The outbreak of the new coronavirus, responsible for COVD-19, has put under huge pressure many companies across Spain and the world. In order to mitigate the effects of such virus, the Spanish government has implemented several measures of which we can highlight the following by area of legal practice:
BUSINESS and CONTRACTS LAW
Board of directors: Royal Decree 8/2020 intends to relax the rules under which the directors of companies can pass on resolutions allowing them to be voted remotely or by videoconference even if such possibility was not regulated in the Articles of Association.
Annual accounts: deadline for companies who must draw up annual accounts within three months as of year-end will be suspended until the State of Alarm is lifted and will be resumed for a further three months once lifted. If the annual accounts had already been drawn up, the deadline to audit accounts, when mandatory, will be extended for further two months once the State of Alarm is lifted.
Annual General Meeting: once the deadline to draw up annual accounts ends, a shareholders’ meeting will be held up within three months. When the AGM has been called prior to the State of Alarm and its date was set up after the State of Alarm declaration, the location and time can be changed or cancelled 48h in advance. In case of cancellation a new AGM shall be called within a month after the State of alarm is lifted.
Shareholder withdrawal: shareholders will not be able to exercise their right of withdrawal until the State of Alarm is lifted.
Company strike-off and directors’ liability: if prior to or during the State of Alarm, a company is legally under a strike-off situation, the period to call in a shareholders’ meeting to either decide the striking-off or solving the issue, will be suspended until the State of Alarm is lifter. If the strike-off situation befalls during the State of Alarm, the directors will not be held liable of any debts from the company during such period.
Force majeure: obligations arising from some contracts will nowadays pose serious difficulties when trying to fulfill them due to events that may be considered a force majeure. Even when a contract does not include a specific clause about force majeure it might be possible to invoke the Spanish Civil Code. However, every case will have to be studied in detail as to determine grounds to invoke force majeure.
Rebus sic stantibus: when due to unforeseen circumstances a party to a contract can not fulfill its obligations, fulfillment is highly burdensome or hardship to any of the parties, invoking rebus sic stantibus may be possible. However, this will not be possible when the contract includes assumption of risk. The clause rebus sic stantibus is not provided by law, it is a concept arising from caselaw and is applied by courts in a restrictive manner.
Temporary lay-offs: given the economic lockdown, the requirements for companies to temporarily lay-off employees have been eased. Companies will be able to invoke force majeure or economic, technical, organizational and productive reasons due to COVID-19.
Social security exemption: a full social security exemption can be applied by companies with less than 50 employees and a 75% exemption with those with 50 or more employees. These exemptions shall only be applicable to companies who have laid-off employees due to force majeure.
Commitment to maintain employees: companies who benefit of the extraordinary employment measure shall maintain employees for at least six months since business is resumed.
Employment safeguard: COVID-19 related force majeure or economic, technical, organizational and productive reasons will not be accepted as to terminate or lay-off (permanently) an employee.
Temporary contract terms will be interrupted: temporary lay-offs related to COVID-19 will interrupt the contract term.
Temporary lay-offs due to COVID-19 term: temporary lay-offs shall not be extended further once the State of Alarm is lifted.
Sanctions and refunds: applications to temporary lay-offs containing false information or errors shall be sanctioned. Applications made by companies who are in no need of these benefits or not sufficiently affected by the situation claimed, will have to refund any wrongfully obtained benefits.
Procedural deadlines for all courts as well as court related arrangements will be suspended during the State of Alarm, expect for urgent matters according to the 14 March 2020 decision from the Judiciary General Council.
Civil courts: the suspension shall not affect injunctive reliefs or any other court dealing that if they were not to be implemented could cause irreparable damage.
Criminal courts: the suspension shall not affect habeas corpus, guardianship, detainees dealings, penitentiary urgent matters, gender-based violence or against an under-age and any arrangement that can not be postponed.
Statute of limitations: during the State of Alarm, statute of limitation periods shall be suspended.
Procedural deadlines: will start counting again once the State of Alarm is lifted.
Assets and rights held abroad form: the deadline for form 720 has not been amended, thus it will have to filed no later than 31 March in relation to assets and rights held abroad in 2019. Not complying with this obligation in a correct manner or filing it outside the deadline can arise significant fines.
Corporate tax: first 2020 corporate tax is to be paid in April and has not been suspended due to the State of Alarm and is therefore to be paid as usual.