By Maîtres Florent DE FRANCESCHI and Grégory DAMY According to article L 123-12 of the French Commercial Code, all traders must draw up annual accounts at the end of the financial year.
As far as commercial companies are concerned, the obligation to keep annual accounts results from article L. 232-1 of the Commercial Code. These annual accounts generally include the balance sheet, the income statement and an appendix. These documents must be regular, sincere and give a true and fair view of the company's assets and liabilities, financial position and results. The annual accounts must therefore be approved at an ordinary general meeting. This meeting must be held within 6 months after the closing date of the financial year. The manager must therefore pay to carry out the formality of filing the annual accounts.
Failing this, the Commercial Code provides for sanctions. Article L. 611-2 II provides that if managers do not file their annual accounts within the time limits provided for by the applicable laws, the president of the court may issue an injunction to do so promptly under penalty. In practice, the President of the Commercial Court shall issue an order enjoining the legal representative of the legal entity to file the annual accounts within one month from the notification or service of the order, under penalty of a fine.
The Registrar of the Commercial Court shall then notify the order to the legal representative of the legal person. In the event of failure to comply with the order he has issued, the President of the Court shall rule on the liquidation of the penalty payment, i.e. he shall order the company director to pay this penalty payment.
The Court of Cassation recently ruled "that when the president of a commercial court, having ordered the legal representative of a legal entity to file the annual accounts under penalty payment, notes the failure to comply and liquidates the penalty payment, the legal representative is condemned in a personal capacity...". (Court of Cassation - Commercial Chamber - 7 May 2019 - No. 17-21.047). In the event of failure to file the annual accounts, it is therefore the company director who is liable. He or she will be personally liable and will have to pay the penalty payment out of his or her own funds. The company director will then receive a receipt from the Directorate General of Public Finance, which is responsible for collecting the penalty payment. If the Court order fixing a penalty payment cannot be contested, the decision liquidating the penalty payment may be contested.
This Order must be sent by registered mail with acknowledgement of receipt. In practice, such decisions are not addressed in this way and even less served by a bailiff. Our law firm in Nice will be able to help you to challenge collection titles based on frequently disputable astreintes.
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