PUBLIC CREDITS AND CONTEST: A NEW MISSED OPPORTUNITY?
The Second Likelihood Directive Proposal (Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on preventive restructuring frameworks, second chances and measures to increase the effectiveness of the cancellation, insolvency and restructuring procedures, and amending Directive 2012/30 / EU) which, foreseeably, will probably be authorised this spring and its subsequent transposition into nationwide legislation represent a golden alternative to supply a worldwide remedy of the general public sector within the chapter course of and, specifically, on the authorized regime of public credit and their classification.
Already on the event of the enactment of the Second Likelihood Regulation (Royal Decree-Law 1/2015, of February 28), the remedy of public credit and, specifically, the potential for their exemption or not, generated intense controversy. Controversy that has been rethought in the course of the processing of the Proposal for a second-chance directive. Though initially different options have been evaluated, the Proposal –though it accepts exemption exclusions- omits to expressly pronounce on the regime relevant to public credit. Within the ultimate textual content, the European legislator has left the door open for every Member State to undertake the answer it deems most applicable:
“Member States shall be certain that a keep of particular person enforcement actions will be ordered with respect to all classes of collectors, together with most popular and secured collectors. The suspension will be common and canopy all collectors or be restricted to a number of particular person collectors, in accordance with nationwide laws ”(artwork. 6.2).
We’re, as soon as once more, earlier than a compromise resolution, a minimal harmonization, typical of latest years. The composition of the European Union, by which very totally different authorized programs coexist, make some other possibility very troublesome.
Be that as it might, the long run transposition of the Directive might be the event to handle no less than the next points.
THE REDUCTION OF THE PRIVILEGES OF THE ADMINISTRATION.
Within the first place, the remedy of the privileges of the Administration within the chapter course of usually. Though with the Chapter Regulation of 2003 an essential pruning of privileges was made so as to favor, so far as attainable, the viability of the entity submitted to the competitors, the reality is that the Public Administration nonetheless has essential privileges attributed, in some circumstances of adverse justification. If the Proposal for a Directive seeks to favor the restructuring of the entities which can be nonetheless viable, sustaining extreme privileges that make negotiations troublesome to succeed in a refinancing settlement can frustrate the very goal pursued with the reform. Think about the weight that public loans usually have on the liabilities of smaller entities; Finance and Social Safety are often the primary collectors of small and medium-sized corporations.
It could due to this fact be needed to advertise a change within the remedy of public credit, limiting their privileges that make it troublesome – when they don’t forestall – reaching pre-bankruptcy and extra-bankruptcy options for insolvencies. Particularly, they need to stop to take pleasure in immunity and be affected by the moratorium on executions. As well as, it will be essential to make clear whether or not public legislation collectors ought to be affected by a restructuring plan (at the moment excluded as established in DA 4 .1 of the Chapter Regulation) since their non-subjection could also be crucial for the viability of the plan.
THE CONCEPT OF PUBLIC CREDIT.
It could even be the event to handle the very idea of public credit score that has brought about so many complications on account of the wrong wording of article 91.Four Chapter Regulation that refers to “tax credit and different public legislation”.
What is known by public legislation credit?
Regulation 9/2017 establishes in its article 113 that each the credit that derive from the obligations arising ex legecorresponding to these arising by advantage of administrative acts topic to public legislation.
Does it cowl the credit derived from the termination of a contract with the Public Administrations as a consequence of the declaration of insolvency (and opening of the liquidation part)?
Do you perceive circumstances of faulty efficiency or delay within the efficiency of the obligations arising from a contract, substitute or readjustment of the assure?
What occurs within the occasion of a declaration of nullity of the contract resulting from infringement of the prohibition to contract or disqualification of the bancrupt as a consequence of the responsible qualification of the competition?
Although evidently in all these circumstances we’re coping with a public credit score, it will be advisable that, in a future reform, it’s clarified as a result of in observe the interpretation of this expression has confirmed complicated.
Credit score classification
It’s essential to coordinate – usually – the executive laws with the credit score classification regime established by the Chapter Regulation in its articles 89, 90 and 91. Circumstances by which we discover contradictions between public laws aren’t unusual (for instance , Public Sector Contract Regulation) with the provisions of the Chapter Regulation.
Particularly, artwork. 113 LCSP notes
“1. To make the ensures, each provisional and definitive, efficient, the contracting Administration may have desire over some other creditor, whatever the nature of the identical and the title from which the credit score derives. “
It appears virtually to indicate that public credit would even be outdoors the credit score classification system, being configured as a form of “super-privileged” credit, however how does that match into the credit score classification of the Chapter Regulation?
The Proposal for a Second Likelihood Directive that, foreseeably, will probably be authorised this spring and its subsequent transposition into nationwide legislation, represent a golden alternative to supply a complete remedy of the general public sector within the chapter course of and, specifically, on the authorized regime of public credit and their classification.
A reform that ought to search to reconcile the pursuits at stake and favor, so far as attainable, the restructuring of viable corporations. I don’t dare to enterprise what the choice of the nationwide legislator will probably be however, be that as it might, it appears essential to open a strategy of reflection that leads, this time, to the elaboration of a brand new insolvency textual content and to not undertake a brand new partial reform, through Decree- Regulation.