Three requirements of individual responsibility action against the administrator

responsabilidad administradores

performing a negligent act it is needed, damage to the creditor or partner and causal link to individual responsibility Administrator

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Individual action for liability prosper, three conditions are necessary: a negligent act attributable to the administrator, that the same damage to the creditor or partner is derived and, that exists between the wrongful act and the damage a causal link.

In this post we review one of these cases in which it rejected the individual action Responsibility.

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

The SUXCRIT corporation was incorporated in 1999. It was composed by Andres, Remedies and Celestina.

In 2007 He became partner to FINAVES III NEW INVESTMENTS S.A.. (onwards, FINAVES).

The 14 March 2014, Remedies Andrés family sold its stake to the company amounting SUXTRIX 747.881,68 euros.

So, He changed the composition of the board. He was appointed president Mr.. Victorio and as counselors, FINAVES and two partners more.

From this moment, control in which accounting irregularities were discovered in the exercise was carried out 2012.

In July 2014, the board decided to make the annual accounts 2013 and reformulate those of 2012. And this is due to had such an impact that these accounting irregularities in the equity of the company:  unbalance left in equity at year end 2012 (31 January 2013).

In September 2014 auditors was commissioned BDO, a new report on irregularities. Also, It was requested in parallel with the signing E&And another report to know the exact amount of descuadre.

E report&And it was delivered 6 February 2015. En éste,  it was determined that, since late 2010 there was a systematic practice in the company aimed at make up the annual accounts of the company. The purpose of this practice was to provide the market with results that did not correspond to reality.

The 10 March 2015 SUXTRIT deposited annual accounts 2013 and reformulated the 2012 in the Commercial Register.

The 9 September 2015 SUXTRIT filed a request for an ordinary trial against former sellers D. Andrés,  Ms.. Remedies and Mrs.. Celestina, by irregularities in accounting.

So good, from June 2014 They had initiated negotiations between SUXTRIT and CALZADOS GAIMO S.L.. (onwards, GAIMO). They explained their strategic plan for internationalization. So, so that it could carry out, they made them an order for shoes much higher than usual. Specifically, amounting to 442.358,81 euros. Negotiations were closed in September 2014.

GAIMO met the agreed deadlines, but he did not receive payment.

Sales forecasts internationalization project were not met. Thus, SUXTRIT partners contributed capital to the merchant. Specifically they made two contributions: 1.000.0000 euros and, later, by 500.000 euros.

Failure to achieve the objectives caused in April 2015, SUXTRIT incurred insolvent and unable to meet its payment obligations.

The 12 June 2015, SUXTRIT informed the Court its insolvency. He applied for bankruptcy, which it was declared by the Commercial Court No. 8 Barcelona, by car 5 October 2015.

The list of creditors in the bankruptcy administration recognized a credit for the amount of GAIMO 442.358,81 euros (6.821,62 euros of subordinated loan).

The 2 May 2017, the Commercial Court No. 8 gave judgment. SUXTRIT declaring the contest as guilty and as the only person affected by the characterization Mr. Andrés.

GAIMO, He brought an administrators liability action against Finaves and D. Victorio. They are requesting that they respond jointly debts incurred by the amount of 416.151,58 euros.

The plaintiff based his claim on the art. 236 and 241 of the Corporations Act (LSC). In the aforementioned law envisaged an individual responsibility for acts or omissions contrary to law social manager, the statutes or own legal duties of their office. Considered the plaintiff that the defendants had committed a conduct contrary to the duty of loyalty and diligence business. And this, for having placed an order knowing of the fictitious solvency Suxtrit showed that did not correspond to the economic situation of the company. Also, He alleged that the defendants deliberately delayed the publication of accounts in the trade register 2013 to March 2015, in violation of Articles. 134, 279 and 281 the LSC.

The plaintiff accused in his letter to the defendants, in their capacity as members of the board of SUXTRIT, three behaviors:

  1. Approval of the annual accounts 2012 with serious accounting irregularities,
  2. Late filing of annual accounts 2013 and reformulated the 2012 and,
  3. Implementation of a strategic plan unrealistic.

The defendants opposed. They denied the violation of the duty of loyalty and diligence own board and had deliberately delayed the publication of the financial statements with the intent to deceive the actor. When the order was made Footwear Gaimo, the company was not insolvent. In 2014, when contracts with Gaimo Footwear, irregularities were detected in the annual accounts 2012. These events led to reformulate the accounts for the year 2013, but this was not related to the default order of the plaintiff.

Primera Instancia

El Juzgado de lo Mercantil núm. 9 Barcelona gave judgment dismissing the lawsuit entirely.

He condemned the plaintiff to pay the costs.

Case Instance upheld the arguments of the defendants. He dismissed the lawsuit on the grounds that the conduct that the plaintiff accused the defendants could not be described as negligent. They not supposed, these behaviors, a breach of the duties of office administrator. Also, there was no causal connection with the nonpayment of the actor claimed credit.

Provincial Court

The sentence was appealed by the plaintiff. He questioned the assessment of the evidence on the grounds that the sentence must estimate claims for attending all the requirements of Art. 241 LSC. And this, because the cause of the damage suffered resided in the negligent conduct of the defendants who approved annual accounts with serious accounting irregularities.

The Provincial Court of Barcelona, section 15, dictated the 21 May 2019 judgment confirming the judgment of the first instance.

On liability for damage Art. 241 LSC.

The Court recalled that individual action of responsibility of the arts. 236.1th and 241 LSC, They demanded three indispensable requirements:

  • A negligent act attributable to the administrator,
  • That the same damage to the creditor or partner is derived
  • That between the unlawful act and the damage claimed there is a causal link

He cited the STS 253/2016: “so you can be attributed to the administering non-payment of social debt, as damage caused directly to the lending company […] there must be a clear breach of statutory duty that can directly tying unpaid social debtArgumentative effort should be made ... to show the direct impact of failure to perform a legal duty qualified the lack of payment of those loans”.

He added in the same sense that the TS "It can not be used indiscriminately to the path of individual directors' liability for any breach of contract. Otherwise would contradict the fundamental principles of capital companies, such as the legal personality of the same, its main autonomy and exclusive responsibility for corporate debts, or forget the principle that contracts only produce effects between the parties that the grant, proclaims the art. 1257 CC”.

So, Applying the doctrine to the case on trial, Hearing concluded that it should confirm the ruling rejecting the instance. could not be attributed to Mr. Victorio accounting irregularities exercise 2012 because they occurred prior to its entry into the company. So good, the defendant was in the company in June 2013, but there was no evidence attesting that he was aware of the irregularities.

I turned to the High Court established that the accounting irregularities in the accounts 2012, They were only and exclusively attributable to Sr. Andrés. No other member of the board was aware of the gap in accounting.

New members and administrators adopted a series of business decisions adjusted to the standard of care of the employer. So, after detecting accounting irregularities decide the reformulation of accounts 2013 through the practice of an audit by BDO and a report by an independent expert (And&And). Also, demanded responsibilities to the former owners of the company.

The audience could not be considered negligent conduct late filing of annual accounts 2013 and reformulated the 2012. Administrators, after adopting the right decision to restate the accounts and audit them, and in order to ensure that you are reflecting the real image of the company, They waited for the report of the independent expert (And&And). This report was obtained in February 2015 and accounts were deposited in March of the same year.

The Court noted that, contracting with the plaintiff began in June 2014 and it closed in October the same. So that, even the bills due in December 2014, Nor he had altered the order it was already made two months ago.

So, on the date on which it closed the order, the solvent was commercial SUXTRIT, as new partners had contributed. These contributions reached 3.607.000 euros. So that, it was not established that the late submission of the accounts was due to an intention to harm the creditor and make him believe that the company was solvent.

The plaintiff also credited the business expansion project were unreal.

Thus, irregularities were not attributable exercise 2012 the defendants, there was no causal link or between the late submission of accounts 2013 with the hiring of order ... or his nonpayment, nor between the existence of irregularities in the accounts 2012, nor delay in its reformulation through accounts 2013 and frustration of the business project and insolvency in the coming SUXTRIT in April 2015 ".

The appellant had intended to attach administrators responsible for unpaid debts of an insolvent company that prevented its creditors to collect debts. So good, TS jurisprudence had considered, at times that the impossibility of collecting their claims by creditors was a direct damage attributable administrators. But, for it it must concur very exceptional circumstances and qualified (STS 27 March 2018). In the case before the Court was not met any of those circumstances.

Therefore, the Court dismissed the appeal. Instance upheld the judgment.

Conclusion

You can not be appealed directly to the individual responsibility of the directors of a company for any breach of contract. On the contrary, they would be contravening the fundamental principles of the Capital Companies Act.

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