SCS 601/2019 and 3 very relevant interpretations of administrators’ responsibility

The Supreme Court Sentence 601/2019 of November 8, 2019 points out 3 very relevant interpretations of the administrator’s responsibility.

Table of Contents:

1. Individual action or social responsibility action in case of “de facto closure”?
2. The Manager is not responsible for the debts that arise after his dismissal.
3. Does the new administrator answer for the debts that arise before his appointment, but after the moment in which the company had incurred in cause of dissolution ( before his appointment)?

Individual action or social responsibility action in case of “de facto closure”?

 Supreme Court Sentence 253/2016 contemplates two very different scenarios that should not be confused:

1. If the de facto closing takes place when there is a cause for dissolution present, but the the decision to dissolve the company is not agreed upon, the social action of responsibility can be used to exercise the responsibility against the administrator.
2. In the event that a de facto closure has taken place (1) – without any cause for dissolution – (2) with the possibility of total or partial satisfaction of the debt (3) debt whose payment was later frustrated, and (4) having followed a dissolution process (which was “obviously” not obligatory), then the individual action of liability of administrators is the course to take.  Therefore, there are four premises that must concur in this specific case, to have had recourse to the individual responsibility of administrators.

Si te ha interesado este artículo no dudes en leer:

Can liability action and director’s liability action be joined in the same lawsuit?

Until 2012, the Supreme Court did not rule on the accumulation of two types of shares. The action for liability for debts and the action for liability of administrators.

The Administrator is not responsible for the debts that arise after his dismissal

The Director of the company is not responsible for the debts generated after his resignation or dismissal. This was stated in the Supreme Court’s Ruling 731/2013, of December 2. And so it remains today in the year 2020.

Does the new administrator answer for the debts that arise before his appointment, but after the moment in which the company had incurred in cause of dissolution ( before his appointment)?

The administrators are not responsible for debts prior to their appointment. Neither are they responsible for debts after their resignation or dismissal.

If a new administrator agrees to assume his position while the situation is in cause of dissolution, he has a period of two months to request the dissolution from his appointment.

However, if he fails to comply with his obligation to apply for dissolution, he assumes joint and several liability for the debts … but always for those incurred after his appointment.

If this article has been of interest, we also suggest you to read the following article published on our website:

Necessary requirements to exercise the individual action of responsability against the Directors.