Remuneration of a court supervisor or administrator in proceedings triggered by a simplified bankruptcy petition
Not every restructuring process is successful. In many of them, for various reasons, the debtor unfortunately fails to effectively conclude an arrangement with creditors, and the proceedings end in discontinuance. In such cases, the legislator provided in Article 334 of the restructuring law for a simplified petition for bankruptcy, which allows creditors, in certain circumstances, to submit a request for bankruptcy of the debtor, based on documents gathered during the restructuring proceedings.
THE MOMENT OF CESSATION OF THE ADMINISTRATOR’S OFFICE WHEN THE SIMPLIFIED BANKRUPTCY PETITION IS FILED
The filing of a simplified bankruptcy petition has a significant impact on the duration of the administrator’s functions. In accordance with Article 27(2) of the restructuring law, in such a case the court supervisor and the administrator perform their functions until the declaration of bankruptcy, or until the date on which the decision on the dismissal of the simplified petition becomes final or the proceedings on the declaration of bankruptcy are discontinued. Further action of the court supervisor or administrator allows for effective protection of the debtor’s assets for the duration of proceedings to declare bankruptcy. This entity has full knowledge of the structure of the company.
REMUNERATION FOR THE FUNCTIONS CARRIED OUT
However, the question should be asked as to how the court supervisor or administrator should be remunerated for their function. Should it be included in the decision to grant remuneration in restructuring proceedings, or should the rules on the temporary court supervisor in bankruptcy proceedings be applied accordingly?
In my opinion, the court supervisor or administrator should receive remuneration in bankruptcy proceedings pursuant to Article 38(1d) and (2) of the restructuring law in conjunction with Article 27(2) of the restructuring law. This is determined by the following circumstances:
PARTICIPATION OF A SUPERVISOR OR ADMINISTRATOR IN PROCEEDINGS TRIGGERED BY A SIMPLIFIED BANKRUPTCY PETITION
Firstly, none of the grounds relating to the remuneration of the court supervisor or administrator in the cure proceedings directly allows for the participation of the supervisor or administrator in the proceedings triggered by a simplified petition for bankruptcy.
Secondly, in view of the need to examine the remuneration application in restructuring proceedings without delay and the fact that the deadline for filing a simplified bankruptcy petition is counted from the date of the announcement in MSiG, it may be the case that the administrator’s remuneration application will be examined before the expiry of the deadlines for filing simplified bankruptcy petitions.
THE ADMINISTRATOR OR COURT SUPERVISOR ACTS IN BANKRUPTCY PROCEEDINGS
Thirdly, there is no doubt that the administrator or supervisor acting on the basis of Article 27(2) of the restructuring law. Procedure is an entity acting in bankruptcy proceedings. This is indicated by the regulation of Article 336 of the restructuring law, according to which, in the proceedings to declare bankruptcy, despite the performance of the function of a court supervisor or administrator, the Court may apply other methods of security.
It is worth pointing out that the above mentioned position has already been recognized, among others, in the decision of the District Court in Zielona Góra, 5th Commercial Division, file no. V GU 94/17 as well as in the decision of the District Court in Warsaw, XXIII Commercial Division of Appeal, XXIII Gz 1477/18.
It remains to be hoped that it will be more and more widely represented, as it allows for granting remuneration to an administrator or a court supervisor for actions performed in the course of bankruptcy proceedings triggered by a simplified application.