We will now analyze the main legislative developments expected to take place in 2022:
First. – End of the insolvency moratorium?
Through Royal Decree-Law 27/2021 of November 23, the Government has again extended the insolvency moratorium that expired on December 31, until June 30, 2022, thus maintaining that debtors who are in a situation of insolvency do not have the duty to request the declaration of insolvency for at least half a year, nor will the necessary insolvencies filed by creditors be accepted.
The Government has approved in the Council of Ministers the draft reform of the Insolvency Law, intended to facilitate the restructuring of viable companies and improve insolvency procedures, which is now in parliamentary proceedings.
The regulatory project includes the transposition of the European restructuring and insolvency directive and introduces other reforms in the insolvency field. This modification constitutes one of the reforms included in the Recovery, Transformation and Resilience Plan and is aimed at guaranteeing that viable companies and entrepreneurs facing financial difficulties have access to an effective preventive restructuring procedure which will allow them to continue their activity.
Will it come into force before June 30, 2022 or will there be a new extension?
Second. – End of the Spanish furlough (ERTE)?
Through Royal Decree-Law 18/2021, of September 28, the temporary employment regulation files (ERTE) associated with Covid-19 have been extended until February 28, 2022, maintaining until that date what is commonly known as “prohibition of firing ” due to the Covid-19 crisis and the commitment of companies to maintain employment when they have benefited from exemptions.
What will happen when this extension comes to an end?
– New requirements could be published to continue extending its effects, so we would be facing a seventh extension.
– Approval and entry into force the Network for Flexibility and Employment Stabilization by the Government, a new permanent mechanism with the aim of replacing the current ERTE, although it seems unlikely for 2022, given that it is only in draft form, remaining a long journey ahead.
Third. – Will the European Court of Justice overturn the non-retroactivity in the claims of Capital Gains?
By Judgment dated October 26, 2021, the Constitutional Court declared unconstitutional and null several articles of the Law regulating local finances since the objective method of determining the tax base of the Tax on the Increase in the Value of Natural Land Urbana (better known as the municipal capital gains tax) was wrong and did not correspond to reality. However, it establishes that those tax obligations accrued by this tax that, at the date of issuance of the same, have been definitively decided by a judgment with force of res judicata or by a final administrative resolution may not be reviewed. For these exclusive purposes, provisional or definitive settlements that have not been challenged as of the date of issuing this judgment and self-assessments whose rectification has not been requested ex art. 120.3 of the General Tax Law on that date.
From Europe, recently, it has been made clear that the non-retroactivity that the STC incorporates is inadmissible, so it could be overthrown by the Court of Justice of the European Union.
Fourth. – Implantation of Whistleblowing?
Directive (EU) 2019/1937 of the European Parliament and of the Council, of October 23, 2019, on the protection of persons who report infringements of Union law or what is the same, the Whistleblowing Directive, should have been transposed by Spain this year 2021, so it is more than foreseeable that it will be done in 2022.
It is a procedure that allows people to report illegalities committed by an individual or a private or public institution and expose all relevant information. According to the Directive itself, the complainant (or whistleblower) is a natural person who publicly communicates or reveals information about infractions obtained in the framework of their work activities.
Public and private sector entities with more than 50 workers will have the obligation to implement this reporting channel within their organizations, so that, both employees and managers, confidentially, securely and independently, communicate information about fraudulent conduct which may have been committed within the framework of a certain entity.
Palmira Cañete
Business Departament
