Los socios en los planes de reestructuración en la reforma del texto refundido de la Ley Concursal

Resum

The role of shareholders is a key element of the regime for restructuring companies in financial difficulties that our legislator is about to introduce to transpose Directive (EU) 2019/1023. Under the current legislative proposal, restructuring plans may include measures affecting the rights and interests of shareholders, such as capital reductions and increases, structural modifications or any other measures falling within the competence of the general meeting. For the approval of a restructuring plan providing for corporate transactions, shareholders have the right to vote, although they may be forced by creditors into accepting the restructuring plan if the company is insolvent or insolvency is imminent (cross-class cram down). The decision of the shareholders is taken in accordance with the rules of company law, albeit with some special features, and otherwise company law remains applicable. The shareholders are therefore not treated as mere residual creditors, not only because the decision on the plan is taken by the general meeting in accordance with the procedure for the adoption of company resolutions, with some specialisations, but above all because company law continues to apply and this means that, in addition to the economic substance of the shareholdings, the political substance is also subject to protection. The projected restructuring law therefore contains a balanced regime with regard to the shareholders, which solves the hold out of shareholders’ problem, but includes safeguards that prevent the expropriation of the business by the creditors, as well as incentives for the negotiation of a restructuring plan