Liability of the Director of a Spanish Branch
The interest of the group is not absolute and cannot justify harm to the subsidiary company that results in unjustified damage to the creditors of the subsidiary. The director of the subsidiary company will not be exempt from liability simply because the act was approved by the management of the parent group. The director cannot use as an excuse the instructions received from the parent company’s management to justify actions that harm the subsidiary.
Undoubtedly, the existence of a corporate group assumes that, when conflicts arise between the interest of the group and the specific interest of one of the companies within it, a reasonable balance must be sought between the two interests—between the interest of the group and the particular corporate interest of each subsidiary company. This balance should allow the efficient and flexible functioning of the business unit represented by the corporate group, while also preventing the plundering of subsidiary companies and the unnecessary disregard of their corporate interests, thus protecting external shareholders and creditors of any kind, whether public, commercial, or labor-related.
The argument of the group’s interest and the indication of the benefits that, in theory, arise from integration into a corporate group, if not accompanied by a reasonable and adequate justification that the director’s action is also beneficial to the subsidiary company, does not exclude the existence of direct harm for which the director may be held liable.
