Resignation from the mandate of sole administrator. The sole associate of the limited liability company refused to acknowledge the administrator’s resignation, did not adopt a statutory decision in this regard and did not register the mention concerning the cessation of the administrator’s quality in the Trade Register.
RELEVANCE OF THE CASE
The obligations and liability of administrators are regulated by the provisions related to mandate and by special legal provisions in the Companies Act. An administrator cannot invoke vis-à-vis third parties the termination of their mandate in the absence of carrying out publicity/formalities, in accordance with the law.
The case is of interest because it happens that administrators of companies face situations where they either need or wish to resign from the company they administer, performing all legal steps to notify the associates accordingly, without the latter proceeding to initiate the necessary formalities to acknowledge the administrator’s resignation and to register the related mention in the Trade Register, to ensure enforceability of the termination of mandate.
SUMMARY OF FACTUAL SITUATION
In fact, the plaintiff was appointed as administrator of the limited liability company in 2014. During 2019, he decided to resign from the administrator mandate and notified the sole associate of this decision, according to legal provisions.
Along with the notification sent, the administrator requested that the sole associate adopt a decision through which the associate acknowledges the termination of the mandate and proceeds with the clearance of the administrator’s activity, to ensure enforcement vis-à-vis third parties of the cessation of the company’s representation. The sole associate confirmed that he accepts the resignation from the mandate and that he will undertake all required steps.
However, after that confirmation, the sole associate remained passive and did not carry out the formalities to amend the Trade Register concerning the company’s administration, in the sense of deleting the mention regarding the plaintiff’s role as administrator and appointing a new administrator.
PRESENTATION AND SUPPORT OF THE CASE
The sole associate has the obligation to fulfill the duties incumbent upon him under the Companies Act. In addition to the obligation to acknowledge the termination of the administrator’s quality, given that the plaintiff was the sole administrator of the company, it was also required to appoint a new administrator.
The most important aspect is making the changes regarding entries in the Trade Register, in the sense of deleting the mention of the plaintiff’s role as administrator, to ensure that the termination of mandate is enforceable against third parties.
DECISION OF THE CLUJ SPECIALIZED TRIBUNAL
Accepting the reasoning developed in the statement of claim, the court admitted the lawsuit filed by the plaintiff and found that the quality of administrator of the defendant company has ceased, ordering that the judgment be entered in the Trade Register as of the date it becomes final.
The court held that from the content of the resignation notice it results that the plaintiff resigned from the mandate, no entry having been registered in this regard in the Trade Register. The plaintiff communicated to the sole associate of the company his decision together with a request to perform the administrator’s discharge (reporting/accountability) and to appoint a new administrator.
Because the sole associate of the defendant did not adopt a decision by which to acknowledge the termination of the mandate and on which basis one could make the appropriate entries in the Trade Register, the plaintiff’s action is well founded.
Taking into account that mandate ends by the administrator’s voluntary resignation and that the plaintiff by his resignation gave up that quality, the court held that the plaintiff has lost the role of administrator and can no longer perform acts of administration of the defendant company.