Bankruptcy Law

The conciliator has several missions. First and foremost, he or she is responsible for promoting the conclusion of an amicable agreement (accord amiable) between the debtor and his or her main creditors and, where applicable, his or her usual co-contractors, with a view to putting an end to the company's difficulties . Within the framework of this mission, the conciliator plays the role of a negot …

Conduct of negotiations

The conciliator has several missions. First and foremost, he or she is responsible for promoting the conclusion of an amicable agreement (accord amiable) between the debtor and his or her main creditors and, where applicable, his or her usual co-contractors, with a view to putting an end to the company's difficulties . Within the framework of this mission, the conciliator plays the role of a negotiator, with the objective of safeguarding the company. He must therefore approach the creditors to obtain payment deadlines and/or debt forgiveness, in return for commitments made by the debtor. In addition, he can present any proposal related to the safeguarding of the company, the continuation of the economic activity and the maintenance of employment.

Since the Ordinance of 12 March 2014 , the conciliator may also, at the request of the debtor and after the opinion of the participating creditors has been obtained, be entrusted with the organization of a partial or total sale of the business which could be implemented, if necessary, in the context of a subsequent safeguard, receivership (redressement judiciaire) or court-supervised liquidation (prepack-cession) . The purpose of the prepack-cession is to take advantage of the confidentiality of the procedure to seek potential transferees before the company's assets lose all value due to the bad publicity associated with the opening of an insolvency procedure. When entrusted with such a mission, the conciliator must, in the context of his efforts to find buyers, maintain a delicate balance between the confidentiality imperative referred to in Article L. 611-15 of the Commercial Code and the obligation imposed on him by Article R. 642-40 to ensure “sufficient publicity of the preparation of the transfer”, in order to attract satisfactory takeover-bid. Articles L. 141-23 and L. 141-28 of the Commercial Code, which require employees or the social and economic committee (comité social et économique) to be informed of any proposed transfer in order to allow one or more employees to make a bid, do not apply in the context of a conciliation procedure. The sale of all or part of the debtor's assets, prepared in the context of the conciliation, will subsequently have to be decided and implemented in the context of a safeguard, adjustment or court-supervised liquidation plan .

Finally, when, at the end of the conciliation procedure, the debtor requests the appointment of an agent for the execution of the approved agreement, the conciliator is invited to present his observations on the interest of such a mission . The conciliator may himself be appointed as an agent for the implementation of the agreement, at the request of the debtor .

In order to carry out his missions, the conciliator may obtain any useful information from the debtor. The president of the court shall also provide him with the information at his disposal and, where applicable, the results of the expert's report when he has instructed an expert of his choice to draw up a report on the economic, financial, social and property situation of the debtor .

The president of the court retains a right to monitor the performance of the conciliator's mission insofar as the conciliator reports to him on the progress of his mission and makes any useful observations on the debtor's diligence . If it is impossible to reach an agreement, the conciliator submits a report to the president of the court without delay, who terminates his mission and the conciliation procedure. The decision is notified to the debtor and communicated to the public prosecutor .

Ordinance No 2014-326 of 12 March 2014 reforming the prevention of business difficulties and collective procedures.

Commercial Code L. 611-7(1) and R. 611-26-2.

On the conditions of the transfer prepared in conciliation, within the framework of these procedures, see parts 2, 3 and 4.

Commercial Code, Art. L. 611-6(5) and L. 611-7(2).

Bankruptcy Law

28. Conduct of negotiations

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

28. Conduct of negotiations

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise