LAW OF JULY 26, 2005 ON THE SAFEGUARDING OF COMPANIES
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LAW OF JULY 26, 2005 ON THE SAFEGUARDING OF COMPANIES

LAW n ° 2005-845 of July 26, 2005 for the protection of companies (1)

NOR: JUSX0400017L 


The National Assembly and the Senate adopted,

Considering the decision of the Constitutional Council n ° 2005-522 DC of July 22, 2005;

The President of the Republic promulgates the law, the content of which follows:


TITLE I

PROVISIONS AMENDING BOOK VI

OF THE COMMERCIAL CODE

 

Article 1


I. – The divisions of Book VI of the Commercial Code are deleted.

Table I annexed to this law, which modifies the numbering of certain articles of the same book and repeals other articles of the same book, is approved.

Table II appended to this law which includes the new structure of the same book is approved.

This same book, as it results from the aforementioned Tables I and II, is amended in accordance with the provisions of Title I of this law.

II. – Subject to the provisions of Title I of this Law, the references made to the articles of Book VI of the Commercial Code in the legislative or regulatory provisions are replaced by the references to the corresponding articles appearing in Table I appended to this Law.

Article 2


Article L. 610-1 reads as follows:

“Art. L. 610-1. – A decree in Council of State determines, in each department, the court or the courts called upon to hear the procedures envisaged by the present book, as well as the jurisdiction in which these courts exercise the attributions which are devolved to them. “


Chapter I

Provisions relating to the prevention

of business difficulties and the conciliation procedure

 

Article 3


The last sentence of the fourth paragraph of Article L. 611-1 reads as follows:

“Approved prevention groups may also benefit from aid from local authorities. “

Article 4


Article L. 611-2 is thus amended:

1 ° At the beginning of the first paragraph, an “I” is inserted;

2 ° In the second paragraph, after the words: “At the end of this interview”, are inserted the words: “or if the directors have not attended to its convocation”;

3 ° A II worded as follows:

“II. – When the directors of a commercial company do not file the annual accounts within the time limits provided for by the applicable texts, the president of the court may send them an injunction to do so at short notice under penalty.

“If this injunction is not implemented within a time limit set by decree of the Council of State, the president of the court may also apply the provisions of the second paragraph of I.”

Article 5


Articles L. 611-3 to L. 611-6 are worded as follows:

“Art. L. 611-3. – The president of the commercial court or the tribunal de grande instance may, at the request of the representative of the company, appoint an ad hoc representative whose mission he determines.

“Art. L. 611-4. – A conciliation procedure is instituted before the commercial court, from which persons exercising a commercial or craft activity who are experiencing legal, economic or financial difficulty, whether proven or foreseeable, can benefit, and have not been in suspension of payments since more than forty-five days.

“Art. L. 611-5. – The conciliation procedure is applicable, under the same conditions, to legal persons governed by private law and to natural persons exercising an independent professional activity, including a liberal profession subject to a legislative or regulatory status or whose title is protected. For the application of this article, the tribunal de grande instance is competent and its president exercises the same powers as those attributed to the president of the commercial tribunal.

“The conciliation procedure is not applicable to farmers who benefit from the procedure provided for in Articles L. 351-1 to L. 351-7 of the Rural Code.

“Art. L. 611-6. – The president of the court is seized by a request from the debtor setting out his economic, social and financial situation, his financing needs as well as, if necessary, the means to face them.

“In addition to the powers attributed to him by the second paragraph of I of Article L. 611-2, the president of the court may instruct an expert of his choice to draw up a report on the economic, social and financial situation of the debtor. and, notwithstanding any legislative and regulatory provision to the contrary, obtain from banking or financial establishments any information likely to provide exact information on the latter’s economic and financial situation.

“The conciliation procedure is opened by the president of the tribunal, who appoints a conciliator for a period not exceeding four months but that he may, by a reasoned decision, extend for a maximum of one month at the latter’s request. . The debtor may propose a conciliator for appointment by the president of the court. At the end of this period, the conciliator’s mission and the proceedings end as of right.

“The decision opening the conciliation procedure is not subject to appeal. It is communicated to the public prosecutor. When the debtor exercises a liberal profession subject to a legislative or regulatory status or whose title is protected, the decision is also communicated to the professional order or to the competent authority, including, where applicable,

“The debtor may challenge the conciliator under conditions and time limits set by decree of the Council of State. “

Article 6


Article L. 611-7 reads as follows:

“Art. L. 611-7. – The conciliator’s mission is to promote the conclusion between the debtor and his main creditors as well as, where applicable, his usual co-contractors, of an amicable agreement intended to put an end to the difficulties of the company. He can also present any proposal relating to the safeguarding of the company, the pursuit of economic activity and the maintenance of employment.

“The conciliator may, for this purpose, obtain any useful information from the debtor. The president of the tribunal shall communicate to the conciliator the information at his disposal and, where applicable, the results of the expert’s report mentioned in the second paragraph of article L. 611-6.

“Financial administrations, social security organizations, institutions managing the unemployment insurance scheme provided for by Articles L. 351-3 et seq. Of the Labor Code and institutions governed by Book IX of the Social Security Code may grant debt relief under the conditions set out in Article L. 626-6 of this code.

“The conciliator reports to the president of the court on the progress of his mission and makes all useful observations on the debtor’s due diligence.

“If, during the procedure, the debtor is sued by a creditor, the judge who opened this procedure may, at the request of the debtor and after having been informed by the conciliator, apply articles 1244-1 to 1244- 3 of the Civil Code.

“If it is not possible to reach an agreement, the conciliator immediately submits a report to the president of the tribunal. The latter terminates its mission and the conciliation procedure. Its decision is notified to the debtor. “

Article 7


Articles L. 611-8 to L. 611-10 are worded as follows:

“Art. L. 611-8. – I. – The president of the tribunal, at the joint request of the parties, notes their agreement and gives it binding force. It rules on the basis of a certified declaration from the debtor attesting that he was not in suspension of payments when the agreement was concluded, or that the latter terminates it. The decision noting the agreement is not subject to publication and is not subject to appeal. It puts an end to the conciliation procedure.

“II. – However, at the request of the debtor, the court approves the agreement obtained if the following conditions are met:

“1 ° The debtor is not in suspension of payments or the agreement concluded terminates it;

“2 ° The terms of the agreement are such as to ensure the sustainability of the company’s activity;

“3 ° The agreement does not affect the interests of non-signatory creditors, without prejudice to the application which may be made of articles 1244-1 to 1244-3 of the civil code.

“Art. L. 611-9. – The court rules on the approval after having heard or duly summoned the debtor, the creditors parties to the agreement, the representatives of the works council or, failing that, the staff representatives, the conciliator and the Public minister. The professional order or competent authority to which, if applicable, the debtor who exercises a liberal profession subject to a legislative or regulatory status or whose title is protected,

“The tribunal may hear any other person whose hearing it deems useful.

“Art. L. 611-10. – The approval of the agreement puts an end to the conciliation procedure.

“When the debtor is subject to legal control of his accounts, the approved agreement is sent to his auditor. The homologation judgment is filed with the registry where any interested party can take cognizance of it and is the subject of a publicity measure. It is liable to third-party opposition within ten days of this advertisement. The judgment rejecting the approval is not published. It is subject to appeal.

“The approved agreement suspends, for the duration of its execution, any legal action and any individual prosecution both on the movables and the buildings of the debtor in order to obtain payment of the debts which are the subject of it. It suspends, for the same period, the time limits given to the creditors parties to the agreement on pain of forfeiture or cancellation of the rights relating to the claims mentioned in the agreement. The co-obligated and the persons having granted a surety bond or an independent guarantee may avail themselves of the provisions of the approved agreement.

“The approved agreement entails the automatic lifting of any ban on issuing checks in accordance with Article L. 131-73 of the Monetary and Financial Code, implemented on the occasion of the rejection of a check issued before the opening of the conciliation procedure.

“Seized by one of the parties to the homologated agreement, the court, if it finds the non-performance of the commitments resulting from this agreement, pronounces the resolution of this one as well as the forfeiture of any time limit for payment granted. “

Article 8


Article L. 611-11 reads as follows:

“Art. L. 611-11. – In the event of the opening of safeguard proceedings, receivership or subsequent liquidation, the persons who had consented, in the approved agreement mentioned in II of article L. 611-8, to a new contribution in cash to the debtor in order to ensure the continuation of the activity of the company and its sustainability are paid, for the amount of this contribution, by lien before any receivables arising prior to the opening of the conciliation, according to the rank provided for in II of Article L. 622-17 and II of Article L. 641-13. Under the same conditions, the persons who provide, in the approved agreement, a new good or service in order to ensure the continuation of the activity of the company and its sustainability are paid,

“This provision does not apply to contributions made by shareholders and partners of the debtor within the framework of a capital increase.

“The creditors who have signed the agreement cannot benefit directly or indirectly from this provision by virtue of their assistance prior to the opening of conciliation. “

Article 9


Article L. 611-12 reads as follows:

“Art. L. 611-12. – The opening of safeguard, receivership or liquidation proceedings automatically terminates the agreement noted or approved in application of article L. 611-8. In this case, the creditors recover all of their debts and securities, less the sums received, without prejudice to the provisions provided for in Article L. 611-11. “

Article 10


Articles L. 611-13 to L. 611-15 are worded as follows:

“Art. L. 611-13. – The duties of ad hoc agent or conciliator may not be performed by a person having, during the previous twenty-four months, received, in any capacity whatsoever, directly or indirectly, remuneration or payment from the interested debtor, any creditor of the debtor or a person who controls or is controlled by him within the meaning of Article L. 233-16, except in the case of remuneration received in respect of ” an ad hoc mandate or an amicable settlement or conciliation mission carried out for the same debtor or the same creditor. The person thus designated must certify on their honor, when accepting their mandate, that

“The missions of ad hoc representative or conciliator cannot be entrusted to a consular judge in office or having left office for less than five years.

“Art. L. 611-14. – After having obtained the agreement of the debtor, the president of the court fixes the conditions of remuneration of the ad hoc agent, the conciliator and, if necessary, of the expert, during the appointment of the interested party, according to the diligence necessary for the accomplishment of its mission. His remuneration is fixed by order of the president of the court at the end of the mission.

“Appeals against these decisions are brought before the first president of the court of appeal within a time limit set by decree of the Council of State.

“Art. L. 611-15. – Any person who is called to the conciliation procedure or to an ad hoc mandate or who, by virtue of his or her functions, has knowledge of it is bound to confidentiality. “

Article 11


I. – Article L. 612-1 is amended as follows:

1 ° In the second paragraph, the words: “chosen from the list mentioned in article L. 822-1 who exercise their functions under the conditions provided for by the book II, titles I and II, subject to their own rules. The provisions of Article L. 242-27 are applicable ”are deleted;

2 ° The fifth paragraph is deleted.

II. – In the third and fourth paragraphs of Article L. 612-2, after the words: “works council”, the words: “or, failing that, to staff representatives” are inserted.

III. – Article L. 612-3 is amended as follows:

1 ° In the first paragraph, the words: “in article L. 612-1” are replaced by the words: “in articles L. 612-1 and L . 612-4 “;

2 ° The second and third paragraphs are worded as follows:

“In the absence of a response within a time limit set by decree of the Council of State, or if this does not make it possible to be assured of the continuity of operations, the auditor to the accounts invites, in writing, a copy of which is sent to the president of the tribunal de grande instance, the directors to have the collegial body of the legal person deliberate on the facts noted. The auditor is invited to this meeting. The deliberations of the collegial body are communicated to the works council or, failing this, to the staff representatives and to the president of the tribunal de grande instance.

“In the event of non-observance of these provisions, or if the auditor finds that despite the decisions taken the continuity of operations remains compromised, a general meeting is convened under the conditions and deadlines set by decree in the Council of State. The auditor draws up a special report which is presented to this meeting. This report is communicated to the works council or, failing that, to the employee representatives. “;

3 ° A paragraph worded as follows is added:

“The provisions of this article are not applicable when a conciliation or safeguard procedure has been initiated by the directors in application of articles L. 611-6 and L. 620-1. . “

IV. – Article L. 612-4 is amended as follows:

1 ° In the second paragraph, the words and the sentence: “chosen from the list mentioned in Article L. 822-1 who exercise their functions under the conditions provided for in Book II, subject to their own rules. The provisions of article L. 242-27 are applicable. »Are deleted;

2 ° The last three paragraphs are deleted.


Chapter II

Provisions relating to safeguard

 

Article 12


Article L. 620-1 reads as follows:

“Art. L. 620-1. – A safeguard procedure is instituted at the request of a debtor mentioned in Article L. 620-2 which justifies difficulties, which he is not able to overcome, such as to lead him to cessation payments. This procedure is intended to facilitate the reorganization of the company in order to allow the continuation of economic activity, the maintenance of employment and the discharge of liabilities.

“The safeguard procedure gives rise to a plan adopted by judgment at the end of an observation period and, where applicable, to the establishment of two creditors’ committees, in accordance with the provisions of Articles L. 626-29 and L. 626-30. “

Article 13


Article L. 620-2 reads as follows:

“Art. L. 620-2. – The safeguard procedure is applicable to any trader, to any person registered in the trade register, to any farmer, to any other natural person exercising an independent professional activity, including a liberal profession subject to a legislative or regulatory statute or whose title is protected, as well as to any legal person governed by private law.

“No new safeguard proceedings may be opened with regard to a person already subject to such proceedings, or to judicial reorganization or liquidation proceedings, as long as they have not been terminated. operations of the resulting plan or that the liquidation procedure has not been closed. “

Article 14


Article L. 621-1 reads as follows:

“Art. L. 621-1. – The court rules on the opening of the procedure, after having heard or duly summoned the debtor and the representatives of the works council or, failing that, the staff representatives. He can also hear any person whose hearing seems useful to him.

“In addition, when the debtor exercises a liberal profession subject to a legislative or regulatory statute or whose title is protected, the court decides after having heard or duly called, under the same conditions, the professional order or the competent authority of which , where appropriate, it reports.

“The court may, before ruling, appoint a judge to collect all information on the financial, economic and social situation of the company. This judge may apply the provisions provided for in article L. 623-2. He can be assisted by any expert of his choice.

“The opening of a safeguard procedure with regard to a debtor who has or has benefited from an ad hoc mandate or from a conciliation procedure within the preceding eighteen months must be examined in the presence of the Public minister.

“In this case, the court may, of its own motion or at the request of the public prosecutor, obtain communication of the documents and acts relating to the ad hoc mandate or to the conciliation, notwithstanding the provisions of article L. 611-15. “

Article 15


Article L. 621-2 is amended as follows:

1 ° The third sentence of the first paragraph is deleted;

2 ° After the first paragraph, a paragraph worded as follows is inserted:

“The open procedure may be extended to one or more other persons in the event of confusion of their assets with that of the debtor or of fictitiousness of the legal person. To this end, the court which opened the initial proceedings remains competent. “;

3 ° The second paragraph is deleted.

Article 16


Article L. 621-3 is thus amended:

1 ° The first paragraph is deleted;

2 ° The first sentence of the second paragraph reads as follows:

“The judgment opens an observation period of a maximum duration of six months which may be renewed once by reasoned decision at the request of the administrator, the debtor or the Public minister. “;

3 ° After the second paragraph, a paragraph worded as follows is inserted:

“In the case of an agricultural operation, the court may extend the duration of the observation period according to the current growing year and uses specific to the production of the farm. “;

4 ° The last paragraph is deleted.

Article 17


Articles L. 621-4 and L. 621-5 are worded as follows:

“Art. L. 621-4. – In the opening judgment, the court appoints the judge-commissioner whose functions are defined in article L. 621-9. It may, if necessary, designate more than one.

“He invites the works council or, failing that, the staff representatives to appoint a representative from among the company’s employees. In the absence of a works council and staff representatives, the employees elect their representative, who exercises the functions devolved to these institutions by the provisions of this title. The terms of designation or election of the employee representative are specified by decree of the Council of State. When no employee representative can be appointed or elected, a deficiency report is drawn up by the company manager.

“In the same judgment, without prejudice to the possibility of appointing one or more experts for a mission that it determines, the court appoints two legal representatives who are the judicial representative and the judicial administrator, whose functions are respectively defined in article L. 622-20 and article L. 622-1. He may, at the request of the public prosecutor, appoint several judicial representatives or several judicial administrators. In the case provided for in the fourth paragraph of Article L. 621-1, the public prosecutor may oppose the designation of the person previously appointed as ad hoc representative or conciliator within the framework of a mandate or a procedure concerning the same debtor.

“However, the court is not required to appoint a receiver when the proceedings are opened for the benefit of a person whose number of employees and turnover excluding tax are below the thresholds set by decree in Council of ‘State. In this case, the provisions of Chapter VII of this Title are applicable. Until the judgment deciding the plan, the court may, at the request of the debtor, the judicial representative or the public prosecutor, decide to appoint a judicial administrator.

“For the purposes of carrying out the inventory and valuation provided for in article L. 622-6, the court appoints a judicial auctioneer, a bailiff, a notary or a sworn commodity broker.

“Art. L. 621-5. – No relative or ally, up to the fourth degree inclusively, of the business manager or managers, if it is a legal person, can be appointed to one of the functions provided for in article L 621-4 except in cases where this provision prevents the designation of an employee representative. “

Article 18


In the first sentence of the first paragraph of Article L. 621-6, the words: “Articles L. 5 and L. 6” are replaced by the words: “Article L. 6”.

Article 19


Article L. 621-7 reads as follows:

“Art. L. 621-7. – The court may, either ex officio or on a proposal from the judge-commissioner or at the request of the public prosecutor, replace the administrator, expert or legal representative.

“The court may add, under the same conditions, one or more administrators or legal representatives to those already appointed. The administrator, the judicial representative or a creditor appointed controller may ask the judge-commissioner to apply to the court for this purpose.

“When the debtor exercises a liberal profession subject to a legislative or regulatory statute or whose title is protected, the professional order or the competent authority including, where applicable,

“The debtor can ask the judge-commissioner to seize the court to replace the administrator or the expert. Under the same conditions, creditors can request the replacement of the judicial representative.

“The works council or, failing that, the staff representatives or, failing that, the company’s employees can only replace the employee representative. “

Article 20


In the two paragraphs of Article L. 621-8, the words: “public prosecutor” are replaced by the words: “public prosecutor”.

Article 21


Article L. 621-9 is supplemented by a paragraph worded as follows:

“When the appointment of a technician is necessary, only the judge-commissioner may proceed with a view to a mission that he determines, without prejudice to the faculty for the court provided for in Article L. 621-4 to appoint one or more experts. The conditions of the remuneration of this technician are fixed by a decree in the Council of State. “

Article 22


Articles L. 621-10 to L. 621-12 are worded as follows:

“Art. L. 621-10. – The judge-commissioner appoints one to five controllers from among the creditors who so request. When it designates several supervisors, it ensures that at least one of them is chosen from among the creditors holding security interests and that another is chosen from among the unsecured creditors.

“No relative or allied up to the fourth degree inclusive of the business manager or the directors of the legal person, nor any person directly or indirectly holding all or part of the capital of the debtor legal person or whose capital is held in whole or party by this same person, cannot be appointed controller or representative of a legal person appointed as controller.

“When the debtor exercises a liberal profession subject to a legislative or regulatory statute or whose title is protected, the professional order or the competent authority to which, where applicable, he is responsible is ex officio controller. In this case, the judge-commissioner cannot appoint more than four controllers.

“The controller’s liability is only engaged in the event of gross negligence. He may be represented by one of his officials or by a lawyer ministry. Any creditor appointed as controller may be dismissed by the court at the request of the public prosecutor.

“Art. L. 621-11. – The controllers assist the judicial representative in his functions and the judge-commissioner in his mission of monitoring the administration of the company. They can take cognizance of all the documents sent to the administrator and the legal representative. They are bound by confidentiality. Controller functions are free.

“Art. L. 621-12. – If it appears, after the opening of the procedure, that the debtor was already in suspension of payments at the time of the pronouncement of the judgment, the court shall note this and fix the date under the conditions provided for in the second paragraph of article L. 631-8. It converts the safeguard procedure into a judicial reorganization procedure. If necessary, he can modify the length of the period of

“The court is seized by the administrator, the judicial representative or the public prosecutor. It can also be seized ex officio. He decides after having heard or duly called the debtor. “

Article 23


Article L. 622-1 is amended as follows:

1 ° I and II are worded as follows :

“I. – The administration of the company is ensured by its manager.

“II. – When the court, in application of the provisions of article L. 621-4, appoints one or more administrators, it charges them together or separately to supervise the debtor in his management or to assist him for all the acts of management or for some of them. “;

2 ° IV is worded as follows:

“IV. – At any time, the court can modify the administrator’s mission at the request of the administrator, the legal representative or the public prosecutor. “

Article 24


Article L. 622-6 reads as follows:

“Art. L. 622-6. – As of the opening of the procedure, an inventory is drawn up and an appraisal of the debtor’s assets as well as the guarantees which encumber him is carried out. This inventory, given to the administrator and the legal representative, is completed by the debtor by mentioning the assets he holds that may be claimed by a third party.

“The debtor gives the administrator and the judicial representative the list of his creditors, the amount of his debts and the main contracts in progress. He informs them of the pending proceedings to which he is a party.

“The administrator or, if one has not been appointed, the judicial representative may, notwithstanding any legislative or regulatory provision to the contrary, obtain communication from the administrations and public bodies, the provident and social security bodies, credit as well as the departments responsible for centralizing banking risks and payment incidents, information likely to give him exact information on the debtor’s financial situation.

“When the debtor exercises a liberal profession subject to a legislative or regulatory statute or whose title is protected, the inventory is drawn up in the presence of a representative of the professional order or of the competent authority, including, where applicable, it belongs. Under no circumstances may the inventory infringe professional secrecy if the debtor is subject to it.

“The absence of an inventory does not prevent the exercise of claims or restitution actions.

“A decree in the Council of State sets the conditions for the application of this article. “

Article 25


Article L. 622-7 is amended as follows:

1 ° The first paragraph is worded as follows:

“The judgment opening the procedure automatically prohibits the payment of any debt arising prior to the opening judgment, with the exception of payment by offsetting related claims. It also automatically prohibits the payment of any debt arising after the opening judgment, not mentioned in I of article L. 622-17, with the exception of debts linked to the daily needs of the debtor. natural person and maintenance claims. “;

2 ° In the first sentence of the last paragraph, after the words: “at the request of any interested party”, the words: “or of the public prosecutor” are inserted.

Article 26


In the first paragraph of Article L. 622-8, the words: “recovery or in the event of liquidation” and the words: “continuation” are deleted.

Article 27


In article L. 622-9, the references: “L. 621-27 to L. 621-35” are replaced by the references: “L. 622-10 to L. 622-16”.

Article 28


Articles L. 622-10 to L. 622-12 are worded as follows:

“Art. L. 622-10. – At any time during the observation period, the court, at the request of the debtor, the administrator, the legal representative, a controller, the public prosecutor or ex officio, may order the partial cessation of the activity.

“Under the same conditions, it converts the proceedings into judicial reorganization, if the conditions of article L. 631-1 are met, or pronounces judicial liquidation, if the conditions of article L. 640-1 are met. .

“It rules after having heard or duly called the debtor, the administrator, the legal representative, the controllers and the representatives of the works council or, failing that, the staff representatives, and having collected the

“When converting the safeguard proceedings into receivership proceedings, the court may, if necessary, modify the length of the observation period remaining to run.

“Art. L. 622-11. – When the court pronounces the liquidation, it puts an end to the observation period and, subject to the provisions of article L. 641-10, to the mission of the administrator.

“Art. L. 622-12. – When the difficulties which justified the opening of the procedure have disappeared, the court puts an end to them at the request of the debtor. It rules under the conditions provided for in the third paragraph of Article L. 622-10. “

Article 29


Article L. 622-13 is amended as follows:

1 ° The first sentence of the fifth paragraph reads as follows:

“If the administrator does not exercise the right to continue the contract or terminates it under the conditions of the second paragraph , non-performance may give rise to damages, the amount of which must be declared as a liability for the benefit of the other contracting party. “;

2 ° In the second sentence of the fifth paragraph, the words “damages” are replaced by the words: “damages”;

3 ° In the sixth paragraph, the words: “judicial reorganization proceedings” are replaced by the words: “safeguard proceedings”.

Article 30


Article L. 622-14 reads as follows:

“Art. L. 622-14. – The termination of the lease of the buildings leased to the debtor and assigned to the activity of the company is noted or pronounced:

“1 ° When the administrator decides not to continue the lease and requests its termination. In this case, the termination takes effect on the day of this request;

“2 ° When the lessor requests the termination or has the termination of the lease recorded for failure to pay rents and charges relating to an occupation subsequent to the opening judgment, the lessor can only act after a period of three months from the said judgment.

“If the payment of the sums due takes place before the expiry of this period, there is no reason for termination.

“Notwithstanding any clause to the contrary, failure to operate during the observation period in one or more buildings rented by the company does not result in termination of the lease. “

Article 31


In Article L. 622-15, the words: “unenforceable against the administrator” are replaced by the words: “deemed unwritten”.

Article 32


Article L. 622-16 is amended as follows:

1 ° In the first paragraph, the words: “receivership” are replaced by the words: “safeguard procedure”;

2 ° In the second paragraph, the words: “damages” are replaced by the words: “damages”.

Article 33


Article L. 622-17 is amended as follows:

1 ° I and II are worded as follows :

“I. – Claims arising regularly after the opening judgment for the purposes of the conduct of the procedure or the period of observation, or in return for a service provided to the debtor, for his professional activity, during this period, are paid when due.

“II. – When they are not paid when due, these debts are paid by privilege before all other debts, whether or not accompanied by privileges or sureties, with the exception of those guaranteed by the privilege established in articles L. 143- 10, L. 143-11, L. 742-6 and L. 751-15 of the Labor Code, those guaranteed by the privilege of legal costs and those guaranteed by the privilege established by article L. 611- 11 of this code. “;

2 ° 3 ° of III is thus amended:

a) In the first sentence, the words: “by credit institutions” are deleted;

b) At the end of the second sentence, the words: “of this provision” are replaced by the words: “of this article”;

3 ° An IV is added as follows:

“IV. – Unpaid debts lose the privilege conferred on them by this article if they have not been brought to the attention of the judicial representative and the administrator when he has been appointed or, when these bodies have ceased their functions, from plan execution commissioner or liquidator, within one year of the end of the observation period. “

Article 34


Article L. 622-20 is amended as follows:

1 ° The first paragraph reads as follows:

“The legal representative appointed by the court has sole capacity to act in the name and in the collective interest of the creditors. However, in the event of failure of the judicial representative, any creditor appointed controller may act in this interest under conditions set by decree of the Council of State. “;

2 ° In the second paragraph, the words: “public prosecutor” are replaced by the words: “public prosecutor”;

3 ° In the last paragraph, the words: “following the actions of the representative of the creditors” are replaced by the words: “following the actions brought by the legal representative or, failing that, by the named creditors controllers, ”.

Article 35


In the first paragraph of I of Article L. 622-21, the word: “suspend” is replaced by the word: “interrupts”, and the words: “has its origin prior to the said judgment” are replaced by the words: “Is not mentioned in I of article L. 622-17”.

Article 36


Article L. 622-22 is thus amended:

1 ° In the first sentence, the word: “suspended” is replaced by the word: “interrupted”;

2 ° In the second sentence, after the words “the administrator”, are inserted the words: “or the commissioner for the execution of the plan appointed in application of article L. 626-25”.

Article 37


Article L. 622-24 is amended as follows:

1 ° In the first sentence of the first paragraph, the words: “has its origin” are replaced by the words: “was born”;

2 ° The second sentence of the first paragraph is replaced by two sentences worded as follows:

“Creditors holding a published security or linked to the debtor by a published contract are notified personally or, if applicable, at their elected address. The declaration period begins with regard to them from the notification of this warning. “;

3 ° After the first sentence of the third paragraph, a sentence worded as follows is inserted:

“Those for which the amount has not yet been definitively fixed are declared on the basis of an evaluation. “;

4 ° Are added two paragraphs thus worded:

“Claims arising regularly after the opening judgment, other than those mentioned in I of Article L. 622-17 and maintenance claims, are subject to the provisions of this article. The deadlines run from the due date of the debt. However, creditors whose debts result from a successively executed contract declare all the sums due to them under the conditions provided for by decree of the Council of State.

“The time limit for the declaration by a civil party of claims arising from a criminal offense runs from the date of the final decision which fixes the amount. “

Article 38


Article L. 622-26 reads as follows:

“Art. L. 622-26. – In the absence of a declaration within the time limits set by decree in the Council of State, creditors are not admitted to distributions and dividends unless the judge-commissioner relieves them of their foreclosure if they establish that their default does not ‘is not due to them or that it is due to a voluntary omission by the debtor when establishing the list provided for in the second paragraph of Article L. 622-6. They can then only compete for distributions subsequent to their request.

“The action to release foreclosure can only be exercised within six months. This period starts from the publication of the opening judgment or, for the institutions mentioned in Article L. 143-11-4 of the Labor Code, from the expiration of the period during which the claims resulting from the employment contract are guaranteed by these institutions. For creditors holding published security or linked to the debtor by a published contract, it runs from receipt of the notice given to them. As an exception, the period is extended to one year for creditors who are unable to know the existence of their claim before the expiration of the aforementioned six-month period. “

Article 39


Article L. 622-28 is amended as follows:

1 ° The first paragraph is worded as follows:

“The opening judgment sets the course of legal and contractual interest, as well as all late interest and surcharges, unless it does not concern interest resulting from loan contracts concluded for a period equal to or greater than one year or contracts with a deferred payment of one year or more. Individuals who are sureties, co-obligated or who have given an independent guarantee may avail themselves of the provisions of this paragraph. “;

2 ° The first sentence of the second paragraph is worded as follows:

“The opening judgment suspends until the judgment stopping the plan or pronouncing the liquidation any action against the natural persons co-obligated or having granted a surety or an independent guarantee. “;

3 ° In the last paragraph, the word: “sureties” is replaced by the word: “guarantees”.

Article 40


In article L. 622-29, the words: “of judicial recovery” are deleted.

Article 41


The first paragraph of Article L. 622-30 reads as follows:

“Mortgages, pledges and privileges can no longer be registered after the opening judgment. The same applies to legal acts and decisions translating or constituting real rights, unless these acts have acquired a certain date or these decisions have become enforceable before the opening judgment. “

Article 42


I. – In Articles L. 622-31 and L. 622-32, the words: “of judicial reorganization” are replaced by the words: “of safeguard”.

II. – In Article L. 622-33, the words: “in a state of receivership” are replaced by the words: “subject to a safeguard procedure”.

Article 43


Article L. 623-1 is amended as follows:

1 ° The second sentence of the first paragraph is deleted;

2 ° After the third paragraph, a paragraph is inserted as follows:

“In view of this report, the administrator proposes a safeguard plan, without prejudice to the application of the provisions of article L. 622-10. “;

3 ° The fourth to seventh paragraphs are deleted.

Article 44


Article L. 623-2 is thus amended:

1 ° After the words: “the statutory auditors,”, are inserted the words: “the accountants,”;

2 ° The words: “economic and financial situation of the enterprise” are replaced by the words: “economic, financial, social and patrimonial situation of the debtor”.

Article 45


Article L. 623-3 is amended as follows:

1 ° In the second paragraph, the words: “in application of article L. 621-3” are replaced by the words: “with regard to a company which benefits from the approved amicable agreement provided for in article L. 611-8 of this code or in article L. 351-6 of the rural code ”, and the reference:“ L. 611-3 ”is replaced by the reference: “L. 611-6”;

2 ° In the third paragraph, the words: “the debtor and” are deleted, and the same paragraph is completed by a sentence worded as follows:

“He informs the debtor and collects his observations and proposals. “;

3 ° The fourth paragraph is amended as follows:

a) In the first sentence, the words: “the debtor,” are deleted;

b) In the second sentence, after the words: “consult them”, the words: “, as well as the debtor,” are inserted;

4 ° A paragraph worded as follows is added:

“When the debtor exercises a liberal profession subject to a legislative or regulatory statute or whose title is protected, the administrator consults the professional order or the competent authority, where applicable , notes the debtor. “

Article 46


The second paragraph of Article L. 624-1 is supplemented by the words: “, except for claims declared after this period, in application of the last two paragraphs of Article L. 622-24”.

Article 47


I. – In the first paragraph of Article L. 624-3, the words: “of this subsection” are replaced by the words: “of this section”, and the words: “, to the administrator when his mission is to ensure administration ”are deleted.

II. – In Article L. 624-4, the words: “to this subsection” are replaced by the words: “to this section”.

Article 48


In article L. 624-5, the words: “of judicial reorganization” are replaced by the words: “of safeguard”, and the same article is completed by the words: “and under the conditions provided for by article L . 624-9 ”.

Article 49


Article L. 624-8 reads as follows:

“Art. L. 624-8. – The spouse of the debtor who, at the time of his marriage, in the year thereof or in the following year, was a trader, registered in the trade register, farmer or who exercised any other independent professional activity, cannot exercise in the safeguard procedure no action on account of the advantages made by one of the spouses to the other, in the marriage contract or during the marriage. Creditors, for their part, cannot avail themselves of the advantages granted by one of the spouses to the other. “

Article 50


In article L. 624-9, the words: “judicial reorganization or immediate judicial liquidation” are deleted.

Article 51


Article L. 624-10 is supplemented by a sentence worded as follows:

“He can claim the restitution of his property under conditions set by decree of the Council of State. “

Article 52


Article L. 624-11 reads as follows:

“Art. L. 624-11. – The privilege and the right of claim established by 4 ° of article 2102 of the civil code for the benefit of the seller of furniture as well as the resolving action can only be exercised within the limits of the provisions of articles L. 624-12 to L. 624-18 of this code. “

Article 53


In the first and second paragraphs of Article L. 624-12, the words: “judicial recovery” are replaced by the words: “the procedure”.

Article 54


The last paragraph of article L. 624-16 reads as follows:

“In all cases, there is no need to claim if, on the decision of the judge-commissioner, the price is paid immediately. The bankruptcy judge may also, with the consent of the requesting creditor, grant a settlement period. The payment of the price is then assimilated to that of the receivables mentioned in I of article L. 622-17. “

Article 55


I. – Article L. 624-17 is worded as follows:

“Art. L. 624-17. – The administrator or, failing that, the debtor after agreement of the judicial representative may acquiesce to the demand for reclamation or restitution of property referred to in this section, with the agreement of the debtor. In the absence of agreement or in the event of a dispute, the request is brought before the judge-commissioner who rules on the fate of the contract, in view of the observations of the creditor, the debtor and the legal representative seized. “

II. – In article L. 624-18, the words: “judicial reorganization” are deleted.

Article 56


The first sentence of the last paragraph of Article L. 625-1 is deleted.

Article 57


In the first sentence of Article L. 625-2, the words: “The statement of claims resulting from employment contracts is” are replaced by the words: “The statements of claims resulting from employment contracts are”, and the reference: “L. 621-8” is replaced by the reference: “L. 621-4”.

Article 58


I. – Article L. 625-3 is amended as follows:

1 ° The first paragraph is worded as follows:

“Proceedings in progress before the industrial tribunal on the date of the judgment opening the safeguard are continued in the presence of the judicial representative or the latter duly called. “;

2 ° At the end of the second paragraph, the words: “judicial reorganization” are deleted;

3 ° The last paragraph is deleted.

II. – In Articles L. 625-7 and L. 625-8, the words: “judicial reorganization or judicial liquidation” are replaced by the words: “safeguard”.

Article 59


Article L. 626-1 reads as follows:

“Art. L. 626-1. – When there is a serious possibility for the company to be safeguarded, the court adopts a plan for this purpose which ends the observation period.

“This safeguard plan includes, if necessary, the stopping, addition or transfer of one or more activities. Transfers made in application of this article are subject to the provisions of section 1 of chapter II of title IV. The judicial representative exercises the missions entrusted to the liquidator by these provisions. “

Article 60


Article L. 626-2 reads as follows:

“Art. L. 626-2. – The draft plan determines the prospects for recovery according to the possibilities and modalities of activities, the state of the market and the means of financing available.

“It defines the terms of settlement of liabilities and any guarantees that the business manager must subscribe to ensure their execution.

“This project exposes and justifies the level and prospects of employment as well as the social conditions envisaged for the continuation of activity. When the project provides for redundancies for economic reasons, it recalls the measures already taken and defines the actions to be taken in order to facilitate the redeployment and compensation of employees whose jobs are threatened. The project takes into account the work identified by the environmental assessment.

“It identifies, appends and analyzes the acquisition offers relating to one or more activities, presented by third parties. It indicates the activity or activities for which the shutdown or addition is proposed. “

Article 61


The first paragraph of Article L. 626-3 reads as follows:

“When the draft plan provides for a change in capital, the extraordinary general meeting or the shareholders’ meeting as well as, when their approval is necessary, the general meetings special meetings mentioned in Articles L. 225-99 and L. 228-35-6 or the general meetings of the masses referred to in Article L. 228-103 are convened under conditions defined by decree of the Council of State. “

Article 62


Article L. 626-4 is amended as follows:

1 ° The first paragraph reads as follows:

“When the safeguard of the company so requires, the court, at the request of the public prosecutor, may make the adoption of the plan subject to replacement of one or more directors of the company, except when the debtor exercises a liberal professional activity subject to a legislative or regulatory status. “;

2 ° The second paragraph is worded as follows:

“To this end and under the same conditions, the court may order the non-transferability of company shares, equity securities or securities giving access to the capital, held by one or more de jure or de facto directors and decide that the right to vote attached will be exercised, for a period that he fixes, by a legal representative appointed for this purpose. Likewise, it can order the sale of these shares, equity securities or securities giving access to the capital held by these same persons, the sale price being fixed by expert opinion. “

Article 63


Articles L. 626-5 to L. 626-7 are worded as follows:

“Art. L. 626-5. – The proposals for the settlement of debts are, as they are drawn up and under the supervision of the statutory auditor, communicated by the administrator to the legal representative, to the controllers as well as to the works council or, failing that, to staff representatives.

“The legal representative collects individually or collectively the agreement of each creditor who has declared his claim in accordance with Article L. 622-24, on the deadlines and discounts offered to him. In the event of consultation in writing, failure to respond within thirty days of receipt of the letter from the legal representative, constitutes acceptance. These provisions are applicable to the institutions referred to in Article L. 143-11-4 of the Labor Code for the sums mentioned in the fourth paragraph of Article L. 622-24, even if their claims have not yet been declared.

“Art. L. 626-6. – Financial administrations, social security bodies, institutions managing the unemployment insurance scheme provided for by Articles L. 351-3 et seq. Of the Labor Code and institutions governed by Book IX of the Social Security Code may accept, concomitantly with the effort made by other creditors, to remit all or part of its debts to the debtor under conditions similar to those which would be granted to it, under normal market conditions, by a private economic operator placed in the same situation .

“In this context, the financial administrations can remit all the direct taxes collected for the benefit of the State and the territorial collectivities as well as the various products of the State budget due by the debtor. With regard to indirect taxes collected for the benefit of the State and local authorities, only late interest, surcharges, penalties or fines may be subject to a discount.

“The conditions for the remission of the debt are fixed by decree in the Council of State.

“The creditors referred to in the first paragraph may also decide on assignments of rank of privilege or mortgage or on the abandonment of these securities.

“Art. L. 626-7. – The judicial representative draws up a statement of the responses made by the creditors. This report is sent to the debtor and to the administrator with a view to drawing up his report, as well as to the controllers. “

Article 64


Article L. 626-8 is amended as follows:

1 ° In the first paragraph, the words: “a controller” are replaced by the words: “the controller (s)”, and after the words: “the report”, are inserted the words: “, presenting the economic and social balance sheet and the draft plan,”;

2 ° The last paragraph reads as follows:

“The public prosecutor receives communication of the report. “

Article 65


Article L. 626-9 reads as follows:

“Art. L. 626-9. – After having heard or duly called the debtor, the administrator, the legal representative, the controllers as well as the representatives of the works council or, failing that, the staff representatives, the court rules on the basis of the administrator’s report. , after having obtained the opinion of the public prosecutor. When the procedure is opened for the benefit of a debtor who employs a number of employees or who has a turnover excluding tax above thresholds set by decree in the Council of State, the discussions must take place in the presence of the Public minister. “

Article 66


Article L. 626-10 is amended as follows:

1 ° In the first sentence of the first paragraph, the words: “to the recovery” are replaced by the words: “to the safeguard”;

2 ° In the last paragraph, the references: “L. 621-58, L. 621-74, L. 621-88, L. 621-91 and L. 621-96” are replaced by the references: “L. 626-3 and L. 626-16 ”.

Article 67


Article L. 626-11 reads as follows:

“Art. L. 626-11. – The judgment which fixes the plan makes its provisions enforceable against all.

“With the exception of legal persons, co-obligated persons and persons who have granted a surety bond or an independent guarantee may avail themselves of it. “

Article 68


Article L. 626-12 reads as follows:

“Art. L. 626-12. – Without prejudice to the application of the provisions of article L. 626-18, the duration of the plan is fixed by the court. It cannot exceed ten years. When the debtor is a farmer, it cannot exceed fifteen years. “

Article 69


Article L. 626-13 reads as follows:

“Art. L. 626-13. – The termination of the plan by the court entails the automatic lifting of any ban on issuing checks in accordance with Article L. 131-73 of the Monetary and Financial Code, implemented on the occasion of the rejection of checks. a check issued before the judgment opening the procedure. “

Article 70


Article L. 626-14 is amended as follows:

1 ° The first paragraph is supplemented by a sentence worded as follows:

“The duration of inalienability cannot exceed that of the plan. “;

2 ° In the second paragraph, the words: “for buildings in accordance with the provisions of article 28 of decree n ° 55-22 of 4 January 1955 reforming land registration and for movable capital goods at the registry of the court under the conditions provided for by decree of the Council of State “are replaced by the words:” under conditions fixed by decree of the Council of State “;

3 ° In the first sentence of the last paragraph, after the words: “at the request of any interested party”, the words: “or of the public prosecutor” are inserted.

Article 71


In article L. 626-15, the word: “continuation” is replaced by the word: “reorganization”.

Article 72


Article L. 626-16 reads as follows:

“Art. L. 626-16. – In case of necessity, the judgment which adopts the plan gives the administrator a mandate to convene, under conditions fixed by decree in the Council of State, the assembly competent to implement the modifications provided for by the plan. “

Article 73


Article L. 626-18 is amended as follows:

1 ° In the first sentence, the words: “in the second and third paragraphs of Article L. 621-60” are replaced by the words: “in the second paragraph of l article L. 626-5 and article L. 626-6 ”;

2 ° The third sentence of the first paragraph is completed by the words: “which may exceed the duration of the plan”;

3 ° The second paragraph is replaced by two paragraphs worded as follows:

“The first payment cannot be made beyond a period of one year.

“Beyond the second year, the amount of each of the annuities provided for in the plan may not, except in the case of an agricultural operation, be less than 5% of the admissible liabilities. “

Article 74


The second paragraph of Article L. 626-19 is deleted.

Article 75


Article L. 626-21 is thus amended:

1 ° In the third paragraph, the words: “or if the plan does not provide otherwise” are deleted;

2 ° A paragraph worded as follows is added:

“The court shall fix the terms of payment of the dividends fixed by the plan. Dividends are paid into the hands of the plan execution auditor, who distributes them. “

Article 76


In the first paragraph of Article L. 626-22, after the words: “or a mortgage,”, are inserted the words: “the share of the price corresponding to the debts guaranteed by these sureties is paid into the account. deposit at the Caisse des Dépôts et Consignations and ”.

Article 77


In Article L. 626-23, the words: “to the company” are replaced by the words: “to the debtor”.

Article 78


Article L. 626-24 is amended as follows:

1 ° The first paragraph is worded as follows:

“The court may instruct the administrator to carry out the acts necessary for the implementation of the plan, which he determines. “;

2 ° At the end of the second paragraph, the words: “on the verification of claims” are replaced by the words: “on the verification and final establishment of the statement of claims”.

Article 79


Article L. 626-25 is amended as follows:

1 ° The first paragraph is worded as follows:

“The court appoints, for the period fixed in article L. 626-12, the administrator or the judicial representative as commissioner responsible for overseeing the execution of the plan. The court may, if necessary, appoint several commissioners. “;

2 ° The second paragraph is replaced by two paragraphs worded as follows:

“Actions brought before the judgment adopting the plan and to which the administrator or the legal representative is a party are prosecuted by the commissioner for the execution of the plan or, if the – he is no longer in office, by a legal representative specially appointed for this purpose by the court.

“The plan execution commissioner is also empowered to initiate actions in the collective interest of creditors. “;

3 ° In the first sentence of the fourth paragraph, the words: “public prosecutor” are replaced by the words: “public prosecutor”;

4 ° A paragraph worded as follows is added:

“The commissioner for the execution of the plan may be replaced by the court, either ex officio or at the request of the public prosecutor. “

Article 80


Article L. 626-26 reads as follows:

“Art. L. 626-26. – A substantial modification in the objectives or the means of the plan can only be decided by the court, at the request of the debtor and on the report of the commissioner for the execution of the plan.

“The court rules after having obtained the opinion of the public prosecutor and having heard or duly called the debtor, the commissioner for the execution of the plan, the controllers, the representatives of the works council or, failing that, the staff representatives and anyone interested. “

Article 81


Article L. 626-27 reads as follows:

“Art. L. 626-27. – I. – The court which adopted the plan may, after consulting the public prosecutor, decide its resolution if the debtor does not perform his commitments within the time limits set by the plan. When the non-performance results from a default in the payment of dividends by the debtor and the court has not pronounced the plan to be terminated, the plan execution commissioner proceeds, in accordance with the provisions adopted, to their recovery.

“When the cessation of payments by the debtor is noted during the execution of the plan, the court which arrested the latter decides, after consulting the public prosecutor, its resolution and pronounces judicial liquidation.

“The judgment pronouncing the resolution of the plan puts an end to operations and forfeits any payment period granted.

“II. – In the cases mentioned in I, the court is referred to by a creditor, the commissioner for the execution of the plan or the public prosecutor. It can also be seized ex officio.

“III. – After resolution of the plan and opening or pronouncement of the new procedure, the creditors subject to this plan are exempted from declaring their debts and sureties. Receivables included in this plan are automatically admitted, after deduction of sums already collected. “

Article 82


Article L. 626-28 reads as follows:

“Art. L. 626-28. – When it is established that the commitments set out in the plan or decided by the court have been kept, the latter, at the request of the commissioner for the execution of the plan, the debtor or any interested party, notes that the execution of the plan is completed. “

Article 83


Articles L. 626-29 to L. 626-35 are worded as follows:

“Art. L. 626-29. – Debtors whose accounts have been certified by an auditor or drawn up by a chartered accountant and whose number of employees or turnover exceeds thresholds set by decree of the Council of State are subject to the provisions of this section.

“At the request of the debtor or the administrator, the judge-commissioner may authorize that it also be applied below this threshold.

“Art. L. 626-30. – Credit institutions and the main suppliers of goods or services are brought together in two committees of creditors by the insolvency administrator, within thirty days of the judgment opening the procedure. Each supplier of goods or services is an ex-officio member of the Committee of Major Suppliers when their receivables represent more than 5% of the total receivables from suppliers. The other suppliers, requested by the administrator, can be members.

“The debtor presents to these committees, within two months of their constitution, renewable once by the judge-commissioner at the request of the debtor or the administrator, proposals for drawing up the draft plan mentioned in article L. 626-2.

“After discussion with the debtor and the receiver, the committees decide on this project, if necessary modified, at the latest within thirty days after the transmission of the debtor’s proposals. The decision is taken by each committee by a majority of its members, representing at least two-thirds of the amount of the debts of all the members of the committee, as indicated by the debtor and certified by its auditor (s). to the accounts or, when one has not been appointed, established by its chartered accountant.

“The draft plan adopted by the committees is subject neither to the provisions of article L. 626-12 nor to those of the second and third paragraphs of article L. 626-18. Local authorities and their public establishments cannot be members of the committee of the main suppliers.

“Art. L. 626-31. – When the draft plan has been adopted by the committees in accordance with the provisions of article L. 626-30, the court ensures that the interests of all creditors are sufficiently protected. In this case, the court shall adopt the plan in accordance with the adopted project and in accordance with the procedures provided for in section 2 of this chapter. Its decision makes the proposals accepted by each committee applicable to all their members.

“By way of derogation from the provisions of Article L. 626-26, a substantial modification in the objectives or the means of the plan adopted by the court in application of the first paragraph can only take place in accordance with the procedures provided for in this section.

“Art. L. 626-32. – When there are bondholders, the receiver summons the representatives of the body, if there is one, within fifteen days from the transmission to the committees of the draft plan, in order to explain it to them. .

“The representatives of the mass then convene a general meeting of bondholders within fifteen days, in order to deliberate on this project. However, in the event of deficiency or absence of the representatives of the body duly noted by the statutory auditor, the administrator convenes the general meeting of bondholders.

“The deliberation can relate to a total or partial abandonment of the bond debts.

“Art. L. 626-33. – Creditors who are not members of the committees set up in application of article L. 626-30 are consulted in accordance with the provisions of articles L. 626-5 to L. 626-7. To this end, the judicial administrator exercises the mission entrusted to the judicial representative by these provisions.

“The provisions of the plan relating to creditors who are not members of the committees established in application of article L. 626-30 are drawn up in accordance with the provisions of articles L. 626-12 and L. 626-18 to L. 626- 20.

“Art. L. 626-34. – When one or other of the committees has not taken a decision on a draft plan within the set time limits, has refused the proposals made to it by the debtor or the court has not decided the plan in application of article L. 626-31, the procedure is repeated to prepare a plan under the conditions provided for in articles L. 626-5 to L. 626-7 so that it is drawn up in accordance with the provisions of articles L. 626-12 and L. 626-18 to L. 626-20. The procedure is resumed following the same modalities when the debtor has not presented his plan proposals to the committees within the set deadlines.

“Art. L. 626-35. – A decree in the Council of State determines the conditions of application of this section. “

Article 84


Article L. 627-1 reads as follows:

“Art. L. 627-1. – The provisions of this chapter are applicable when no judicial administrator has been appointed in application of the penultimate paragraph of article L. 621-4. The other provisions of this title are applicable insofar as they are not contrary to those of this chapter. “

Article 85


Article L. 627-2 reads as follows:

“Art. L. 627-2. – The debtor exercises, after obtaining the assent of the legal representative, the option open to the administrator to pursue contracts in progress in application of article L. 622-13. In the event of disagreement, the commissioner is referred to any interested party. “

Article 86


Article L. 627-3 reads as follows:

“Art. L. 627-3. – During the observation period, the debtor draws up a draft plan with the possible assistance of an expert appointed by the court.

“The debtor communicates to the judicial representative and to the judge-commissioner the proposals for settlement of the liabilities provided for in article L. 626-5 and proceeds to the information and consultations provided for in articles L. 623-3 and L. 626-8.

“For the application of article L. 626-3, the extraordinary general meeting or the shareholders’ meeting as well as, when their approval is necessary, the special meetings mentioned in articles L. 225-99 and L. 228 -35-6 or the general assemblies of the masses referred to in article L. 228-103 are convened under conditions set by decree of the Council of State. The judge-commissioner sets the amount of the capital increase proposed to the meeting to restore shareholders’ equity. “

Article 87


Article L. 627-4 reads as follows:

“Art. L. 627-4. – After the filing of the draft plan by the debtor at the registry, the court rules on the basis of the report of the judge-commissioner ”


Chapter III

Provisions relating to judicial reorganization

 

Article 88


Articles L. 631-1 to L. 631-3 are worded as follows:

“Art. L. 631-1. – A reorganization procedure is instituted open to any debtor mentioned in Articles L. 631-2 or L. 631-3 who, unable to meet the payable liabilities with his available assets, is in suspension of payments.

“The reorganization procedure is intended to allow the continuation of the activity of the company, the maintenance of employment and the discharge of liabilities. It gives rise to a plan adopted by judgment at the end of an observation period and, where applicable, to the establishment of two creditors’ committees, in accordance with the provisions of Articles L. 626-29 and L. 626- 30.

“Art. L. 631-2. – The judicial reorganization procedure is applicable to any trader, to any person registered in the trade register, to any farmer, to any other natural person exercising an independent professional activity including a liberal profession subject to a legislative or regulatory statute or whose title is protected, as well as to any legal person governed by private law.

“No new judicial reorganization proceedings may be opened with regard to a person subject to such a procedure or to a judicial liquidation procedure, as long as the operations of the plan relating to them have not been terminated. results or that the liquidation proceedings have not been closed.

“Art. L. 631-3. – The receivership procedure is also applicable to the persons mentioned in the first paragraph of article L. 631-2 after the cessation of their professional activity if all or part of their liabilities derive from the latter.

“When a trader, a person registered in the trades register, a farmer or any other natural person exercising an independent professional activity, including a liberal profession subject to a legislative or regulatory status or whose title is protected, has died in cessation payments, the court may be seized, within a period of one year from the date of death, on the summons of a creditor, whatever the nature of his claim, or at the request of the public prosecutor. The court may also seize it ex officio within the same time limit and may be seized without delay by any heir of the debtor. “

Article 89


Articles L. 631-4 to L. 631-9 are worded as follows:

“Art. L. 631-4. – The opening of this procedure must be requested by the debtor no later than forty-five days following the cessation of payments if he has not, within this period, requested the opening of a conciliation procedure. .

“In the event of failure of the conciliation procedure, when it emerges from the conciliator’s report that the debtor is in suspension of payments, the court, ex officio, takes action in order to rule on the opening of a legal redress.

“Art. L. 631-5. – When there is no ongoing conciliation procedure, the court may also seize ex officio or be seized upon request of the public prosecutor for the purposes of

“Subject to this same reservation, proceedings can also be opened on the summons of a creditor, whatever the nature of his claim. However, when the debtor has ceased his professional activity, this summons must take place within one year from:

“1 ° Removal from the trade and companies register. In the case of a legal person, the period starts from the cancellation following the publication of the closing of the liquidation operations;

“2 ° The cessation of the activity, if it concerns a person registered in the trades register, a farmer or a natural person exercising an independent professional activity,

“3 ° The publication of the completion of the liquidation, in the case of a legal person not subject to registration.

“In addition, the procedure can only be opened with regard to a debtor carrying on an agricultural activity which is not constituted in the form of a commercial company if the president of the tribunal de grande instance has been seized, previously upon summons, a request for the appointment of a conciliator presented in application of article L. 351-2 of the rural code.

“Art. L. 631-6. – The works council or, failing that, the staff representatives can communicate to the president of the court or to the public prosecutor any fact revealing the cessation of payments by the debtor.

“Art. L. 631-7. – Articles L. 621-1, L. 621-2 and L. 621-3 are applicable to the reorganization proceedings.

“Art. L. 631-8. – The court fixes the date of cessation of payments. If this date is not determined, the cessation of payments is deemed to have occurred on the date of the judgment which establishes it.

“It may be postponed one or more times, without being able to be more than eighteen months prior to the date of the judgment stating the cessation of payments. Except in the event of fraud, it cannot be postponed to a date prior to the final decision having approved an amicable agreement in application of II of article L. 611-8.

“The court is seized by the administrator, the judicial representative or the public prosecutor. He decides after having heard or duly called the debtor.

“The request for modification of the date must be presented to the court within one year after the judgment opening the procedure.

“Art. L. 631-9. – Articles L. 621-4 to L. 621-11 are applicable to the reorganization proceedings. The court may seize it ex officio for the purposes mentioned in the third and fourth paragraphs of article L. 621-4. “

Article 90


Article L. 631-10 is amended as follows:

1 ° In the first paragraph, the words: “shares or certificates of investment or voting rights” are replaced by the words: “equity securities or securities giving access in the capial ” ;

2 ° In the first sentence of the second paragraph, the words: “shares and certificates of investment or voting rights” are replaced by the words: “equity securities or securities giving access to the capital”.

Article 91


In article L. 631-11, the words: “the company manager” are replaced by the words: “the debtor if he is a natural person”.

Article 92


Articles L. 631-12 to L. 631-22 are worded as follows:

“Art. L. 631-12. – In addition to the powers conferred on them by this title, the mission of the administrator (s) is set by the court.

“The latter charges them together or separately to assist the debtor for all acts relating to the management or some of them, or to ensure alone, entirely or in part, the administration of the company. When the director (s) are responsible for ensuring the administration of the company alone and entirely and each of the thresholds mentioned in the fourth paragraph of article L. 621-4 is reached, the court appoints one or more experts for the purposes of to assist them in their management mission. In other cases, he has the right to designate them. The president of the tribunal decides on the remuneration of these experts, which is chargeable to the procedure.

“In his mission, the administrator is bound to respect the legal and contractual obligations incumbent on the debtor.

“At any time, the court can modify the administrator’s mission at the request of the administrator, the legal representative, the public prosecutor or ex officio.

“The administrator operates, under his signature, the bank or postal accounts of which the debtor is the holder when the latter has been the subject of the prohibitions provided for in Articles L. 131-72 or L. 163-6 of the Monetary and Financial Code .

“Art. L. 631-13. – From the opening of the procedure, third parties are allowed to submit to the administrator offers aimed at maintaining the activity of the company, by a total or partial sale of the latter according to the provisions of section 1 of Chapter II of Title IV.

“Art. L. 631-14. – I. – Articles L. 622-2 to L. 622-9 and L. 622-13 to L. 622-33 are applicable to the reorganization proceedings.

“II. – However, natural persons who are co-obligated or who have granted a bond or an independent guarantee cannot avail themselves of the provisions provided for in the first paragraph of Article L. 622-28.

“Art. L. 631-15. – I. – At the latest at the end of a period of two months from the opening judgment, the court orders the continuation of the observation period if it appears to it that the company has capacities for this purpose. sufficient funding. However, when the debtor carries out an agricultural activity, this period may be modified according to the

“The court rules on the basis of a report drawn up by the administrator or, when one has not been appointed, by the debtor.

“II. – At any time during the observation period, the court, at the request of the debtor, the administrator, the legal representative, a controller, the public prosecutor or ex officio, may order the partial cessation of the activity or pronounces judicial liquidation if the conditions provided for in Article L. 640-1 are met.

“It decides after having heard or duly called the debtor, the administrator, the legal representative, the controllers and the representatives of the works council or, failing that, the staff representatives, and having obtained the opinion of the public prosecutor.

“When the court pronounces liquidation, it puts an end to the observation period and, subject to the provisions of article L. 641-10, to the role of the administrator.

“Art. L. 631-16. – If it appears, during the observation period, that the debtor has sufficient sums to pay off the creditors and pay the costs and debts relating to the procedure, the court may terminate it.

“It rules at the request of the debtor, under the conditions provided for in the second paragraph of II of article L. 631-15.

“Art. L. 631-17. – When dismissals for economic reasons are urgent, inevitable and essential during the observation period, the administrator may be authorized by the judge-commissioner to proceed with these dismissals.

“Prior to referral to the statutory auditor, the administrator consults the works council or, failing that, the staff representatives under the conditions provided for in Article L. 321-9 of the Labor Code and informs the authority competent administrative body mentioned in article L. 321-8 of the same code. In support of the request that he sends to the statutory auditor, he attaches the opinion obtained and the justifications for his due diligence with a view to facilitating the compensation and reclassification of employees.

“Art. L. 631-18. – I. – The provisions of Chapters III, IV and V of Title II of this book are applicable to the judicial reorganization proceedings.

“II. – However, the recourse provided for in the first paragraph of article L. 624-3 is also open to the administrator when the latter’s role is to ensure the administration of the company.

“For the application of article L. 625-1, the judicial representative cited before the industrial tribunal or, failing that, the plaintiff calls before the industrial tribunal the institutions referred to in article L. 143 -11-4 of the labor code.

“In addition, for the application of article L. 625-3 of this code, the institutions mentioned in article L. 143-11-4 of the labor code are called into question by the judicial representative or, at failure, by the applicant employees, within ten days of the judgment opening the reorganization procedure or of the judgment converting a safeguard procedure into a reorganization procedure. Likewise, proceedings in progress before the industrial tribunal on the date of the opening judgment are continued in the presence of the administrator, when his role is to ensure administration, or the latter duly called upon.

“Art. L. 631-19. – I. – The provisions of Chapter VI of Title II are applicable to the recovery plan.

“II. – When the plan provides for redundancies for economic reasons, it can only be stopped by the court after the works council or, failing that, the employee representatives have been consulted under the conditions provided for in Article L. 321-9 of the labor code and that the competent administrative authority mentioned in article L. 321-8 of the same code has been informed.

“The plan specifies in particular the layoffs which must occur within one month after the judgment. Within this period, these dismissals occur on simple notification from the administrator, subject to the notice rights provided for by law, collective labor agreements or agreements.

“Art. L. 631-20. – By way of derogation from the provisions of Article L. 626-11, the co-obligated and persons having granted a surety or an independent guarantee cannot avail themselves of the provisions of the plan.

“Art. L. 631-21. – The provisions of Chapter VII of Title II are applicable to the recovery plan.

“During the observation period, the activity is continued by the debtor who exercises the prerogatives vested in the administrator by article L. 631-17 and makes the notifications provided for in the second paragraph of II of article L. 631-19.

“The judicial representative exercises the functions devolved to the administrator by the second and third paragraphs of article L. 631-10.

“Art. L. 631-22. – In view of the administrator’s report, the court may order the total or partial sale of the business if the debtor is unable to ensure its own recovery. With the exception of I of article L. 642-2, the provisions of section 1 of chapter II of title IV are applicable to this transfer. The judicial representative exercises the missions devolved to the liquidator.

“The administrator remains in office to carry out all the acts necessary for the completion of the sale. “

Article 93


In the first paragraph of I of Article L. 632-1, the words: “will have been made by the debtor” are replaced by the words: “have intervened”.

Article 94


The I of article L. 632-1 is supplemented by an 8 ° as follows:

“8 ° Any authorization, exercise and resale of options defined in articles L. 225-177 et seq. Of this code. “

Article 95


Article L. 632-2 is supplemented by a paragraph worded as follows:

“Any notice to third party holder, any seizure, attribution or any opposition can also be canceled when it has been issued or made by a creditor after the date of cessation of payments and with knowledge thereof. “

Article 96


The first sentence of article L. 632-4 reads as follows:

“The nullity action is brought by the administrator, the legal representative, the commissioner for the execution of the plan, the liquidator or the public prosecutor. “

Chapter IV

Provisions relating to judicial liquidation

 

Article 97


Articles L. 640-1 to L. 640-6 are worded as follows:

“Art. L. 640-1. – A judicial liquidation procedure is instituted open to any debtor mentioned in Article L. 640-2 in suspension of payments and whose recovery is clearly impossible.

“The judicial liquidation procedure is intended to put an end to the activity of the company or to realize the assets of the debtor by a global or separate assignment of his rights and his assets.

“Art. L. 640-2. – The judicial liquidation procedure is applicable to any trader, to any person registered in the trades register, to any farmer, to any other natural person exercising an independent professional activity including a liberal profession subject to a legislative or regulatory status or whose title is protected, as well as to any legal person governed by private law.

“A new judicial liquidation procedure cannot be opened with regard to a person subject to such a procedure as long as it has not been closed.

“Art. L. 640-3. – The judicial liquidation procedure is also open to the persons mentioned in the first paragraph of article L. 640-2 after the cessation of their professional activity, if all or part of their liabilities derive from the latter.

“When a trader, a person registered in the trades register, a farmer or any other natural person exercising an independent professional activity, including a liberal profession subject to a legislative or regulatory status or whose title is protected, has died in cessation payments, the court may be seized, within a period of one year from the date of death, on the summons of a creditor, whatever the nature of his claim, or at the request of the public prosecutor. The court may also seize it ex officio within the same time limit. It may be seized without delay by any heir of the debtor.

“Art. L. 640-4. – The opening of this procedure must be requested by the debtor at the latest within forty-five days following the cessation of payments, if he has not within this period requested the opening of a conciliation procedure.

“If the conciliation procedure fails, if the court, ruling in application of the second paragraph of article L. 631-4, finds that the conditions mentioned in article L. 640-1 are met, it opens judicial liquidation proceedings.

“Art. L. 640-5. – When there is no ongoing conciliation procedure, the court may also seize ex officio or be seized at the request of the public prosecutor for the purpose of opening the judicial liquidation procedure.

“Subject to this same reservation, proceedings can also be opened on the summons of a creditor, whatever the nature of his claim. However, when the debtor has ceased his professional activity, this summons must take place within one year from:

“1 ° Removal from the trade and companies register. In the case of a legal person, the period starts from the cancellation following the publication of the closing of the liquidation operations;

“2 ° The cessation of the activity, if it concerns a person registered in the trades register, a farmer or a natural person exercising an independent professional activity,

“3 ° The publication of the completion of the liquidation, in the case of a legal person not subject to registration.

“In addition, the procedure can be opened with regard to a debtor carrying out an agricultural activity which is not constituted in the form of a commercial company that if the president of the tribunal de grande instance has been seized, previously upon summons, a request for the appointment of a conciliator presented in application of article L. 351-2 of the rural code.

“Art. L. 640-6. – The works council or, failing that, the staff representatives can communicate to the president of the court or to the public prosecutor any fact revealing the cessation of payments by the debtor. “

Article 98


Article L. 641-1 reads as follows:

“Art. L. 641-1. – I. – Articles L. 621-1 and L. 621-2 are applicable to the judicial liquidation proceedings.

“II. – In the judgment which opens the judicial liquidation, the court appoints the judge-commissioner and, as liquidator, a registered legal representative or a person chosen on the basis of the first paragraph of II of article L. 812-2. The court may, either on a proposal from the judge-commissioner or at the request of the public prosecutor, or ex officio, replace the liquidator or add one or more liquidators to him. The debtor or a creditor may ask the judge-commissioner to apply to the court for this purpose.

“When the debtor exercises a liberal profession subject to a legislative or regulatory statute or whose title is protected, the professional order or the competent authority to which, where applicable, he falls may apply to the public prosecutor for the purposes mentioned in the first paragraph .

“An employee representative is appointed under the conditions provided for in the second paragraph of article L. 621-4. It is replaced under the conditions provided for in the fifth paragraph of article L. 621-7. He performs the mission provided for in article L. 625-2.

“The controllers are appointed and exercise their powers under the same conditions as those provided for in Title II.

“III. – When the judicial liquidation is pronounced during the period of observation of a safeguard or judicial reorganization procedure, the court appoints the judicial representative as liquidator. However, the court may, by reasoned decision, at the request of the administrator, a creditor, the debtor or the public prosecutor, appoint another person as liquidator under the conditions provided for in article L. 812- 2.

“The court may replace the liquidator or add one or more liquidators to him in accordance with the rules provided for in II of this article.

“When the debtor exercises a liberal profession subject to a legislative or regulatory statute or whose title is protected, the professional order or the competent authority to which, where applicable, he is responsible may apply to the public prosecutor for the purposes mentioned in the first two paragraphs of this III.

“IV. – The date of cessation of payments is set under the conditions provided for in Article L. 631-8. “

Article 99


Article L. 641-2 reads as follows:

“Art. L. 641-2. – The liquidator draws up a report on the debtor’s situation within one month of his appointment, unless the court pronounces judicial liquidation during an observation period. The provisions of the second paragraph of Article L. 621-9 are applicable.

“The simplified judicial liquidation procedure provided for in Chapter IV of this Title is applicable if it appears that the debtor’s assets do not include real estate, that the number of its employees during the six months preceding the opening of the procedure and that its turnover excluding taxes are equal to or lower than the thresholds set by decree of the Council of State. “

Article 100


Article L. 641-3 reads as follows:

“Art. L. 641-3. – The judgment which opens judicial liquidation has the same effects as those provided for in the event of safeguard by the first and fourth paragraphs of article L. 622-7 and by articles L. 622-21, L. 622- 22, L. 622-28 and L. 622-30.

“Creditors declare their claims to the liquidator in accordance with the terms set out in Articles L. 622-24 to L. 622-27 and L. 622-31 to L. 622-33. “

Article 101


Article L. 641-4 reads as follows:

“Art. L. 641-4. – The liquidator carries out the liquidation operations at the same time as the verification of the debts. He can initiate or continue actions which fall within the competence of the judicial representative.

“Unsecured claims are not verified if it appears that the proceeds from the realization of the asset will be entirely absorbed by legal costs and privileged claims, unless, in the case of a legal person, there is no need to charge the de jure or de facto directors of all or part of the liabilities in accordance with Articles L. 651-2 and L. 652-1.

“The liquidator performs the tasks devolved to the administrator and the legal representative by Articles L. 622-6, L. 622-20, L. 622-22, L. 622-23, L. 624-17, L. 625-3, L. 625-4 and L. 625-8.

“For the purposes of carrying out the inventory provided for in Article L. 622-6, the court appoints a judicial auctioneer, a bailiff, a notary or a sworn commodity broker.

“An appraisal of the debtor’s assets is carried out by the persons referred to in the fourth paragraph.

“The dismissals made by the liquidator in application of the decision pronouncing the liquidation are subject to the provisions of Articles L. 321-8 and L. 321-9 of the Labor Code. “

Article 102


Article L. 641-5 reads as follows:

“Art. L. 641-5. – When judicial liquidation is pronounced during the period of observation of a safeguard or judicial reorganization procedure, the liquidator proceeds with the liquidation operations at the same time as he possibly completes the verification of the debts and establishes the order of creditors. He pursues actions brought before the liquidation judgment, either by the administrator or by the judicial representative, and may initiate actions which fall within the jurisdiction of the judicial representative. “

Article 103


Article L. 641-7 reads as follows:

“Art. L. 641-7. – The liquidator keeps the judge-commissioner, the debtor and the public prosecutor informed, at least every three months, of the progress of operations. “

Article 104


Article L. 641-9 is amended as follows:

1 ° At the beginning of the first paragraph, an “I” is inserted;

2 ° In the second paragraph, the words: “, if he limits his action to the pursuit of public action without seeking civil compensation” are deleted;

3 ° I is completed by a paragraph worded as follows:

“The debtor also performs acts and exercises rights and actions which are not included in the mission of the liquidator or administrator when he has been appointed. “;

4 ° Are added an II and a III as follows:

“II. – When the debtor is a legal person, the corporate officers in office at the time of the pronouncement of the judicial liquidation judgment remain so, unless otherwise provided for in the articles of association or decision of the general meeting. If necessary, a representative may be appointed in their place by order of the president of the court at the request of any interested party, the liquidator or the public prosecutor.

“The registered office is deemed to be located at the domicile of the legal representative of the company or of the appointed representative.

“III. – When the debtor is a natural person, he cannot exercise, during the judicial liquidation, any of the activities mentioned in the first paragraph of article L. 640-2. “

Article 105


Article L. 641-10 is amended as follows:

1 ° In the first paragraph, the words: “If the public interest” are replaced by the words: “If the total or partial sale of the company is possible or if public interest ”, the words:“ public prosecutor ”are replaced by the words:“ public prosecutor ”, and the reference:“ L. 621-32 ”is replaced by the reference:“ L. 641-13 ” ;

2 ° The second and third paragraphs are replaced by six paragraphs thus worded:

“The liquidator manages the company. He has the right to demand the execution of current contracts and exercises the prerogatives conferred on the receiver by article L. 622-13.

“Under the conditions provided for in Article L. 631-17,

“If necessary, he prepares a disposal plan, passes the acts necessary for its realization, receives and distributes the price.

“However, when the number of employees or the turnover exceeds the thresholds set by decree of the Council of State or, if necessary, the court appoints a court administrator to administer the company. In this case, by way of derogation from the preceding paragraphs, the director is subject to the provisions of article L. 622-13. He prepares the disposal plan, passes the acts necessary for its completion and, under the conditions provided for in Article L. 631-17, can proceed with redundancies.

“When the administrator does not have the sums necessary for the pursuit of the activity, he may, with the authorization of the receiver, have them returned by the liquidator.

“The liquidator or administrator, when appointed, exercises the functions conferred, as the case may be, on the administrator or the legal representative by Articles L. 622-4 and L. 624-6. “

Article 106


Article L. 641-11 reads as follows:

“Art. L. 641-11. – The judge-commissioner exercises the powers vested in him by articles L. 621-9, L. 623-2 and L. 631-11, by the first paragraph of article 622-13 and the fourth paragraph of the Article L. 622-16.

“The information held by the public prosecutor is communicated to it in accordance with the rules provided for in the second paragraph of article 621-8.

“The liquidator and the administrator, when appointed, receive from the judge-commissioner all the information useful for the accomplishment of their mission. “

Article 107


Article L. 641-12 is amended as follows:

1 ° The second paragraph is supplemented by a sentence worded as follows:

“In the event of assignment of the lease, the provisions of article 622-15 are applicable. “;

2 ° The fourth paragraph is replaced by two paragraphs worded as follows:

“The lessor may request judicial termination or have the lease recorded by operation of law for causes prior to the judgment of judicial liquidation or, when the latter was pronounced after a safeguard or receivership procedure, to the judgment opening the preceding procedure. He must, if he has not already done so, submit his request within three months of the publication of the judgment of judicial liquidation.

“The lessor may also request judicial termination or have the lease recognized by operation of law for non-payment of rents and charges relating to an occupation subsequent to the judgment of judicial liquidation, under the conditions provided for in the third to fifth paragraphs of the article L. 622-14. “

Article 108


Article L. 641-13 reads as follows:

“Art. L. 641-13. – I. – Claims arising regularly after the judgment opening or pronouncing the judicial liquidation or, in the latter case, after the judgment opening the safeguard or judicial reorganization procedure which preceded it, for the needs of the progress of the procedure, for the needs, if any, of the previous observation period, or because of a service provided to the debtor, for his professional activity subsequent to one of these judgments, are paid when due .

“II. – If they are not paid when due, they are paid by lien before all other debts except those guaranteed by the lien established in Articles L. 143-10, L. 143-11, L. 742-6 and L. 751-15 of the Labor Code, those which are guaranteed by the privilege of legal costs, those which are guaranteed by the privilege established by article L. 611-11 of this code and those which are guaranteed by real estate sureties or by special movable securities accompanied by a right of retention or constituted in application of Chapter V of Title II of Book V.

“III. – Their payment is made in the following order:

“1 ° Salary claims the amount of which has not been advanced in application of Articles L. 143-11-1 to L. 143-11-3 of the Labor Code;

“2 ° Legal costs;

“3 ° Loans granted as well as debts resulting from the continued execution of contracts in progress in accordance with the provisions of Article L. 622-13 of this code and for which the co-contractor agrees to receive a deferred payment; these loans and payment periods are authorized by the bankruptcy judge to the extent necessary for the pursuit of the activity and are the subject of publicity. In the event of termination of a regularly continued contract, compensation and penalties are excluded from the benefit of this article;

“4 ° Sums the amount of which has been advanced in application of 3 ° of article L. 143-11-1 of the labor code;

“5 ° Other claims, according to their rank.

“IV. – Unpaid debts lose the privilege conferred on them by this article if they have not been brought to the attention of the judicial representative, the administrator when appointed or the liquidator, within six months from the publication of the judgment opening or pronouncing the liquidation or, failing that, within one year from that of the judgment stopping the disposal plan. “

Article 109


Article L. 641-14 reads as follows:

“Art. L. 641-14. – The provisions of Chapters IV and V of Title II of this book relating to the determination of the debtor’s assets and the settlement of claims resulting from the employment contract as well as the provisions of Chapter II of Title III of this book relating to the invalidity of certain acts apply to the judicial liquidation proceedings.

“However, for the application of article L. 625-1, the liquidator cited before the industrial tribunal or, failing that, the plaintiff calls before the industrial tribunal the institutions referred to in article L. 143-11-4 of the labor code.

“For the application of article L. 625-3 of this code, the institutions mentioned in article L. 143-11-4 of the labor code are called into question by the liquidator or, failing that, by the applicant employees, within ten days of the judgment opening the judicial liquidation procedure or of the judgment pronouncing it. Likewise, proceedings pending before the industrial tribunal on the date of the opening judgment are continued in the presence of the administrator, when he has been appointed, or the latter duly called upon. “

Article 110


Article L. 641-15 reads as follows:

“Art. L. 641-15. – During the judicial liquidation procedure, the judge-commissioner may order that the liquidator or administrator, when appointed, be the recipient of the mail addressed to the debtor.

“The debtor, previously informed, can attend the opening of the mail. However, a summons to a court, a notification of decisions or any other mail of a personal nature must be immediately delivered or returned to the debtor.

“The judge-commissioner may authorize the liquidator’s access to the electronic mail received by the debtor under conditions determined by decree of the Council of State.

“When the debtor carries out an activity for which he is subject to professional secrecy, the provisions of this article do not apply. “

Article 111


Articles L. 642-1 to L. 642-17 are worded as follows:

“Art. L. 642-1. – The purpose of the sale of the company is to ensure the maintenance of activities likely to operate independently, of all or part of the jobs attached to it and to settle the liabilities.

“It can be total or partial. In the latter case, it relates to a set of operating elements which form one or more complete and independent branches of activity.

“When a set consists essentially of the right to a rural lease, the court may, subject to the rights to compensation of the outgoing lessee and notwithstanding the other provisions of the tenancy statute, either authorize the lessor, his spouse or one of his descendants to take over the land in order to exploit it, either assigning the rural lease to another lessee proposed by the lessor or, failing that, to any buyer whose offer has been obtained under the conditions set out in Articles L. 642-2 , L. 642-4 and L. 642-5. The provisions relating to the control of the structures of agricultural holdings are not applicable. However, when several offers have been received, the court takes into account the provisions of 1 ° to 4 ° and 6 ° to 8 ° of article L. 331-3 of the rural code.

“When the debtor, a natural person, exercises a liberal profession subject to a legislative or regulatory statute or whose title is protected, the transfer can only relate to tangible elements. However, in the case of a public or ministerial officer, the liquidator may exercise the debtor’s right to present his successor to the Keeper of the Seals, Minister of Justice.

“Art. L. 642-2. – I. – When the court considers that the total or partial sale of the company is possible, it authorizes the continuation of the activity and it fixes the time limit within which the takeover offers must reach the liquidator and the administrator when ‘it has been designated.

“However, if the offers received in application of article L. 631-13 meet the conditions provided for in II of this article and are satisfactory, the court may decide not to apply the previous paragraph.

“II. – All offers must be in writing and include the following information:

“1 ° The precise description of the goods, rights and contracts included in the offer;

“2 ° Activity and funding forecasts;

“3 ° The price offered, the terms of payment, the quality of the capital providers and, where applicable, their guarantors. If the offer proposes recourse to the loan, it must specify the conditions, in particular of duration;

“4 ° From the date of completion of the transfer;

“5 ° The level and employment prospects justified by the activity in question;

“6 ° The guarantees taken out in order to ensure the execution of the offer;

“7 ° Forecasts for the disposal of assets during the two years following the disposal;

“8 ° The duration of each of the commitments made by the author of the offer.

“III. – When the debtor exercises a liberal profession subject to a legislative or regulatory status or whose title is protected, the offer must also include an indication of the professional qualification of the assignee.

“IV. – The liquidator or administrator, when appointed, informs the debtor, the employee representative and the controllers of the content of the offers received. He submits them to the registry where any interested party can read them.

“They are notified, where applicable, to the professional order or the competent authority to which the debtor belongs.

“V. – The offer can neither be modified, except in a sense more favorable to the objectives mentioned in the first paragraph of article L. 642-1, nor withdrawn. It binds its author until the court decision stopping the plan.

“In the event of an appeal against the decision stopping the plan, only the transferee remains bound by his offer.

“Art. L. 642-3. – Neither the debtor, nor the de jure or de facto directors of the legal person in compulsory liquidation, nor the relatives or allies up to the second degree inclusive of these directors or of the debtor natural person, nor the persons having or having had the quality controller during the procedure are not allowed, directly or through an intermediary, to make an offer. Likewise, these persons are prohibited from acquiring, within five years following the sale, all or part of the assets dependent on the liquidation, directly or indirectly, as well as from acquiring shares or equity securities of any company. having in its assets, directly or indirectly, all or part of these assets, as well as securities giving access, within the same period,

“However, in the case of an agricultural operation, the court may waive these prohibitions and authorize the transfer to one of the persons referred to in the first paragraph, with the exception of the inspectors. In other cases, the court, at the request of the public prosecutor, may authorize the transfer to one of the persons referred to in the first paragraph, with the exception of the controllers, by a specially reasoned judgment, after having requested the opinion of the controllers. .

“Any act passed in violation of this article is annulled at the request of any interested party or the public prosecutor, presented within three years from the conclusion of the act. When the act is subject to publicity, the period starts from this.

“Art. L. 642-4. – The liquidator or administrator, when appointed, provides the court with all information enabling the seriousness of the offer to be verified as well as the third party status of its author within the meaning of the provisions of article L. 642- 3.

“It also provides the court with all the information enabling it to assess the conditions for settling the liabilities, in particular with regard to the price offered, the residual assets to be recovered or to be realized, the debts for the period of continued activity and, if applicable, applicable, other debts remaining payable by the debtor.

“Art. L. 642-5. – After having obtained the opinion of the public prosecutor and having heard or duly called the debtor, the liquidator, the administrator when he has been appointed, the representatives of the works council or, failing that, staff representatives and controllers, the court accepts the offer which makes it possible under the best conditions to ensure the most lasting employment attached to the transferred unit, the payment of creditors and which offers the best performance guarantees. He decides on one or more disposal plans.

“The debates must take place in the presence of the public prosecutor when the procedure is opened for the benefit of natural or legal persons whose number of employees or the number of

“The judgment which fixes the plan makes its provisions applicable to all.

“When the plan provides for redundancies for economic reasons, it can only be stopped by the court after the works council or, failing that, the employee representatives have been consulted under the conditions provided for in Article L. 321-9 of the Labor Code and the competent administrative authority informed under the conditions provided for in Article L. 321-8 of the same code. The plan specifies in particular the redundancies which must occur within one month after the judgment. Within this period, these redundancies occur upon simple notification of the liquidator, or of the administrator when he has been appointed, subject to the rights of notice provided for by law,

“Art. L. 642-6. – A substantial modification in the objectives and the means of the plan can only be decided by the court, at the request of the transferee.

“The court rules after having heard or duly called the liquidator, the receiver when appointed, the controllers, the representatives of the works council or, failing that, staff representatives and any interested person and after have obtained the opinion of the public prosecutor.

“However, the amount of the sale price as fixed in the judgment stopping the plan cannot be changed.

“Art. L. 642-7. – The court determines the contracts for leasing, rental or supply of goods or services necessary to maintain the activity in view of the observations of the debtor’s co-contractors transmitted to the liquidator or to the administrator when appointed. .

“The judgment which decides on the plan entails the transfer of these contracts, even when the transfer is preceded by the rental provided for in article L. 642-13.

“These contracts must be performed under the conditions in force on the date of the opening of the procedure, notwithstanding any clause to the contrary.

“In the event of the transfer of a financial lease contract, the lessee can only exercise the purchase option in the event of payment of the sums remaining due within the limit of the value of the property fixed jointly agreement between the parties or, failing that, by the court on the date of the assignment.

“Art. L. 642-8. – In execution of the plan adopted by the court, the liquidator or administrator, when appointed, passes all the acts necessary for the realization of the transfer. Pending the completion of these acts and upon justification of the deposit of the transfer price or an equivalent guarantee, the court may entrust the transferee, at his request and under his responsibility, with the management of the transferred company. .

“When the transfer includes a business,

“Art. L. 642-9. – As long as the sale price has not been paid in full, the transferee may not, with the exception of stocks, alienate or lease out the tangible or intangible goods that he has acquired.

“However, their total or partial alienation, their use as security, their rental or their management lease may be authorized by the court after a report from the liquidator who must first consult the works council or, failing that, the representatives of the staff. The court must take into account the guarantees offered by the assignee.

“Any substitution of transferee must be authorized by the court in the judgment stopping the transfer plan, without prejudice to the implementation of the provisions of article L. 642-6. The author of the offer accepted by the court remains jointly and severally liable for the performance of the commitments he has entered into.

“Any act passed in violation of the preceding paragraphs is annulled at the request of any interested party or the public prosecutor, presented within three years from the conclusion of the act. When the act is subject to publicity, the period starts from this.

“Art. L. 642-10. – The court may attach a clause to the transfer plan making inalienable, for a period that it fixes, all or part of the property transferred.

“The publicity of this clause is ensured under conditions fixed by a decree in Council of State.

“Any act passed in violation of the provisions of the first paragraph is annulled at the request of any interested party or the public prosecutor, presented within three years from the conclusion of the act. When the act is subject to publicity, the period starts from this.

“Art. L. 642-11. – The transferee reports to the liquidator on the application of the provisions provided for in the disposal plan.

“If the assignee does not perform his commitments, the court may, at the request of the public prosecutor on the one hand, the liquidator, a creditor, any interested party or ex officio, after having obtained the opinion of the ministry public, on the other hand, pronounce the resolution of the plan without prejudice to damages.

“The court may pronounce the resolution or termination of acts passed in execution of the resolved plan. The price paid by the assignee remains acquired.

“Art. L. 642-12. – When the transfer relates to assets encumbered with a special privilege, a pledge or a mortgage, a share of the price is allocated by the court to each of these assets for the distribution of the price and the exercise of the right of preference.

“The payment of the sale price is an obstacle to the exercise against the assignee of the rights of the creditors registered on these assets.

“Until full payment of the price which entails the purging of the registrations encumbering the property included in the transfer, creditors benefiting from a resale right can only exercise it in the event of the alienation of the property transferred by the transferee.

“However, the burden of special real estate and movable securities guaranteeing the repayment of a loan granted to the company to enable it to finance a property to which these securities relate is transmitted to the transferee. The latter is then required to pay into the hands of the creditor the installments agreed with him and which remain due from the transfer of ownership or, in the case of lease-management, from the enjoyment of the property to which the guarantee relates. The provisions of this paragraph may be waived by agreement between the assignee and the creditors holding the securities.

“Art. L. 642-13. – By the judgment which fixes the transfer plan, the court can authorize the conclusion of a lease-management contract, even in the presence of any contrary clause, in particular in the lease of the building, for the benefit of the person who has presented the acquisition offer allowing under the best conditions to ensure the most sustainable employment and payment of creditors.

“The court rules after having heard or duly called the liquidator, the receiver when appointed, the controllers, the representatives of the works council or, failing that, staff representatives and any interested person and after have obtained the opinion of the public prosecutor.

“Art. L. 642-14. – The provisions of Articles L. 144-3, L. 144-4 and L. 144-7 on lease management do not apply.

“Art. L. 642-15. – In the case of lease-management, the company must be effectively sold within two years of the judgment adopting the plan.

“Art. L. 642-16. – The liquidator can obtain from the tenant-manager all the documents and information useful for his mission. He reports to the court of any infringement of the elements taken in lease-management as well as the non-performance of the obligations incumbent on the lessee-manager.

“The court, ex officio or at the request of the liquidator or the public prosecutor, may order the termination of the lease-management contract and the termination of the plan.

“Art. L. 642-17. – If the tenant-manager does not fulfill his obligation to acquire under the conditions and deadlines set by the plan, the court, ex officio or at the request of the liquidator or the public prosecutor, orders the termination of the rental agreement – management and resolution of the plan without prejudice to any damages.

“However, when the tenant-manager justifies that he cannot acquire under the conditions initially foreseen for a cause which is not attributable to him, he can ask the court to modify these conditions, except as regards the amount of the price and the deadline provided for in Article L. 642-15. The court rules before the expiry of the rental contract and after having obtained the opinion of the public prosecutor and heard or duly called the liquidator, the administrator when appointed, the controllers, the representatives of the works council or , failing that, staff representatives and any interested person. “

Article 112


Article L. 642-18 is amended as follows:

1 ° In the second paragraph, the words: “of the recovery or” are replaced by the words: “of the safeguard, recovery or”;

2 ° In the third paragraph, the words: “authorize the sale either by amicable adjudication on the starting price that it fixes, or by mutual agreement” are replaced by the words: “order the sale by amicable adjudication on the stake. at a price he fixes or authorize the sale by mutual agreement ”.

Article 113


The first paragraph of Article L. 642-19 reads as follows:

“After having collected the observations of the controllers, the judge-commissioner orders the sale by public auction or authorizes the sale by mutual agreement of the debtor’s other assets, this last being heard or duly called. When the sale takes place by public auction, it is carried out under the conditions provided for, as the case may be, in the second paragraph of Article L. 322-2 or in Articles L. 322-4 or L. 322-7. “

Article 114


Articles L. 642-20 and L. 642-21 are worded as follows:

“Art. L. 642-20. – The provisions of Article L. 642-3 are applicable to disposals of assets carried out in application of Articles L. 642-18 and L. 642-19. In this case, the powers of the court are exercised by the judge-commissioner.

“Art. L. 642-21. – When the provisions of article L. 631-22 have been applied and the debtor cannot obtain from the court the order of a recovery plan, the provisions of this title are applicable. The assets not included in the disposal plan are transferred under the conditions of this section. “

Article 115


Article L. 642-22 reads as follows:

“Art. L. 642-22. – Any transfer of a business and any realization of assets must be preceded by an advertisement, the terms of which are determined by a decree in the Council of State depending on the size of the business and the nature of the assets to be sold. “

Article 116


Article L. 642-23 is supplemented by a paragraph worded as follows:

“The destination of the debtor’s archives subject to professional secrecy is determined by the liquidator in agreement with the professional order or the competent authority to which he reports. “

Article 117


In the first sentence of the third paragraph of Article L. 642-25, after the words: “may request”, the words: “to the judge-commissioner” are inserted.

Article 118


The first paragraph of Article L. 643-1 is supplemented by a sentence worded as follows:

“However, when the court authorizes the continuation of the activity on the grounds that the total or partial sale of the company is possible, the receivables not due are payable on the date of the judgment pronouncing the transfer. “

Article 119


After the first paragraph of Article L. 643-2, a paragraph worded as follows is inserted:

“When the court has set a time limit in application of Article L. 642-2, these creditors may exercise their right of action. individual at the end of this period, if no offer including this good has been presented. “

Article 120


Article L. 643-3 is amended as follows:

1 ° The beginning of the first paragraph is worded as follows:

“The judge-commissioner may, ex officio or at the request of the liquidator or a creditor, order payment by way of provisional … (the remainder unchanged) ”;

2 ° A paragraph worded as follows is added:

“In the event that the request for a provision relates to a privileged claim of financial administrations, social security bodies, institutions managing the unemployment insurance scheme provided for in Articles L. 351 -3 and following of the labor code and institutions governed by book IX of the social security code, the guarantee provided for in the second paragraph is not due. “

Article 121


Article L. 643-9 reads as follows:

“Art. L. 643-9. – In the judgment which opens or declares the judicial liquidation, the court fixes the time limit at the end of which the closure of the procedure will have to be examined. If the closure cannot be pronounced at the end of this period, the court may extend the term by a reasoned decision.

“When there are no more due liabilities or the liquidator has sufficient sums to pay off the creditors, or when the continuation of judicial liquidation operations is made impossible due to insufficient assets, the closing of the judicial liquidation is pronounced by the court, the debtor heard or duly called.

“The court is seized at any time by the liquidator, the debtor or the public prosecutor. It can be seized ex officio. At the expiration of a period of two years from the judgment of judicial liquidation, any creditor may also apply to the court for the purpose of closing the proceedings.

“In the event of a disposal plan, the court only declares the proceedings to be closed after having noted that the transferee has complied with its obligations. “

Article 122


Article L. 643-11 reads as follows:

“Art. L. 643-11. – I. – The judgment closing judicial liquidation for insufficient assets does not make creditors recover the individual exercise of their actions against the debtor, unless the claim results from:

“1 ° A criminal conviction of the debtor;

“2 ° Of rights attached to the person of the creditor.

“II. – However, the surety or co-obligated party who paid instead of the debtor may sue the latter.

“III. – Creditors recover their right of individual action in the following cases:

“1 ° The personal bankruptcy of the debtor has been declared;

“2 ° The debtor has been found guilty of bankruptcy;

“3 ° The debtor or a legal person of which he was the manager was subjected to a previous judicial liquidation procedure closed for insufficient assets less than five years before the opening of the one to which he is subject;

“4 ° The proceedings were opened as territorial proceedings within the meaning of paragraph 2 of article 3 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings.

“IV. – In addition, in the event of fraud against one or more creditors, the court authorizes the recovery of individual actions of any creditor against the debtor. The court rules at the end of the proceedings after having heard or duly called the debtor, the liquidator and the controllers. It can rule after this, at the request of any interested party, under the same conditions.

“V. – Creditors who recover the individual exercise of their actions in application of this article may, if their claims have been admitted, obtain an enforceable title by order of the president of the court or, if their claims have not been verified , implement it under the conditions of common law. “

Article 123


In article L. 643-12, the reference: “L. 622-32” is replaced by the reference: “L. 643-11”.

Article 124


Article L. 643-13 reads as follows:

“Art. L. 643-13. – If the court-ordered liquidation is closed for insufficient assets and it appears that assets have not been realized or that actions in the interest of creditors have not been initiated during the course of the procedure, it can be resumed.

“The court is seized by the liquidator previously appointed, by the public prosecutor or by any interested creditor. It can also be seized ex officio. If seized by a creditor, the latter must justify having consigned to the court office the funds necessary to cover the costs of the operations. The amount of the recorded costs is reimbursed to him in priority over the sums recovered following the resumption of the procedure.

“If the debtor’s assets consist of a sum of money, the procedure provided for in Chapter IV of this Title is applicable law. “

Article 125


Articles L. 644-1 to L. 644-6 are worded as follows:

“Art. L. 644-1. – The simplified judicial liquidation procedure is subject to the rules of judicial liquidation, subject to the provisions of this chapter.

“Art. L. 644-2. – By way of derogation from the provisions of article L. 642-19, when the court decides on the application of this chapter, it determines the assets of the debtor which may be the subject of a sale by mutual agreement. The liquidator does so within three months of the publication of this judgment.

“At the end of this period, the remaining goods are sold by public auction.

“Art. L. 644-3. – By way of derogation from the provisions of Article L. 641-4, only receivables likely to rank useful in the distributions and receivables resulting from an employment contract are verified.

“Art. L. 644-4. – At the end of the procedure of verification and admission of these debts and of the realization of the assets, the liquidator establishes a distribution plan which he submits to the registry where any interested party can take note of it and which is the subject an advertising measure.

“Any interested party can challenge the distribution project before the judge-commissioner within a time limit set by decree in the Council of State.

“The judge-commissioner rules on disputes by means of a decision which is the subject of a publicity measure and a notification to the creditors concerned. An appeal may be lodged within a time limit set by decree of the Council of State.

“The liquidator proceeds with the distribution in accordance with the project or the decision rendered.

“Art. L. 644-5. – At the latest one year after the opening of the procedure, the court pronounces the closure of the judicial liquidation, the debtor heard or duly called.

“He may, by a specially reasoned judgment, extend the procedure for a period which may not exceed three months.

“Art. L. 644-6. – At any time, the court may decide, by a specially reasoned judgment, to no longer apply the exemptions provided for in this chapter. “


Chapter V

Responsibilities and sanctions

 

Article 126


Article L. 650-1 reads as follows:

“Art. L. 650-1. – Creditors cannot be held responsible for damages suffered as a result of the assistance granted, except in cases of fraud, serious interference in the management of the debtor or if the guarantees taken in return for these assistance are disproportionate to them.

“In the event that the liability of a creditor is recognized, the guarantees taken in return for his assistance are null and void. “

Article 127


Article L. 651-1 reads as follows:

“Art. L. 651-1. – The provisions of this chapter and of chapter II of this title are applicable to the directors of a legal person governed by private law subject to collective proceedings, as well as to natural persons who are permanent representatives of these legal persons. “

Article 128


Article L. 651-2 is amended as follows:

1 ° The first paragraph is worded as follows:

“When the resolution of a safeguard or receivership plan or the compulsory liquidation of a legal person reveals an insufficiency of assets, the court may, in the event of a mismanagement that contributed to this lack of assets, decide that the debts of the legal person will be borne, in whole or in part, by all the de jure or de facto managers or by certain parties. ‘between them, having contributed to the mismanagement. In the event of multiple directors, the court may, by reasoned decision, declare them jointly and severally liable. “;

2 ° The second paragraph is worded as follows:

“The action is prescribed by three years from the judgment pronouncing the judicial liquidation or the resolution of the plan. “;

3 ° At the end of the first sentence of the last paragraph, the words: “and are affected in the event of continuation of the business in accordance with the terms provided for in the liability clearance plan” are deleted and, at the beginning of the second sentence of the same paragraph, the words: “In the event of transfer or liquidation,” are deleted.

Article 129


Article L. 651-3 reads as follows:

“Art. L. 651-3. – In the case provided for in article L. 651-2, the court is referred to by the judicial representative, the liquidator or the public prosecutor.

“In the collective interest of creditors, the court may also be seized by the majority of creditors appointed as supervisors when the legal representative having standing to act has not initiated the actions provided for in the same article, after a formal notice remained without follow-up within a period and under the conditions set by decree of the Council of State.

“In the case referred to in the first paragraph, the judge-commissioner can neither sit in the formation of the judgment, nor participate in the deliberation.

“The legal costs to which the manager was condemned are paid in priority on the sums which are paid to meet the liabilities. “

Article 130


Article L. 651-4 reads as follows:

“Art. L. 651-4. – For the application of the provisions of article L. 651-2, ex officio or at the request of one of the persons mentioned in article L. 651-3, the president of the court may instruct the judge commissioner or, failing that, a member of the court designated by him to obtain, notwithstanding any legislative provision to the contrary, communication of any document or information on the financial situation of the directors and permanent representatives of the directors, legal entities mentioned in article L. 651-1 from administrations and public bodies, provident and social security bodies and credit institutions.

“The president of the tribunal may, under the same conditions, order any useful precautionary measure with regard to the property of the managers or their representatives referred to in the preceding paragraph.

“The provisions of this article are also applicable to persons who are members or associates of the legal person in safeguard, reorganization or judicial liquidation proceedings, when they are indefinitely and jointly liable for its debts. “

Article 131


Articles L. 652-1 to L. 652-5 are worded as follows:

“Art. L. 652-1. – During judicial liquidation proceedings, the court may decide to charge one of the de jure or de facto managers of a legal person for all or part of the debts of the latter when it is established, against this manager, that one of the following faults contributed to the cessation of payments:

“1 ° Having disposed of the property of the legal person as his own;

“2 ° Under cover of the legal person masking its actions, having carried out commercial acts in a personal interest;

“3 ° To have made use of the property or credit of the legal person contrary to the interest of the latter for personal purposes or to favor another legal person or business in which he was directly or indirectly interested;

4 ° To have pursued abusively, in a personal interest, a loss-making operation which could only lead to the cessation of payments of the legal person;

“5 ° Having embezzled or concealed all or part of the assets or fraudulently increased the liabilities of the legal person.

“In the cases referred to in this article, the provisions of article L. 651-2 cannot be applied.

“Art. L. 652-2. – In the event of multiple responsible leaders, the court takes into account the fault of each to determine the share of the social debts charged to him. By reasoned decision, he can declare them jointly and severally liable.

“Art. L. 652-3. – The sums recovered are allocated to the compensation of creditors according to the order of their securities.

“Art. L. 652-4. – The action is prescribed by three years from the judgment pronouncing the judicial liquidation.

“Art. L. 652-5. – The provisions of Articles L. 651-3 and L. 651-4 are applicable to the action provided for in this chapter. “

Article 132


Article L. 653-1 reads as follows:

“Art. L. 653-1. – I. – When a judicial reorganization or judicial liquidation procedure is opened, the provisions of this chapter are applicable:

“1 ° To natural persons exercising the profession of trader, farmer or registered in the register of trades and to any other natural person exercising an independent professional activity including a liberal profession subject to a legislative or regulatory status or whose title is protected;

“2 ° To natural persons, de jure or de facto directors of legal persons;

“3 ° To natural persons, permanent representatives of legal persons, managers of legal persons defined in 2 °.

“These same provisions are not applicable to natural persons or directors of a legal person, exercising an independent professional activity and, as such, subject to disciplinary rules.

“II. – The actions provided for in this chapter are prescribed by three years from the judgment declaring the opening of the procedure mentioned in I. ”

Article 133


I. – In the first paragraph of Article L. 653-2, the words: “and any legal person having an economic activity” are replaced by the words: “or any company having any other independent activity and any legal person” .

II. – The second paragraph of the same article is deleted.

Article 134


Article L. 653-3 is amended as follows:

1 ° The first paragraph is worded as follows:

“The court may declare the personal bankruptcy of any person mentioned in 1 ° of I of article L. 653-1, subject to exceptions provided for in the last paragraph of I of the same article, against which one of the following facts has been noted: ”;

2 ° The 2 ° is repealed;

3 ° In the last paragraph (3 °), the words: “of the assets” are replaced by the words: “of his assets”.

Article 135


Article L. 653-4 reads as follows:

“Art. L. 653-4. – The court can declare the personal bankruptcy of any manager, de jure or de facto, of a legal person, who has committed one of the faults mentioned in article L. 652-1. “

Article 136


Article L. 653-5 reads as follows:

“Art. L. 653-5. – The court may declare the personal bankruptcy of any person mentioned in Article L. 653-1 against whom one of the following facts has been identified:

“1 ° Having exercised a commercial, craft or agricultural activity or a management or administration of a legal person contrary to a prohibition provided by law;

“2 ° To have, with the intention of avoiding or delaying the opening of the receivership or liquidation proceedings, made purchases with a view to resale below the price or employed ruinous means to provide funds;

“3 ° Having entered into, on behalf of others, without consideration, commitments deemed too important at the time of their conclusion, having regard to the situation of the company or the legal person;

“4 ° Having paid or caused to be paid, after cessation of payments and with full knowledge thereof, a creditor to the prejudice of other creditors;

“5 ° Having, by voluntarily refraining from cooperating with the organs of the procedure, hinders its proper conduct;

“6 ° Having removed accounting documents, not having kept accounts when the applicable texts so require, or having kept fictitious accounts, clearly incomplete or irregular with regard to the applicable provisions. “

Article 137


Article L. 653-7 reads as follows:

“Art. L. 653-7. – In the cases provided for in Articles L. 653-3 to L. 653-6 and L. 653-8, the court is referred to the court by the judicial representative, the liquidator or the public prosecutor.

“In the collective interest of the creditors, the court may also be seized at any time of the proceedings by the majority of the creditors appointed as supervisors when the legal representative having standing to act has not initiated the actions provided for in the same articles, after a formal notice that has not been followed up within a period and under the conditions set by decree of the Council of State.

“In the same cases as those provided for in the first paragraph, the judge-commissioner can neither sit in the formation of the judgment, nor participate in the deliberation. “

Article 138


I. – In the second paragraph of Article L. 653-8, the words: “the complete and certified list of its creditors and the amount of its debts within eight days” are replaced by the words: “, to the the administrator or the liquidator, the information that he is required to communicate to him in application of article L. 622-6 within one month ”.

II. – The same article is supplemented by a paragraph worded as follows:

“It can also be pronounced against any person mentioned in article L. 653-1 who has failed to do, within the period of forty-five days, the declaration of cessation of payments, without having, moreover, requested the opening of a conciliation procedure. “

Article 139


Article L. 653-10 reads as follows:

“Art. L. 653-10. – The court which declares the personal bankruptcy can pronounce the incapacity to exercise an elective public function. The incapacity is pronounced for a period equal to that of the personal bankruptcy, within the limit of five years. When the decision has become final, the public prosecutor notifies the person concerned of the incapacity, which takes effect from the date of this notification. “

Article 140


Article L. 653-11 reads as follows:

“Art. L. 653-11. – When the court declares personal bankruptcy or the prohibition provided for in article L. 653-8, it fixes the duration of the measure, which may not exceed fifteen years. He can order the provisional execution of his decision. Forfeitures, prohibitions and the inability to exercise an elective public function automatically cease at the fixed term, without the need for a judgment to be pronounced.

“The closing judgment for the extinction of the liabilities, including after fulfillment of the obligation to the social debts pronounced against him, restores the head of company or the leaders of the legal person in all their rights. It exempts them or relieves them from all disqualifications, prohibitions and inability to exercise an elective public function.

“The interested party can ask the court to release him, in whole or in part, from disqualifications and prohibitions and from the inability to exercise an elective public function if he has made a sufficient contribution to the payment of the liabilities.

“When it has been the subject of the prohibition provided for in Article L. 653-8, it may be relieved if it presents all guarantees demonstrating its ability to manage or control one or more of the companies or persons covered by the same article.

“When there is a total recovery of disqualifications and prohibitions and of incapacity, the court’s decision entails rehabilitation. “

Article 141


Article L. 654-1 is amended as follows:

1 ° In 1 °, the words: “farmer or person registered in the trades register” are replaced by the words: “farmer, to any person registered in the trades register and to any natural person exercising an independent professional activity, including a liberal profession subject to a legislative or regulatory status or whose title is protected ”;

2 ° At the end of 2 °, the words: “having an economic activity” are deleted.

Article 142


I. – At the end of the fifth paragraph (4 °) of Article L. 654-2, the words: “when the law makes it compulsory” are replaced by the words: “when the applicable texts make it compulsory”.

II. – At the end of the second paragraph of Article L. 654-3, the words: “having an economic activity” are deleted.

III. – The 2 ° of article L. 654-5 is completed by the words: “unless a civil or commercial court has already pronounced such a measure by a final decision. “

Article 143


Article L. 654-6 reads as follows:

“Art. L. 654-6. – The criminal court which recognizes one of the persons mentioned in article L. 654-1 guilty of bankruptcy can, in addition, pronounce either the personal bankruptcy of this one, or the prohibition provided for in article L. 653-8, unless a civil or commercial court has already pronounced such a measure by a final decision. “

Article 144


Article L. 654-8 reads as follows:

“Art. L. 654-8. – Is liable to imprisonment for two years and a fine of 30,000 the fact:

“1 ° For any person mentioned in article L. 654-1, to consent during the observation period a mortgage or a pledge or to make an act of disposal without the authorization provided for in the second paragraph of article L. 622-7 or to pay, in whole or in part, a debt in violation of the prohibition mentioned in the first paragraph of this article ;

“2 ° For any person mentioned in Article L. 654-1, to make a payment in violation of the terms of settlement of liabilities provided for in the safeguard plan or the recovery plan, to make an act of disposal without the authorization provided for by article 626-14 or to proceed with the sale of an asset rendered inalienable, within the framework of a disposal plan, in application of article L. 642-10;

“3 ° For any person, during the observation period or that of the execution of the safeguard plan or the recovery plan, with knowledge of the debtor’s situation, to carry out with him one of the acts mentioned in 1 ° and 2 ° or to receive an irregular payment. “

Article 145


Article L. 654-9 is amended as follows:

1 ° In 2 °, the words: “of receivership” are replaced by the words: “of safeguard, of receivership”;

2 ° The 3 ° is worded as follows:

“3 ° For any person carrying out a commercial, craft, agricultural or any other independent activity, under the name of another or under a supposed name, to be guilty of one of the facts provided for in Article L. 654-14. “

Article 146


I. – In Article L. 654-10, the words: “judicial reorganization” are replaced by the words: “safeguard or judicial reorganization”.

II. – In article L. 654-11, the words: “damages” are replaced by the words: “damages”.

III. – In II of article L. 654-12, the words: “of the controllers and” are deleted, and the words: “damages” are replaced by the words: “damages”.

IV. – In Article L. 654-16, the words: “declaring the opening of the judicial reorganization proceedings” are replaced by the words: “opening the safeguard, judicial reorganization or judicial liquidation proceedings”.

V. – After the words: “plan execution commissioner”, the end of article L. 654-17 reads as follows: “, of the liquidator or of the majority of creditors appointed as controllers acting in the collective interest creditors when the legal representative having standing to act has not acted, after a formal notice has not been followed up within a period and under the conditions set by decree of the Council of State. “


Chapter VI

General procedural provisions

 

Article 147


Article L. 661-1 is amended as follows:

1 ° In 1 ° of I, the words: “of the procedure” are replaced by the words: “of the procedures of safeguard, of receivership and of liquidation” and , in 2 ° and 3 ° of I, the words: “of continuation of the business” are replaced by the words: “of safeguard or the recovery plan”;

2 ° II is worded as follows:

“II. – The appeal of the public prosecutor is suspensive, with the exception of that relating to the decisions ruling on the opening of the safeguard or judicial reorganization procedure. “;

3 ° A III is added as follows:

“III. – In the absence of a works council or staff representative, the employee representative exercises the remedies available to these institutions by this article. “

Article 148


I. – Article L. 661-2 is supplemented by a sentence worded as follows:

“The judgment ruling on the third party opposition may be appealed and appealed against by the opposing third party. “

II. – Article L. 661-3 is worded as follows:

“Art. L. 661-3. – Decisions stopping or modifying the safeguard plan or the recovery plan are subject to third party opposition.

“The judgment ruling on the third opposition may be appealed and appealed against by the opposing third party. “

Article 149


Article L. 661-4 reads as follows:

“Art. L. 661-4. – Judgments relating to the appointment or replacement of the judge-commissioner are not subject to appeal. “

Article 150


In article L. 661-5, the references: “L. 622-16, L. 622-17 and L. 622-18” are replaced by the references: “L. 642-18 and L. 642-19 “.

Article 151


Article L. 661-6 is amended as follows:

1 ° In 2 ° of I, the words: “or on the authorization of lease management provided for in article L. 621-34” are deleted;

2 ° In the first sentence of II, after the words: “of the share,”, the words: “either of the debtor,” are inserted. In the second sentence, the words: “, in violation of article L. 621-63,” are deleted;

3 ° In the first and third sentences of II, the reference: “L. 621-88” is replaced by the reference: “L. 642-7”.

Article 152


Article L. 661-9 is amended as follows:

1 ° In the second sentence of the first paragraph, the words: “reduced to one month when the simplified procedure provided for in section 5 of chapter I has been applied” are deleted;

2 ° In the second paragraph, after the words: “judicial liquidation”, are inserted the words: “during the observation period”, and the words: “of continuation or cession” are replaced by the words: ” safeguard or the receivership plan ”.

Article 153


Article L. 661-11 reads as follows:

“Art. L. 661-11. – Decisions rendered in application of Chapters I, II and III of Title V are subject to appeal by the public prosecutor, even if he has not acted as the main party.

“The appeal of the prosecution is suspensive. “

Article 154


Article L. 662-2 reads as follows:

“Art. L. 662-2. – When the interests involved justify it, the court of appeal may decide to refer the case to another jurisdiction of the same nature, competent within the jurisdiction of the court, to hear safeguard, reorganization or liquidation proceedings judicial, under conditions fixed by decree. The Court of Cassation, seized under the same conditions, may refer the case to a court within the jurisdiction of another court of appeal. “

Article 155


Article L. 811-11 of the Commercial Code is supplemented by a paragraph worded as follows:

“The Caisse des Dépôts et Consignations is required, without being able to oppose professional secrecy, to comply with the requests of the persons responsible for the inspection as well as ” to those of the national council mentioned in article L. 814-2 for the exercise of the control for which it is responsible, tending to the communication of any information or document useful for the knowledge of the movements of funds occurring on the accounts opened in its books in the name of each receiver and of sums deposited therein under the mandates to which the inspection or control relates. “

Article 156


Article L. 662-3 reads as follows:

“Art. L. 662-3. – The debates before the commercial court and the tribunal de grande instance take place in the council chamber. Nevertheless, the publicity of the proceedings is by right after the opening of the procedure if the debtor, the judicial representative, the administrator, the liquidator, the employee representative or the public prosecutor so request. The president of the court can decide that they will take place or will continue in chambers of the council if disorders occur likely to disturb the serenity of justice.

“Notwithstanding the provisions of the first paragraph, the debates relating to the measures taken in application of Chapters I, II and III of Title V take place in open court. The president of the court may decide that they take place in the council chamber if the debtor so requests before their opening. “

Article 157


Article L. 662-4 is thus amended:

1 ° In the first paragraph, the references: “L. 621-8, L. 621-135 and L. 622-2” are replaced by the references “L. 621 -4 and L. 641-1 ”;

2 ° In the last paragraph, the words: “in application of article L. 621-135,” are deleted.

Article 158


I. – Section I of Article L. 663-1 is supplemented by a paragraph worded as follows:

“The agreement of the public prosecutor is not necessary for the advance of the remuneration of the public officers appointed by the court in application of of Article L. 621-4, to carry out the inventory provided for in Article L. 622-6 and the valuation provided for in Article L. 641-4. “

II. – Article L. 663-2 is worded as follows:

“Art. L. 663-2. – A decree in the Council of State fixes the terms of remuneration of court administrators, judicial representatives, commissioners for the execution of the plan and liquidators. This remuneration is exclusive of any other remuneration or reimbursement of expenses under the same procedure or in respect of a subsequent assignment which is not would only be an extension. “

III. – Article L. 663-3 is worded as follows:

“Art. L. 663-3. – When the proceeds from the realization of the company’s assets do not allow the liquidator or the legal representative to obtain, in respect of the remuneration due to him in application of the provisions of Article L. 663-2, a sum at least equal to a threshold fixed by decree of the Council of State, the file is declared impecunious by decision of the court, on the proposal of the judge-commissioner and in view of the supporting documents presented by the liquidator or the judicial representative.

“The same decision fixes the sum corresponding to the difference between the remuneration actually received by the liquidator or the judicial representative and the threshold referred to in the first paragraph.

“The sum paid to the judicial representative or to the liquidator is deducted from a share of the interest paid by the Caisse des Dépôts et Consignations on the funds deposited in application of Articles L. 622-18, L. 626-25 and L. 641 -8. This quota is specially allocated to a fund managed by the Caisse des Dépôts et Consignations under the control of an administration committee. The conditions of application of this paragraph are fixed by a decree of the Council of State. “

IV. – Articles L. 814-6 and L. 814-7, as well as subsection 2 of section 2 of chapter IV of title I of book VIII are repealed.

V. – In Articles L. 811-1 and L. 812-1, the reference: “L. 814-6” is replaced by the reference: “L. 663-2”.

Article 159


Article L. 662-6 reads as follows:

“Art. L. 662-6. – The clerk of the commercial court and that of the tribunal de grande instance establish at the end of each semester the list of judicial administrators and judicial representatives appointed by the court and of other persons to whom a mandate relating to the procedures governed by this book has been entrusted by the said court, during this period. They include, for each of the interested parties, all the files assigned to them and the information relating to the debtors concerned provided for by decree of the Council of State. They append to it the amount of turnover it achieved, under the mandates entrusted to it by the court, during the previous semester.

“This information is brought to the attention of the Keeper of the Seals, Minister of Justice, the Public Prosecutor’s Office of the jurisdiction concerned and the authorities responsible for the control and inspection of administrators and judicial representatives, in accordance with procedures determined by a decree in Board of state. “


Chapter VII

Special provisions for the departments

of Moselle, Bas-Rhin and Haut-Rhin

 

Article 160


I. – The first paragraph of Article L. 670-1 reads as follows:

“The provisions of this title are applicable to natural persons domiciled in the departments of Moselle, Bas-Rhin and Haut-Rhin, and to their succession, who are neither traders, nor persons registered in the trades register, nor farmers, nor persons exercising any other independent professional activity, including a liberal profession subject to a legislative or regulatory status, when they are in good faith and in a state of substantial insolvency. The provisions of Titles II to VI of this book apply insofar as they are not contrary to those of this Title. “

II. – Article L. 670-2 is worded as follows:

“Art. L. 670-2. – The judge-commissioner may order the exemption from the inventory of the goods of the persons referred to in Article L. 670-1. “

III. – In article L. 670-3, the words: “By way of derogation from article L. 621-102,” are deleted.

IV. – In article L. 670-5, the reference: “L. 622-32” is replaced by the reference: “L. 643-11”.


TITLE II

FINAL PROVISIONS

Chapter I

Provisions amending the Commercial Code

 

Article 161


I. – In article L. 141-12, after the words: “sharing or licitation, is,”, are inserted the words: “except if it occurs in application of article L. 642-5,”.

II. – The third paragraph of article L. 141-19 is completed by the words: “, or according to the provisions of article L. 642-5”.

Article 162


I. – In the first paragraph of Article L. 221-16, the word: “pronounced” is replaced by the words: “become final”.

II. – Article L. 234-1 is amended as follows:

1 ° In the first sentence of the second paragraph, the words: “in writing” are replaced by the words: “, by a writing, a copy of which is sent to the president of the tribunal de trade, ” ;

2 ° The third and fourth sentences of the second paragraph are replaced by a sentence worded as follows:

“The deliberation of the board of directors or the supervisory board is communicated to the president of the commercial court and to the works council or, failing that, to staff representatives. “;

3 ° The third paragraph is worded as follows:

“In the event of non-observance of these provisions or if the auditor finds that despite the decisions taken the continuity of operations remains compromised, a general meeting is convened under conditions and deadlines set by decree of the Council of State . The auditor draws up a special report which is presented to this meeting. This report is communicated to the works council or, failing that, to the employee representatives. “

III. – Article L. 234-2 is thus amended:

1 ° In the first paragraph, the word: “manager” is replaced, twice, by the word: “manager”;

2 ° In the same paragraph, after the words: “works council”, are inserted the words: “or, failing that, to staff representatives”;

“In the event of non-observance of these provisions or if he finds that despite the decisions taken, the going concern remains compromised, the auditor shall draw up a special report and invite, in a written document, a copy of which is sent to the president of the commercial court, the manager to deliberate on the facts raised by a general meeting convened under conditions and deadlines set by decree in the Council of State. “

IV. – Chapter IV of Title III of Book II is supplemented by an article L. 234-4 as follows:

“Art. L. 234-4. – The provisions of this chapter are not applicable when a conciliation or safeguard procedure has been initiated by the managers in accordance with the provisions of Titles I and II of Book VI. “

V. – The first paragraph of Article L. 822-15 is supplemented by a sentence worded as follows:

“However, they are released from professional secrecy with regard to the president of the commercial court or the tribunal de grande instance when they apply the provisions of Chapter IV of Title III of Book II or of Chapter II of Title I of Book VI. “

Article 163


In Articles L. 651-1, L. 654-13, L. 654-14, L. 661-8 and L. 663-1, the words: “of judicial reorganization” are replaced by the words: “of safeguard , receivership ”.

Article 164


I. – In II of article L. 442-4, the reference: “2 of article L. 625-5” is replaced by the reference: “2 ° of article L. 653-5” .

II. – In the penultimate paragraph of article L. 811-10 and in the penultimate paragraph of article L. 812-8, the words: “by article L. 611-3” are replaced by the words: “in Articles L. 611-3 and L. 611-6”.

III. – In the first paragraph of Article L. 814-10, the words: “, in the first paragraph of II of Article L. 812-2 or in Article L. 621-137” are replaced by the words : “Or in the first paragraph of II of article L. 812-2”.

Chapter II

Miscellaneous provisions

Article 165


I. – In all legislative and regulatory texts, the references made to: “amicable settlement” within the meaning of Title I of Book VI of the Commercial Code, in the version prior to the entry into force of this law, are replaced by references to the: “conciliation procedure”.

II. – In all legislative and regulatory texts, with the exception of Book VI of the Commercial Code, the third paragraph of Article L. 143-11-1 and Chapter I of Title II of Book III of the Labor Code, the references made to judicial reorganization and to the reorganization plan are replaced, respectively, by references to safeguard or reorganization procedures, and to safeguard or reorganization plans. References to the continuation plan are replaced by references to safeguard or receivership plans.

III. – In all legislative and regulatory texts, references made to: “creditors’ representative” are replaced by references to: “judicial representative”.

IV. – In all legislative and regulatory texts, the reference to the sale of the company ordered in application of article L. 621-83 or to the transfer of production units ordered in application of article L. 622- 17 of the Commercial Code, in its version prior to the entry into force of this law, is replaced by a reference to the sale of the company ordered in application of article L. 642-5 of the same code.

V. – In all legislative or regulatory texts, the references made to: “judicial representative for the reorganization and liquidation of companies” are replaced by references to: “judicial representative”.

Article 166


The general tax code is amended as follows:

1 ° In article 44 septies, the words: “of articles L. 621-83 et seq.” Are replaced by the words: “of article L. 626-1, of Article L. 631-22 or Articles L. 642-1 et seq. ”, and the words:“, or when the takeover concerns complete and independent branches of industrial activity and is carried out within the framework of disposals ordered by the judge-commissioner in application of Article L. 622-17 of the Commercial Code ”are deleted;

2 ° Section 12 of article 150-0 D is amended as follows:

a) The words: “in articles L. 621-70 and following” are replaced by the words: “in article L. 631-19”;

b) The words: “of Articles L. 621-83 et seq.” are replaced, twice, by the words: “of Article L. 631-22”;

c) The references: “L. 624-3, L. 624-4, L. 624-5, L. 625-4, L. 625-5, L. 625-6, L. 625-8, L. 626-2 or L. 626-6 “are replaced by the references:” L. 651-2, L. 652-1, L. 653-4, L. 653-5, L. 653-6, L. 653 -8, L. 654-2 or L. 654-6 “;

3 ° Article 163 octodecies A is amended as follows:

a) In I, the words: “referred to in Articles L. 621-70 et seq. Of the Commercial Code” are replaced by the words: “referred to in Article L 631-19 of the Commercial Code ”;

b) The words: “of Articles L. 621-83 et seq.” are replaced, twice, by the words: “of Article L. 631-22”;

c) In II, the references: “L. 624-3, L. 624-4, L. 624-5, L. 625-4, L. 625-5, L. 625-6, L. 625- 8, L. 626-2 or L. 626-6 “are replaced by the references:” L. 651-2, L. 652-1, L. 653-4, L. 653-5, L. 653-6 , L. 653-8, L. 654-2 or L. 654-6 “;

d) In II bis, the words: “organizing the continuation of the business and terminated in accordance with the provisions of article L. 621-62” are replaced by the words: “terminated in accordance with the provisions of article L. 631-19 ”;

4 ° In Article 208 D, the words: “of Articles L. 621-83 et seq.” Are replaced by the words: “of Article L. 631-22”;

5 ° In article 790 A, the reference: “to articles L. 622-1 et seq. Of the Commercial Code” is replaced by the reference: “to Title IV of Book VI of the Commercial Code”.

Article 167


In the second paragraph of 1 ° bis of I of article 156 of the general tax code, the reference: “title II of book VI of the commercial code” is replaced by the reference: “title IV of book VI of the code of trade “.

Article 168


At the end of b of 22 ° of article 157 of the general tax code, the reference: “title II of book VI of the commercial code” is replaced by the reference: “title IV of book VI of the commercial code” .

Article 169


In the second sentence of the first paragraph of III of article 1466 B of the general tax code and in the second sentence of the sixth paragraph of I of article 1466 C of the same code, after the words: “is subject to ‘a procedure’, the words: ‘conciliation, safeguard or’ are inserted.

Article 170


In the sixth paragraph of article 1518 B of the general tax code, the words: “in accordance with article L. 621-1 of the commercial code” are deleted.

Article 171


The book of tax procedures is thus amended:

1 ° In article L. 145 A, the words: “of the second paragraph of article L. 611-2 and of article L. 611-5” are replaced by the words: “of the second paragraph of I of Article L. 611-2”;

2 ° Article L. 145 B reads as follows:

“Art. L. 145 B. – In accordance with the provisions of Article L. 623-2 of the Commercial Code, the statutory auditor may obtain from the administration communication of information likely to provide him with exact information on the economic and financial situation. and assets of the debtor. “;

3 ° Article L. 145 C reads as follows:

“Art. L. 145 C. – In accordance with the provisions of Article L. 651-4 of the Commercial Code, for the application of the provisions of Articles L. 651-2 and L. 652-1 of the same Code, ex officio or at the request of one of the persons mentioned in Article L. 651-3 of the same code, the president of the court may instruct the judge-commissioner or, failing that, a member of the court he designates, to obtain from the administration the communication of any document or information on the financial situation of the directors as well as of the natural persons permanent representatives of the directors of legal entities mentioned in article L. 651-1 of the same code.

“The provisions of the first paragraph are applicable to persons who are members or associates of the legal person undergoing safeguard, reorganization or judicial liquidation proceedings when they are indefinitely and jointly liable for its debts. “

Article 172


II of Article L. 312-5 of the Monetary and Financial Code is supplemented by two paragraphs worded as follows:

“The sums paid by the guarantee fund within the framework of the preventive intervention benefit from the privilege mentioned in article L 611-11 of the Commercial Code.

“The guarantee fund cannot be held responsible for damages suffered as a result of the assistance granted, except in the cases exhaustively listed in article L. 650-1 of the same code. “

Article 173


I. – Article L. 951-14 of the social security code is amended as follows:

1 ° The beginning of the first paragraph is worded as follows:

“By way of derogation from articles L. 631-4 and L. 631-5 of the code of trade, a judicial reorganization procedure cannot be opened with regard to … (the rest without change). “;

2 ° In the second paragraph, the words: “of the amicable settlement instituted by articles L. 611-1 to L. 611-6 and articles L. 612-1 to L. 612-4 of the commercial code and to the regulations amicable des difficulties des entreprises ”are replaced by the words:“ a conciliation procedure instituted by Article L. 611-4 of the Commercial Code or a safeguard procedure referred to in Article L. 620-1 of the same code ”.

II. – The mutuality code is thus amended:

1 ° In point 3 of I of article L. 114-21, the reference “L. 625-10” is replaced by the reference: “L. 653-11”;

2 ° Article L. 212-15 is amended as follows:

a) The beginning of the first paragraph reads as follows:

“Notwithstanding articles L. 631-4, L. 631-5, L. 640-4 and L. 640-5 of the Commercial Code, reorganization or liquidation proceedings cannot be opened with regard to … (the rest without change). “;

b) In the second paragraph, the words: “of the amicable settlement instituted by article L. 611-3 of the commercial code” are replaced by the words: “of a conciliation procedure instituted by article L. 611 -4 of the Commercial Code or of a safeguard procedure referred to in Article L. 620-1 of the same code ”;

3 ° At the end of 2 ° of Article L. 223-22, the words: “in application of Articles L. 622-1 to L. 623-9 of the Commercial Code” are replaced by the words: “in application of Title IV of Book VI of the Commercial Code ”.

III. – The monetary and financial code is thus amended:

1 ° In the first paragraph of article L. 613-26, the reference: “L. 621-1” is replaced by the reference: “L. 631-1”;

2 ° In article L. 613-29, the reference: “chapter II of title II” is replaced by the reference: “title IV”, the reference: “L. 622-2” is replaced by the reference: “ L. 641-1 ”, the references:“ first two paragraphs of article L. 622-4 ”are replaced by the references:“ first three paragraphs of article L. 641-4 ”, and the words:“ in the third paragraph of “are replaced by the word:” to “.

IV. – In the first paragraph of article L. 213-1 of the town planning code, the words: “decreed in application of the provisions of articles L. 621-83 to L. 621-101 of the commercial code and in a production unit sold in application of article L. 622-17 of the same code ”are replaced by the words:“ decreed in application of article L. 631-22 or articles L. 642-1 et seq. of the code of business “.

V. – The environmental code is thus amended:

1 ° In the first paragraph of article L. 421-9-1 and in the second paragraph of article L. 421-15, the reference: “L . 612-4 “is replaced by the reference:” L. 612-3 “;

2 ° In the last paragraph of article L. 421-9-1, in the first sentence of article L. 421-11-1, in the last paragraph of article L. 421-15 and in the first sentence of article L. 421-17, the words: “last paragraph of article L. 612-4” are replaced by the words: “third paragraph of article L. 612-3”.

Article 174


I. – Article L. 613-31-2 of the Monetary and Financial Code is thus amended:

1 ° Point 2 ° of I is repealed;

2 ° In 3 ° of I, the words: “Title II of” are deleted;

3 ° In the second paragraph of II, the words: “Chapter II of Title II” are replaced by the words: “Title IV”.

II. – Article L. 323-8 of the Insurance Code is amended as follows:

1 ° 3 ° is repealed;

2 ° In the 4 °, the words: “title II of” are deleted.

III. – Article L. 212-27 of the mutual insurance code is thus amended:

1 ° 3 ° is repealed;

2 ° In the 4 °, the words: “title II of” are deleted.

IV. – Article L. 931-18-1 of the Social Security Code is amended as follows:

1 ° 3 ° is repealed;

2 ° In the 4 °, the words: “title II of” are deleted.

Article 175


I. – Section 4 of article 1929 quater of the general tax code reads as follows:

“4. Disclosure is compulsory when the sums due, in respect of a calendar semester, by a person liable to the same accounting item or service assimilated and likely to be registered remain unpaid. “

II. – After 8 of the same article, an 8 bis is inserted as follows:

“8 bis. The competent accountant requests, within a period of one month, the total cancellation of the registration which has become irrelevant, once the debtor has paid his debt. “

III. – After article 379 of the customs code, an article 379 bis is inserted as follows:

“Art. 379 bis. – 1. Give rise to publicity, under the conditions provided for in 2 to 5, the sums remaining due on a privileged basis by traders and legal persons governed by private law, even non-traders, in respect of the claims listed in 1 of article 379 .

“2. The advertisement is made at the behest of the administration responsible for collection.

“3. Registration may only be required, depending on the nature of the claim, from the date on which an enforcement order has been issued.

“4. Disclosure is compulsory when the sums due, for a calendar semester, by a person liable to the same accounting item or similar service and liable to be entered remain unpaid.

“5. In the event of payment with subrogation, the person subrogated to Treasury rights is bound by the obligations and formalities imposed by this article on the administration, whatever the amount of the payment.

“If the payment by the subrogatee takes place without the issuance of an enforceable title provided for in 3, registration may only be required at least six months after payment.

“6. The costs of registering the privilege are the responsibility of the Treasury.

“7. In the event of safeguard, reorganization or judicial liquidation of the taxpayer or of a third party legally bound to pay the sums referred to in 1, the Treasury or its subrogate cannot exercise its privilege for the claims which were subject to compulsory to the advertising provided for in 1 to 5 and whose registration has not been duly required against the taxpayer.

“8. Registrations made in application of 1 to 5 are prescribed by four years, except renewal.

“9. The competent accountant requests, within a period of one month, the total cancellation of the registration which has become irrelevant, once the debtor has paid his debt.

“10. The modalities of application of this article and in particular the forms and deadlines for registrations and their cancellation are fixed by a decree of the Council of State. “

Article 176


The first paragraph of Article L. 113-6 of the Insurance Code is deleted.

Article 177


Article L. 143-11-1 of the Labor Code is amended as follows:

1 ° The first paragraph is worded as follows:

“Any trader, any person registered in the trades directory, any farmer, any other natural person exercising a professional activity independent and any legal person governed by private law, employing one or more employees, must insure its employees, including salaried workers posted abroad as well as expatriate salaried workers mentioned in Article L. 351-4, against the risk non-payment of sums due to them in execution of the employment contract, in the event of legal safeguard, reorganization or liquidation proceedings. “;

2 ° Notwithstanding II of article 165 of this law, in 2 °, the words: “the recovery plan” are replaced by the words: “the safeguard, recovery or cession plan”;

3 ° The last paragraph is deleted.

Article 178


The seventh paragraph of Article L. 143-11-7 of the Labor Code is supplemented by three sentences worded as follows:

“In the case of a safeguard procedure, the judicial representative justifies to these institutions, at the time of his request, that the insufficiency of available funds is characterized. They can contest, within a period fixed by decree in the Council of State, the reality of this insufficiency before the judge-commissioner. In this case, the advance of funds is subject to the authorization of the judge-commissioner. “

Article 179


Article L. 143-11-9 of the labor code reads as follows:

“Art. L. 143-11-9. – The institutions mentioned in article L. 143-11-4 are subrogated in the rights of the employees for whom they have made advances:

“a) For all debts, during a safeguard procedure;

“B) For claims guaranteed by the privilege provided for in Articles L. 143-10, L. 143-11, L. 742-6 and L. 751-15 and claims advanced under 3 ° of Article L 143-11-1, during reorganization or liquidation proceedings. The other sums advanced within the framework of these procedures are reimbursed to them under the conditions provided for by the provisions of Book VI of the Commercial Code for the settlement of debts arising prior to the judgment opening the procedure. They then benefit from the privileges attached to it. “

Article 180


After Chapter V of Title VIII of Book VII of the Labor Code, a Chapter VI is inserted as follows:


“Chapter VI


” Custom work


“Art. L. 786-1. – The sums owed to the contractors by their principals must be paid, when the latter are the subject of a safeguard, receivership or judicial liquidation procedure, notwithstanding the existence of any other privileged claim to the with the exception of those guaranteed by Article L. 143-10, up to the amount of the total amount of remuneration of any kind owed to the employees and apprentices of said contractors, for the last sixty days of work or apprenticeship preceding the opening of the procedure. “

Article 181


The Labor Code is thus amended:

1 ° At the beginning of the sixth paragraph of Article L. 143-11-7, the words: “The statement of claims precise” are replaced by the words: “The statements of claims specify” ;

2 ° Article L. 143-11-7-1 is repealed;

3 ° The second paragraph of article L. 143-11-8 is deleted.

Article 182


The 1 of article 39 of the general tax code is supplemented by an 8 ° thus worded:

“8 ° Write-offs of commercial debts granted or supported within the framework of a safeguard or recovery plan. “

Article 183


After the words: “is required”, the end of article L. 351-7 of the rural code reads as follows: “confidentiality. “

Article 184


Article L. 243-5 of the Social Security Code is amended as follows:

1 ° The first paragraph is worded as follows:

“Privileged claims pursuant to the first paragraph of Article L. 243-4, owed by a merchant or a legal person governed by private law, even a non-commercial one, must be entered in a public register kept at the clerk of the commercial court or the high court within six months following their payment deadline or, where applicable, the date of notification of the warning or formal notice provided for in Article L. 244-2, when the debt is noted during an audit organized in application of the provisions of Article L. 243-7. “;

2 ° The fourth paragraph is completed by a sentence worded as follows:

“However, when the registration has become irrelevant, once the debtor has paid his debt and subject to the payment, with the creditor organization, of the costs related to the registration and cancellation formalities, this organization requests the total cancellation within one month. “

Article 185


After article L. 269 A of the book of tax procedures, an article L. 269 B is inserted as follows:

“Art. L. 269 B. – The competent public accountant, in the event of exercise of his right of individual action for his privileged debts or in the event of provisional collection of said debts in application of articles L. 622-8 or L. 643-3 of the Commercial Code must, by order of the judge-commissioner, return, at the first request of the liquidator, the excess of the sums collected over those provided for under the distribution of the proceeds of the judicial liquidation, in accordance with the rules of the book VI of this code. The competent accountant returns, in whole or in part, the provisional collection as State expenditure. “

Article 186


Article 14-1 of Law No. 75-1334 of December 31, 1975 relating to subcontracting is supplemented by a paragraph worded as follows:

“The provisions of the second paragraph also apply to the industrial subcontracting contract when the client is aware of its existence, notwithstanding the absence of the subcontractor on the site. The provisions of the third paragraph also apply to the industrial subcontracting contract. “

Article 187


Article L. 821-4 of the code of judicial organization is supplemented by five paragraphs worded as follows:

“The national council sets its budget.

“It can ensure the financing of services of collective interest in the fields fixed by decree.

“To this end, the National Council calls for a contribution paid annually by each holder of a commercial court clerk office. The amount of this contribution results from a progressive scale fixed by decree after opinion of the National Council, according to the activity of the office and, where applicable, the number of partners.

“The product of this contribution cannot exceed a quota determined by the national council, within the limit of 2% of the total of the products excluding tax recorded by all the offices for the previous year.

“In the absence of payment of this contribution within a period of one month from a formal notice, the national council issues, against the person liable, an act assimilated to a decision within the meaning of 6 ° of the article 3 of law n ° 91-650 of July 9, 1991 reforming civil enforcement procedures. “

Article 188


Article L. 202 of the electoral code is repealed.

Article 189


In the eighth paragraph (7 °) of article 1844-7 of the civil code, the words: “or the total transfer of the assets of the company” are deleted.


Chapter III

Transitional provisions

Article 190


This law comes into force on January 1, 2006, with the exception of the following provisions which are applicable to proceedings and situations pending from its publication:

a) In all provisions providing for incapacity, prohibition or forfeiture resulting from personal bankruptcy or a ban on management, these measures must be understood as having a maximum duration of fifteen years from the day on which the decision which pronounced them became final;

b) The measures of personal bankruptcy and prohibition to manage as well as the disqualifications and prohibitions which result from them end on the date of publication of this law when, on that date, they were pronounced more than fifteen years previously by a decision that has become final.

However, the proceedings already initiated on the date of publication of this law, on the basis of Article L. 622-32 of the Commercial Code, are not, even if the fifteen-year period has expired, affected by the the foregoing provisions and the sums received by the creditors remain with them;

c) Article L. 624-10 of the Commercial Code in its wording resulting from this law;

d) Article L. 643-9 of the Commercial Code;

e) The last paragraph of Article L. 811-11 of the Commercial Code.

Article 191


When it comes into force, this law is not applicable to proceedings in progress, with the exception of the following provisions resulting from the new wording of Book VI of the Commercial Code:

1 ° Chapter IV of Title IV;

2 ° Article L. 626-27. This article is applicable to ongoing bankruptcy proceedings;

3 ° Article L. 643-11. This article is applicable to ongoing reorganization or liquidation proceedings. However, the proceedings already instituted on the date of entry into force of this article with regard to debtors who have been the subject of

Article L. 643-11 is also applicable to pending legal settlement or asset liquidation proceedings. However, the sums received by creditors remain with them;

4 ° Article L. 643-13;

5 ° Chapters I and II of Title V, with the exception of Article L. 651-2;

6 ° Article L. 653-7;

7 ° Article L. 653-11;

8 ° Article L. 662-4.

Article 192


The procedures opened under Articles L. 621-98, L. 624-1, L. 624-4 and L. 624-5 of the Commercial Code, in their wording prior to this law, are not affected by its Coming into force.


Chapter IV

Provisions relating to overseas territories

Section 1

Provisions specific to Saint-Pierre-et-Miquelon

 

Article 193


I. – In Chapter VI of Title I of Book IX of the Commercial Code, an article L. 916-1 is inserted as follows:

“Art. L. 916-1. – 4 ° of III of article L. 643-11 does not apply to Saint-Pierre-et-Miquelon. “

II. – Article 175 of this law is not applicable to Saint-Pierre-et-Miquelon.


Section 2

Provisions applicable to Mayotte

Article 194


I. – This law is applicable to Mayotte, with the exception of articles 175 to 185 and 187.

II. – Title II of Book IX of the Commercial Code is amended as follows:

1 ° Article L. 926-1 is repealed. Articles L. 926-2, L. 926-3, L. 926-4, L. 926-5, L. 926-6 and L. 926-7 become articles L. 926-1, L. 926- 2, L. 926-3, L. 926-4, L. 926-5 and L. 926-6;

2 ° In the new article L. 926-3, the references “L. 641-46” and “L. 621-60” are respectively replaced by the references: “L. 622-26” and “L. 626- 5 to L. 626-7 ”;

3 ° In the new article L. 926-4, the reference “L. 621-60” is replaced by the references: “L. 626-5 to L. 626-7”;

4 ° In the new article L. 926-6, the reference “L. 621-84” is replaced by the reference: “L. 642-1” and the reference: “L. 331-7” is replaced by the reference “L. 331-3”;

5 ° An article L. 926-7 is added as follows:

“Art. L. 926-7. – 4 ° of III of article L. 643-11 does not apply. “

Section 3

Provisions applicable in New Caledonia

 

Article 195


I. – This law is applicable in New Caledonia, with the exception of articles 175 to 185, 187 and 188.

II. – Title III of Book IX of the Commercial Code is amended as follows:

1 ° 5 ° of Article L. 930-1 reads as follows:

“5 ° Book VI, with the exception of Articles L. 622- 19, L. 625-9 and L. 670-1 to L. 670-8; “

2 ° In article L. 936-1, the references:” L. 620-2 “,” L. 621-60 “and” L. 621-74 “are respectively replaced by the references:” L. 621 -4 “,” L. 626-6 “and” L. 626-16 “;

3 ° Article L. 936-2 reads as follows:

“Art. L. 936-2. – In the first paragraph of article L. 611-1, the order of the representative of the State in the region is replaced by a decision of the government of New Caledonia. “;

4 ° Articles L. 936-5 and L. 936-13 are repealed. Articles L. 936-6, L. 936-7, L. 936-8, L. 936-9, L. 936-10, L. 936-11 and L. 936-12 respectively become articles L. 936 -5, L. 936-6, L. 936-7, L. 936-8, L. 936-9, L. 936-10 and L. 936-11;

5 ° In the new article L. 936-8, the references: “L. 621-46” and “L. 621-60” are respectively replaced by the references: “L. 622-26” and “L. 626 -5 to L. 626-7 ”;

6 ° In the new article L. 936-9, the reference: “L. 621-60” is replaced by the references: “L. 626-5 to L. 626-7”;

7 ° In the new article L. 936-11, the reference: “L. 621-84” is replaced by the reference: “L. 642-1”, and the reference: “L. 331-7” is replaced by the reference: “L. 331-3”;

8 ° After the new article L. 936-11, an article L. 936-12 is inserted as follows:

“Art. L. 936-12. – 4 ° of III of article L. 643-11 does not apply. “

Section 4

Provisions applicable to the Wallis and Futuna Islands

Article 196


I. – This law is applicable in the Wallis and Futuna Islands, with the exception of articles 175 to 185, 187 and 188.

II. – Title V of Book IX of the Commercial Code is amended as follows:

1 ° 6 ° of article L. 950-1 reads as follows:

“6 ° Book VI, with the exception of articles L. 622- 19, L. 625-9, L. 653-10 and L. 670-1 to L. 670-8; “;

2 ° In article L. 956-1, the references: “L. 620-2”, “L. 621-60” and “L. 621-74” are respectively replaced by the references: “L. 621- 4 “,” L. 626-5 to L. 626-7 “and” L. 626-16 “;

3 ° Article L. 956-2 is repealed. Articles L. 956-3, L. 956-4, L. 956-5, L. 956-6, L. 956-7, L. 956-8 and L. 956-9 respectively become articles L. 956 -2, L. 956-3, L. 956-4, L. 956-5, L. 956-6, L. 956-7 and L. 956-8;

4 ° In the new article L. 956-4, the references: “L. 621-46” and “L. 621-60” are respectively replaced by the references: “L. 622-26” and “L. 626 -5 to L. 626-7 ”;

5 ° In the new article L. 956-5, the reference: “L. 621-60” is replaced by the references: “L. 626-5 to L. 626-7”;

6 ° In the new article L. 956-7, the reference: “L. 621-84” is replaced by the reference: “L. 642-2” and the reference: “L. 331-7” is replaced by the reference: “L. 331-3”;

7 ° The first paragraph of the new article L. 956-8 reads as follows:

“After the first sentence of the first paragraph of II of article L. 641-1, a sentence worded as follows is inserted:”;

8 ° After article L. 956-8, an article L. 956-9 is inserted as follows:

“Art. L. 956-9. – 4 ° of III of article L. 643-11 does not apply. “;

9 ° The beginning of article L. 958-1 reads as follows:

“Articles L. 814-1 to L. 814-5 … (the rest without change). “


ANNEX

TABLE I

You can consult the table in OJ

n ° 173 of 07/27/2005 text number 5
TABLEII
You can consult the table in OJ

n ° 173 of 07/27/2005 text number 5

This law will be executed as state law.

 


Done in Paris, July 26, 2005.


Jacques Chirac


By the President of the Republic:


The Prime Minister,

Dominique de Villepin

The Minister for Employment, Social Cohesion

and Housing,

Jean-Louis Borloo

The Minister for the Economy,

Finance and Industry,

Thierry Breton

The Keeper of the Seals, Minister for justice,

Pascal Clément

The Minister of Small and Medium-Sized Enterprises,

Trade, Crafts

and Liberal Professions,

Renaud Dutreil


(1) Law n ° 2005-845.

– Preparatory work:

National Assembly:

Bill n ° 1596;

Report by Mr. Xavier de Roux, on behalf of the Law Commission, n ° 2095;

Opinion of Mr. Jérôme Chartier, on behalf of the finance committee, n ° 2099;

Discussion on March 1 to 3 and 8, 2005 and adoption, after declaration of emergency, on March 9, 2005.

Senate:

Bill, adopted by the National Assembly, n ° 235 (2004-2005);

Report by Mr. Jean-Jacques Hyest, on behalf of the Law Commission, n ° 335 (2004-2005);

Opinion of Mr Christian Gaudin, on behalf of the Committee on Economic Affairs, n ° 337 (2004-2005);

Opinion of Mr. Philippe Marini, on behalf of the finance committee, n ° 355 (2004-2005);

Discussion on June 29 and 30, 2005 and adoption on June 30, 2005.

National Assembly:

Bill, modified by the Senate at first reading, n ° 2432;

Report by Mr. Xavier de Roux, on behalf of the joint committee, n ° 2459;

Discussion and adoption on July 13, 2005.

Senate:

Report by Mr. Jean-Jacques Hyest, on behalf of the joint committee, n ° 467 (2004-2005);

Discussion and adoption on July 13, 2005.

– Constitutional Council:

Decision n ° 2005-522 DC of July 22, 2005, published in the Official Journal of this day.

an article L. 956-9 worded as follows:

“Art. L. 956-9. – 4 ° of III of article L. 643-11 does not apply. “;

9 ° The beginning of article L. 958-1 reads as follows:

“Articles L. 814-1 to L. 814-5 … (the rest without change). “


ANNEX


TABLE I
 

 


You can consult the table in OJ

n ° 173 of 07/27/2005 text number 5 

TABLEII
You can consult the table in OJ

n ° 173 of 07/27/2005 text number 5

This law will be executed as state law.


Done in Paris, July 26, 2005.


Jacques Chirac


By the President of the Republic:


The Prime Minister,

Dominique de Villepin

The Minister for Employment, Social Cohesion

and Housing,

Jean-Louis Borloo

The Minister for the Economy,

Finance and Industry,

Thierry Breton

The Keeper of the Seals, Minister for justice,

Pascal Clément

The Minister of Small and Medium-Sized Enterprises,

Trade, Crafts

and Liberal Professions,

Renaud Dutreil

(1) Law n ° 2005-845.

– Preparatory work:

National Assembly:

Bill n ° 1596;

Report by Mr. Xavier de Roux, on behalf of the Law Commission, n ° 2095;

Opinion of Mr. Jérôme Chartier, on behalf of the finance committee, n ° 2099;

Discussion on March 1 to 3 and 8, 2005 and adoption, after declaration of emergency, on March 9, 2005.

Senate:

Bill, adopted by the National Assembly, n ° 235 (2004-2005);

Report by Mr. Jean-Jacques Hyest, on behalf of the Law Commission, n ° 335 (2004-2005);

Opinion of Mr Christian Gaudin, on behalf of the Committee on Economic Affairs, n ° 337 (2004-2005);

Opinion of Mr. Philippe Marini, on behalf of the finance committee, n ° 355 (2004-2005);

Discussion on June 29 and 30, 2005 and adoption on June 30, 2005.

National Assembly:

Bill, modified by the Senate at first reading, n ° 2432;

Report by Mr. Xavier de Roux, on behalf of the joint committee, n ° 2459;

Discussion and adoption on July 13, 2005.

Senate:

Report by Mr. Jean-Jacques Hyest, on behalf of the joint committee, n ° 467 (2004-2005);

Discussion and adoption on July 13, 2005.

– Constitutional Council:

Decision n ° 2005-522 DC of July 22, 2005, published in the Official Journal of this day.

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