Jordi Castells – Abogado en Figueras Legal
Being a director of a company represents a serious commitment where your actions must be, at all times, diligent. This entails the fulfilment of a series of obligations, especially in the economic field, where they become especially relevant in those situations where, unfortunately, the company is not in a good economic and financial state.
At this point, if a company is immersed in a cause for dissolution (the most common being the existence of losses that leave the net assets reduced to an amount less than half of the share capital), it is essential and necessary for the administrative body to act explicitly and quickly in order to avoid possible liabilities (defined as the obligation to compensate for the harmful consequences for the rights and interests of a third party).
Otherwise, an omission or late action may give rise to the action provided for in article 367 of the Ley de Sociedades de Capital. The aforementioned article establishes an action of liability for debts where the directors are jointly and severally liable for the company’s obligations if within 2 months they do not call a General Meeting to adopt a resolution to dissolve the company or to remove its causes or, if the company is insolvent, the obligation to file for insolvency proceedings. This period must be calculated from the time when the directors were aware or should have been aware of the company’s financial situation if they had acted with the normal diligence of their position.
Such liability is joint and several and personal (reaching, therefore, the personal and private assets of the director himself, with all that this entails) and will extend to those corporate obligations subsequent to the occurrence of the legal cause of dissolution of the company. In this sense, the law itself establishes an iuris tantum presumption, being that the corporate obligations claimed are presumed to be subsequent to the existence of the cause for dissolution, unless the administrators can prove that they are from an earlier date.
It is true that Article 13.1 of Real Decreto Ley 3/2020 of 18 September determines that the losses of the financial year 2020 will not be taken into consideration for the purposes of determining the existence of a cause for dissolution. However, this temporal scope is limited and must be taken into consideration in the accounts for the financial years 2021 and subsequent years. Consequently, if there were legal cause of dissolution on 31 December 2020, the two-month period would start to run at the latest on 31 March 2021, the maximum deadline for the preparation of the annual accounts in accordance with article 253 of the Ley de Sociedades de Capital (unless the administrative body was aware of the asset situation beforehand).
Consequently, many actions necessary must be taken to avoid situations which the company director finds himself in a situation where, with his own personal assets, he is liable for the company’s debts. For this reason, it is essential to have correct and timely legal advice in order to avoid this type of unpleasant situation. To this end, at “FIGUERAS LEGAL, S.L.P.” we can answer your doubts regarding this issue.
Finally, it should be noted that this liability action must be differentiated, on the one hand, from the individual liability action provided for in article 236 of the Ley de Sociedades de Capital, understood as a compensatory action which, for its application, requires a conduct or attitude that gives rise to damage in such a way that the injured claimant must prove that there is a causal link between the act or omission of the company director and the damage caused to the claimant and, on the other hand, from the civil liability action set out in article 1. 902 of the Código Civil, which applies to damages for actions carried out by the company director outside the exercise of his functions.