Law 40/2015, of October 1, on the Public Sector Legal
Regime, which entered into force on October 22 2015, has
amended article 90.1.6 of the Insolvency Law regulating the
insolvency treatment of loans secured by pledges over future
credits governed by Spanish law.
One of the aims of the reform is to clarify the previous
(and unfortunate) wording of article 90.1.6 (which referred to
pledges 'securing' future credits rather than to pledges 'over'
future credits) and the formalities required to benefit from a
special privilege in the case of insolvency. The amendment also
introduces specific requirements applicable to pledges over
credits derived from the termination of concession contracts
for works or the management of public services.
The previous regulation, introduced by Law 38/2011, of
October 10, was quite confusing and controversial. A
conservative approach led many legal practitioners to configure
pledges over future credit rights as pledges without transfer
of possession (prendas sin desplazamiento) with access
to the Registry of Moveable Assets (Registro de Bienes
Muebles) in order to benefit from the special privilege
foreseen in article 90.1.6 of the Insolvency Law. This resulted
in a more expensive, time consuming and burdensome process than
configuring the security as an ordinary pledge (prenda
ordinaria) regulated by the Civil Code, which is simpler
and does not require registration for perfection.
The new reform sets forth that loans secured with a pledge
over future credit rights will enjoy a special privilege as
long as (a) the underlying agreements giving rise to the future
credits become effective before the declaration of insolvency,
and, (b) the pledge is granted in a public document (if
ordinary) or recorded at the corresponding public registry (if
without transfer of possession).
Additionally, two specific requirements have been introduced
for pledges over credits derived from the termination of
concession contracts: (i) that the pledge is expressly approved
by the relevant contracting body, and, (ii) that this
authorisation is published at the Spanish Official Gazette
(Boletín Oficial del Estado) or the
corresponding regional official bulletin. This is particularly
relevant for the purpose of creating security over the
so-called Responsabilidad Patrimonial de la
Administración or RPA (that is, the financial
liability of the public administration) in infrastructure
concession projects (for example, toll roads, ports, public
hospitals and so on).
León López Iglesias