Decoding Articles 146 and 223 of the Code of Commercial Companies, prevention provisions, and strategic leeway in the face of an expanding risk of criminal liability.
An unjustified transfer, a concealed in-kind benefit, a contract signed without authorization from the board of directors: the boundary between a management decision and a criminal offense is often defined by the absence of a proper minutes record. In Tunisia, abuse of corporate assets requires neither substantial prejudice nor spectacular intent—the mere awareness of a use contrary to the company’s interests is enough to engage the manager’s personal criminal liability.
A double and precise legal foundation
The Tunisian Code of Commercial Companies (CCC) punishes abuse of corporate assets through two distinct provisions depending on the form of the company. Article 146 targets managers of limited liability companies (SARL). In this respect, the manager who, in bad faith, uses the company’s assets or credit for purposes that he knew were contrary to its interests, for a personal aim or to benefit an entity in which he has a direct or indirect interest, is punishable by imprisonment from one to five years and a fine of 500 to 5,000 dinars.
For joint-stock companies (SA), Article 223 of the CCC targets in the same terms the members of the board of directors, with an aggravated fine of 2,000 to 10,000 dinars for the same range of imprisonment. The text also sanctions the presentation of financial statements that do not reflect the true situation of the company as well as the distribution of fictitious dividends – two schemes frequently associated, in practice, with the concealment of an earlier abuse of corporate assets.
The offense is intentional in that Tunisian jurisprudence and doctrine require the existence of four cumulative elements: an act of using the assets, credit, powers, or voting rights; the act’s inconsistency with the corporate interest; a personal, direct or indirect purpose; and the manager’s bad faith, i.e., awareness of the abusive nature of the act. No monetary threshold is required by the texts: a modest advantage, if deliberate and concealed, can be sufficient to characterize the offense.
Where does the red line lie
