Financial institutions are not de facto directors of the insolvent company because they do not significantly affect the performance of the insolvent company’s activity, but only ensure that certain costs do not affect the repayment of their loan.
The insolvent company challenged the classification of the credit of the financial institutions that had granted it a syndicated loan, understanding that this should be subordinate as they were de facto directors. The insolvency administration and the financial institutions objected to the claim, understanding that the circumstances did not concur for them to be classified as de facto directors of the insolvent company, as they had not assumed the management of the company, but only supervised some of the insolvent company’s acts.
The judgment, after recalling that rules on the classification of credits must be subject to restrictive interpretation, made an extensive analysis citing abundant doctrine and case law regarding the concept of the de facto director. In short, it stated that a de facto director actively and permanently participates in managing and running a company, and is not subject to higher spheres of approval or decisions, which therefore performs a true management role, regardless of the formality of its appointment. In this case, the insolvent company alleged that the financial institutions, among other actions, determined when they should pay invoices and their order, disposed of the balance existing in the account, made drafts of agreements and imposed certain actions on them.
However, the judge concluded that it was not possible to observe the concept of a de facto director, as the financial institutions’ role did not involve managing and developing the insolvent company’s business activity (in this case, holding shares for the control of other companies), but supervising and ensuring the fulfilment of the financing agreement signed with the insolvent company in the defense of its legitimate interests. Thus, the guidelines of the agent bank and the rest of the lending entities did not affect the insolvent company’s business activity, but they supervised the fulfilment of the loan agreement to ensure the appropriate repayment, and therefore supervised the costs or actions of the insolvent company, from the perspective of the disposal of money, informing them these could compromise the repayment of the loan. These actions did not significantly affect the performance of the insolvent company’s activity. They did not tell the company what acts of managing, running and developing the business activity it could carry out, but ensured certain costs did not affect the repayment of their loan.