Disqualification of Directors

Abstract

The aim of this thesis is to investigate the rules regarding disqualification of directors in Denmark and analyse case law in order to determine the behaviour that leads to a disqualification. Furthermore, this thesis seeks to explore the proposal to expand the Business Register Interconnection System, BRIS, to include more relevant information about companies in the Member States, such as records on disqualified directors. It will be discussed whether a register on disqualified directors can work based on the Danish and Norwegian rules. The first part of the thesis is regarding the disqualification rules in Denmark and how the court system has ruled on the matter. A director can be deprived of the right to conduct business, if the person’s actions, less than one year before the company’s bankruptcy, are deemed grossly irresponsible. The thesis shows, that it is behaviour such as lack of bookkeeping and financial reporting, failure to pay the Danish Tax Agency and shareholder loans, which are significant in the assessment. Past bankruptcies and continuation of operations with further loss to the creditors will also be important in the assessment. Directors who fail to correct faulty conditions in the one-year period before bankruptcy will be disqualified from conducting businesses. The second part of the thesis is regarding a proposal for a directive to the European Parliament and of the Council amending Directive 2017/1132 in regards the use of digital tools and processes in company law. If ratified the proposal would expand BRIS, and subsequently require Member States to provide information about disqualified directors. Members States can upon a valid request gather information from other Member States concerning disqualified directors. The provisions would allow Member States to validate, if a person is disqualified in another Member State and then refuse the appointment. The disqualification of directors would still be done on basis of the national law in the Member State. After exploring the disqualification rules in Denmark and Norway, it can be concluded that the register can work in practice. It can make an overall difference and Member States will be able to prevent fraudulent behaviour by refusing the appointment of a person as director, on the basis of the behaviour in another Member State.