The qualification section in insolvency proceedings has a special relevance for the administrative body of the insolvent company given that, in the event of guilt and in certain circumstances, it can lead to a sentence to cover the insolvency deficit with the personal assets of the persons affected by said section.
Among the persons who may be affected by the classification of the company, the figure of the de facto administrator stands out, given that the insolvency liabilities they may face may be those of the de jure administrator.
A de facto director is considered, pursuant to article 236.3 of the Capital Companies Act, to be the person who, in commercial transactions, performs, without title, with a null or extinguished title, or with another title, the functions of a director. Also that person under whose instructions the directors act. In short, it is the person who actually controls the company, carrying out the acts of administration of the company, even though formally they are carried out by another person who appears as its administrator.
The figure of the de facto administrator has been extensively analysed by both doctrine and case law, and what is decisive, what characterises the de facto administrator, is the concurrence of two elements:
– A negative one, consisting of the person who does not hold the de jure status, that is, the person in whom there is no valid investiture of said position, either because it has never existed, or because having done so, it has lost its effectiveness.
– A positive one, differentiating:
- a) The performance of a real and effective activity in the management of the development of the business activity and its administration in the strict sense (the calling of a general meeting, the drafting of the annual accounts, etc.).
This management activity must relate to matters that are the responsibility of the company’s administrative body.
- b) The activity must be exercised with complete independence or autonomy of decision, so that the person, apart from a formal or regular appointment, may reasonably be understood to be exercising the functions of the power of attorney as binding on the company and, therefore, as an expression of the company’s will.
- c) The exercise must be constant and habitual, since a sporadic act of direction, administration or management does not allow the person performing it to be considered a de facto director.
In short, for the determination of a de facto director, what is relevant is the exercise of the functions inherent to the general management of the company, implying continuous participation in that management and effective and constant control of the company’s progress.
In order to ensure legal certainty, case law makes it necessary to make an intensive argumentative and evidential effort to recognise and impute this, either through direct evidence (see documentary evidence, interrogations, witness statements or expert reports) or through circumstantial evidence. Their actions must be accredited in a concealed manner.
Finally, special consideration and study is required for the consideration of the de facto administrator in sole proprietorships and in groups of companies (in the influence of the parent company over its subsidiaries).
For all these reasons, and given that, as has been explained, the consideration of de facto director can have very significant economic consequences, it is essential to have correct and timely legal advice in order to avoid such risks. To this end, at “FIGUERAS LEGAL, S.L.P.” we can answer your doubts and concerns in this regard.