to look as a assist mechanism for the exploitation of the works in article 248 of the LCSP. A sparse regulation, solely enabling the chance and that doesn’t include the regulation of precautions of the general public purse. A regulation that additionally has a direct affect on compliance with funds stability standards.
Article 277 of the LCSP is the one that gives an distinctive character to participatory credit, when it states that “exceptionally, Public Administrations might contribute to the financing of the work by granting participatory credit. In such circumstances, and until expressly stipulated on the contrary, the concessionaire won’t be able to amortize the borrowed capital upfront, until the anticipated amortization implies the fee by the concessionaire of the online current worth of the anticipated future advantages in keeping with the revised economic-financial plan. and accredited by the competent physique of the Administration on the time of the return of the capital ”.
For that reason, from the angle of the general public sector, it’s a type of assist for financial exercise that have to be used with quite a few precautions to keep away from repeating the historical past of what occurred with the toll roads.