What is the deadline for the individual liability action of the administrators?

responsabilidad administradores

 

The term to exercise the individual action of responsibility of the administrators is four years from when it could be exercised

 

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As stated in the Capital Companies Law, the statute of limitations of the individual liability action of the social administrators is four years from the date the action could be brought.

In situations of business crisis, One way of trying to recover unpaid debts is to exercise individual liability action against company administrators. This action requires a series of requirements to be met, as we saw en esta entrada.

Next we review the sentence of the Section 15 of the Provincial Court of Barcelona issued 18 September 2020, with No Resolution 1939/2020, in which the appeal filed by GESTIÓN DE DESPACHOS PROFESSIONALIZADA is dismissed, S.L. (onwards, GDP), against D. Heraclio, social administrator of EUROVÍA BARNA, S.A. (onwards, EUROVÍA), considering that the individual liability action exercised had prescribed.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

D. Heraclio was a constituent partner of Eurovía and a member of the board of directors since the company was incorporated. In 1998 appointed him CEO and appointed sole administrator on 25 March 2003. In 2008 your position expired, canceled after registration in the Mercantile Registry on 26 November 2012.

In 2004 the last annual accounts of Eurovía were deposited. From 2006 disappeared from commercial traffic.

GDP filed suit on 12 February 2018, exercising the liability action of administrators of capital companies, to claim the amount of 7.772,76 €, under the arts. 236 and 241 TRLSC. Eurovía had a debt with OPEN EUROPEAN FLEET, S.A., claimed for payment procedure in 2004.

The action was brought against D. Heraclio as administrator of Eurovía for not having convened a meeting to dissolve the company within the legally established period and for not having acted diligently.

Primera Instancia

The Commercial Court No. 4 Barcelona gave judgment on 19 December 2019, dismissing the lawsuit filed by GDP against D. Heraclio, who acquitted.

The Court considered that the action brought by GDP was prescribed after the period of 4 years to exercise the action from the cessation of his position as administrator of the company in 2008, being registered in the Mercantile Registry in 2012.

Provincial Court

GDP filed an appeal. He alleged that, when D. Heraclius ceased as administrator of the society, no new one was appointed, being obliged to maintain the functions of his position until a new one is appointed. Also, D. Heraclius held a stake in the 40% of the company's shares, so the liability action was not prescribed.

The Chamber brought up the jurisprudence on the regime of the prescription in liability actions against administrators:

"In accordance with art. 949 of the Commercial Code the action prescribes four years after the administrator ceased administration. The dismissal of the administrator can occur for any valid reason or cause suitable to produce it, entre los que se encuentra el cese por caducidad del nombramiento como consecuencia del agotamiento del plazo por el que fue designado” (STS 19 November 2013).”

With this, the Chamber decided that, if the term of art applied. 949 CCom or art. 241 to LSC, the action would have prescribed in both cases, for from 2006, EUROVÍA disappeared from legal traffic, and from 2012 it was stated that D. Heraclio had resigned from office after registration in the Mercantile Registry, so that, the "dies a quo" for take the pertinent actions against the administrator, was born at that time, having filed the claim at the latest in 2016.

Conclusion

The statute of limitations for the individual liability action of the social administrators is four years from the moment the action could be brought (art. 241 to LSC). After the reform of the LSC by Law 13/2014 the statute of limitations based on the article 241 bis is four years old, but it will no longer start to count from the cessation of the administrators but from the day the action could have been brought.
 

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