When an enterprise is in a situation of cessation of payments, that is to say when it can no longer meet its debts due with its available assets, its manager is obliged to declare it in court so that a reorganization or liquidation procedure may be opened. We are talking about bankruptcy.
And beware, the leader of a company in a state of cessation of payments who has knowingly failed to request the opening of a procedure of reorganization or liquidation judicial within 45 days from the cessation of payments, while he has not, moreover, requested the opening of a conciliation procedure, may be condemned by a court to a prohibition to manage.
a prohibition against management is to prohibit the director from directing, managing, administering or controlling, directly or indirectly, any commercial or artisanal enterprise, any agricultural operation and any legal person having an economic activity.
Application of this sanction was recently made by a court of appeal which thus acknowledged the deliberate intention of a company officer not to have filed for bankruptcy in a timely manner. In that case, a SARL had been put into liquidation, the date of cessation of payments having been set at one and a half years ago. The judges, who found that his manager had not declared the cessation of payments within 45 days when, according to them, he was fully aware of the importance of the difficulties of society and its inability to cope to the payment of the liabilities due, have condemned to a prohibition to manage for 3 years. In fact, he had sold his own property as well as shares of the company in the hope that the activity would resume.
since a law of 6 August 2015, the prohibition to manage can only be pronounced against the officer who “knowingly” failed to declare the cessation of payments within the legal period. Previously, this sanction could be pronounced, whether the manager’s omission was intentional or not. As such, the Court of Cassation has clarified that the condition relating to the intention of the leader applies to proceedings in progress on August 8, 2015 (date of entry into force of the law of August 6, 2015).
reference: Paris Court of Appeal, 3 July 2018, No. 17/10260
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