Can an insolvency trustee be appointed a liquidator of a company without his consent?
Authors: JUDr. Martin Šubrt, Ph.D., LL.M., Mgr. Ondřej Křížek, Mgr. Lucie Kačerová, Mgr. Tereza Holubová
The Supreme Court confirmed in a recent decision that the court can appoint an insolvency trustee as a liquidator of a legal entity that is being dissolved even without his consent. Under what conditions can the court do so and which insolvency trustee can it appoint?
In general, liquidators, like the members of elected bodies, must give consent to their appointment and can in fact resign from their office at any time. Furthermore, according to Section 191 Par. 3 of the Civil Code, if there is no person that is willing to perform the office of liquidator, the court can appoint a member of the statutory body as a liquidator even without his consent. This should ensure that the liquidation of a legal entity that is being dissolved goes ahead even if no one wants to assume the office voluntarily. Only provided that the court is not even able to appoint any of the members of the statutory body as liquidator (e.g. because there are none or because such member cannot be fairly requested to perform the duties of liquidator), according to Section 191 Par. 4 of the Civil Code the court may assign any person listed in the register of insolvency trustees as liquidator.
Despite the fact that the wording of Section 191 Par. 3 of the Civil Code is different from the wording of Section 191 Par. 4, and although Par. 4 does not expressly stipulate that an insolvency trustee can be appointed as liquidator even without his consent, the Supreme Court concluded in its decision Ref. N. 27 Cdo 2916/2018 of 15.4.2020 that the purpose of these Sections is the same, and therefore it is possible to appoint a person listed in the register of insolvency trustees as a liquidator, without the need for that person to give ad hoc consent.
At the same time, according to the above-stated decision, the liquidator appointed from the list of insolvency trustees cannot resign from his office and the only option for leaving his office is an exemption from the office granted by the court on condition that the insolvency trustee proves that he cannot fairly be required to perform this duty.
Another interesting question relates to the conditions for choosing a particular insolvency trustee that the court can appoint as liquidator. Considering the fact that the legal regulations do not specify any criteria in this respect (in contrast to the Insolvency Act), according to the conclusions expressed by the Supreme Court in this decision, the only way to make the choice is to consider the circumstances of the given case, particularly the distance between the offices of the insolvency trustee and the dissolved legal entity, the alleged complexity of the liquidation, the availability of the insolvency trustee, etc.