Royal Decree-Law 27/2021, of November 23, extending certain economic measures to support recovery

I. GENERAL PROVISIONS HEAD OF STATE 19305 Royal Decree-Law 27/2021, of November 23, extending certain economic measures to support recovery.

The impact of the health and economic crisis derived from COVID-19 motivated the adoption since March 2020 of important economic policy measures aimed at protecting the productive fabric, employment, and household incomes, particularly through various instruments supporting the liquidity and solvency of companies and self-employed workers. Less than two years after the start of the pandemic, data confirms the effectiveness of the measures adopted to avoid a structural impact on the economy. The progress of the vaccination process and the improvement in the health situation have allowed mobility to be restored, boosting economic recovery and an improvement in corporate solvency that has gained greater intensity throughout this year.

Nevertheless, the persistence of the pandemic in the European context and the vulnerability of companies in the most affected sectors in the incipient recovery phase make it necessary to extend some of the exceptional measures, in order to guarantee that viable companies can fully take advantage of the opportunities offered by this new stage of economic expansion.

Thus, the European Commission itself has just approved the sixth addendum to the Temporary Framework for State Aid, extending the validity of some of the support measures for companies. This has the dual objective of intensifying the economic recovery process and guaranteeing legal certainty for operators by clarifying the regulatory framework, given that the validity period for some measures ended at the end of this year.

In this context, this Royal Decree-Law establishes a series of provisions whose validity will extend beyond December 2021, in order to provide a framework of legal certainty that grants economic stability and supports companies in this phase of recovery. This will be achieved by extending the deadline for liquidity and solvency aid, excluding the losses of 2020 and 2021 for the purposes of the cause of corporate dissolution, extending the moratorium on the obligation to declare insolvency in cases of asset imbalance, pending the approval of the new insolvency regime, as well as establishing a clear framework during 2022 for direct foreign investments.

Likewise, it is necessary to establish provisions that guarantee a pricing regime applicable in the case of a change in gas supplier, as well as the economic and financial viability of last-resort marketing companies. In this regard, three urgent measures are adopted in the energy sector, particularly in the field of hydrocarbons. First, the coverage for essential natural gas supplies that do not have a supply contract is expanded, a situation that arises, for example, due to the sudden disappearance of the marketer with whom they have a supply contract. Second, the guarantee of collection by last-resort natural gas marketers of deficits that may arise as a consequence of the limitation on the increase of the last-resort tariff (TUR) for gas established by Royal Decree-Law 17/2021, of September 14, on urgent measures to mitigate the impact of the escalation of natural gas prices in retail gas and electricity markets, is strengthened. Finally, to promote the deployment of public access infrastructure for fast charging of electric vehicles, a prohibition on exclusivity clauses in fuel supply contracts is introduced.

On the other hand, given the critical situation suffered by the Mar Menor, the initiative of the Ministry for Ecological Transition and the Demographic Challenge, Framework of Priority Actions to recover the Mar Menor, an initiative in collaboration with the Ministries of Agriculture, Fisheries and Food, Industry, Commerce and Tourism, and Science and Innovation, covers a wide range of measures of various kinds, aimed at addressing the critical situation experienced by the lagoon, with common guiding principles: the restoration of the good ecological status of the lagoon through the restoration of its natural dynamics, restoration and renaturalization in different areas, and the application of nature-based solutions. Through this Royal Decree-Law, the declaration of general interest of certain works necessary for the environmental protection and recovery of the Mar Menor is implemented.

Finally, Royal Decree-Law 25/2018, of December 21, on urgent measures for a just transition of coal mining and sustainable development of mining areas, sets the deadline for the termination of the employment relationship to carry out closure and rehabilitation work of the natural space affected by the mine closure before December 31, 2021. This deadline does not allow aligning the aid regime with the pace of execution of the abandonment and restoration works, so that the intended coverage is granted to workers in the sector.

The proposed modification of Royal Decree-Law 25/2018, of December 21, aims to prevent these workers from being disadvantaged by the development of the necessary closure and restoration works, allowing access to these aids for those workers who are carrying out closure and rehabilitation work during the period from January 1, 2019, to December 31, 2025.

II Through Royal Decree-Laws 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19, and 25/2020, of July 3, on urgent measures to support economic reactivation and employment, two lines of guarantees amounting to up to 140,000 million euros were introduced, among other measures aimed at facing the economic and social impact caused by the pandemic, intended to guarantee the financing granted to self-employed workers and Spanish companies affected by the economic effects of COVID-19.

Originally, the possibility of granting guarantees from these lines was limited to December 31, 2020, in accordance with what was initially established in the Temporary Framework of the European Commission regarding state aid measures to support the economy in the context of the current outbreak of COVID-19. On the occasion of the successive expansions of the Temporary Framework, as a result of the extension in time of the economic impact derived from the health crisis, this possibility has been extended on two occasions: Royal Decree-Law 34/2020, of November 17, on urgent measures to support corporate solvency and the energy sector, and in tax matters, it was extended until June 30, 2021, and Royal Decree-Law 5/2021, of March 12, on extraordinary measures to support corporate solvency in response to the COVID-19 pandemic, until December 31, 2021.

On November 18, 2021, the sixth amendment to the European Commission's Temporary Framework was approved, which extends its validity, in general, until June 30, 2022. In this context, it is appropriate to align Spanish regulation with this new deadline. Although there is no doubt that the economic recovery process in our country is underway, some of its effects persist, and it is advisable to maintain support for companies and self-employed workers until the recovery is more consolidated, in order to ensure the economic reactivation process. Consequently, through this Royal Decree-Law, the same date of June 30, 2022, is established as the limit for the granting of public guarantees to meet the liquidity and investment needs of self-employed workers and companies, thus modifying what is provided in Article 29 of Royal Decree-Law 8/2020, of March 17, and Article 1 of Royal Decree-Law 25/2020, of July 3.

These guarantees will be granted in accordance with European regulations on the matter. In particular, the extension of the granting deadline regarding guarantees whose legal basis is the Temporary Framework of the European Commission will not apply until it has been authorized by a Decision of the European Commission.

Likewise, the deadline for the autonomous communities and the cities of Ceuta and Melilla to return the remainder of the direct aid transfers provided for in Royal Decree-Law 5/2021, of March 12, is extended until June 30, 2022.

III Through Article 18 of Royal Decree-Law 16/2020, of April 28, on procedural and organizational measures to face COVID-19 in the field of the Administration of Justice, repealed and replaced by Article 13 of Law 3/2020, of September 18, on procedural and organizational measures to face COVID-19 in the field of the Administration of Justice, it was agreed to exclude the losses of 2020 for the purposes of determining causes of dissolution of capital companies. Thanks to this measure, the liquidation of companies that are viable under normal market operating conditions was avoided, which would have caused an undesirable scenario both for economic stability and for the preservation of the economic value of companies and jobs. The measure has proven to be a great success that has helped limit the economic impact of the health crisis by allowing companies to gain time, access public or private financing, and gradually recover their ordinary activity.

Given the impact of the health crisis on business results during 2021, and as long as the ongoing reform of insolvency regulations is culminating, it is essential to extend this treatment for an additional year so that the objectives pursued by it remain in force. This will favor a more vigorous economic growth in the coming months, in the context of economic recovery, by allowing viable companies to return to normality, resuming their productive cycle without being forced to invoke a measure that would not be motivated by economic reality but by a health crisis.

Therefore, the extension exclusively during the 2021 fiscal year of the exceptional measure provided for in Article 13 of Law 3/2020, of September 18, is established. Consequently, for the purposes of the legal cause of dissolution due to losses, the losses of the 2020 and 2021 fiscal years will not be counted, and the losses that reduce net equity to half of the share capital will not take effect until the result of the 2022 fiscal year.

Likewise, the moratoria provided for in Article 6 of the aforementioned Law are extended until June 30, 2022, to avoid the automatic triggering of insolvency proceedings, in order to provide an additional time margin for companies that are experiencing greater difficulties as a result of the economic situation generated by the COVID-19 crisis, to restore their asset balance, avoiding unnecessary entry into insolvency.

This extension corresponds to the expansion of the aid temporal framework granted by the European Commission in its Decision of November 18, 2021, and provides legal certainty during the transitional period until the legislative processing currently underway for the modernization of the Spanish insolvency regime is completed within the framework of the transposition of Directive (EU) 2019/1023 of the European Parliament and of the Council of June 20, 2019, on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures for restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency). This reform, which constitutes one of the milestones foreseen in the Recovery, Transformation and Resilience Plan, will modernize the Spanish insolvency system, equipping it with new instruments for the early restructuring of viable companies, advancing in the second chance for natural person entrepreneurs, and speeding up and making insolvency proceedings more efficient.

IV In the economic context derived from the health crisis, among other measures, the Law 19/2003, of July 4, on the legal regime of capital movements and economic transactions with the outside, was modified by Royal Decree-Law 8/2020, of March 17, which added a new Article 7 bis suspending the liberalization regime for certain direct foreign investments in Spain.

According to Article 7 bis, direct foreign investments are defined as those carried out by residents in countries outside the European Union and the European Free Trade Association (EFTA), or by residents in EU or EFTA countries if the beneficial owners reside outside the EU or EFTA, and which lead the investor to hold 10 percent or more of the Spanish company or an effective participation in its management and control.

Given the extension in time of the economic impact derived from the health crisis, Royal Decree-Law 34/2020, of November 17, expanded the protection established in the aforementioned Article 7 bis of Law 19/2003, of July 4, to investments coming from the European Union and the European Free Trade Association under certain circumstances. This framework has been extended until December 31, 2021, by Royal Decree-Law 12/2021, of June 24, on urgent measures in the field of energy taxation and energy generation, and on the management of the regulation fee and the water usage tariff.

Given the persistence of some circumstances that motivated the adoption of this measure, and with the objective of guaranteeing the protection of the security, health, and public order of our country, as well as the necessary legal certainty for operators, it is necessary to extend the validity of this measure until December 31, 2022.

Thus, through Article 1 of this Royal Decree-Law, the single transitional provision of the aforementioned Royal Decree-Law 34/2020, of November 17, is modified to extend until the aforementioned date of December 31, 2022, the transitional regime by which the suspension of liberalization regime for certain direct foreign investments regulated in paragraphs 2 and 5 of the aforementioned Article 7 bis, will also apply to direct foreign investments on companies listed in Spain, or on unlisted companies if the value of the investment exceeds 500 million euros, carried out by residents of other countries of the European Union and the European Free Trade Association. For these purposes, companies listed in Spain shall be considered those whose shares are, in whole or in part, admitted to trading on a Spanish official secondary market and have their registered office in Spain.

Additionally, this measure is completed with the first additional provision, which includes a mandate to the Government to provide sufficient human resources to the competent management unit for the processing of administrative authorization requests for foreign investment operations, taking into account the needs analysis within the budgetary availability existing in each fiscal year.

V Royal Decree-Law 5/2021, of March 12, created the COVID Line of direct aid to self-employed workers and companies, aimed at supporting the solvency of the private sector, by providing companies and self-employed workers with direct, earmarked aid.

The management and control of this line, with a total allocation of 7,000 million euros, was entrusted to the autonomous communities and the cities of Ceuta and Melilla, who were therefore responsible for carrying out the corresponding calls for applications for the granting of aid, its processing, the management and resolution of applications, the payment of aid, as well as the carrying out of prior and subsequent controls after payment.

As provided in said Royal Decree-Law, before March 31, 2022, the autonomous communities and the cities of Ceuta and Melilla must return to the Ministry of Finance and Public Function the unexecuted and uncommitted balance as of December 31, 2021.

This deadline may be insufficient for those cases where beneficiaries have filed an administrative appeal against denial resolutions issued before December 31, 2021, and which are pending resolution.

Therefore, Royal Decree-Law 5/2021, of March 12, is modified regarding the COVID Line of direct aid to self-employed workers and companies, with the objective of enabling the autonomous communities and the cities of Ceuta and Melilla to carry out the repayments derived from the non-execution of aid prior to the previous deadline of March 31, 2022, and to retain the necessary amounts to face payments that may eventually result from the estimation of administrative appeals filed against denial resolutions issued before December 31, 2021, and which are pending resolution.

After resolving the appeals, the autonomous communities and the cities of Ceuta and Melilla must return to the Public Treasury, before June 30, 2022, the rest of the unexecuted balances.

VI Regarding the first of the energy policy measures referred to in Section I of this Royal Decree-Law, Royal Decree 104/2010, of February 5, regulating the launch of last-resort supply in the natural gas sector, establishes the obligation of supply by last-resort marketers, in cases where a consumer without the right to apply for the last-resort tariff temporarily lacks an active supply contract with a marketer and continues to consume gas. This obligation extends for a period of one month from the end of the contract, after which the inevitable interruption of the supply must be carried out.

Article 60 of Royal Decree 1434/2002, of December 27, regulating the activities of transport, distribution, marketing, supply, and authorization procedures for natural gas installations, establishes a series of services that are considered essential, such as health centers and hospitals, nurseries and schools, nursing homes and elderly residences, institutions linked to national defense, to the forces and security corps, etc.

In the case of these supplies to services declared as essential, the interruption of supply does not apply, except in cases of certain danger to persons and property, which would imply that the consumer would find themselves in a complex situation to solve in time and form, so they could continue consuming gas without a contract, which would be irregular. Therefore, in the case of essential consumers, it is considered essential to extend the obligation of supply by last-resort marketers to these clients for a maximum of 6 months or, preferably, until they have a supply contract with a marketer.

On the other hand, Royal Decree-Law 17/2021, of September 14, on urgent measures to mitigate the impact of the escalation of natural gas prices in retail gas and electricity markets, temporarily introduces, in its seventh additional provision, a limitation on the increase of the cost of gas in the last-resort tariff (TUR) in order to attenuate the exceptional rise in international natural gas prices. Specifically, the seventh additional provision of Royal Decree-Law 17/2021, of September 14, limited the variation of the value of the raw material cost in the last-resort natural gas tariff and established a methodology for the recovery of these amounts in the future.

In order to solve various accounting problems that could affect last-resort marketers, paragraph six of the aforementioned additional provision is modified to include the gas system as a subsidiary guarantor of the amounts owed. This additional guarantee will allow the debt to be accounted for with maximum security. It is not contemplated in any case that the mechanism established in the aforementioned Royal Decree-Law for the recovery of the debt may be insufficient.

VII One of the most critical aspects for the deployment of electric mobility is the development of a high-capacity public charging infrastructure, which avoids the feeling of "range anxiety," which deters many buyers from deciding to acquire and use electric vehicles for interurban long-distance trips.

Gas stations belonging to networks of wholesale operators of petroleum products can be operated directly by them or can operate under a branding or franchise regime whereby the retailer operates the station on behalf and for the account of the operator, through a contractual link of exclusive fuel supply.

The holders of branded facilities, usually SMEs, who wish to install a charging point may be forced to include the electric charging service within the exclusive fuel supply contract, which could represent a barrier to the implementation of charging points.

To eliminate this barrier, the inclusion of the electric charging service within the exclusive fuel supply contract maintained by the holder and the operator is prohibited, with the objective that the latter can install charging points by itself or through a third party different from the petroleum operator.

VIII Royal Decree-Law 25/2018, of December 21, on urgent measures for a just transition of coal mining and sustainable development of mining areas, implemented the measures agreed in the Framework Agreement for a Just Transition of Coal Mining and Sustainable Development of Mining Areas for the period 20...