The First Social Chamber of the Supreme Court passed sentence on the 11/12/2015 and condemned a director of a subcompany after achieving privileges for the whole company group although they were harmful for the subcompany. The fact that this decision has been instructed by the company direction does not change anything.

“The obligation of fidelity needs to be guided by the interests of the company direction and not by others although they belong to the same company”, announced the Supreme Court in his sentence of the 11th of December.

The Tribunal adds that „the interests of the company group don´t justify the harm suffered by the subcompany and the negative effect on the commercial relations to external partners and trusters.” The Court also comments that “the interests of the company group cannot justify the harm suffered by the subcompany.”

After moving the customer list on the basis of a decision of the company direction, the subcompany suffered loss in sales of more than 80 %.

After refusing a social responsibility, one of the minimum joint partners presented a claim against the director of the company group.

There is no “unconditional obedience”

After the claimer was sentenced by the Provincial Court of Barcelona to pay a compensation to the company – contrary to the decision of the Commercial Court – he presented an objection to this decision in the Supreme Court which has been refused.

The judge Saraza Jimena underlined that “no matter which situation of conflict exists, the company director has also to act in the interests of the company.”

Responsibility Director Subcompany

In this sense “the absorption of a society in a company group does not mean the total loss of its identity and autonomy” and this is why the social interest and the interests of the company group have to be coordinated with each other.” In no case “the society shall disappear or justify a harmful act just for achieving privileges for the company group.”

It is the duty of the company director “act in the interests of the company whose director he is.” The decision taken by the direction will not liberate him from his duty ad the director “with his own field of autonomy which cannot be influenced by unconditional obedience.”

In a situation of conflict “a prudential balance has to be found” between the company group and the subcompany.

According to Saraza Jimena “a compensating privilege” for the subcompany  – the trustors and share holders- has to be found. All parts have to agree on an economic value which is equivalent to the suffered losses.

The judge also pointed out that the decision “in any case has to secure the survival of the subcompany”.

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