Extension of the duty to apply for dissolution of the company for losses on the occasion of COVID 19
Royal Decree-Law 27/2021 of 23 November extending certain economic measures to support recovery
On 24 November, Royal Decree-Law 27/2021, of 23 November, extending certain economic measures to support the recovery, was published in the Official State Gazette. Among other measures, this involves the extension of the exclusion of economic losses for the purposes of calculating the legal grounds for dissolution under article 363.1.e) of the Capital Companies Act, until the end of the financial year 2022.
In this regard, the aforementioned Royal Decree-Law amends section 1 of Article 13 of Law 3/2020, of 18 September, on procedural and organisational measures to deal with COVID-19 in the field of the Administration of Justice, as follows: “For the sole purpose of determining the concurrence of the cause for dissolution provided for in article 363.1.e) of the revised text of the Capital Companies Act, approved by Royal Legislative Decree 1/2010, of 2 July, the losses of the financial years 2020 and 2021 shall not be taken into consideration.
If, in the result of the 2022 financial year, losses are found that reduce the net assets to an amount of less than half the share capital,the directors must call a general meeting to dissolve the company, or any shareholder may request it within two months of the end of the financial year in accordance with article 365 of the aforementioned Act, unless the capital is increased or reduced to a sufficient extent” It should be recalled that AddVANTE already made known just over a year ago the suspension of the legal duty to promote dissolution due to losses until the close of the financial year 2021 introduced by Law 3/2020 of 18 September, as well as the repercussions that this suspension entailed for company directors.
With the extension established by Royal Decree-Law 27/2021, of 23 November, not only will the losses of 2020 not be taken into account, but also those of the financial year 2021, for the purposes of determining the existence of the cause for dissolution of article 363.1.e) of the Capital Companies Act.
It is not trivial to emphasise that failure to comply with this duty, whether it is appropriate to call a general meeting to decide on the dissolution of the company, or whether it is appropriate to file for insolvency proceedings, entails an important consequence, provided for in article 367 of the Capital Companies Act: it will entail the joint and several liability of the directors with the company, in respect of those debts arising after the occurrence of the legal grounds for dissolution or the insolvency situation.
Consequently, the suspension extended by Royal Decree-Law 27/2021, of 23 November, means that directors need not worry about complying with such a sensitive duty, as the legislator has opted not to penalise directors in such a complex economic context, informing that especially and extraordinarily, the losses for the financial years 2020 and 2021 will not be taken into consideration to determine the concurrence of the cause.
Thus, a new line has been drawn for company administrators with regard to the management and organisation of the business activity.
AddVANTE will provide information on the new developments in this area, and we offer all our advice to company administrators to address such complex situations as the duty to request, or not, the dissolution of the company.
