Liability directors in the event of bankruptcy
I have carried out work as a subcontractor, but before the main contractor has paid my invoices, he is declared bankrupt. The estate is also inadequate. Do I still succeed insofar as the principal has not yet paid the main contractor, and insofar as the direct claim is filed before the main contractor's bankruptcy has been declared. have an option to get paid in one way or another for the services rendered?
In the first place, reference can be made here to an earlier article in connection with the direct claim of the subcontractor against the client. However, this will only
In many cases the direct claim will therefore not be able to be exercised and the subcontractor will therefore be left empty-handed.
However, this is not the end yet. If a main contractor is declared bankrupt, in certain cases the directors of BVBA, NV or CVBA can still be held personally liable to pay the debts of the company towards the subcontractor. However, this principle is not unconditional.
Obviously gross misconduct that contributed to the bankruptcy
If you would like to hold the directors personally liable for the payment of the outstanding invoice, it will have to be proven that the directors have committed an apparent gross error that contributed to the bankruptcy.
In other words, the bankruptcy must have been organized by the directors or be caused by their fault.
This is laid down in articles 265, 409 and 530 Companies Code An additional limitation applies to the BVBA and the CVBA, in the sense that this directors' liability will not apply if there is an average turnover of less than EUR 620,000.00 in the past 3 years.
If the apparent gross error is deemed proven, compensation will be awarded in accordance with the loss suffered, being the amount of the claim that cannot be recovered through the bankruptcy.
Since the bankruptcy is usually not concluded quickly, and creditors therefore remain in the dark, the procedure can already be started. This will usually be accompanied by the request for a provisional compensation.
Everything revolves around the principle of manifest gross error. It is an unforgivable mistake that a normal and careful director would not have committed in the same circumstances. In other words, the director should have been aware that this mistake would contribute to the bankruptcy.
There are many errors that can be classified as gross errors. Examples include embezzling receipts, drawing up false balance sheets. The most common, however, concerns the continuation of a company that has apparently been lost, whereby contracts are concluded with suppliers at the moment when the company already knew that it would no longer be able to carry them out. Failure to comply with conflicts of interest rules can be such a grave mistake.[1]
An additional condition is that the mistake must have contributed to the bankruptcy.
This implies that the error is one of the reasons for the bankruptcy. It is not necessary that she is the only cause.
If the director can be accused of a crime, the obvious gross error can also be immediately derived from this, but this also entails liability for the directors under Articles 1382-1383 of the Civil Code.
With regard to bankruptcy, there are a number of specially defined crimes (Articles 489, 489bis ter Penal Code) such as unauthorized generosity, reckless transactions to postpone bankruptcy, misrepresentation of figures, failure to explain lost asset, favoring certain creditors, non-filing of the books, vandalism, asset transfer and misuse of corporate assets.
The directors' liability under Article 1382 of the Civil Code: pre-contractual error when concluding an agreement
This can be done by, on the one hand, keeping accounting records that are not truthful, and failing to inform the contractor about the actual situation of the company, which in reality was apparently lost.
Directors can therefore be guilty of a pre-contractual obligation to provide information by concluding an agreement on behalf of the company, while at the time of entering into the agreement they knew or should have known that it could not be repaid by the company and thus constitute a false appearance of solvency (cf. Ghent 19 April 2001, TRV 2004, 728, note VANANROYE Ghent 13 February 2012, DAOR 2012, 206).
The damage is personal damage and to be distinguished from the damage common to all creditors in the mass.
This is application of the doctrine of the “quasi-immunity of the executive agent” to any further proceedings against the directors, and this for each of the alleged errors.
According to this doctrine, a creditor who has a contractual claim against his debtor (in this case the bankrupt company) cannot bring a claim against the person who performed the assignment in the name and on behalf of the debtor - in particular the subcontractor, the agent, the ( ex) director– if the damage that the creditor claims is nothing more or no different than the damage that he suffers due to the non-payment of the invoiced order.
The ex-directors therefore remain unaffected when they are asked to pay a contractual unpaid debt of their company.
Criminal offense : no quasi-immunity
The immunity of ex-directors also lapses if they can be accused of a criminal offence.
Since the legislator is rather lavish in penalizing all kinds of errors in the management of a company, this exception opens up prospects for liability proceedings, although the injured party will still have to demonstrate that a crime has been committed and that the damage suffered by him is directly causal. related to the crime committed.
The Court of Appeal Ghent ruled in the aforementioned judgment of 18 February 2013 that the late filing of the annual accounts does indeed constitute a criminal offense (Article 126 §1, 1° Companies Code 92 § 1, second paragraph Companies Code), but that no causal link had been established between this late filing and the unpaid invoice debt.
For the unpaid creditor, the road to compensation remains an at times thorny track with numerous dead-end sidetracks… So systematic care has to be taken.