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Company Law (en cours)

The grouping is managed by one or more persons, either natural or legal. Articles L. 251-11 and L. 251-13 of the Commercial Code impose few mandatory rules regarding administrators, leaving the rest to the constitutive contract or the members' assembly to organize the administration of the grouping, appoint administrators, and determine their responsibilities, powers, and conditions for their remo …

Administrator

The grouping is managed by one or more persons, either natural or legal. Articles L. 251-11 and L. 251-13 of the Commercial Code impose few mandatory rules regarding administrators, leaving the rest to the constitutive contract or the members' assembly to organize the administration of the grouping, appoint administrators, and determine their responsibilities, powers, and conditions for their removal.

First, when the administrator is a legal entity, Article L. 251-11 requires it to appoint a permanent representative, who incurs the same civil and criminal liabilities as if they were an administrator in their own name.

Secondly, it stipulates that the administrator(s) of the grouping, and the permanent representative of the legal entity appointed as administrator, are individually or jointly liable, as the case may be, to the grouping or to third parties, for violations of legislative and regulatory provisions applicable to groupings, breaches of the grouping's statutes, as well as for their management faults. However, the liability of the GIE administrator cannot be invoked by members of the grouping who approved without reservation, while having all the necessary information to make an informed decision, the accounts of the financial years during which the contested operations took place . Conversely, the administrator, who acts as an agent for the various companies that make up the grouping for matters within its purpose, is guilty of breach of trust when he misappropriates the funds of these companies for personal purposes . In the event of insolvency proceedings opened against the grouping, the administrator must be considered as having contributed to the worsening of the asset shortfall through his inertia and the continuation of a loss-making operation, even if he justifies, by producing the minutes of a general meeting, the refusal of the GIE members to increase social contributions for a financial year, when he refrained from launching new calls for funds for subsequent financial years, and took no particular measures, nor declared the cessation of payments, while the social liabilities were worsening .

Thirdly, Article L. 251-11 specifies that in dealings with third parties, a director binds the group by any act falling within its corporate purpose, without any limitations on their powers being enforceable against these third parties. A director of the EIG, whose purpose is the rationalization of services and activities of transport entrepreneurs in a department, does not exceed their powers by acquiring, through borrowing, two buses and radiotelephone equipment, as these purchases provide the group members with new means of transport and radiotelephone equipment, thereby allowing for better use of transport vehicles and, consequently, improving the service .

Finally, Article L. 251-13 requires the administrator, when the Economic Interest Grouping reaches one of the thresholds provided for in Article R. 232-2 of the Commercial Code, to prepare a statement of realizable and available assets, excluding operating values, and of liabilities due, a projected income statement, a financing table along with the annual balance sheet, and a projected financing plan, according to the frequency set by Article R. 232-3.

The administrator of an Economic Interest Grouping (GIE) may combine their mandate with salaried functions provided that a relationship of subordination is established. However, this seems difficult to characterize when they alone hold all the powers within the structure, proceed alone with the dismissals of hired personnel, have conducted negotiations related to the transition to the 35-hour workweek alone, and contract alone with suppliers .

The functions of the administrator end upon the expiration of their term, their resignation, or their dismissal. The administrator may be dismissed as long as the decision is not abusive or vexatious. This is the case when the renewal of their term has been refused by the general meeting due to neglect of their duties and a number of irregularities noted in the accounts . The dismissal of the administrator does not further engage the liability of the group, provided the administrator was invited to attend the general meeting, informed that the renewal of their term would be discussed, and given sufficient time to prepare their intervention, as these facts establish compliance with the principle of adversarial proceedings .

Paris, 12 January 2010, LawLex202300010317JBJ.

Cass. crim., 27 January 1986, LawLex202400000245JBJ.

CA Toulouse, 2 November 2016, LawLex202400000235JBJ.

Cass. com., 8 January 1991, LawLex202300010225JBJ.

Cass. soc., 17 September 2008, LawLex202300009848JBJ.

CA Metz, 19 October 2010, LawLex202300011140JBJ.

Cass. com., 14 June 2005, LawLex202300003622JBJ.

Company Law (en cours)

646. Administrator

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646. Administrator

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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