Consequences of the approval of the annual accounts prior to the availability of the auditor’s report
The date of the audit report, when dated after the shareholders‘ meeting, proves the infringement of the right of the shareholders to have all the
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The Provincial Court of Madrid, in judgment 132/2024 of April 23, dealt with a case in which a sole director diverted clients from one company to another, which was created for the purpose of avoiding the payment of a debt recognized by a final judgment in a previous proceeding. This act, which left the debtor company without assets, prevented the creditor from recovering its claim, even through enforcement proceedings.
Traditionally, the damages suffered by the creditors due to the reduction of the corporate assets are considered “indirect”. That is, creditors cannot claim directly against the directors, since the damage affects mainly the company as a whole, and only secondarily the creditors and shareholders. The usual remedy for these cases is the corporate liability action provided for in Article 240 of the Spanish Companies Act (LSC), the purpose of which is to restore the company’s assets. However, the Provincial Court, following the doctrine of the Supreme Court, has pointed out that, in certain qualified cases, the creditors may suffer a “direct” damage that justifies the use of the individual liability action (art. 241 LSC).
In the specific case, the Provincial Court considers that all the elements necessary to admit the individual action were present: an organic wrong was committed, direct damage was caused to the creditor and there was a clear causal link between the actions of the director and the damage suffered.
The date of the audit report, when dated after the shareholders‘ meeting, proves the infringement of the right of the shareholders to have all the
For the purposes of proving the deposit of the capital in a bank for the incorporation of a company, the essential factor for the purposes
Although the articles of association allowed the change of registered office within the same municipal area, the DGSJFP interpreted this provision as an explicit limitation