SENEGAL Law and Practice Contributed by: Khaled Abou El Houda and Malick Lo, Houda Law Firm
• the management, administration and direction of the company; • general meetings; • changes in the capital of an SA, capital reductions; • company control; • dissolution of companies; • liquidation of companies; and • in the event of a public offering for savings. Law No 2018-13 of 27 April 2018 describes the penalties incurred for the offences referred to in the AUSCGIE. 4.9 Other Bases for Claims/Enforcement Against Directors/Officers Other bases for claims or enforcement against directors or officers for breaches of corporate governance requirements that exist in Senegal are as follows. Management Expertise Pursuant to Article 159 of the AUSCGIE, one or more shareholders representing at least one tenth of the share capital may ‒ either individually or by grouping together in any form whatsoever – request the competent court of the registered office, ruling within a short period of time, to appoint one or more experts to present a report on one or more management operations. Provisional Administration When the normal functioning of the company is made impossible, either because of the man - agement, executive or administrative bodies or because of the shareholders, the competent court – ruling within a short period of time – may decide to appoint a provisional administrator for the purpose of temporarily managing the com - pany’s affairs (Article 160-1 of the AUSCGIE).
Given that ‒ according to the general law of civil liability ‒ the potential liability of directors is likely to be implemented as soon as it can be established that they have committed errors in the performance of their duties and that these errors have had harmful consequences for the company, the shareholders or third parties, the liability of a director or officer can only be limited by proving that the damage results either from a force majeure or from a fault of the victim or of a third party. 4.10 Approvals and Restrictions Concerning Payments to Directors/ Officers Article 325 of the AUSCGIE In a SARL, the duties of a manager may be performed free of charge or with remuneration, under the conditions laid down in the articles of association or in a collective decision of share - holders. The manager, when a shareholder, does not take part in the vote on the deliberation relat - ing to their remuneration and their votes shall not be taken into account for the calculation of the majority. Any deliberation taken in violation of Article 325 of the AUSCGIE is void. The determi - nation of the remuneration is not subject to the regime of related-party agreements. In an SA, the ordinary general meeting may allo - cate to the directors – as remuneration for their activities – a fixed annual sum that it determines at its own discretion (commonly called “jetons de présence” in French). Unless otherwise provided for in the articles of association, the board of directors is free to allo - cate the compensation among its members. The board of directors may also allocate to its mem - bers exceptional remuneration for the missions and mandates entrusted to them or authorise the reimbursement of travel expenses and expenses
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