To optimize your legal defense during this pre-insolvency phase, three operational elements require immediate attention:
1. Strategic Designation of "Necessary Assets": The statutory stay of execution applies strictly to assets indispensable for business operations. Your Article 585 TRLC court petition must include an itemized, reasoned schedule specifying operating bank accounts, working capital accounts, primary facilities, and logistics contracts as necessary assets. If an aggressive creditor attempts an asset freeze, the Commercial Court will vacate the attachment only if the asset was properly characterized.
2. The Restructuring Expert (Experto en la Reestructuración, Arts. 672 et seq. TRLC): While appointment of an expert is not mandatory across all debtor tiers, designating an independent, qualified restructuring expert is advisable when navigating cross-class cram-downs or managing valuation disputes (going concern vs. liquidation value) with institutional lenders. Their technical certification carries high evidentiary weight during judicial plan confirmation (homologación).
3. Statutory Limitations on Public Claims: Liabilities owed to the Spanish Tax Agency (AEAT) and Social Security (TGSS) operate under an exceptional statutory regime. Public law claims cannot be subjected to debt haircuts beyond statutory caps (a maximum write-off of €10,000 under Article 616 bis TRLC), and deferred payments must adhere to rigid administrative rules. Your restructuring plan must be anchored in restructured financial and trade debt, while maintaining strict compliance or formal deferral agreements with public authorities to prevent judicial rejection of your plan.
The answer to both inquiries is unequivocally affirmative, provided the filing is structured with procedural accuracy:
1. Stay of Individual Executions and Attachments (Arts. 600 & 601 TRLC): Once the Commercial Court admits the notice of opening negotiations, all judicial or extrajudicial enforcement actions targeting assets or rights necessary for the continuity of business operations are stayed by operation of law. Unsecured suppliers cannot attach your operational bank accounts or warehouse inventories. Secured financial institutions cannot seize essential productive assets, nor can lenders unilaterally accelerate loan agreements based solely on the pre-insolvency filing (Art. 618 TRLC). This statutory moratorium endures for three months, extendable by three additional months upon showing demonstrable progress.
2. Director Personal Insulation (Art. 613 TRLC): Article 367 of the Spanish Corporate Enterprises Act holds directors jointly and severally liable for subsequent company debts if they fail to convene a general meeting within two months of entering qualified balance-sheet loss territory. However, Article 613 TRLC expressly suspends this dissolution obligation while the pre-insolvency notification remains in force. Consequently, your personal estate remains protected from statutory debt derivative actions during negotiations.