The Responsibility of Association Leaders
Michel Smith 16 Oct 2018

The Responsibility of Association Leaders

You want to found an association and become the leader? It is very important to find out about your future liability regime. 
In certain circumstances, your liability may be incurred and thus harm your association and reputation. Find all our explanations.

The civil liability of association leaders

Association leaders are mandataries within the meaning of Article 1984 of the Civil Code dating from 1804:

"Mandate or Power of Attorney is an act by which one person gives another the power to do something for the principal and on his behalf.

The contract is formed only by the acceptance of the agent. "

As such, they must answer for faults committed during their management and this in accordance with article 1992 of the civil code also dating from the creation of said code in 1804:

"The agent answers not only the fraud, but also the mistakes he makes in his management.

Nevertheless, the responsibility for mistakes is applied less rigorously to those whose mandate is free than to those who receive a salary."

Specifically, the civil liability of an association leader can be engaged by his association, through its members, as long as it is possible to prove a management fault personally attributable to the leader.

The management fault corresponds to any breach of the laws and regulations in force and the statutory provisions of the association. As a reminder, the statutes are a mandatory document to define the main rules of operation and organization of an association.

In the case of third parties, ie persons outside the association: the manager is only personally liable for damage caused by detachable acts of his duties.

In short, any act performed by the manager outside the social object of the association or representing an overrun of its functions is likely to jeopardize its civil liability.

Conversely, where harm is caused by the act of a leader but that act falls within the scope of the associative object or within the limits of its functions, it is the delictual responsibility of the association which can be engaged and not that of the leader.

Criminal liability of association leaders

Be aware that the criminal liability of association leaders may also be incurred, in particular for all offenses committed in matters of internal administration of the association but also when the leaders have committed acts of an offense and if they are not deemed to have been committed on behalf of the association.

In the case of unintentional misdemeanors or contraventions, the association executive is personally liable in case of misconduct (for example for manifest violation of legal or regulatory security requirements that have resulted in damage, for example).

A distinction must be made between the responsibility of the association and that of its leaders. Thus, if the fault is caused by a member for the purpose of serving the association, the criminal responsibility of the association can be engaged.

However, if the fault is caused by a member for the purpose of serving his personal interest, it is the criminal responsibility of that member that is at stake.

The financial responsibility of association leaders

If you are an association executive and you want to avoid having your liability incurred, you must scrupulously respect your tax obligations. Thus, if you rent a room, you must pay a housing tax and if you employ employees, you will have to pay a tax on wages.

In principle, association officers are not liable for the debts of their association except in tax matters, in case of reorganization or liquidation or in case of bonding.

Be aware that if you make a bond of one or more obligations of your association and that it is not able to fulfill them, your responsibility can then be committed. Finally, if you are a volunteer association leader, there is no legal difference in your favor; it still remains to the sovereign appreciation of the judges of the bottom, your responsibility may be less rigorously committed.

Towards an extension of the negligence exception to association leaders?

It should be noted that a law proposal by Sylvain Waserman for associative involvement was tabled on April 4, 2018 for the following reasons:

"In the current state of the law, the financial responsibility of the volunteer leader of an association is likely to be incurred with heavy personal consequences, even in the case of simple negligence. Courts have a discretionary power both on the basis of the conviction and the amount of the sentence. It is therefore the sole power of the judge to consider whether or not the volunteer nature to apply less rigorously responsibility to the volunteer leaders.

The volunteer leader of an association thus incurs liability if he has committed one or more management mistakes that led to the creation of a shortfall of assets. He may have to personally bear all or part of the debts, even though his assets are distinct from those of the association.

The penalty, which is of a pecuniary nature, is the condemnation of the fulfillment of the liabilities governed by Article L. 651-2 of the Commercial Code. The president of an association can not take advantage of the fact that the association is of general interest to exonerate itself of its responsibility within the framework of an action in filling of liabilities.

Moreover, article 146 of the law n ° 2016-1691 of December 9th, 2016 (known as "Loi Sapin 2") frames the fault of management by excluding the cases of simple negligence in "the management of the company". It therefore appears that only the company executive benefits from this "negligence exception", and not the association executive. "

This bill was passed unanimously by the National Assembly on May 17, 2018 and transmitted to the Senate on the same date. If this bill was passed by the Chamber of Deputies, it would thus extend the exception of negligence to association leaders, which since 2016 only exempted the company directors in case of insufficient assets.

The risk of a special fine personally weighing on the leaders of certain associations receiving public subsidies

It is worth remembering that pursuant to the provisions of Article L. 612-4 of the French Commercial Code, any association that has received, annually from public authorities or public establishments of an industrial and commercial nature, one or more cash grants whose overall amount exceeds a threshold set by decree, ie in the state € 153,000, must establish annual accounts including the following documents:

  • A review,
  • An income statement,
  • An annex whose content is predetermined by decree

It should be known that the lack of production of these documents makes personally responsible association leaders on their own money. Indeed, paragraph three of Article L. 612-4 of the aforementioned Commercial Code states that the penalties provided for in Article L. 242-8 of the same Code are applicable to the leaders of the associations concerned who do not have prepare the three required documents annually. The penalty provided for and thus able to be imposed thus on the leaders of the association concerned is a fine of 9,000 euros.

Article L. 612-4 of the Commercial Code amended by Articles 60 and 78 of Law No. 2014-856 of 31 July 2014 on the social and solidarity economy:

"Any association which has received annual administrative authorities, within the meaning of Article 1 of the law of 12 April 2000, or public institutions of an industrial and commercial nature one or more cash grants whose total amount exceeds a threshold set by decree, must establish annual accounts including a balance sheet, an account result and an annex, the terms of which are laid down by decree. These associations must ensure, under conditions determined by decree in Council of State, the publicity of their annual accounts and the report of the auditor.

The same associations are required to appoint at least one auditor and a substitute. 

The penalties provided for in Article L. 242-8 shall apply to the directors of the associations mentioned in the first paragraph of this article who have not drawn up a balance sheet, an income statement and an appendix each year.

At the request of any interested person, the president of the court, ruling in summary proceedings, may order under penalty of the leaders of any association mentioned in the first paragraph to ensure the publicity of the annual accounts and the report of the auditor. The president may, under the same conditions and for the same purpose, appoint a representative to carry out these formalities."

Article L. 242-8 of the Commercial Code amended by Article 3 of Ordinance No. 2000-916 of 19 September 2000 adjusting the value in euro of certain amounts expressed in francs in the legislative texts:

"Is punished by a fine of 9,000 euros the fact, for the president, the directors or the general managers of a public limited company, not to, for each exercise, draw up the inventory and establish annual accounts and a report of management."

However, even below this threshold of 153,000 euros, we recommend that the association leaders be very vigilant and put in place an internal device demonstrating in a transparent and very clear way the good use made of the public subsidy or subsidies. received.

"Prudence is the mother of securities". This proverb is fully applicable to association leaders, their responsibility being able to go very far and to heavily incur their heritage. 

At this level, special attention must be paid by the association leaders at the level of insurance contracts to cover their liability for personal faults likely to cause significant harm to their association or third parties.

By Patrick Lingibé, Lawyer

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