Criminal liability may be defined as the fact of guilty of offences committed and to serve their sentence prescribed for by the law.
The company directors are natural persons, legal entities or bodies regularly appointed to manage the company and assume management or administrative functions and authorized to engage the company towards third parties.
Are considered as directors:
– The director(s) of a general partnership (SNC);
– The general partner (s) of a limited partnership (SCS);
– The managing director(s) in a limited liability company (SARL);
– In a public limited company (SA): the board of directors, the chairman of the board of directors, the chairman and chief executive officer and the chief executive officer in a public limited company with a board of directors, and the general manager in a public limited company without a board of directors.
– The president, or any other officer designated by the articles of association in the simplified joint stock company (SAS).
The Uniform Act relating to commercial companies and economic interest groups (AUSCGIE) dated January 30, 2014, which came into force on May 5, 2014, devotes several provisions to the criminal liability of company directors and considers several facts as offences.
The AUSCGIE sets the offences but refers for the related sanctions to each OHADA States-parties the possibility of determining the penalties in criminal matters through its national parliament.
Therefore, the penalties are determined in Senegal by Law nº2018-13 of April 27, 2018 on combating offenses provided for by the Uniform Acts adopted pursuant to the Treaty on the Harmonization of Business Law in Africa.
The table below sets out the various offences provided for by the AUSCGIE and their penalties enacted by Law No. 2018-13.
A- Offences relating to company registration
A criminal offence shall be committed :
- where the founders, the Chairman and Chief Executive Officer, the chief executive officer, the General Manager or the deputy General Manager of a public limited company issue shares before the registration of the company or, at any time whatsoever, where registration is obtained by fraud or that the company is improperly registered.
Penalties:
- A fine of CFA 250,000 to 1,000,000
Shall incur a criminal sanction :
- Whoever , knowingly, through a notarial statement of subscription and payment or a depository’s certificate, have certified true and accurate subscriptions they knew were fictitious and have declared that funds that have not been definitely made available to the company, were actually made;
- Whoever have delivered to the notary or to the depositary a list of shareholders or subscription and payment forms stating fictitious subscriptions or payments of funds that have not been definitely made available to the company.
- Whoever, knowingly, by fictitious subscription or payment or by publication of subscription or payments that do not exist or any other false facts, have obtained or attempted to obtain subscriptions or payments.
- Whoever, knowingly, in order to obtain subscriptions or payments, have published the names of designated persons, untruthfully, as being or expected to be related to the company in any capacity; whoever, fraudulently, have allocated to a contribution in kind, a higher valuation than its real value.
Penalties:
- Imprisonment of one to five years and a fine of FCFA 500,000 to 2,000,000 or one of these penalties
B- Offences relating to the management and administration of the company
Shall incur a criminal sanction :
- Whoever, knowingly have negotiated: 1°) Shares not fully paid up; 2°) shares issued for cash whose one-quarter of the nominal value has not been paid up;
Penalties:
- An imprisonment of one to three months and a fine of 250,000 to 1,000,000 FCFA or one of these two penalties.
-
Company directors, who in absence of inventory or through fraudulent inventory have knowingly distributed fictitious dividends to shareholders ;
Penalties:
- An imprisonment of one to five years and a fine of FCFA 500,000 to 5,000,000.
- Company directors who have knowingly, even in the absence of any distribution of dividends, published or presented to shareholders, in order to conceal the real situation of the company summary financial statements not giving for each fiscal year, a fair view of transactions of the fiscal year, of the financial situation and of the assets of the company at the expiration of this period.
Penalties:
- An imprisonment of one to five years and a fine of FCFA 500,00 to FCFA 5,000,000.
- directors who have not filed, in the month following their approval, the summary financial statements.
Penalties:
- An imprisonment of one to three months and a fine of FCFA 250,000 to FCFA 1,000,000 FCFA or one of these penalties.
- The director of a limited liability company, the directors, the chairman and chief executive officer, the chief executive officer, the deputy chief executive officer, the president of a simplified joint company, the general manager or the deputy general manager who, in bad faith, have used company assets or credit, knowing that it was contrary to its interests, for their personal, material or moral purposes or for the benefit of another legal entity in which they have direct or indirect interest.
Penalties :
- An imprisonment of one to five years and a fine of FCFA 500,000 to FCFA 5,000,000.
- directors who knowingly: 1°) fail to include the company name on all company acts and documents destined to third parties; 2°) fail to, immediately precede or follow the company denomination, in legible characters, by the company form, the amount of its capital, the address of its registered head and its registration number at the Trade and Personal Property Credit Register.
Penalties:
- A fine of FCFA 250,000 to FCFA 1,000,000 FCFA.
- Directors of a foreign company or the foreign natural person whose branch, beyond a period of two (2) years, has neither been attached to an existing company or company to be registered in one of the States parties, nor had been de-registered under the conditions set forth in article 120 above.
Penalties:
- A fine of FCFA 500,000 to FCFA 2,500,000.
- The court may also order a temporary or permanent closure of the branch.
C-Offences relating to general meetings
Shall incur a criminal sanction:
- Whoever , knowingly has prevented a shareholder to attend a general meeting.
Penalties:
- An imprisonment of one month to one year and a fine of FCFA 250,000 to FCFA 1,000,000 FCFA or one of these penalties.
- directors who, knowingly, fail to establish minutes of general meetings in the forms required by the Uniform Act relating to Commercial Company and Economic Interest Group.
Penalties:
- A fine of FCFA 250,000 to FCFA 1,000,000.
D-Offences relating to change in capital
-
1 Capital increase
Shall incur a criminal sanction:
- The directors, the chairman of the board of directors, the chairman and chief executive officer, the chief executive officer , the deputy chief executive officer , the general manager, the deputy general manager of a public limited company, the president of a simplified joint stock company who, during an increase of capital, has issued shares or shares denominations:
1°) before the depository’s certificate has been established;
2°) without prior compliance with the formalities for capital increase;
3°) without payment in full of the company’s previously subscribed capital;
4°) without at least a quarter of the nominal value of new shares has been prior fully paid up at the time of subscription;
5°) If any, without the issue premium has been prior fully paid by the time of subscription.
Penalties :
-
A fine of FCFA 250,000 to FCFA 1,000,000 FCFA.
- The directors, the chairman of the board of directors, the chairman and chief executive officer, the chief executive officer, the deputy chief executive officer, the general manager, the deputy general manager, of a public limited company or the president of a simplified joint stock company who fail to maintain cash shares in their nominal form until they are fully paid up.
Penalties:
- An imprisonment of one month to one year and a fine of FCFA 250,000 to FCFA 1,000,000 or one of these penalties.
- The directors of private limited company who, during a capital increase, have issued shares without payment of at least half of their nominal value at the time of subscription.
Penalties:
- A fine of FCFA 250,000 to FCFA 1,000,000.
- Company directors who, during a capital increase:
1°) failed to enable shareholders to benefit from, proportionately to the amount of their shares, a pre-emptive subscription right for shares issued in cash when this right was not repealed by the general meeting and shareholders did renounce it;
2°) failed to allocate a time limit of twenty (20) days at least for shareholders, from the date of the opening of the subscription, unless such deadline was closed early;
3°) failed to allot shares which became available, due to lack of sufficient number of subscriptions on an irreducible basis, to shareholders who subscribed on a reducible basis to a higher number of shares than they could subscribe on an irreducible basis, proportionately to the rights they have;
4°) failed to reserve the rights of holders of subscription warrants.
Penalties:
- A fine of FCFA 250,000 to FCFA 1,000,000 FCFA
- directors who, knowingly, have given or confirmed inaccurate information in the reports submitted to the general meeting convened to decide on the suppression of the preferential subscription right.
Penalties :
- An imprisonment of six months to two years and a fine of FCFA 500,000 to FCFA 3,000,000 or one of these penalties.
-
2 Capital reduction
Shall incur a criminal sanction:
- The directors, the president and chief executive officer, the chief executive officer, the deputy chief executive officer, the president of limited joint stock company, the general managers, the deputy general manager who, knowingly, have carried out a capital reduction:
1°) without complying with the equality of shareholders;
2°) without submitting the capital reduction project to auditors forty-five days before the general meeting that was convened to decide thereon
Penalties:
- A Fine of FCFA 250,000 to 1,000,000 FCFA.
E-Offences relating to companies audit
Shall incur a criminal sanction:
- The directors who failed to cause the appointment of auditors or failed to convene them at general meetings.
Penalties:
- An imprisonment of one month to one year and a fine of FCFA 250,000 to 1,000, 000 FCFA or one of these penalties.
- the directors who, knowingly, have obstructed verification or audit carried out by auditors or who have refused access, on site, to all useful documents that enable the auditors to perform their mission, including but not limited to all agreements, books, accountings documents and minute book.
Penalties:
- An imprisonment of one to five years and a fine of FCFA 500,000 à 5,000,000 FCFA.
F-Offences relating to winding-up of companies
Shall incur a criminal sanction:
- The directors that, knowingly, at the time the company equity falls below half of the stated capital due to losses recorded in the summary financial statements:
1°) failed to have convened , within four months following the approval of the summary financial statements that reflect the losses, the extraordinary general meeting to decide, if any, the early wind-up of the company;
2°) failed to record the early winding-up of the company at the Trade and Personal Property Credit Register and to publish it in a newspaper authorized to publish legal notices.
Penalties:
- « Are punished by a fine of FCFA 250,000 to FCFA 2,000,000 or one of these penalties. (Article 49 of Law nº13/2018-13 of 27 April 2018).
G-Offences in the event of public offerings
Shall incur a criminal sanction:
- The presidents, directors or the chief executive officers of the company that have issued securities offered to the public:
1°) Without a notice being published in a newspaper authorized to publish legal notices prior to any announcement;
2°) Without the prospectus and circulars reproduce the information of the notice referred to in the first paragraph of this article, and bearing the mention of the publication of such notice in a newspaper authorized to publish legal notices with reference to the issue in which it was published;
3°) Without posters and newspapers announcements reproduce the same information, or at least an extract of such information with reference to the said notice, and indications of the issue of the newspaper authorized to publish legal notices in which it was published;
4°) Without posters, prospectus and circulars showing the signature of the individual or the representative of the company who made the offer and specify whether the offered securities are listed or not, and if so, on which stock exchange.
Penalties:
- A fine of FCFA 250,000 to FCFA 2,000,000
[i] CORNU (G.), Vocabulaire juridique, Paris, PUF, 2020
