Facts Established by the Court
The fiscal authority (creditor) from Bistrița-Năsăud sought to hold the former administrator of the debtor company personally liable, invoking Article 169 letters (a), (d), (e), and (h) of Law 85/2014. It was alleged that the defendant:
- Failed to hand over accounting documents to the judicial administrator;
- Did not remit withheld sums (salary tax and social contributions) to the state budget;
- Used company assets for personal use;
- Diverted company assets, worsening its liabilities and contributing to bankruptcy.
On appeal, the creditor attempted to expand the scope of the case by invoking Article 169 letter (c) for the first time—alleging continuation of business activity in personal interest leading to insolvency. However, the Court rejected this, citing procedural rules that prohibit changing the subject of the claim on appeal.
In the initial ruling, the syndic judge dismissed the administrator liability claim. Upon review, the Court of Appeal upheld that decision, concluding that the cumulative legal conditions for special tort liability were not met.
Applicable Legal Provisions
Article 169 (1), Law 85/2014
The syndic judge may order that part of the debtor’s liabilities be borne by members of its management or supervisory bodies—or anyone who caused its insolvency—if they:
- (a) Used company assets or credits for personal benefit or that of another;
- (d) Maintained fictitious accounting, caused disappearance of accounting documents, or kept records not in line with legal requirements;
- (e) Diverted or concealed company assets or artificially inflated its liabilities;
- (h) In any other manner used company assets or credits for personal use or that of another.
Article 478, Civil Procedure Code
On appeal, parties cannot change their identities, the cause, or the object of the claim, nor introduce new claims.
Analysis of Conditions for Liability
1. Letter (d): Fictitious or Irregular Accounting
The creditor claimed the administrator failed to submit accounting documents. The court found that the judicial administrator did receive the necessary documents, albeit delayed—thus defeating the legal presumption of guilt. Without concrete accounting irregularities or missing documentation, there was no unlawful act. The fiscal authority offered no specific details.
2. Letters (a) & (e): Use of Assets for Personal Gain / Asset Diversion
The creditor argued that failure to recover receivables deprived the company of funds. The court ruled:
- Failing to initiate collection efforts is not a discretionary act covered by letter (a)—there must be intentional disposition of assets.
- No evidence showed intent to benefit personally or conspire to benefit others.
- No hidden assets were demonstrated, so letter (e) is inapplicable.
3. Letter (h): Use of Company Assets for Personal Interest
Failure to remit withheld taxes and contributions doesn’t automatically prove use of those funds for personal gain. Without such proof, letter (h) doesn’t apply.
4. Objective Cause of Insolvency
A report under Article 97(1), Law 85/2014, identified COVID-19 as the primary cause of insolvency—drastically reducing business activity and generating unsustainable fixed costs. Bankruptcy stemmed from objective external factors, not the administrator’s actions.
Court’s Conclusion
The Court of Appeal determined that the special tort liability conditions under Article 169 of Law 85/2014 were not cumulatively met.
Accordingly, under Article 480 of the Civil Procedure Code, the appeal by the fiscal authority was rejected, and the original judgment of the Bistrița-Năsăud Tribunal was upheld in full.
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