Bankruptcy Law

The president of the court may, “at the request of a debtor”, appoint an ad hoc agent whose mission he determines . Only the debtor has the right to request the appointment of an ad hoc agent, to the exclusion of the creditors and the public prosecutor. Thus, a creditor's request for the appointment of an ad hoc agent, not requested by the debtor and not justified by the latter's incapacity or una …

Debtor's application

The president of the court may, “at the request of a debtor”, appoint an ad hoc agent whose mission he determines . Only the debtor has the right to request the appointment of an ad hoc agent, to the exclusion of the creditors and the public prosecutor. Thus, a creditor's request for the appointment of an ad hoc agent, not requested by the debtor and not justified by the latter's incapacity or unavailability, must be rejected . The same applies to a request for appointment by a director who, having been removed from office, is neither a debtor nor the legal representative of the company .

The request, presented in writing, is addressed or delivered to the president of the Commercial Court or the Judicial Court, as the case may be, by the legal representative of the legal person or by the debtor, who is a natural person, and filed at the registry . Consequently, the request for the appointment of an ad hoc agent presented on appeal is inadmissible .

The ad hoc mandate procedure is located at the beginning of Book VI of the Commercial Code, which leads to the conclusion that the difficulties encountered must be less serious than those that justify the opening of conciliation or judicial proceedings. Although the procedure is not subject to any condition relating to the difficulties experienced in the absence of any specification in the law, the debtor must set out the reasons for the request . The debtor must establish the need to prevent the company's difficulties, which may result from the failure to approve the accounts, a deadlock with a partner, or the holding of the last meeting in a climate of violence , etc. Nevertheless, the appointment of an ad hoc agent is not necessary either in the case of a simple challenge to the regularity of general assemblies, or in the case of disagreements between partners, which do not affect the normal functioning of the company . The request for the appointment of an ad hoc agent must be rejected when there is no threat to the business, which has already stopped . Similarly, a debtor in judicial liquidation (liquidation judiciaire), which may not be closed , may not request the appointment of an ad hoc agent since this is a preventive and confidential procedure for the amicable settlement of difficulties, the aim of which is to restore the company's situation before it becomes irremediably compromised . A similar solution is required a fortiori when the application is made after the court has pronounced the closure of the judicial liquidation opened against a debtor .

Moreover, the referral to the president of the court for the appointment of an ad hoc agent does not imply that the debtor is in good standing since the finding that the debtor is not in a state of cessation of payments for less than forty-five days is not, unlike in the case of conciliation, a condition for this appointment .

As soon as the application is received, the president of the court has the Registrar of the court summon the legal representative of the legal person or the debtor, who is a natural person, to a meeting to hear his observations . During this interview, the debtor sets out the elements justifying his application. The debtor may propose the name of an ad hoc agent , whose identity and address are specified . The latter must not have received any remuneration, in the two preceding years, from the debtor, directly or indirectly, from a person who holds control or is controlled by the debtor within the meaning of Article L. 233-16, or from any creditor of the debtor . The missions of the ad hoc agent may not be entrusted to a commercial judge who is in office or who left office less than five years ago .

The decision on the appointment of the ad hoc agent is notified to the applicant and to the person appointed, who immediately informs the president of the court of his acceptance or refusal. In the event of acceptance, the representative shall certify on his honor that he complies with the above-mentioned prohibitions . Upon receipt of this attestation, the court Registrar shall communicate the decision of appointment to the debtor's auditor, if one has been appointed, by registered letter with acknowledgement of receipt . The appeal, which is only available in the event of refusal of designation, is reserved for the debtor alone . Consequently, the decision granting the debtor's request cannot be appealed by a shareholder, either by way of an appeal  or by way of summary proceedings . Moreover, the appointment of a person other than the one proposed by the applicant is not subject to appeal since it cannot be considered as a refusal of appointment: indeed, the president of the court has discretionary power both in the choice of the representative and in the definition of the object of the mission .

The ordinance appointing the ad hoc agent sets the terms of his remuneration, with the prior agreement , recorded in writing and annexed to the order, of the debtor, having regard to the diligence involved in the performance of his mission . It indicates the criteria on the basis of which the remuneration will be fixed, its maximum amount and, where applicable, the amount or the terms of payment of provisions . The agent may make a proposal for remuneration, which is attached to the request for appointment  and transmitted without delay by the court Registrar to the public prosecutor. The court Registrar notifies the order fixing the remuneration to the ad hoc agent and to the debtor . The debtor and the ad hoc agent may lodge an appeal against the ordinance with the first president of the Court of Appeal, which shall be lodged, heard and judged within the time-limits and under the conditions laid down in Articles 714 to 718 of the Civil Procedure Code. Finally, the remuneration may, in accordance with Article L. 611-49 of the Commercial Code, be re-evaluated at the request of the agent if he considers, during the execution of his mission, that the remuneration is insufficient. The debtor must agree to this reassessment, failing which his mission is terminated.

In order to protect against the effects of amicable proceedings, practice had devised clauses that reduced the debtor's rights or increased his obligations. These clauses are now deemed to be unwritten . The same is true of a clause which makes the debtor bear more than two thirds of the costs incurred by the opening of an ad hoc mandate .

CA Aix-en-Provence, 17 March 2011, LawLex202100005525JBJ.

CA Montpellier, 20 March 2018, LawLex202100005524JBJ.

CA Paris, 3 September 2013, LawLex202100005532JBJ.

CA Nancy, 21 October 2020, LawLex202100005522JBJ.

CA Aix-en-Provence, 22 June 2011, LawLex202100005530JBJ.

Commercial Code, Art. R. 611-20, pursuant to which the appeal is filed, investigated and judged in accordance with the provisions of Article R. 611-26.

CA Aix-en-Provence, 5 July 2018, LawLex202100005523JBJ.

CA Versailles, 16 April 2015, LawLex202100005534JBJ.

CA Montpellier, 26 June 2012, LawLex202100005536JBJ.

Commercial Code, Art. L. 611-14 and R. 611-19(2).

CA Aix-en-Provence, 22 May 2014, LawLex202100005526JBJ.

CA Reims, 6 June 2017, LawLex202100005533JBJ.

CA Aix-en-Provence, 18 January 2018, LawLex202100005540JBJ.

CA Toulouse, 26 November 2015, LawLex202100002788JBJ.

CA Aix-en-Provence, 29 September 2011, LawLex202100005531JBJ.

Bankruptcy Law

20. Debtor's application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

20. Debtor's application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise