The Constitutional Court found No 195 / 2006 Coll.

Motion denied.

In accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution '), the appellant requests that the Constitutional Court issue a finding to abolish the provisions of Paragraph 338zo (4) of the Civil Code (hereinafter referred to as" o.s.'). It stated that it concluded in its decision-making activities in Case C-90 E 1096 / 2002 that the provision in question was contrary to Articles 1 and 3 (1) of the Charter of Fundamental Rights ("the Charter '), in particular for the following reasons:

By order of 7 April 2003 No 90 E 1096 / 2002-8, the District Court of Ostrava ordered the execution of the decision by the sale of the firm by the debtor and the manager of the firm by Mgr. Z.N. By application of 14 November 2003, the company manager submitted to the court a report on the price of the company according to § 338m o. s. s. As regards the property of the debtor, it has been established that the firm of the debtor has not actually existed for more than 4 years and that there are no movable goods, real estate or receivables. By order of 23 January 2004 No 90 E 1096 / 2002-37, the District Court of Ostrava suspended the execution of the judgment pursuant to § 338n (6) o. s. o., since the price of the goods, rights and other assets belonging to the holding does not exceed the amount of the payable cash obligations belonging to the holding, the expected remuneration of the administrator and the reimbursement of its final expenses. By letter dated 11 March 2004, the manager of the company, pursuant to § 338zo (4) o. s. o., accounted for the remuneration and final expenses of the company manager. The final expenses were charged in the amount of CZK 106 for postal charges and suggested that the court should determine the remuneration for the function of the manager of the company at its discretion according to the time of the duties; According to Section 2 of Decree No. 485 / 2000 Coll., on the amount of the remuneration of the managers of the company, the method of determining and determining the compensation of their final expenses, the basis for determining the remuneration of the manager of the company is the determined price of the company according to § 338n (2) o. s., but in the present case the remuneration of the manager cannot be thus determined because no property belongs to the company.

The appellant further pointed out that § 338h (1) o. s. s., according to which the court, in order to enforce the decision by selling an undertaking, will determine the manager of an undertaking to which the law (e.g. § 338k o. s. s., 338m o. s.) imposes a number of obligations and also provides for its liability for the damage caused by the infringement of its obligations. The trustee shall be appointed by the court by a person registered under the special rules in the list of trustees of bankruptcy. According to § 338i (4) o. s., the administrator is entitled to remuneration and reimbursement of final expenses. The amount of the remuneration of the trustees, the method of determining it and the determination of compensation for their final expenses is laid down in Decree No. 485 / 2000 Coll. The basis for determining the remuneration of the trustee is the determined price of the company in accordance with § 338n (2) o. s. s. The remuneration of the manager of the company in the event of termination of the execution of the decision, e.g. according to § 338n (6) o. s. s., is not covered by the decree. The inconsistency between the provision cited in § 338i (4) and that decree can, according to the court, be bridged by the interpretation of the law by determining the remuneration by considering the extent of the activity of the administrator.

The appellant also referred to the contested § 338zo (4) o. s., according to which the obligation to pay the administrator the remuneration and reimbursement of the final expenses when the judgment is terminated shall be imposed by the court either on a compulsory or jointly and severally justified basis on those who have entered the proceedings as an additional authorisation and on creditors who have applied for their claims (§ 338s and 338zn. S. s.), whichever is the reason for the termination of the decision. However, the legal structure of the provision of § 338zo paragraph 4 o. s. CS allows for the creation of a situation in the proceedings where the possibility of meeting the claims of the manager of the undertaking is directly linked to the solvency of the parties. Since the creditor can only be required to pay the claims of the administrator exceptionally (usually where he did not retain the necessary degree of diligence when making the application for enforcement), he is in most cases obliged to do so. In particular, in a situation where the undertaking is overindebted (Section 338n (6) (a)), it is clear that the rights of the manager of the undertaking will not be satisfied or will only be partially satisfied; If the manager of the company was not appointed by the bankruptcy administrator pursuant to § 13b (3) of Act No. 328 / 1991 Coll., on bankruptcy and settlement, as amended, (hereinafter referred to as the "bankruptcy and settlement law '), only non-preferential claims on the insolvency and settlement law are incurred by the trustee (§ 31 (5) of the bankruptcy and settlement law). If the application for bankruptcy has been rejected, the manager of the company does not have the option to satisfy his claims. The legal arrangements for the remuneration of AIFMs cause that in a number of cases the manager of the undertaking, even though he fulfils all the obligations imposed by the law, does not receive remuneration for the performance of his duties and does not receive payment of the completed expenses he has incurred from his own resources. The structure created by the remuneration structure of corporate managers not only leads to the failure to satisfy their legal claims, but also to distort the overall results of the execution of the decision by selling the company, since there is no incentive for a group of corporate managers.

The appellant added that the manager of the company should be regarded as a special public body, as well as the trustee of the bankruptcy matter (see the Constitutional Court's finding sp. zn. Pl. ÚS 36 / 01, published under No 403 / 2002 Coll., also the Collection of Finals and the Order of the Constitutional Court, Volume 26, Found No 80). The above-mentioned legal structure of decisions on remuneration and expenses of the administrator (§ 338zo (4) o. s.) raises a situation in which the legal claims of the manager of the undertaking on remuneration and expenses are not met without another alternative source (e.g. the obligation of the State to pay the claims of the administrator or the obligation to deposit an advance on remuneration and final expenses to the creditor) for the payment of those claims. The provision of Paragraph 338zo (4) (c) does not allow the use of an alternative source or any advance made pursuant to § 270 (3) (c), since it can only be used to cover the costs of the execution of decisions paid by the State. In the appellant's view, this creates an inequality in the remuneration of the two groups of managers of the undertaking - the first group of managers of the undertaking whose entitlement to remuneration and expenditure is legally secured (in the schedule of profits from the sale of the company or in the schedule of bankruptcy purposes under Section 31 (5) of the bankruptcy and settlement law), and the second group of managers of the undertaking, without the possibility of meeting their claims or the possibility of meeting only negligible, even though both groups of managers of the undertaking fulfil all the obligations imposed by law.

The Constitutional Court sent the application to initiate proceedings in accordance with the provisions of Section 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) to the parties - Chamber of Deputies and Senate of the Parliament of the Czech Republic and requested the opinion of the Ministry of Justice.

In the observations of the Chamber of Deputies of the Parliament of the Czech Republic, the content of the proposal for the annulment of the contested legal provision and, consequently, the legislative process leading to the adoption of that provision are initially recap. The amendments adopted did not affect the contested provision. The legislature acted in the belief that the law adopted was in accordance with the Constitution and our rule of law, leaving it to the Constitutional Court to assess its constitutionality.

The Senate of the Parliament of the Czech Republic stated in its extensive statement on the substance of the case that the legislator could not ignore the situation in the sale of the company in the course of the prescribed execution of the decision that the company was bankrupt (overindebted). The only ways of dealing with bankruptcy are in our right of bankruptcy and settlement; Therefore, it was appropriate to address the bankruptcy detected by the termination of the enforcement procedure (§ 338n (6) o. s., § 338w (3) o. s.) in favour of the designated insolvency proceedings (§ 4b of the bankruptcy and settlement law). If the court terminates the enforcement of the judgment, it shall, in accordance with Paragraph 338zo (4) of the Rules of Procedure, impose an obligation on the manager to pay the remuneration and reimbursement of the final expenses to the debtor, or jointly and severally to the bodies referred to therein. Thus, the legislator did not leave the right of the company manager without legal support - even in the form of a cash claim. In the view of the Senate, it can be concluded that the legislature cannot be attributed the intention to trigger in the law a situation by which the managers of the company would be denied the possibility of implementing the cost of remuneration and reimbursement of final expenses. In this context, it can also be considered as legitimate (and constitutional) a source of cost satisfaction for the manager of the undertaking, which is mainly found for those private individuals whose behaviour has caused the costs of the undertaking manager.

The Senate also points to the provision of § 338i (4) o. s. s., according to which the administrator is entitled to remuneration and reimbursement of final expenses. In the successful sale of the undertaking, the claim shall be satisfied on the basis of the distributed substance; if the claim is not paid in full, the court shall, as already stated, suspend the proceedings and impose an obligation on the manager to pay the claim to the bodies referred to in § 338zo (4) (c). If, however, there is a qualified reason for such a "unsuccessful 'sale of the undertaking to the extent that the lack of funds obtained by the sale of the undertaking to such an extent as has already been stated, the court shall stop the proceedings and impose an obligation to pay the manager's claim to the entities referred to in § 338zo (4) (c) (d) (i) (i) (i) (i) (i) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (ii) (iii) (iii) (iii) (iii) (iv) (iii) (iii) (iv) (iv) (iv) (iii) (iv) (iv) (iv) (ii) (ii) (iv) (iv) (ii) (ii) (iv) (ii) (ii) (ii) (ii) (ii) (ii) (ii) The other fate of the satisfaction of the claim depends on whether or not the same person has become the trustee of the bankruptcy in the case at hand (the trustee of the undertaking who does not perform his duties for the duration of the bankruptcy).

In the opinion of the Senate, it can therefore be concluded that, in the case of the right to remuneration and reimbursement of the final expenses of the trustee of the undertaking, the trustee of the bankruptcy assets is "in a better position 'than the" simple' manager of the undertaking. The advantage of the claim is that it is satisfied with the bankruptcy nature (§ 31 (5) in conjunction with § 31 (2) of the bankruptcy and settlement law) at any time during the bankruptcy proceedings (§ 31 (1) of the bankruptcy and settlement law). In its submission, the appellant contests "the inequality of the managers of the undertaking 'or" the creation of two groups of managers of the undertaking' if it contests those whose satisfaction is "guaranteed in the schedule of proceeds from the sale of the undertaking or in the schedule of bankruptcy ', against the group of managers of the undertaking without the possibility of such satisfaction. But, according to the chosen scheme, inequality is not" said "consistently, according to the Senate. For the appellant of that example, it would be possible to construct another, such as one where the manager of the company was not fully satisfied with the proceeds of the sale of the property nor was he able to make his claim against the guarantor (§ 338ze (7) o. s.). That part of its observations was therefore concluded by the Senate by stating that, if" perfect' were to be achieved (the appellant's claim to ensure the same right to remuneration and paid expenses could not be used here literally, as this would make the whole problem unworkable) equality in satisfying the company's managers' claim to remuneration and expenses, their claim would have to be satisfied already in the course of the execution of the decision by the sale of the company. In principle, this would mean that the claim would have to be paid (or fully paid) by the State. At this point, in the opinion of the Senate, it is possible to check the appellant's assertion about the demolition of the company's managers by arguing that not the threat of unsatisfying their claims, but the "100%" certainty, could be the factor of that demolition. It is also not without meaning that the full satisfaction of the management claims under the enforcement procedure would lead to an undesired waiver of claims under the bankruptcy and settlement arrangements for the overindebted undertaking.

The Senate refers in its observations to the finding No. 403 / 2002 Coll., in which the Constitutional Court expressed its views on the similar issue of the remuneration and reimbursement of the costs of the trustee of bankruptcy proceedings. For the key issue of the distinction between two groups of corporate managers (with the same possibility of satisfaction), although both groups fulfil all the obligations imposed by law, the Senate considers that the basal statement of the Constitutional Court will be: "If the constitutional purpose of the legal regulation allows bankruptcy even if no assets of bankruptcy are purchased in the bankruptcy proceedings and the advance on the costs of bankruptcy has not been filed... (note: and there was therefore no other source)..., then it must be regarded as a breach of the constitutional principle of non-acting equality, which is thus created in the legal level of reimbursement of the expenses and remuneration of the administrator '. However, it would be easy - in the Senate's view - to" give in to the impression of an unambiguous solution even in the event of the annulment of § 338zo (4) o. s. However, other circumstances need to be considered. As mentioned above, the company manager's claim is satisfied by the nature (§ 338ze o. s.) or other sources. In addition to the compulsory liability, the guarantor under § 338z (7) o. s., or the authorisation or creditors under § 338zo (4) o. s., however, it is necessary to seek sources of satisfaction of the manager's claims in the context of bankruptcy proceedings for a particular case of over-indebtedness. There is therefore no other source from the point of view of the Civil Code for the Trustee, but the Civil Code does not prevent (on the contrary it creates the necessary assumptions) the use of a special resource for the situation (over-indebtedness of the Company) of standard and legislative adequacy; (the Senate referred to part of its observations, which were already mentioned). Otherwise, according to the Senate, the whole thing appears from the perspective of the bankruptcy and settlement law. In this respect, it is said that the applicant's concerns about unequal access to the company manager's claim can be shared (see above for this). However, according to the Senate, a possible solution is no longer subject to the regime of the Civil Code and is therefore not the subject of this detailed statement, which the Senate concluded by stating that it is entirely up to the Constitutional Court to assess the constitutionality of the contested provision.

In the brief opinion of the Ministry of Justice, which proposed not to comply with the application, it is stated, in particular, that the annulment of the contested provision would, on the contrary, create an inequality, because "the court would not have a provision in the law" according to which the administrator could grant remuneration and reimbursement of the final expenses.

The Constitutional Court, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, dealt with the question of whether a law with which the unconstitutional nature of the contested provision is objected was adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure.

This is Act No. 30 / 2000 Coll., amending Act No. 99 / 1963 Coll., Civil Code of Procedure, as amended, and some other laws. In this respect, the Constitutional Court found that the Chamber of Deputies of the Parliament of the Czech Republic had duly approved the draft law at its meeting of 9 December 1999, and the Senate of the Parliament of the Czech Republic approved the proposal as referred to by the Chamber of Deputies at its meeting of 12 January 2000. After the signing of the President of the Republic and the Prime Minister, the Act was published in the Collection of Laws of 11 under the number 30 / 2000 Coll. Thus, the law in question was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.

After this finding, the Constitutional Court took the view of the content of the contested provision of the law in terms of its compliance with the constitutional order of the Czech Republic [Article 87 (1) (a) of the Constitution of the Czech Republic].

The provisions which the appellant contests and requests to be deleted are as follows:

"The obligation to pay the administrator the remuneration and reimbursement of the final expenses shall be imposed by the court either to the debtor or jointly and severally entitled to those who have entered the proceedings as an additional authorisation and to the creditors who have applied for their claims (Sections 338s and 338zn), whichever is the reason for the termination of the enforcement. '

At the outset, the Constitutional Court dealt with the question of the position of the trustee and its definition in relation to the trustee. The activity and position of the manager of the company is similar to that of the trustee of the bankruptcy assets under the bankruptcy and settlement law. As with bankruptcy proceedings, the setting-up of an undertaking manager (§ 338i o.s.) is a binding, conceptual part of the execution of the decision. As has already been stated in the Constitutional Court's finding of the Constitutional Court, the Court of First Instance 36 / 01 lists the trustee of bankruptcy as a special public body, with the task of ensuring the proper conduct of the bankruptcy (see K. Elias, Konkur. Lawyer, No 2 / 1995, p. 123; H. Hrstková, R. Tománek, Some basic questions of the bankruptcy and settlement law. Law and business, No 10 / 1994, p. 27 et seq.; Fr. Štegr, Competition law. Prague 1947, p. 71).

The Constitutional Court agrees with the definition of a doctrine in relation to the liquidator of bankruptcy and has no reservations about its use in relation to the manager of the undertaking. The doctrine is based on considerations defining the concept of a public body, which is a public purpose, a method of establishment and a competence. The public purpose of the institution of the liquidator as well as the manager of the firm must be seen in the acceptance of limited public intervention in the resolution of property relations. The method of setting up the manager of the company is determined by a decision of the state body - the court (§ 338i (1) o.s.). Its powers and obligations, which are enshrined in a number of provisions o. s. s., constitute exercise of power.

The trustee of the undertaking shall be designated by the court by a person registered under the bankruptcy and settlement law in the list of trustees of the bankruptcy substance. The list of AIFMs may be entered only by a fair natural person who is fully competent to act, has adequate professional competence and agrees to the registration, or by a public commercial company which will carry out the activities of the AIFM through its members, who will demonstrate that they fulfil the conditions for entry in the list. Exceptionally, the court may also designate a person not included in the list if it fulfils the conditions for entry in the list, if it agrees to the provisions of the AIFM.

The Constitutional Court, as in its previous cited finding (sp. zn. Pl. ÚS 36 / 01), referred to in this context, considers that the performance of the function of trustee of an undertaking established by the Court cannot be substitutable from a constitutional point of view to the work or service imposed by the Law on the Protection of the Rights of Others under Article 9 (2) (d) of the Charter. This follows from the fact that the manager of an undertaking is essentially chosen from the list of trustees of the bankruptcy substance (§ 338i (1) o. s.), which leads to the court responsible for the proceedings, and can only be entered in the list of trustees by a natural person or a public commercial company if it agrees to the registration. A person already included in the list may refuse his establishment as manager only if there are important reasons. Exceptionally, the court may place both the controller and the person on the list of administrators not registered, provided that it agrees to the establishment. That mechanism ensures either an implicit, pre-determined general consent to the function of the administrator or an agreement specific to the case. For that performance of this function, it does not meet the absence of consent as a condition of employment or service within the meaning of Article 9 (2) of the Charter or Article 4 (3) of the Convention on the Protection of Human Rights and Fundamental Freedoms. This conclusion is also in line with the legal opinion expressed by the European Court of Human Rights in the Van der Mussel case against Belgium (judgment of 23 November 1983). The person included in the list of insolvency administrators by his application for entry and entry in the list gave prior consent to the establishment of the office and the associated risks, which include the risk that not all cases the manager of the undertaking will reach a settlement of his legal claims. The fact that the manager of an undertaking would not be required to meet his claims, even in bankruptcy proceedings, if the enforcement procedure fails is a risk to which all the managers of the undertaking are located and is therefore not an inequality in their position. Indeed, not only the manager of the company, but also all those who perform similar functions under the authority of the State (e.g. notary) are in a similar situation.

The performance of the function of the manager of the undertaking is neither part of the employment relationship, and therefore its content, as well as the purpose and purpose, are not covered by Article 26 of the Charter. It is no longer an undertaking, even if the nature of the activity which is carried out for profit is close to it and it is not an activity of another economic activity, and cannot therefore, from a constitutional point of view, be placed under the scope of Article 26 of the Charter.

In addition to the above-mentioned same characteristics, which can be attributed to both the manager and the insolvency administrator for the fault of the infringement, there are, however, substantial differences between the two functions. In particular, it must be assumed that both the arrangements of the insolvency administrator in the bankruptcy and settlement law and the arrangements of the company manager in the civil court order are different, complex and independent. While the activity of the manager of the firm is only directed at the sale of the company, the activity of the trustee of the bankruptcy is aimed at monetizing the whole of the bankruptcy, the main purpose being the proportional satisfaction of all creditors of the assets constituting the bankruptcy. In the case of the execution of a decision by the sale of a debtor undertaking, there is not usually any intervention in the company itself, as is often the case with bankruptcy, but only a forced change of its owner (replacement of the original owner, owner of the new auctioneer).

However, the main and fundamental difference between the two proceedings is that, while bankruptcy proceedings are initiated when the debtor is bankrupt, on the basis of an application for bankruptcy by the debtor or the creditor (therefore, the opening of proceedings is not a single person), enforcement of the decision is consistently controlled by the disposal principle. It is therefore, in principle, a procedure which is only initiated on a proposal from the creditor. This entails the specificity of the enforcement procedure. In particular, the creditor is entitled to choose how the decision is to be enforced and it is up to him to proceed with the enforcement of the decision by selling to an undertaking for example a risk of overindebtedness. Therefore, it also bears an increased responsibility for its decision. The authorised person must consider carefully how he will proceed before making an application for enforcement. In addition, the beneficiary has relatively very effective means to establish the compulsory property regime. In particular, the Institute serves the declaration of assets laid down in § 260a et seq., under which the creditor who has an enforceable decision on a cash claim may, before making his own application for enforcement, propose to the court to call the debtor and invite him to declare the property. In addition to § 260 o. s. s. (assistance to the court in determining the financial possibilities of the debtor), the Court is another form of assistance to creditors in order to successfully recover their claims through enforcement. In addition, the court should also assess the appropriateness of the proposed method of enforcement and, if it considers it to be inappropriate, order the enforcement of the judgment in another appropriate way (§ 264 (1) o. s. s.).

In the present case, it is proposed that Paragraph 338zo (4) CS be abolished since, in the appellant's view, the method of remuneration set out in the law of the manager of the undertaking may not lead to the satisfaction of its legal claims (claim for reimbursement of final expenses and entitlement to remuneration). The legal structure allows the creation of a situation where the legal claims of the manager of the undertaking cannot be met without another alternative source of payment of these claims. In the appellant's view, it distorts the overall results of the execution of the decision by selling the company, since it does not lack the incentive importance of the remuneration for a group of managers, nor does it create an inequality in remuneration between the trustee of the bankruptcy substance, the satisfaction of which is guaranteed by the bankruptcy and settlement law (§ 31 (5) of the bankruptcy and settlement law) and between the trustee of the firm under the civil law, which does not have the possibility of meeting his claims or the possibility of satisfying it, is negligible. The Constitutional Court does not fully identify with this view. It should be borne in mind, as stated above, that enforcement is a design procedure. The management of the enterprise is entitled to remuneration and reimbursement of final expenses according to § 338i (4). In the successful sale of the company, its entitlement is satisfied by the distributed substance. The company manager's claim on remuneration and expenses must be satisfied even if the distributed substance is insufficient. Therefore, if the claim is not paid in full by nature, the court admits to the manager of the undertaking a claim for the debtor for which he is liable jointly and severally entitled, those who have acceded to the proceedings as additional powers and creditors who have applied for their claims (§ 338ze (7) o. s. s.). The primary requirement is to satisfy the claims of the administrator to the debtor. In order to give real satisfaction to the manager of the undertaking, it is stipulated that the creditor, those who acceded to the proceedings as additional authorisations, and the creditors who applied for their claims (§ 338s o. s.), is jointly and severally liable for the fulfilment of this obligation. Such adjustment shall ensure that the manager of the undertaking does not go into a situation where his legal claims are not met.

If the sale of an undertaking is not carried out in civil proceedings, the court shall suspend the proceedings and impose an obligation on the parties referred to in Article 338zo (4) (c) to pay the management claims to the bodies referred to in Section 338zo (4) (c) (ii) (ii) (iii) (iv) (iv) (iv) (iv) (iv) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v). If the debtor does not have sufficient resources to pay the rights of the manager of the undertaking, it is perfectly legitimate to require the creditor or other creditors to pay them, since, as has been said above, the creditor is responsible for the choice of the method of enforcement of the decision and bears the associated risk for the possible non-payment of the rights of the undertaking manager by the debtor. The right of the manager to pay his remuneration and expenses is therefore not entirely without legal support. In this context, it should be pointed out that the manager of the undertaking may apply for advances in respect of the final expenditure, as is apparent from Paragraph 338i (5) (c) of the Guidelines. Although the provision in question refers in particular to expenditure relating to the acquisition of an expert, it is not impossible for the administrator to require an advance on other expenditure incurred in the sale and preparation of the sale of an undertaking. Therefore, where, in the course of the execution of the decision, there is a need to cover the costs of the reimbursement of the final expenses, there is nothing to prevent the court from imposing an advance payment on the creditor. This also applies to a situation where it is clear that it will not be possible to cover the costs of the company manager from the sale of the company. Such a measure may also be taken in advance by the court, such as when ordering enforcement. It is therefore up to the company manager to make consistent use of all the possibilities and mechanisms it provides. The total expenditure borne by this advance shall be considered as the cost of the sale of the undertaking. Therefore, there cannot be a situation on the basis of the above-mentioned finding concerning the liquidator of the bankruptcy case, in which the liquidators of the bankruptcy proceedings incurred expenses which they had to bear. The only problem can arise when the creditor would have met the conditions for exemption from judicial fees. The court may not order such a person to lodge an advance on the costs of enforcement (§ 270 (3), second sentence, p.). Of course, if there is any proceeds from the sale of the company, the legal claims of the manager of the company from that proceeds will be paid. If that is not the case, the costs of the execution of the decisions of the manager of the undertaking must be borne by them. However, if, before the enforcement regulation, it is clear that the profit from the sale of the undertaking will not be sufficient to cover the rights of the manager of the undertaking, and this could result in a situation where the satisfaction of the legal claims of the manager of the undertaking would be jeopardised, it is particularly up to the court to carefully assess the property situation of the debtor before the enforcement regulation. If it is clear that the property of the debtor will not be sufficient to cover the costs, it should not order the execution of the decision at all. Such a court procedure also requires the wording of Paragraph 264 (2) EC, according to which the court rejects the application for enforcement if it is already clear from the application that the proceeds which would have been achieved would not be sufficient to cover the costs of enforcement. The proper functioning of the system, the possibilities and mechanisms enshrined in the minutes of the proceedings, together with careful consideration by both the creditor and the court, should prevent the situation from being created which is the starting point for the application for annulment of Paragraph 338zo (4) CS. It can therefore be concluded that the contested provision of Section 338zo (4) CS does not constitute an infringement of the constitutional principle of equality.

If, despite all the above, there is a situation where the manager of the undertaking is obliged to bear the costs of the execution of the decision on his own account, he shall be able to claim his claim against the compulsory other means of enforcement of the decision or through insolvency proceedings. Another non-negligible difference between the enforcement of the decision and the bankruptcy is that, at the end of the bankruptcy, it is quite obvious that after the bankruptcy, only the assets that form part of the bankruptcy are left, or that there is none left. This is not the case when implementing a decision by selling an undertaking. In the absence of a successful sale of the undertaking in the course of enforcement of the decision, the court may not ascertain the overall situation of the debtor from the documents at its disposal. This can only be speculated on, but a reliable conclusion cannot be drawn, since the enforcement procedure for the sale of an undertaking is not a procedure for the whole of the assets but only for part of it. Therefore, if the above-mentioned possibilities and mechanisms in the context of the execution of a decision pursuant to o.s. CS (liability of the creditor, advance payment for costs, etc.) fail, the manager of the undertaking shall always be able to exercise the rights granted to remuneration and final expenses by other means of enforcement and, in the extreme case, by bankruptcy proceedings.

In conclusion, the Constitutional Court notes that the very fact that, ultimately, a situation in which the rights of the manager of an undertaking may not be met is not unconstitutional. This must also be seen in the light of the above-mentioned judgment of the European Court of Human Rights (Van der Mussel v Belgium), which pointed out that the risks involved in the performance of a particular profession (in the case cited by the lawyer), where the risk of non-payment of the remuneration for the work done, are balanced by the benefits of that profession (in the case cited by the professional monopoly in defence and representation). These conclusions may also be applied without further ado to the activity and status of the manager of an undertaking where the risk of non-compliance with legal claims, which is, however, entirely negligible, is in fact in its monopolistic position to carry out the activity of the AIFM.

It is true that, from the perspective of the bankruptcy and settlement law, it is possible to attract the appellant's concerns of unequal access to the claims of the trustee of the firm, who subsequently became the trustee of the bankruptcy proceedings, and the trustee of the firm that did not become him. However, this issue is already in excess of the Civil Code regime and is therefore not the subject of a justification for this finding.

On the basis of the foregoing considerations, the Constitutional Court has concluded that there is no reason to comply with the application and there is no need to abolish § 338zo (4) CS since the satisfaction of the legal claims of the manager of the undertaking can in the vast majority of cases be achieved by means of the instruments contained in the O & S §. If the Constitutional Court had annulled the provision cited, it would, for example, deprive the court of the possibility of obliging the trustee to pay the claims of the trustee in a situation where the recovery claim was satisfied by the debtor from other means and the court would have stopped the enforcement of the judgment.

In view of the above conclusions, The Constitutional Court did not find an application for annulment of § 338zo (4) o. s. It therefore rejected it under Paragraph 70 (2) of the Constitutional Court Act.