Dissolution of the company and responsibility or not of its administrators

Actualmente y con motivo de la pandemia mundial provocada por el COVID-19 el legislador ha modificado la normativa sobre disolución de las sociedades mercantiles afectando con ello al régimen de responsabilidad de los administradores sociales, suspendiendo la obligación de disolución de las compañías mercantiles que se encuentren incursas en causa de disolución hasta tanto no finalice el estado de alarma.

Currently and due to the global pandemic caused by COVID-19, the legislator has modified the regulations on the dissolution of commercial companies, thereby affecting the liability regime of company administrators , suspending the obligation to dissolve commercial companies that are involved in a cause of dissolution until the state of alarm ends.

General liability regime for corporate administrators

In general, company administrators are subject to two commercial liability regimes: liability for damages (article 236 LSC) and responsibility for social debts (article 367 LSC). p>

The first liability regime is found when the administrator has caused damage to the company, partners or company creditors by virtue of acts or omissions that are contrary to the law or to the statutes, as well as when these take place due to the breach of duties inherent to the performance of their position involving fraud or negligence, which will have to be accredited in court by the person who alleges it. This type of liability may be demanded through two ways, namely, social action (if the damages have been caused directly to the company) and individual action (if the damages have been caused to a third party that is not the company). ).

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For its part, liability for corporate debts will arise when the company is in the process of dissolution and the administrators do not comply with the obligation to convene a General Meeting within 2 months General Meeting to adopt the resolution of dissolution, when judicial dissolution is not requested in cases in which the General Meeting has not been constituted or the resolution that has been adopted is contrary to the dissolution and 2 months have elapsed since then, or when the company is in a situation of insolvency and does not request the declaration of bankruptcy within the term provided in the corresponding law.

This type of liability is objective and does not specify the existence of fraud or negligence, nor does it require the concurrence of damage or causal relationship between the omission of the administrator and the damage although jurisprudence has recently recognized the possibility of exonerating administrators if they demonstrate that they have taken significant action to prevent said damage.

In addition to the commercial liability regime described above, the administrators may incur in other cases of liability as a result of the extension of the administrative power to penalize cases established in commercial company laws such as procedures of derivation of liability (jointly or subsidiary) for debts with the AEAT or TGSS fees, among others.

Suspension of the dissolution obligation during the State of Alarm

As previously noted, the economic crisis caused by COVID-19 led the legislator to establish from the outset a general suspension of company dissolution obligations mercantile in order to allow their viability and subsistence.

Thus, as of March 17, 2020 (that is, a few days after the declaration of the State of Alarm) in RDL 8/2020 a general suspension of the obligation to dissolve commercial companies for any of the legal causes provided for in art. 363 of the Capital Companies Law (LSC), including the situation of equity deficit and/or debts that reduce own funds below half of the share capital. Likewise, the obligation of dissolution provided for in art. 360 of the LSC due to termination of the determined duration of a fixed term if it elapsed during the State of Alarm (ex art. 40, pt. 10 RDL 8/2020).

According to the provisions of the aforementioned RDL 8/2020, even if any of the causes of dissolution provided for in art. 363 LCS (including the existence of losses), the administrators of the companies would not be obliged to call a General Meeting to agree the dissolution of the company until two months had elapsed since the end of the State of alarm, expressly providing in the standard that

“If the legal or statutory cause of dissolution occurred during the state of alarm, the administrators will not be liable for the corporate debts incurred during that period”< /blockquote>

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This generic provision was completed by RDL 16/2020, of April 28, which already referring specifically to the cause of dissolution due to losses, provided in its art. 18 that the losses for the year 2020 would not be taken into account to determine if the company is involved in a cause of dissolution.

RDL 16/2020 is currently repealed, having replaced the regulation of the suspension of causes of dissolution for losses by the current art. 13 of Law 3/2020, wording and content identical to the previous art. 18 RDL 16/2020.

There is controversy between the doctrine in relation to the interpretation that must be given to said article in relation to the temporary scope or duration of the suspension of the cause of dissolution by 2020 losses, there are those who maintain that the suspension is permanent and, consequently, the 2020 losses must always be excluded and those, on the contrary, affirm that it is a transitory forecast and the 2020 losses they should only be excluded in relation to the 2020 financial year itself, but they must be computed for subsequent fiscal years.

Responsibility or non-responsibility of administrators

The previously transcribed art. 40, point 12 RDL 8/2020 remains currently in force despite the subsequent regulations on the matter that have been made in the aforementioned RDL 16/2020 and Law 3/2020, so although there is some controversy in this regard, it can be affirmed that While the State of Alarm lasts, the administrators of companies that are in the process of dissolution and do not request it will not be liable for the corporate debts contracted during it.

Nothing is indicated in the regulation in relation to the debts prior to the State of Alarm nor about the responsibility of the administrators of companies that, being involved in a cause of dissolution before the declaration of the State of Alarm.

From JL.Casajuana Abogados, such as lawyers specializing in commercial and bankruptcy law, we can advise you on any matter relating to bankruptcy.