In the current economic context, the recent approval of Royal Decree-Law 9/2024 of 23 December represents a new milestone in the regulation of capital companies. This legislative text introduces an extension of the accounting moratorium for the purposes of the cause of dissolution of companies, a measure that responds to the need to mitigate the effects of economic instability on the business fabric. This article examines the key aspects of this extension, its impact on commercial companies and the legal and economic implications that derive from it.
Article 363.1.e) of the Capital Companies Act (LSC) regulates the cause of dissolution due to losses that reduce the net worth to less than half of the share capital. This provision has acted as a protection mechanism against insolvency, ensuring the financial stability of companies and the protection of creditors.
However, the crisis resulting from the COVID-19 pandemic and the subsequent economic volatility led to the implementation, by means of Royal Decree-Law 8/2020, of successive accounting moratoriums that have allowed companies to avoid mandatory dissolution by excluding accounting losses incurred in the financial years 2020 and 2021 in the assessment of their net worth. Thus, the main objective of the accounting moratorium is to avoid the liquidation of viable companies that, due to extraordinary circumstances, face circumstantial accounting losses.
Royal Decree-Law 9/2024, which is heterogeneous in content, extends the temporal scope of the accounting moratorium, which ended on 31 December 2024, until the end of the financial year beginning in 2026, which in most cases will be 31 December 2026. Article 5 deals with this point with the following wording:
Article 5. Suspension of the cause of dissolution due to losses caused by various natural events.
1. For the sole purpose of determining the existence 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 until the close of the financial year commencing in 2026.
If, excluding the losses for the years 2020 and 2021 in the terms indicated in the previous section, in the result for the financial year 2022, 2023, 2024, 2025 or 2026, losses are found that reduce the net assets to an amount of less than half of the share capital, a meeting must be called by the directors or may be called by the board of directors of the company, the directors must call a meeting of the shareholders or any shareholder may request a meeting to dissolve the company 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 sufficiently.
2. Likewise, those mercantile companies that have been affected by losses derived from the effects caused by the DANA referred to in the Agreement of the Council of Ministers of 5 November 2024, declaring the territory affected as a result of the Isolated Depression at High Levels (DANA) that affected large areas of the Peninsula and the Balearic Islands between 28 October and 4 November 2024 to be an ‘Area seriously affected by a civil protection emergency’, will not include the amount of such losses for the purposes of calculating the cause for dissolution due to losses 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, until the close of the financial year beginning in 2026. The notes to the annual accounts for the financial years 2024 and subsequent financial years shall include the information necessary for the correct identification of the losses excluded from their calculation for the purposes of the cause for dissolution.
If, excluding the losses for the years 2024 and 2025 in the terms indicated in the previous section, in the result for the financial years 2024, 2025 and 2026 other losses are found that reduce the net assets to an amount of less than half the share capital, a meeting must be called by the directors or may be requested by any shareholder within two months of the end of the financial year, in accordance with article 365 of the aforementioned Law, to dissolve the company, unless the capital is increased or reduced sufficiently.
As can be seen, section 2 of the aforementioned provision objectively extends the effects of the accounting moratorium to the losses arising from the effects caused by the DANA that affected large areas of the Spanish mainland and the Balearic Islands between 28 October and 4 November 2024’. Similarly, in order to determine whether or not the cause for dissolution due to losses is met, the losses arising from the effects caused by the adverse weather conditions will not be taken into account until the end of the financial year beginning in 2026.
Royal Decree-Law 9/2024 represents a significant effort to protect the Spanish business fabric. The extension of the accounting moratorium offers a temporary way for companies to overcome transitory difficulties, ensuring their continuity and contribution to recovery. However, its implementation will require a delicate balance between flexibility for companies and protection of creditors’ rights. Only through rigorous and transparent implementation can this balance be struck, ensuring that the measure achieves its objectives without creating unnecessary market distortions.