The joint and several liability of the administrators of capital companies for pending Social Security contributions

Abstract

The revised text of the Capital Company Act, in addition to the general regime of the administrators' liability for damages established in article 236 therein, imposes in article 367 a particular regime of joint and several liability on these, derived from the breach of the duties that legally correspond to them when the company is involved in a legal or statutory process of dissolution or is insolvent. As this responsibility weighs on all types of social obligations arising after the process of dissolving the company, its scope of objectives in principle includes labour obligations as well as those contracted with Social Security. Since it specifically refers to the corporate obligation to pay its workers' Social Security contributions, the substantiation of the aforementioned regime of the administrators' joint and several liability requires the coordinated application of corporate, bankruptcy and Social Security provisions. Obviously, the existence of standards with various natures and origins raises various problems of interpretation, hindering the legal operator's work. The most recent case heard by the third chamber of the Supreme Court provided an opportunity to rule on one of them. The issue concerns the requirements for the creation of the aforementioned liability in the event of the company's insolvency. It has been raised whether, in order to demand joint and several liability from the administrators in such cases, it is sufficient to verify that they have not fulfilled their legal obligation to initiate the contest or if it is necessary, in addition, to prove the existence of a legal or statutory reason for the dissolution of the society. The case has resolved this question based on a literal interpretation of article 367 of the Capital Company Act, which leads to a clearly restrictive application of the legal liability established in the regulation.