Duty to advise: can any manager defaulting in respect of his legal obligations blame the auditor?
lun., 31 mars 2014 08:44:00 +0200
Chartered accountants are bound by a duty to advise in their work, towards clients or members (decree no. 2012-432 of 30 March 2012 pertaining to chartered accountancy).
However, in its ruling no. 13-10009 of 7 January 2014, the Commercial Chamber at the Court of Cassation dismissed the appeal lodged by a manager of a SARL which called into doubt the liability of a chartered accountant for default in its obligation to advise. Indeed, the High Court decided that in the absence of any mission letter specifically outlining its intervention, it was not demonstrated that the duty to advise of the chartered accountant was supported in the limit of the mission contractually agreed between the parties.
In the case at hand, the articles of association of the SARL made provision that the remuneration of the manager would be fixed by way of a collective decision of the members. However, the manager had received remuneration for several months before the members decided "that he should retire" respecting the formalities necessary, namely indication of this decision in the minutes of the general meeting filed with the registry office at the Commercial Court. It should be noted that this remuneration rested on a unique declaration of recruitment drafted by the chartered accountant, but under no circumstances on a new decision by the general meeting, with the clerk not having any trace of this in the special register dated and signed (only this register prevails). It was therefore ruled that the manager was not entitled to receive this remuneration and that the new manager was justified in claiming from the interested party return of the amounts received.
The Court of Cassation also believed that the manager pretended to ignore that it was to him and nobody else that law conferred the duty of convening the general meeting and that he could not legally relinquish this legal obligation. He could not therefore argue that his accountant "did not do everything necessary to resolve" an illegal situation he had created for himself.