Companies in difficulty, leaders under the knife

Liability coverage, commercial forfeiture, extension of liquidation… The difficulties of a company can affect the destiny of its administrator. These processes increasingly involve commercial courts, called upon to trigger the sanctions provided for in the Commercial Code (Book V).

Media24 identified about thirty cases since 2018, distributed among the courts of Casablanca, Rabat, Agadir, Fez, Marrakech and Oujda. Most resulted in decisions of inadmissibility or of rejection. But when they are validated, they can be heavy consequences.

In a spectacular decision in Agadir (21 July 2020), a leader (Mohammed Bounou, Sobamak) was ordered to cover, with his personal money, the liability of his company in liquidation amounting to 92 million dirhams (92,552,673 DH).

This sanction applies to management failures that led to the debtor company’s insufficiency of responsibilities. We found it in an emblematic archive from the last few years. In 2011, group leaders Senoussi suffered a loss of 9 million dirhams in the company Financière Hatt, through which it held 80% of the capital of LGM denim (formerly reader Morocco). At the time, this flagship was still in recovery. It has since gone into compulsory liquidation.

Simplest and most radical option: apply the liquidation of the company to the personal assets of its directors. Recent history has given us an iconic decision: on November 5, 2018, the Commercial Court of Casablanca extended the bankruptcy of SAMIR to several of its leaders, including President and CEO Hussein Al Amoudi and Managing Director Jamal Ba-bitter. Main complaints: the continuation of abusive exploitation of the refinery, the use of company assets for personal interests and, above all, the payment of fictitious dividends (93 MDH).

Who is asking for the penalty? In most cases, the trustee is responsible for the hardship procedure. In the cases identified in the Oujda court, the requests were made by the Public Ministry. This is not an isolated case. In 2020, the king’s prosecutors requested dozens of property fines, enough to establish the punitive dimension of these measures. With the challenge of protecting the “economic public order”.

Extension is not a simple decision. If it occurs after two months for small structures, in other cases, the fluvial tests can start. Reports, summaries, answers, expert opinions and second opinions… The case General Tire is the final example. The case has been open since April 2019. 37 hearings later, he still has not been tried in the first instance. The case was recently taken in council. Unless there is a twist, the verdict is expected on June 9, 2022.

Leader Property Hunt

For creditors, the extension should offer new chances of recovery. It allows creating a link between the assets of the manager and the company, so that creditors can use both.

It remains to execute the sentence. For the administrator responsible for the procedure, the extension gives rise to what is similar to a hunt for the manager’s assets. a mission laborious. It is sometimes impossible, particularly when sanctioned administrators have their assets abroad. The exequatur is a possible mechanism, although very little used in practice. But it is still necessary to hope that the assets in question have not been transferred in anticipation of the patrimonial sanction.

Commercial confiscation, political ineligibility

This type of file is not limited to its patrimonial implications. Without being systematic, extension was often associated with commercial confiscation (maximum 5 years). For the interested party, this implies the prohibition of directing, managing or directly or indirectly managing a company with economic activity.

The ban goes further to invest in the political field. “The sentence that decrees the mercantile forfeiture entails the inability to exercise an elective public function. The incapacity also applies to any natural person in respect of whom court settlement has been issued. (Article 751 of the commercial code).

A concrete case to illustrate this provision: Badr Tahiri (RNI) was recently removed from his post as deputy and member of the Chamber of Commerce, Industry and Services of Fez-Meknes. And for good reason, the interested party had already suffered a commercial confiscation after the recovery of his company Planchers Bab Mansour.

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