How to claim high debts in a group of companies?
A group of companies is a set of companies with their own legal autonomy that, together, form a company by being subject to the management of a parent company. This commercial form is increasingly common, especially when the company becomes internationalized. It is therefore important to know, in the event of non-payment of a debt by a group company, to which entity the responsibility is attributed.
Furthermore, in this scenario, it is vitally important to know how to proceed and what procedures, both judicial and extrajudicial, can be used to claim a large debt in a group of companies.
In any case, it will always be advisable to have specialized advice on high debts, international debt and debt of a subsidiary company, whether you intend to exhaust the friendly route or if you want to start a judicial procedure.
Who is responsible for the debt of a holding company?
Companies that are part of a business group, even when they share the same registered office and operate under the same brand, are differentiated companies with their own legal personality. This means that, regardless of whether an entity belongs to a business group, as a general rule, creditors must claim non-payment of the debt from the responsible company.
However, there are exceptions to these assumptions:
- Liability for harmful instructions: the parent company will be jointly and severally liable for the debt of its subsidiaries when this is a consequence of the instructions given by the parent company.
- Liability by appearance: the parent company will be subsidiarily liable for the debt of its subsidiaries when this has been incurred under the appearance that it would be the parent company, in the event of non-payment, that would be liable for that debt.
- Responsibility as de facto administrator of the subsidiary: the de facto administrator is the one who will manage a company without having been granted the corresponding power. In this case, the parent company will be responsible for the debt of its subsidiaries if it is considered their de facto administrators.
Claiming debts from a group of companies through friendly means
Before going to court, there are extrajudicial ways to claim a debt, even when the debtor is a company. In these cases, a payment request must be made demanding payment of the debt from the debtor, giving the debtor a period of courtesy time so that he can comply with his pecuniary obligations.
However, it may happen that no response is obtained to the first request, in which case it is advisable to continue following the friendly route until it is exhausted. If the debtor still does not do his part, we will have to go to court.
This is not always the scenario. There are times when there is a willingness to pay on the part of the debtor. Sometimes, the debtor company makes payment immediately after receiving the first payment demand. On other occasions, it is necessary to propose a payment plan to the debtor company, which undertakes to make as many payments as have been agreed with the creditor until the entire debt is paid.
Can the debt be claimed directly from the subsidiary located in Spain or is it necessary to claim from the foreign parent company?
In the case of groups of companies with subsidiaries in Spain, Spanish jurisprudence states that the subsidiaries are autonomous companies and differentiated from the parent company, so the debt must be claimed from the subsidiary. However, there are some cases in which the debt claim may be directed towards the parent company, as occurred in "The Swissair/IRG Case".
In any case, it is best to exhaust the friendly route, and it is advisable to have a debt lawyer to guide the creditor in this matter.
The ordinary declaratory process to claim high debts in a group of companies
As these are high debts for an amount greater than 6,000 euros, it will be necessary, if you want to go to court, to claim the debt through the ordinary procedure. Once the friendly procedure has been exhausted, there is a period of 5 years to judicially claim the debt from the debtor company before it expires.
Although the ideal is to resort to the monitoring procedure, when dealing with large debts, the ordinary procedure should be used, with the presence of a lawyer and solicitor being mandatory. It is essential, in this case, to prove that the debt exists through delivery notes, telegrams or invoices. On the other hand, it is perfectly possible to claim a debt from a company that is already closed, in accordance with the jurisprudence of the Supreme Court of May 24, 2017, Sentence 324/2017. This means that, despite its dissolution, the company still has the obligation to pay.
This procedure, obviously, is slower, more complex and more expensive than the friendly procedure. It is therefore of vital importance to follow the friendly path to the end, until it is exhausted. To do this, in order to claim debts from a group of companies in a simpler way, it is most advisable to have advice on high debts from professionals specialized in this type of issues.
If you want to collect a debt from a group of companies, whether from subsidiaries, holding companies, parent companies or companies with one or multiple registered offices, contact our lawyers who are experts in debt claims. We can assist you by videoconference, or in person at our offices in Barcelona, Tarragona, Reus and Tarrega. We claim large debts from groups of companies around the world.