Bankruptcy

The Supreme Court (TS) analyzes a bankruptcy case in which the bankrupt company had as administrator a legal entity (another company). Since that administrator "company" cannot act on its own , the law requires it to appoint a natural person as permanent representative , who is the one that practically makes decisions and signs on behalf of the administrator. In the bankruptcy procedure, the bankruptcy was qualified as guilty due to behaviors linked to management (accounting irregularities, delay in requesting bankruptcy, or actions that worsen insolvency).

The question was whether that natural person representative could also be considered "affected by the qualification" and punished the same as an administrator. The TS states that it can indeed be considered affected , because there is a kind of functional equivalence, although formally the administrator is a company, the one who actually holds the position is the permanent representative, who assumes duties and responsibilities similar to those of the administrator. If their conduct contributes to insolvency or to the behavior that justifies the guilty bankruptcy, they may fall into the group of persons affected by the qualification.

However, the TS also sets limits since not all consequences apply automatically. Distinguish between three typical effects :

- The disqualification , it makes sense to impose it on the individual, because it is a personal sanction.

- The liability for the insolvency deficit can be demanded jointly from the legal entity administrator and its representative, if the deficit is connected to this person's actions.

- The loss of insolvency rights does not simply transfer to the representative just for being one; it does not work as a “copy and paste” of sanctions.

If you find yourself in a situation similar to the one described, our professionals can provide you with the appropriate assistance and take any actions that may be relevant.