Anyone who believes that the legal form of a limited liability company protects the managing director and shareholders against all conceivable third-party claims is mistaken.

The managing director can be held accountable for his actions or omissions both in relation to external third parties and in relation to his own company and its shareholders.

According to Article 225 of the Ley de Sociedades de Capital (Law on Capital Companies), the managing director must in any case “act with the diligence of a prudent businessman and a loyal representative”. This means that they must be honest and loyal to the company they represent. In other words, he must not use the contacts, knowledge and, in particular, business secrets that he acquires in the course of his activities to the detriment of the company he represents, for example by competing with it.

The managing director continues to be jointly and severally liable with the company for the debts incurred and not paid as a result of his actions or omissions if he can be blamed for this. This regularly happens if the company is over-indebted and the managing director does not take the necessary measures. In the event of such developments, the managing director must inform the shareholders and, if necessary, file for insolvency. If business operations are simply continued and the company becomes insolvent, the managing director may have to assume responsibility for the debts or at least part of them in addition to the company itself.

Article 2 of the Spanish Bankruptcy Act (Ley Concursal) states that a debtor who is unable to meet his regular payment obligations is in a state of insolvency.

In accordance with Article 5 of the Ley Concursal, he must file the corresponding application within two months of the occurrence of insolvency.

In view of the fact that a petition can also be filed by a creditor, and that according to Article 2.4 No. 4 Ley Concursal, a creditor can already file a petition if, for example, social security contributions or wages are not paid for a period of three months, it becomes clear that if the managing director turns a blind eye, reality can catch up with him faster than he would like.

If such a situation becomes apparent, he must act if he does not want to jeopardize his own existence. During the insolvency proceedings, it is ultimately examined whether the insolvency was reproachable or not. If the managing director cannot be blamed for the management of the company, the creditors can only obtain satisfaction from the company’s assets. However, if the insolvency is not the result of an unfavorable market development for the company but is due to the errors and omissions of the managing director, he is liable alongside the company. The limitation of liability of the S.L. therefore does not protect him at this point.

As we have already discussed social security contributions, it should also be mentioned at this point that the managing director is practically always personally liable for these.

If no insolvency petition is filed, all other debts except social security contributions are paid and the company is actually liquidated, the managing director is personally liable for these. Including surcharges and fines. Even if he cannot be accused of insolvency.

In addition to civil liability, there are also risks for the managing director under criminal law, as there is a wide range of criminal offenses for which he can be held liable.

In the context of the special position of the managing director, constellations often arise in which crimes against documents or fraud and embezzlement are committed. At this point, however, we will not focus solely on the acts that the managing director commits due to his own criminal energy; after all, in such cases he deliberately exploits his powers and opportunities and is therefore aware of committing a criminal offense. Rather, the constellations in which he is blamed for the actions of the company or individual employees because he has breached his duty of supervision or control should also be named here.

Much has changed in Spanish law in recent years in the area of the criminal liability of managing directors. The demands on the managing director’s supervisory duties have also increased, which is why he cannot be content with proving that he did not cause something or that something happened contrary to his instructions.

Furthermore, he must also act if third parties are harmed by the actions of employees or shareholders, i.e. if his company has not itself been the victim of certain practices, but has merely been the means of harming outsiders.

In addition, these obligations are not limited to the formally appointed managing director, i.e. the managing director who officially appears as such to the outside world, but also apply to the de facto managing director.

In summary, the following criminal offenses, sorted by offense group, are particularly noteworthy for the managing director:

– Fraud and embezzlement offenses (Articles 248-255 Código Penal)
– delay in filing for bankruptcy (Articles 257-261 Código Penal)
– infringements of intellectual property, industrial property rights, patent infringements (Articles 270-277 Código Penal)
– offenses relating to the market and consumers, such as market manipulation, unfair competition, criminal advertising, etc. (Articles 278-286 Código Penal) – offenses relating to corruption and bribery (Articles 286-2288 Código Penal) – offenses relating to corporate law (Articles 278-286 Código Penal) (Articles 278-286 Código Penal)
– Corruption and bribery offenses (Articles 286 to -288 Código Penal)
– Corporate offenses (Articles 290-297 Código Penal)
– Tax evasion and social security offenses (Articles 305-310 Código Penal)
– Offenses against workers’ rights (Articles 311-318 Código Penal)
– Environmental offenses (Articles 325-331 Código Penal)
– Documentary offenses (386-399 Código Penal)