Responsibilities and liabilities for managers: What common practices have been confirmed?

Ability to appoint a day-to-day manager in an S.à r.l.
The management of an S.à r.l. (or the sole manager as the case may be) can now delegate powers to any other persons (whether managers or not) acting alone or jointly to: (i) conduct the daily management and affairs of an S.à r.l.; and (ii) represent the S.à r.l. in the conduct of its daily affairs. The terms of the appointment, removal or compensation of the day-to-today manager(s) can be determined by the articles or, directly, by a specific decision of the management. These day-to-day managers are subjected to the same liability risks as other managers.
Distribution of interim dividends by an S.à r.l.
There is now a clear legal framework for the distribution of interim dividends by an S.à r.l., similar to the rules applicable to an S.A.
The following conditions apply:

  • the articles of association have to expressly authorise the management board of an S.à r.l. to distribute dividends;
  • interim accounts must be drawn up demonstrating that the funds available for the distribution are sufficient; and the decision to distribute an interim dividend cannot be taken more than two months after the accounting date of such interim accounts;
  • the distribution amount must not exceed total profits earned since the end of the last financial year for which the annual accounts have been approved, plus any profits carried forward and sums drawn from reserves available for distribution, less losses carried forward and any sums paid into the reserves pursuant to the requirements of the law or the articles of association; and
  • the internal company auditor (commissaire aux comptes) or independent auditor (réviseur d’entreprises), if there is one, must certify that the conditions stated above have been met.
The management of an S.à r.l. as well as the independent auditor (réviseur d’entreprises) or internal company auditor (commissaire aux comptes) (if any) therefore have to ensure that the above-mentioned conditions have been met before any dividend distribution.
Similar to regulations for the directors of an S.A., the managers of an S.à r.l. who, by means of fraudulent inventories or fraudulent inventory values, have caused dividends or interest to be distributed to shareholders not taken from realised profits, and managers who contravene articles 198bis (see item 1.2 above), shall be subject to imprisonment of between one month to two years or a fine of 5,000 to 125,000 euros, or to both of these penalties.
Find out what else has changed with the modernisation of the companies' law here

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