Liability of company directors. Individual action concurring with cause of dissolution (qualified losses) and bankruptcy declared. Dismissed. Judgment (Appeal) of the Court of Barcelona (s. 15th) of April 7, 2015 .
- The claim against III,SL “a company with limited liability” and its manager, was brought for damages allegedly caused by IIISL and is Director, as they did not promote the dissolution and liquidation of the company for undercapitalization (arts. 236, 241, 363. 1 e / and 367 of the Companies Act (LSC).
- The judgment of first instance was decided for the plaintiff
- The Director’s appeal was founded on (i) the irrelevance of the First Instance Decision based on the provisions of art. 105 LSRL and 51a of the Bankruptcy Act (LC) and (ii) the non-existence of the conditions that can found an “individual action for damages”
- The first plea is based on the incompatibility (in terms of Article 51bis LC) of the action for not promoting dissolution and liquidation, with the bankruptcy situation (IIISL voluntary bankruptcy was declared on November 27 2012 by the Commercial Court (7) at Barcelona. The First Instance Court had been required to suspend the ordinary process, but did not do it. The TS(as already stated by STS of June 20, 2013, acknowledged such incompatibility and rejected the first bases of the appeal
- Art 51bis LC establishes that upon declaration of the “concurso” leading to bankruptcy proceedings initiated before the bankruptcy declaration against the directors of corporations upon allegations that they had breached the duties imposed on them when there is a “cause for dissolution”, shall be suspended.
- The “so called individual action” to demand liability from Directors is not affected by bankruptcy, but the action of responsibility for “failing to promote dissolution” is affected.
- In terms of “individual action” for damages brought against the appellant, in its application, the plaintiff stated that the administrator urged supplying, whilst he knew of the under capitalization of the defendant company. The Director ought to have promoted timely dissolution and liquidation thus avoiding the disappearance of the debtor company and the non-payment of the debt to the plaintiff. The aim of Art. 241 of the LSC (individual liability action) is to restore the individual assets of the shareholders or third parties who have been directly damaged by an act or omission attributable to the Director. It is an action for damages to which the company's creditors are entitled and which requires a behavior or facts, acts or omissions - of managers lacking due diligence leading to injury. The injured plaintiff must prove a precise and direct causal link between such an act (omission, etc.) and the harmful result. Such direct causation was not evidenced. This leads to the dismissal of individual action for damages brought against the appellant