O dever dos administradores na prevenção da insolvência

Abstract

In the present work, we will focus on the potential duty of administrators to prevent insolvency, in accordance with Article 19(b) of Directive 2019/1023 of June 20, 2019. We will begin by discussing the conflicting interests that administrators must consider in the exercise of their duties, aiming to identify which should be prioritized in light of the economic situation of the company. This is particularly important as, once again, the European legislator has refrained from establishing a hierarchy among these interests. Subsequently, we will attempt to define the concept of "probability of insolvency," which, despite being introduced by the European legislator, is not specifically addressed in the Directive, as well as its temporal scope, in order to understand when the director may be required to fulfill the duty to adopt preventive measures to avoid insolvency. In this regard, drawing on national legal provisions, we will analyze whether this new concept encompasses the national concepts of "difficult economic situation" and "imminent insolvency," and the timeframe that should be considered for holding administrators accountable in the event of failing to resort to preventive mechanisms. Once we have arrived at the concept of probable insolvency, the analysis will specifically address the duty established in Article 19, b) of the Directive, specifically the obligation imposed on administrators to take measures to avoid insolvency, and analyze whether this duty has been transposed into our legal system. At this point, we will attempt to understand whether this duty has been incorporated into our legal system. From a negative perspective, we will attempt to understand whether the national legislator considers this duty to be already established, which would justify its non-transposition, and whether there are still mechanisms for holding administrators accountable in cases where they fail to adopt preventive measures in the face of a pre-insolvency situation. Finally, and anticipating our conclusion, confronted with the inconsistency between the absence of any preventive duty in the Insolvency and Restructuring Code (CIRE) and the crime of negligent insolvency, as outlined in Article 228º, n.º1, b) of the Portuguese Penal Code, we will present what we believe to be the solution that best reconciles European law, Portuguese criminal law, and national insolvency law.

Date of Award	25 Jul 2025
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Maria de Fátima Ribeiro (Supervisor)