Following certain convictions, a manager may encounter difficulties in creating or taking over a business. However, all the sanctions do not prevent him from continuing his activity. Let’s take stock of the main situations.
The banking ban: an obstacle that does not prevent you from starting a business
Nothing prevents a person prohibited from banking from creating or taking over a business. However, this situation can make it difficult to open a bank account in the company’s name.
In this case, the interested party can exercise their right to an account with the Banque de France. He may ask the latter to automatically designate a banking establishment. Another possibility is to ask the bank which refused to open the account to transmit the necessary information directly to the Banque de France.
Please note, however: this last procedure only concerns individual entrepreneurs.
Once the account is opened, the entrepreneur can use the available amounts. On the other hand, the bank does not grant him an overdraft.
Furthermore, the banking ban cannot use a checkbook. He also cannot have a traditional bank card. His bank can, however, offer him a card allowing him to withdraw cash at the counter or from its ATMs, up to the limit of the available balance.
The right to the account allows the manager to continue his activity
Since 1984, the law has recognized the right to an account for people residing in France and French people established abroad. This system responds in particular to the development of payment of salaries and social benefits by check and transfer.
Since June 23, 2017, this right also concerns individuals legally residing in another Member State of the European Union.
Article L. 312-1 of the Monetary and Financial Code governs this right as well as access to basic banking services.
The Association for the Right to Economic Initiative (ADIE)
Furthermore, the Association for the Right to Economic Initiative (ADIE) offers financing solutions to business creators who encounter difficulties in accessing bank credit.
To study a microcredit application, ADIE examines several elements in particular:
- the motivation of the project leader, their skills and experience;
- the viability of the project and the solidity of the file presented;
- the ability of the project leader to repay the loan.
Financing conditions
The financing conditions, in particular the maximum amount, the repayment period, the rate and any guarantees, may change. It is therefore advisable to check the conditions in force with ADIE before any request.
Prohibition on practicing a commercial profession
This ban concerns individual traders as well as directors of commercial companies.
First of all, this ban is not automatic, in accordance with article L131-27 of the Penal Code. The judge can pronounce it as an alternative sentence, instead of a prison sentence provided for certain offenses. In this case, the ban on exercising a commercial profession is limited to five years, in accordance with article L131-6, 15° of the Penal Code.
Furthermore, the judge can pronounce this ban as an additional penalty. He can then make it definitive or fix it for a period of less than ten years, depending on the offense concerned.
This sanction may in particular concern certain crimes and offenses against people, property or the Nation. It may also apply to certain offenses related to corporate law, bankruptcy or consumer law.
Likewise, it may concern non-compliance with regulations on lotteries, games of chance and casinos. Certain specific regulations may also result in this sanction, notably those relating to concealed work or certain military offenses.
Consequences
Concretely, a person affected by this ban cannot create or take over an individual business. Nor may she direct, administer, manage or control a commercial enterprise.
On the other hand, it can remain a shareholder of an SA or partner of an SARL if it does not exercise any management function.
Personal bankruptcy
When a company is the subject of collective proceedings, the court may, in certain situations provided for by law, order a personal bankruptcy measure against the manager.
This measure entails in particular the prohibition of directing, managing, administering or controlling, directly or indirectly, a commercial or artisanal enterprise, an agricultural operation, an independent professional activity or a legal entity.
The court sets the duration of the personal bankruptcy, within the limit provided by the Commercial Code.
The ban on managing
The management ban prevents a person from directly or indirectly administering or directing certain businesses or activities.
The court may in particular pronounce this sanction in situations which justify personal bankruptcy, in accordance with article L653-2 of the Commercial Code.
It can also impose a ban on autonomous management in certain cases. For example, the manager may be sanctioned when he does not provide in bad faith the information he must provide to the legal representative, the administrator or the liquidator.
Likewise, the court may intervene when the manager does not request the opening of a recovery or liquidation procedure within the legal period following the cessation of payments, without having requested the opening of a conciliation procedure.
Consequences
This ban cannot exceed the duration provided for by the Commercial Code. Under certain conditions, the person concerned may ask the court to relieve him of this ban.
To do this, he must in particular present guarantees to establish his capacity to manage or control one or more companies, in accordance with article L653-11 of the Commercial Code.
To know!
A national, automated file lists people subject to certain management bans. This is the national file of management prohibitions (FNIG), maintained by the National Council of Registrars of Commercial Courts.
Clerks, magistrates, court staff and services of the Ministry of Justice can access this file under the conditions provided for by the regulations. This lists in particular personal bankruptcies and prohibitions on directing, managing, administering or controlling a company.
Previously, information relating to management bans did not all appear in the same registers. Commercial court registries therefore did not have the same level of access to sanctions concerning traders and non-traders.
Furthermore, each consultation of the file is recorded. This indicates in particular the identity or identifier of the consultant, as well as the date and time of the consultation.
When a person requests registration or a modification to the National Business Register (RNE), the registrar carries out the checks provided for by the regulations, in particular concerning possible management prohibitions.
Finally, the automatic cancellation of a company by the registry of the commercial court for cessation of activity does not necessarily end the mandate of the manager. The Court of Cassation notably ruled, in a judgment of March 4, 2020, that the manager could continue to represent the company in court after his automatic dismissal, when his mandate had not ended.
