By Vicente Sebastián Ruiz and Louise Lindberg
Throughout the years, we have had many Scandinavian clients asking us to be attentive to the possibility of buying productive units (factories, shops, warehouses, offices, homes, etc.) in Spain.
Lured by a good investment, our clients are often not keeping in mind the complexity that this eventual operation has in Spain compared to the Scandinavian countries.
In Spain the acquisition of productive units is not as simple and transparent as it is in the Scandinavian countries, and you can find yourself with different obstacles that block the possibility of successfully carrying out the acquisition with full guarantees.
The acquirer of a productive unit in Spain must be attentive, not only to the offering price, but also to the responsibilities that comes from the acquisition:
As stated in Article 44.3 of the Spanish Worker’s Statute, the transferor and the transferee will, for three years, be jointly liable for the salaries and compensations which originated prior to the transfer and which have not been satisfied.
According to Article 142 and its extension of 168.2 of the consolidated text of the General Social Security Law, approved by the Royal Decree 8/2015 of October 30, the employer is responsible for complying with the obligation to contribute, and will enter his own contributions and those of his workers in full.
Having that said, there exists a joint liability for eventual reimbursement of improper benefits and/or unpaid contributions for the workers attached to the productive unit.
There also exists a joint liability in terms of taxes, when acquiring a productive unit in Spain, as stated in the provisions of Article 42.1 of the Spanish General Tax Law (Law 58/2003 of 17 of December).
However, when acquiring productive units in bankruptcy proceedings, said liability can be excluded by a judge resolution.
The acquisition of productive units in bankruptcy proceedings
The acquisition of productive units in bankruptcy proceedings has its competitive advantages, both for the buyer and for the company in the insolvency situation, with the need to liquidate and with interest to maintain as many jobs as possible.
However, the Spanish bankruptcy regulation does not in such include the recognition of a bankruptcy privilege concerning the joint liability when acquiring productive units within a bankruptcy proceeding, leaving its solution to the general tax, social security, and labour laws as per mentioned above.
As Article 632 and 626.1.2nd of the Spanish bankruptcy law only mention the transfer for payments with a relevant judicial authorization (with special privilege), it averts the possibility of entering refinancing agreement (almost limited to a reduction of the debt or a payment schedule) or out-of-court payment agreements, which consequently turns the sale of productive units into an underutilized restructuring mechanism.
The fine line between the acquisition of a productive unit and a legal business subrogation
A recurring question, when acquiring a productive unit from a company in a bankruptcy proceeding, is whether it is indeed a question of an acquisition of a productive unit, or in fact a legal business subrogation. In Spain, the obligations that derives from a legal business subrogation are strict and harsh and, it could not be emphasized enough, the importance of making sure that the acquisition of a productive unit cannot be mistaken for a business subrogation.
Council Directive 2001/23/EC of 12 March 2001 has been strictly interpreted in Spain, leaving very small margins of flexibility in the acquisition of productive units. With the increasing need of outside investments as a restructuring mechanism due to the ongoing pandemic and all those affected by it, desirably we can expect Spain to adapt Directive 2019/1023 in a more flexible way, and thus facilitate the process of acquiring productive units.
Needless to say, in order to acquire a productive unit without unexpected surprises in Spain, whether it is in a bankruptcy proceeding or not, it is crucial to issue a proper investigation and analyzation about the debts that the transferor may have with Social Security, its employees, and the tax authorities before making an offer.
The assistance of an experienced lawyer can be the key to weigh the pros and cons of a possible operation, and to reach an appropriate price.
It is in our belief that a proper due diligence by an experienced lawyer is crucial before proposing an offer, in order to make the acquisition a good investment opportunity.