BURKINA FASO Law and Practice Contributed by: Bobson Coulibaly, Pierre Yanogo, Marie France Zagre and Diana Woba, SCP Yanogo Bobson
Such an action is brought by the shareholder or any other injured party. In addition, a derivative action may be brought to seek compensation for loss suffered by the company itself. This action may be initiated by the company’s man - agement, a group of shareholders, or an individual shareholder acting on behalf of the company. Consequences of a Breach Failure by directors to fulfil their obligations may result in both civil and criminal liability. 3.9 Other Claims/Enforcement Against Directors/Officers Other bases for claims or enforcement against direc - tors or officers may be based on offences such as: • misuse of corporate assets; • distribution of fictitious dividends; or • the publication of false annual summary financial statements. Impossibility of Limiting Directors’ Liability Article 168 of AUDSCGIE provides for the nullity of any clause in the company’s articles of association limiting the right of action against directors. Also, Article 169 provides for the nullity of any decision by a corporate body to cover the potential liability of a director or officer. It therefore follows from these provisions that the liability of a director or officer cannot be limited. However, the statute of limitation is three years from the date of the harmful event or its disclosure if it was concealed. Also, the limitation period is ten years for crimes. 3.10 Payments to Directors/Officers Directors’ Remuneration In accordance with the provisions of Article 431 of AUDSCGIE, directors receive only remuneration for their duties and are not entitled to any other remunera- tion. Only the ordinary general meeting may decide to grant director’s fees, and the board of directors has the sole responsibility for allocating them. These fees may be divided equally or unequally among the members of the board.
In addition to their fees, directors may receive excep - tional remuneration for assignments entrusted to them. The decision to grant exceptional remunera - tion is taken by the board of directors. However, these payments are subject to a special report by the auditor to the shareholders’ annual general meeting. The Consequences of Failing to Comply With These Approval Requirements In the event of failure to comply with the requirements for the remuneration of directors, directors will not be The AUDSCGIE does not specifically address the disclosure of remuneration, fees or benefits granted to directors and officers, but it does establish a gen - eral framework for transparency and corporate gov - ernance. In this context, limited companies ( société anonyme ) are generally required to establish an annual report providing detailed information on the manage - ment of the company, including the remuneration of directors and officers. This report may include the specific amounts of remuneration, the types of remu - neration (salaries, bonuses, benefits in kind, etc) and the company’s remuneration policies. Directors’ remu - neration is the subject of a report by the statutory auditor, which is presented to the general meeting of shareholders. They are also required to disclose directors’ and offic - ers’ remuneration in the annual financial reports filed with the relevant regulatory authorities. entitled to any remuneration. Public (or Other) Disclosures Between the shareholders and the company, there is a relationship of collaboration, information and con - trol for the good management of the company. This relationship requires loyalty and transparency and is essentially governed by the provisions of the AUD - SCGIE. 4.2 Role of Shareholders The shareholders have a key role in decision making and supervision of the company’s management, and 4. Shareholders 4.1 Companies and Shareholders
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