The ruling of the First Chamber of the Supreme Court of 28th April 2021 (ECLI:ES:TS:2021:5202A), analyses the following reasons for appeal:
1st. Failure to file the annual accounts and presumption of the existence of legal grounds for dissolution due to the net assets being less than half of the company capital, considered in section e) of article 363.1 of the Spanish Companies Act (LSC – Ley de Sociedades de Capital). Joint and several liability of the director, under article 367.1 of the LSC.
2nd. Individual liability of the director, established in article 241 LSC, for having caused or allowed the de facto closure of the company, without resolving the insolvency situation.
Regarding the first reason:
A) Reference is made to Supreme Court Judgment no. 202/2020, of the 28th of May, which alludes to the duty imposed on entrepreneurs by article 34 of the Commercial Code, to prepare the annual accounts at the end of the fiscal year, which must show the true image of the company’s assets, financial situation and results, taking into account, in the accounting of the transactions, the economic reality. It explains that the failure to fulfil this duty leads to the closure of the registry as provided for in article 282.1 LSC, as well as the regime of penalties established in article 283 LSC.
B) It highlights that, neither in the legal and statutory obligation to file the annual accounts, nor in the regulation of the legal causes of dissolution, is it established that the failure to fulfil the legal obligation to file the annual accounts constitutes a legal cause of dissolution, nor that the failure of the directors to fulfil said obligation entails the obligation to be responsible for the company’s debts, nor that the paralysis of the company or the impossibility to fulfil the company’s purpose can be presumed from this.
C) It explains that the proof of the existence of an equity deficit or company inactivity may be favoured by “peripheral facts”, among which, some of the minor case law considers the omission of the filing of accounts, in a way in whi