Liability of members of the board of directors of a limited liability company for its obligations

In a judgment dated April 14, 2016, issued in Case No. IV CSK 485/15, the Supreme Court determined that a member of the board of directors of a limited liability company cannot be held liable for liabilities that arose during the period when he did not perform this function, but also for those that arose during the period when the board member, while remaining on the board, could not perform this management, for example, as a result of special regulations, including a bankruptcy court decision.

The Supreme Court pointed out, among other things, that the board of directors is liable under Article 299 § 1 of the Commercial Companies Code for liabilities that arose in the period between the time when the conditions for filing a bankruptcy petition were met and when the company actually filed such a petition. Failure of members of the management board of a limited liability company to timely file a bankruptcy petition causes damage to its creditor when enforcement against the company proves ineffective, and as a result of the delay, new liabilities arise against the company that would not have arisen if the petition had been timely filed. Indeed, the function of the regulation contained in Article 299 § 1 of the Commercial Companies Code is to sanction such a lack of due diligence in the exercise of functions in the body of a limited liability company, which led to failure in satisfying the company’s creditors. The liability of a member of the board of directors of a limited liability company for the obligations of the company is therefore not absolute, a creditor seeking claims against a member of the board of directors under Article 299 of the Commercial Companies Code must therefore prove that these claims arise from obligations that arose during the period in which that board member held office.