The Supreme Court adopted a resolution which contains an adverse settlement for the members of the board of directors of the companies. He pointed out that a member of the board could be held liable for the company's obligations arising from the submission of a request for bankruptcy of the company, including the judicial costs ordered in the case against the syndicate.
Supreme Court in Resolution (III CZP 78/18), of 30 January 2019, He pointed out that it was the company’s obligations which were linked to the legal relationship existing at the time of the bankruptcy application.
Analysis of the Supreme Court resolution indicates that one of the parties to the Court of First Instance wanted to point out that the members of the board of directors may be liable for the obligations of the company arising from the application for bankruptcy and from second – clearly limit this responsibility.
This restriction is to be based on an assessment of whether the resulting obligations remain in relation to the legal relationship existing at the time of the bankruptcy application.
It will therefore be assessed whether the actions taken by the syndication were a logical consequence of the situation in the company at the time of the bankruptcy application, or whether they could be considered objectively inappropriate and aimed only at increasing the company's debts.
The Supreme Court resolution means that a request for bankruptcy of the company is filed in due time (according to Article 299(2) KSH), may not be sufficient to avoid liability and safeguard the assets of company managers
The resolution of the Supreme Court means that the members of the board of directors of the companies of O.o. may bear personal responsibility for the obligations of the company which have been enlisted on behalf of the company by the syndicates.
Thus managers may be liable for the company's obligations created after they have lost any power to manage the company. For example, the syndication in its field of competence may complete the execution of the construction works, started before the company's bankruptcy application was filed.
The syndication may also conclude court settlements in the company's pending court proceedings. In both cases, the former members of the board have no influence on the decisions of the syndicate.
However, in the light of the resolution, they will personally be responsible for the obligations related to the completion of the works or – for the conclusion of an adverse court settlement.
The Supreme Court resolution means that a request for bankruptcy of the company is filed in due time (according to Article 299(2) KSH), may prove insufficient to avoid liability and safeguard the assets of company managers.
The Supreme Court may advocate the right of creditors to meet their claims, thereby safeguarding the safety of economic trade.
Unmet creditors will be able to address their claims to the members of the management board of companies, who, although having filed for bankruptcy early enough, have led to a poor financial standing by their earlier decisions and have thereby thwarted the implementation of the obligations.
Sometimes it is true that obligations arise after a bankruptcy application has been filed, while the board members have previously taken adverse decisions.
However, it should be pointed out that shaping the responsibilities of the board members in the manner set out in the said resolution may negatively affect the decision-makers. In practice, such a far-reaching ruling may impose unlimited liability on the members of the management board of companies of the entities they manage.
This position runs counter to the previous concept of doctrine, according to which the filing of a request for bankruptcy in due time relieves the board of responsibility for its obligations.