Legal Status - JUNE 2025
Tax: Lease-Back: Lease-Back: A Smart Strategy to Finance your Business
Energy: Possible Claims Arising from the April 28th Blackout in Spain
TAX
Lease-Back: A Smart Strategy to Finance your Business
ALEJANDRO PUYO
Partner
What is a lease-back?
A lease-back is a financial agreement in which your company sells a property to a financial institution and, at the same time, signs a leasing contract to continue using it. This operation allows you to:
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Obtain immediate funds without losing access to the property.
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Have a buyback option at the end of the contract.
- Benefit from favourable tax treatment.
Key benefits
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Liquidity without traditional debt. By selling the property and renting it out again, your business raises capital without the need to apply for conventional loans.
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Tax optimization. This operation does not generate an immediate accounting profit, avoiding the payment of capital gains taxes.
- Operational continuity. You can continue to use the facilities without interruption to your business.
Tax and accounting treatment
From an accounting and tax point of view:
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The property is still in the accounting records. It is not considered a traditional sale.
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It is accounted for as a financial liability. The company registers the debt with the financial institution.
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Continuous amortization. The previous depreciation scheme is maintained.
- Instalments include interest. The payments made are divided between liability reduction and financial expenses.
Impact on VAT
Payment of leasing fees. As it is a lease, VAT is applied on the monthly installments.
Sale of the property. It does not generate VAT or ITP, as the operation is considered financing rather than an actual real estate transaction.
Exercise of the purchase option. If you decide to buy back the property before the end of the contract, it could be argued that it is not a new acquisition, which would avoid additional taxes.
Final Thoughts
Lease-back represents an effective financial strategy for companies seeking liquidity without giving up their assets. However, it is key to analyse each specific case and have specialised advice to maximise your benefits and minimise tax risks.
June 2025
ENERGY
Possible Claims Arising from the April 28th Blackout in Spain
ANTONI FAIXÓ
Partner
As of today, the main cause of the power outage that occurred throughout the Iberian Peninsula on April 28, 2025 has not yet been determined, and this fact is decisive because depending on the cause of the event that is determined, liability will be attributed to some entities or to others, which will be essential to settle possible claims filed by consumers and by the energy sector companies themselves for the damages caused by the blackout.
The possible cut-off cause and consequential liability scenarios would be as follows:
1. Error or lack of diligence in the control or organization of the general electrical network
One of the main theories put forward by some experts is that the main cause of the blackout was the lack of investment and the subsequent poor state of the general Spanish power grid in the event of any electricity supply incident. In this respect, they point to the existence of similar incidents in previous months, which came close to producing a similar incident, and the lack of action by the grid manager to improve the system and reduce the risk of a power outage.
If that were the main cause determined by the public authorities and by the courts, the main liable party for the damages for legal purposes would be Red Electrica de España, S.A.U., a subsidiary of Redeia, since it is the sole carrier of the Spanish electricity grid on an exclusive basis, as established in Article 34.2 of Law 24/2013 on the Electricity Sector.
In addition, the possibility could be raised of the Spanish Government being jointly responsible, in its role as a public entity obliged to adequately control the supply of electricity in Spain, since it is a service of general economic interest.
However, it should be noted that the claim against the Government should be made through administrative channels, and if appropriate, through judicial channels in the contentious-administrative jurisdiction, in accordance with the regulations governing the liability of the Administration; while the claim against Red Electrica should be made through civil channels, since it is not formally a public entity, with the complexity of whether there should be two separate claims or whether it would be possible to accumulate them.
2. Error or incidences in certain sources of supply to the general electrical network; or causes that are not clear but not force majeure
Some experts believe that the cause of the blackout may have been the concurrence of incidents due to a lack of electricity entering the grid from certain producers, having identified that the connection of several electricity suppliers failed in certain specific regions of Spain.
In this case the responsibility could fall on the electricity distribution companies, which are responsible for distributing electricity and maintaining the distribution facilities, although it will be necessary to see the details of the case to verify whether the responsibility can be individualized in all or in one or more of them specifically.
In this regard, it should be recalled that in Spain each region has a single distributor operating exclusively, so that all supply points or CUPS in that region have the same distributor. Specifically, there are three main distributors operating in large regions, two operating in provinces, and more than 300 small distributors operating in small areas. The main distributors are Endesa, Iberdrola and Naturgy.
In addition to the above, it must be taken into account that the regulation imposes on the distributors the obligation to apply discounts to the invoices to consumers in case of a prolonged supply cut-off, objectively and automatically, except in case of force majeure. Consequently, it could be interpreted that the legal presumption is that if there is a supply cut-off for any reason (except in the case of force majeure), the distributor is responsible.
These discounts are limited to a maximum of 10%. If the consumer considers that the damage caused is greater, he/she must claim in addition to the discounts.
There would be the possibility of an additional claim against the Spanish Government, if it is considered that it is responsible for the lack of control of the electricity system, if it considers that the cause was foreseeable and could have been avoided. In that case there would be the procedural complexity that we have previously indicated.
3. Unpredictable oscillations of the electric fluid: Force majeure
Another possibility suggested by some experts is that the cause is an accumulation of unpredictable and varied incidents, caused at different points, including other European countries other than Spain.
In such a case it could happen that the authorities and courts would interpret the cause of the blackout as an unforeseeable and unavoidable element and therefore be considered force majeure, with the result that no one would be liable and no compensation for damages could be claimed from anyone.
However, force majeure is usually identified with unavoidable meteorological events, such as a storm, and is not identified with technical incidents, where the courts usually consider that there must be a responsible party, by action or inaction.
4. Mention of consumer complaints to energy retailer companies
Consumers contract their electricity supply with retailer companies, and not with distribution companies, although each contract identifies the distribution company, which is the one that actually distributes the supply.
Given the existence of this direct contractual relationship, it is common for the consumer to sue the retailer company, as the contractual party with the obligation to supply the electricity.
From a strict legal point of view, the retailer company should not be liable for damages due to supply interruption, because it does not act in the distribution or control of the network, and because the regulations are clear in imposing such liability on the distributors, or, if applicable, on Red Electrica and/or the Government, but case law has admitted in certain cases that the retailer companies have joint liability towards consumers as a matter of legal certainty in favor of the consumer and because of the possibility for the retailer company to claim after against the distributor.
This is a debated and complex issue, so we presume that the retailer companies that are sued will defend their lack of standing to sue and that there may be disparity of judicial decisions in this regard.
5. Mention of insurance and insurance companies
Many consumers have insurance that can cover them for damages caused by a power outage. In such cases, the most logical thing to do is for these consumers to first claim against their insurer, and if the insurer compensates them, it is the insurer who claims against whoever it considers to be responsible.
In such cases it must be remembered that the insurer must prove that it has compensated the consumer, because this is the fact that legitimates it to repeat.
On the other hand, if the consumer has received compensation from the insurance company, he cannot claim against the marketing company or the distributor or whoever he considers convenient, because he would be trying to obtain an unjust enrichment, which is legally prohibited.
June 2025
COMMERCIAL
The Parliament Publishes Servicers Bill
ALBERTO CHENLO
Associate
Last March the bill on Credit Managers and Credit Purchasers (“Servicers Act”) was published in the Official Gazette of the Spanish Parliament, whose objective responds to the need to transpose the Directive (EU) 2021/2167 on Credit Managers and Credit Purchasers and whose main objective is to protect consumers, improve transparency and strengthen financial stability in the market for the purchase and management of non-performing loans (NPLs).
I. Main aspects
Scope
The Servicers Act shall apply to NPLs originated by banks and financial institutions established in the European Union (“EU”). It covers from individuals to small and medium-sized companies.
However, there are exceptions: the Servicers Act shall not apply to credits that are not classified as doubtful or to certain transactions managed by entities such as collective investment funds or equivalent entities.
In addition, the Servicers Act shall provide that banks and financial institutions can continue to manage loans without special authorization, which is required for specialized companies.
The Servicers Act will focus on two main actors: servicers and loan purchasers.
On the one hand, servicers are companies that, on behalf of those who buy the NPLs, are responsible for managing them (e.g. by managing their collection or renegotiating terms with debtors).
The purchasers, on the other hand, are generally funds or companies that acquire bad debts from banks or other financial institutions.
Authorizations and supervision
One of the most important new features of the Servicers Law is that companies wishing to act as credit administrators must obtain authorization from the Bank of Spain and be duly registered.
In addition, they must comply with certain organizational requirements, including that:
i. their management body meets requirements of honorability, experience and knowledge necessary for the exercise of their position;
ii.the persons holding qualifying shareholdings meet the requirements of good repute;
iii. they have sound governance systems and adequate internal control mechanisms;
iv. have adequate internal policies and procedures.
Companies already operating prior to the entry into force of the Servicers Law will have a period of three (3) months to request authorization. If they fail to do so, they will not be able to continue with their activity.
The Servicers Law will also allow these companies to operate in other EU countries thanks to a “European passport”, as long as they comply with Spanish regulations, which promotes competition in the market.
With respect to purchasers of bad debts, the bill establishes various obligations, including the obligation not to modify the conditions, rights and liabilities associated with the bad debts or credit agreements that are transferred.
It also establishes that banks and financial institutions that sell bad loans or credit agreements must submit half-yearly reports to the Bank of Spain, including information on the purchaser and on the loan or agreement in question. This obligation also extends to purchasers who resell these doubtful loans or contracts, who must also submit a half-yearly report to the Bank of Spain.
Control mechanism
The Bank of Spain is designated as the body in charge of supervising credit administrators and purchasers.
This includes verifying that they correctly inform debtors of changes in the ownership of their credits and respect their rights.
Protection for debtors
One of the priorities of the Servicers Law will be to protect debtors, especially if they are in a vulnerable situation. For example, if a bank transfers a debt to another company, debtors will have the right to be clearly informed about who the new creditor is.
In addition, credit purchasers will have to appoint an authorized administrator to manage bad debts, ensuring professional treatment of debtors.
The Servicers Law will also introduce renegotiation policies, i.e., if a debtor is unable to pay his debts, creditors (banks or other financial institutions) will have to offer options such as deferring payments, reducing interest or even writing off part of the debt, especially for debtors in vulnerable situations (e.g., those receiving Minimum Living Income).
These measures can prevent debtors from ending up in court, provided that they show willingness to comply with an agreed payment plan after debt renegotiation.
Transparency
Transparency is another key pillar. Both sellers and purchasers must provide detailed information on the debts being bought and sold (e.g., their status and condition).
Sanctions
The Servicers Act shall establish the imposition of fines for those obligated parties that do not comply with the provisions of its articles, as well as the suspension of their activity or even the revocation of authorizations.
Changes in existing laws
The Servicers Act shall modify a series of regulations, in particular, the Consumer Credit Contracts Law and the Real Estate Credit Contracts Law.
For example, banks shall have to warn consumers of the consequences of defaulting and offer them solutions before selling their debt.
It is also clarified that, if a mortgage or loan is transferred, consumers shall be able to claim the same rights they had with the original bank.
II. Deadlines and entry into force
The Servicers Act is still in urgent parliamentary procedure. Once approved, it will enter into force twenty (20) days after its publication in the Official State Gazette (BOE), although some sections (such as amendments to other laws) shall have specific deadlines.
III. Conclusions
The Servicers Act:
i. represents an important step towards regulating a market which, although necessary to clean up the finances of banks and financial institutions, it has often been the subject of criticism.
ii. seeks to balance the interests of banks and financial institutions with the protection of people facing difficulties in meeting their debts.
iii. implies greater security for debtors, since they shall know who is managing their debt and have options for renegotiating it.
iv. implies that specialized companies shall have to become more professional, which could increase management costs and, potentially, be reflected in the conditions offered to debtors.
v. responds to the demands of the Directive (EU) 2021/2167 acting on past experiences, such as the 2008 financial crisis that led to the massive sale of NPLs worldwide.
Finally, it will be necessary to be attentive to the parliamentary procedure to evaluate the possible amendments presented by the different parliamentary groups.
June 2025
MEDIA
The Council of Ministers Approves the Preliminary Draft of the New Organic Law Regulating the Right of Correction
FLORENCIA ARRÉBOLA
Senior Associate
On December 17, 2024, the Council of Ministers approved the Preliminary Draft of the new Law Regulating the Right of Rectification (the “Bill”).
The main objectives of the Bill are to adapt and modernize the current Organic Law 2/1984, of March 26, 1984, regulating the right of rectification (the “Organic Law 2/1984”) to the new methods of transmitting and communicating information in an environment in which the information technologies play a crucial role in the sharing of information, as well as strengthening the right of citizens to rectify false or inaccurate information that may affect their honor, image and privacy, given that the current regulation was enacted in a context dominated by print media and radio and television. Since then, the way of communicating has changed considerably with the advent of the Internet and social media.
In the context of new technologies, any person or entity can become a broadcaster of information and reach massive audiences. This has generated an increased risk of disinformation and greater difficulty in protecting fundamental rights such as honor, image and privacy.
One of the principal novelties that the Bill intends to introduce is the extension of its scope of application to relevant users of social media, known as influencers, who, due to their capacity for mass dissemination, may be subject to requests for rectification. In this sense, relevant users will be considered to be those users who accumulate more than 100,000 followers on a platform or 200,000 cumulatively on several platforms. This measure aims to reinforce the responsibility of these figures in the information they share with the public. In addition, the media and digital platforms will be required to establish accessible and easy-to-use mechanisms so that citizens can exercise their right of rectification in a more direct and effective way.
Another noteworthy change is the elimination of the requirement to address requests for rectification exclusively to the director of the media outlet that published the information, making this action an optional choice in order to facilitate the exercise of their rights without additional obstacles. On the other hand, the deadline for requesting rectifications is extended from seven to ten days, offering the affected parties more time to exercise their rights.
The Bill also incorporates specific measures for publications in digital media. In this regard, rectified publications must include a clear notice informing readers that the original information has been corrected, as well as providing a direct link to the corresponding rectification. This is intended to ensure greater transparency, allowing citizens to quickly access truthful information. It also strengthens the rights of vulnerable groups, such as individuals with disabilities, and extends the legitimacy for relatives of deceased persons to request rectifications when information affects the memory or reputation of deceased persons.
The Bill seeks to have a positive impact on public debate by promoting greater responsibility in the dissemination of information through both traditional and digital media, which must act with greater diligence, helping to filter the publication and dissemination of news that may be false.
Finally, it is important to be attentive to the course of the parliamentary process of the Bill and to the possible modifications that it may undergo before its final approval by the Parliament.
June 2025