Can a director be exempt from filing a balance sheet?
ven., 14 mars 2014 16:29:00 +0100
In ruling n°12-29.807 of 14 January 2014, the Commercial Chamber at the Court of Cassation reiterated that in light of article L. 653-8 of the Commercial Code "[Personal bankruptcy may] be declared against any person [...] who omits to request opening of bankruptcy proceedings or judicial liquidation within forty five days following the date on which payments can no longer be respected, without having, moreover, to open conciliation proceedings. ".
In the present case, a manager had omitted to request opening of administration proceedings or judicial liquidation within forty five days, and the creditors requested such proceedings there against. The administrator asked that the Commercial Court hand down a sanction of personal bankruptcy against it.
Reiterating the provisions of the aforementioned article L. 653-8, the Court of Cassation handed down a ruling in principle, namely a ruling which will allow action to be taken on future similar matters. It considers that a business manager is not exempt from filing for bankruptcy for its companies within forty five days following the date on which payments can no longer be respected, even if its creditors have taken action in this direction. It has, therefore, legitimately encouraged the sanction of personal bankruptcy.