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- On 19/10/2019 at 00:13
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Difficulties in the business world.
"They are inevitable, but being aware of them makes it possible to avoid them" (Lao Tzu)
Gabriel L. Nyangwile
The business world faces challenges that are sometimes difficult to measure and predict. These are risks due to the nature of the activity concerned. These risks are of various orders: Financial, human, material, natural, political, legal and judicial.
These difficulties can be cyclical or structural.
In terms of law, three categories of interests are protected by the legislator according to their economic policy:
- The sanction of those responsible;
- Payment of claims for the maintenance of credit;
- Safeguarding the company and employment.
AUPCAP (Uniform Act on the organization of Collective Liability Clearance Procedures) has established prevention as the main method of dealing with the cessation of payments. The procedure implemented revolves around the following diagram:
I. PREVENTION OF TERMINATION OF PAYMENTS
It is based on the principle: "Prevention is better than cure."
Three mechanisms are put in place for this. They are therefore tools allowing in their application to avoid the persistence of difficulties. It is :
- Management expertise
- The alert procedure;
- Preventive regulations.
The first 2 measures are taken from the AUSCGIE. Their vocation is to ensure the right to information and investigation of the partners.
The 3rd mechanism, drawn from AUPCAP, constitutes a procedure which goes beyond the identification of difficulties and aims to avoid the cessation of payments by the application of protective measures for the company.
BUSINESSES EXPERIENCING DIFFICULTIES
1. ALERT PROCEDURES
These procedures are aimed to draw the attention of managers and associates to facts likely to result in business dysfunctions.
- They are stamped with the seal of confidentiality.
- They are triggered by the statutory auditors or the partners.
- At the finish, they allow managers to explain themselves to their constituents in order to allow them to inform themselves and consider the appropriate collective decision.
a- Alert made by the statutory auditors
Missions of the statutory auditor with regard to AUSCGIE and AUPCAP:
- Certification of financial statements;
- Check the compliance of the accounts with the prevailing rules;
- Ensure equal treatment of partners;
- Revealing to the Public Prosecutor the criminal facts;
- Initiate the alert procedure.
The alert procedure therefore consists for the statutory auditor in drawing the attention of the directors of the company to any fact likely to compromise the continuity of operations.
b- Criteria for initiating the procedure
To detect signs of deterioration in the company's situation, three criteria have been used:
- The assessment according to the financial criteria;
- The assessment according to the operating criteria;
- The assessment according to other indices.
(----- Insert tables)
Operational discontinuity factors
What should it be?
In terms of number, there may be one or more facts, isolated or combined. The alert should only be given if there is a convergent set of significant facts.
From the point of view of their nature, the factors can be endogenous or exogenous, cyclical or structural.
Definition of the concept "Fact likely to compromise continuity":
This fact must involve a risk or be an imminent cause of dysfunction, a current fact for a future effect, a certain risk for probable or possible effects.
Compromising the continuity of operations means provoking a cessation of payments if no corrective measures are taken in good time. it is a situation which manifests itself in a disruption of the balance of financial flows.
The statutory auditor does not have to systematically investigate the existence of facts likely to compromise the continuity of operations, he must simply draw this consequence by performing his professional due diligence. The same is true of his obligation to report to the Public Prosecutor the offenses he identifies in the context of the execution of his mission.
The alert report
It is the document drawn up by the Statutory Auditor by which he draws the attention of shareholders on the risk of disruption in the continuity of the company's operations or activities.
In this context,
The Statutory Auditor can, in an emergency, convene a General Assembly (GA) itself. The consequence is to bring the difficulties in the public arena and therefore constitute an obstacle to recovery.
The SA (Statutory Auditor) is not required to seize the President of the Tribunal to allow him a self referral. However, as soon as a request for preventive settlement is filed, the President may demand the production of the Board of Directors' responses as well as the alert report.
In the event of cessation of payment, the SA may hasten the filing of the debtor's balance sheet.
1.1. AUDITOR'S ALERT PROCEDURES IN INCORPORATED COMPANIES
This procedure takes place in 3 phases preceded by a phase 0
= PHASE 0: Statement of fact likely to compromise the continuity of the operation
MEETING WITH THE EXECUTIVE OFFICERS
= PHASE 1: Request for written explanations to the manager
- CHAIRMAN OF THE BOARD
They have 1 month to respond!
If the answer is satisfactory, the procedure stops
If the answer is not satisfactory: the SA has the BOARD deliberate or hears the CEO.
= PHASE 2: Provocation of the deliberation of the BOARD
Formulation by the SA of the BOARD's deliberation request within 15 days of the managers' response.
= PHASE 3: Alert report.
(Insert the alert procedure flowchart in BOARD's)
1.2. ALERT PROCEDURES BY THE STATUTORY AUDITOR IN OTHER FORMS OF COMPANIES
The inexistence of the collegial organs of administration has shortened the procedure.
Only the CEO is invited to respond to the request for explanations.
If his response is not satisfactory or the 30-day period passed without any response, the Auditor draws up the special alert report without delay.
This procedure therefore only benefits companies with Statutory Auditors.
In all cases, the responsibility of the Auditor is engaged in the event of failure to raise the alert if his fault is established. In the event of a normal alert, he is protected by immunity but in the event of abuse, his responsibility is engaged.
1.3. RIGHT OF ALERT BY ASSOCIATES
The AUSCGIE (Uniform Act related to Corporations and Economic Interest Group) provides that twice a year the partners may question the directors on facts likely to compromise the continuity of operations.
In Private Limited Companies (PLC), General Partnerships (GP) and Limited Partnership (LP), this right belongs to non-managing partners.
In Joint Stock or Incorporated Companies, this prerogative is recognized to all shareholders.
The officer who receives the request for an explanation has the obligation to respond in writing within 30 days and to send a copy of the question and the answer to the Auditor. However, the lack of response has no palliative measure. The procedure remains confidential.
Apart from the written questions of articles 157 and 155, any partner may, under his political right in the company, ask questions on the day of the General Assembly.
(Insert procedure diagram)
2. MANAGEMENT EXPERTISE
This can be requested by partners representing 1 / 5th of the share capital (Art. 159 and 160 of the AUSCGIE).
This procedure consists of having the Tribunal appoint an expert responsible for analyzing one or more questionable management operations.
For the competent court, the judge sitting in summary proceedings is better suited in an emergency, since this is a measure which does not prejudice the merits.
These preventive procedures only benefit member companies. Individual companies are not affected!
The judge seized assesses the appropriateness of the measure based on:
- Pleaded arguments;
- Impact of the measure on the operation of the company (suspicion of partners);
- Costs it generates payable by the company.