Castegnaro Newsflash 22.07.2016

Print

Case law - Director/minority shareholder’s capacity to be a witness

According to article 405 of the New Code of Civil Procedure ‘everyone can be heard as a witness apart from those who are unable to act as a witness’.

The Court of Appeal ruled on 28 April 2016, that the parties in the case are unable to act as a witness.

The Court nevertheless felt that in this case, involving an employee and his former employer, a société anonyme, the minority shareholder of the employer’s company who also acted as a director, should not be treated as a ‘party in the case’ and that he was able to be a witness.

In fact, according to the Court, as the shareholder only owned a quarter of the shares in the company, he was not considered to be the only true owner of the company and so as a shareholder, he was not a party in the case.

Neither did the shareholder’s role as a director prevent him from being heard as a witness, as in this case, the Court found that, as the board of directors had not been delegated, he alone could not represent and personify the company.

Given the above, the Court of Appeal heard the director and minority shareholder of the société anonyme as a witness to demonstrate the reasons behind the dismissal with notice of the former employee.

Court of appeal, 28 April 2016, role no. 39383