Bankruptcy Law

Any person called upon to participate in the conciliation procedure (procédure de conciliation) or who, by virtue of his or her duties, has knowledge of it, is bound to confidentiality . The respect of this obligation, also applicable to the ad hoc mandate , justifies in particular that the decision of appointment of a conciliator taken by the president of the court is not published. The objective …

Scope of application and regime

Any person called upon to participate in the conciliation procedure (procédure de conciliation) or who, by virtue of his or her duties, has knowledge of it, is bound to confidentiality . The respect of this obligation, also applicable to the ad hoc mandate , justifies in particular that the decision of appointment of a conciliator taken by the president of the court is not published. The objective pursued by the legislator is to avoid a feeling of distrust among the debtor's creditors and partners, which would dissuade them from continuing business relations or lead them to tighten the conditions of such relations by placing additional obligations on the debtor. Furthermore, the debtor is not obliged to inform the social and economic committee (comité social et économique) of the opening of the procedure .

Nondisclosure obligation weighs as much on the creditors as on the courts, the registrar of the court, the public prosecutor, the conciliator or the debtor. Thus, the court seized of an application to open insolvency proceedings by a creditor who is unaware of the existence of ongoing conciliation proceedings must suspend the proceedings until the decision of the president of the court terminating the conciliator's mission and the conciliation proceedings or until the date of the judgment confirming or homologating the agreement, except for the power to rule immediately on procedural objections and pleas in law that do not depend on a substantive issue . Similarly, a conciliator who has drawn up a certificate in which he or she states his or her status and describes the course of the proceedings is in serious breach of the nondisclosure obligation, so that this document must be excluded from the proceedings .

As in the case of the ad hoc mandate, case law has extended the scope of confidentiality beyond the persons involved in the procedure and those who, by virtue of their functions, have knowledge of it, to the press. In fact, the disclosure of precise encrypted data on the proposals made to the creditors in the context of a conciliation procedure, the state of the discussions underway, the concrete difficulties faced by the company as well as the efforts made by the creditors and the grace periods obtained, engages the responsibility of the media outlet . The latter cannot invoke an infringement of the freedom of expression on the basis of Article 10(2) ECHR, since restrictions may be imposed by law to the extent necessary in a democratic society to protect the rights of others and to prevent the disclosure of confidential information relating to the conciliation procedure . The need to inform the public about matters of general interest cannot be invoked as an exception to the confidentiality requirement in conciliation proceedings where the information at issue is published not in the general press but in the trade press, which is followed by economic players likely to be interested in the situation of the company in question .

The persons called to the homologation hearing pursuant to the first paragraph of Article L. 611-9 of the Commercial Code may examine the agreement at the court registry (greffe du tribunal). The judgment, which does not repeat the terms of the agreement, mentions only the guarantees and liens set up to ensure its execution and the amounts guaranteed by the lien instituted by Article L. 611-11 . Subject to the proceedings initiated by the third party opposition referred to in Article L. 611-10, and apart from the judicial authority, to whom the approved agreement and the expert's report may be communicated pursuant to Article L. 621-1, the agreement may only be communicated to the parties and to the persons who may avail themselves of it. The agreement may only be communicated to the third party opponent once the third party opposition has been declared admissible.

CA Aix-en-Provence, 30 June 2011, LawLex202100002790JBJ.

TGI Paris, 21 September 2017, LawLex202100005578JBJ.

CA Versailles, 14 September 2017, LawLex202100002804JBJ approved by Cass. com., 13 June 2019, LawLex202100001239JBJ. See also Cass. com., 13 February 2019, LawLex202100001242JBJ.

Cass. com., 15 December 2015, LawLex202100001241JBJ ; 13 February 2019, LawLex202100001242JBJ. See also, Cass. com., 4 October 2018, LawLex202100001240JBJ.

CA Versailles, 14 September 2017, LawLex202100002804JBJ approved by Cass. com., 13 June 2019, LawLex202100001239JBJ. See also Cass. com., 13 February 2019, LawLex202100001242JBJ. Contra, CA Versailles, 27 November 2013, LawLex202100003600JBJ.

Bankruptcy Law

27. Scope of application and regime

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Les notions juridiques connexes

27. Scope of application and regime

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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