COTE D’IVOIRE Law and Practice Contributed by: Andy Lionel Biaou, Evelyne Biaou and Marine Quintric, Houda Law Firm
This action is brought by the person who suffers the damage. Corporate action (action sociale) – Articles 165 et seq of the AUSCGIE A corporate action is an action for compensation for the damage suffered by the company as a result of a fault committed by corporate officer(s) in the per - formance of their duties. The corporate action filed against one or several corporate officers can be initiat - ed either by the company itself (through other officers who are not involved) or by one or several sharehold - ers in the event of failure by the competent bodies. The corporate action is reserved only for shareholders who hold shares on the day it is implemented and who retain their status as shareholders throughout the procedure. In the case of a SARL, Article 331 of the AUSCGIE provides that several shareholders may claim com - pensation for damage suffered by the company only if they represent one quarter of the shareholders and one quarter of the company’s shares. These two con - ditions are cumulative. However, in the case of an SA, shareholders can exercise the corporate action only if they represent at least one-twentieth of the share capital (Article 741 of the AUSCGIE). Individual and corporate actions can be triggered and acted upon concurrently. Grounds for Liability A breach of directors’ duties would give rise to their liability. Similar provisions govern the liability of cor - porate officers and directors in the different types of companies described in 1.1 Corporate Forms and Governance Requirements : SARL, SA and SAS. A distinction must be made between civil and criminal liability. Civil liability of the manager of a SARL and the directors of an SA The liabilities are similar for the manager of a SARL and the directors of an SA. They are liable – individu - ally or jointly and severally, as the case may be – to the company or to third parties, either for breaches of the laws or regulations applicable to companies or for breaches of the articles of association or for
misconduct in their management. If several manag - ers or directors have co-operated in the same acts, the competent court will determine the contribution of each of them to the compensation for the damage. In addition to the action for compensation for the damage suffered personally, the shareholders repre - senting one quarter of the shareholders and one quar - ter of the shares may – either individually or in a group – proceed with a social action for liability against the manager or director(s). No clause in the articles of association may make the exercise of the corporate action subject to the prior notice or authorisation of the meeting or entail a waiver in advance of the exer - cise of this action. No decision of the meeting may have the effect of extinguishing an action for liability against the manag - ers for misconduct committed in the performance of their duties. Any decision to the contrary is null and void. Civil liability of the CEO of an SA The same rules of individual and social responsibility apply to the CEO. Civil liability of the directors of an SA Directors are individually or jointly and severally liable to the company or to third parties, either for breaches of the laws or regulations applicable to an SA or for breaches of the provisions of the articles of associa - tion or for misconduct in their management. Civil liability of the president/chairperson of an SAS The same rules of individual and social responsibility as those mentioned for the manager and the CEO apply to the president. Criminal liability The AUSCGIE contains criminal provisions in the event of offences committed by corporate officers: • the incorporation of companies; • the management, administration and direction of the company; • general meetings; • changes in the capital of an SA, capital reductions;
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