Bankruptcy Law

Pursuant to Article L. 651-4(2) of the Commercial Code, the president of the court may, ex officio or at the request of the liquidator or the public prosecutor, order any appropriate interim protective measure in respect of the assets of the managers or their representatives or the assets of the individual limited liability entrepreneur included in his unrestricted assets, or the assets, rights or …

Interim protective measures (mesures conservatoires)

Pursuant to Article L. 651-4(2) of the Commercial Code, the president of the court may, ex officio or at the request of the liquidator or the public prosecutor, order any appropriate interim protective measure in respect of the assets of the managers or their representatives or the assets of the individual limited liability entrepreneur included in his unrestricted assets, or the assets, rights or securities of the individual entrepreneur's personal assets covered by the status defined in Articles L. 526-1 et seq. of the same code. He may also take such measures in respect of members or associates of the legal entity undergoing a safeguard, recovery or liquidation procedure, where they are indefinitely and jointly and severally liable for its debts .

As the president of the commercial court has sole jurisdiction to order any appropriate protective measure in respect of the manager's assets, such a measure cannot be authorized by the court sitting in judgment . He may maintain the protective measure ordered in respect of the assets of the de jure or de facto manager in application of Article L. 631-10-1 of the Commercial Code , under which “[at] the request of the receiver or the legal representative, the president of the court hearing the case may order any useful protective measure in respect of the assets of the de jure or de facto manager against whom the receiver or the legal representative has brought a liability action based on a fault that has contributed to the cessation of payments by the debtor”. However, it may also order a protective measure even before the action for liability on grounds of insufficient assets is brought, since the reference to Article L. 631-10-1 applies only to the maintenance of a protective measure already ordered .

The use of a interim protective mesures against a manager's personal bank account  or real estate  is justified when the recovery of a claim is threatened, and when this measure guarantees effective payment to the group of creditors in the event of a pecuniary judgement against the manager at the end of the insolvency procedure. Interim protective mesures measures taken on the basis of Article L. 651-4 are autonomous and are not subject to the conditions of ordinary law set out in Article L. 511-1 of the Code of Civil Enforcement Procedures, which requires that the claim appears to be well-founded in principle and that the claimant can justify circumstances likely to threaten its recovery. Consequently, the registration of a judicial mortgage on the real estate of a manager sued to make up for a lack of assets requires only a finding of its usefulness, without having to establish that it is intended to counter a risk of organizing his insolvency or a threat to the recovery of the debt . The amount of the sums for which the seizure is ordered cannot exceed the amount of the claim against the manager or entrepreneur . The release of the protective attachment, the purpose of which was to guarantee payment of the condemnation sought in respect of the subsidiary's lack of assets, and which was not converted into a seizure of allotment before the judgment opening the judicial liquidation of the managing company, must be pronounced in view of the cessation of all enforcement proceedings as from the opening judgment .

The conditions for notifying an executive of the implementation of the court's authorization to take precautionary measures are governed by the ordinary law of enforcement . Thus, litigation concerning the enforcement of precautionary measures, which does not affect the decision ordering such measures, does not fall within the powers of the retraction court but within the general jurisdiction of the enforcement court . The fact that potentially inaccurate information is contained in the petition addressed to the court is not such as to prevent its admission, since the merits of the request for a precautionary measure cannot be usefully discussed before the petition court, who must merely verify that such an action is possible .

Lastly, protective measures ordered under Article L. 651-4(2) of the Commercial Code do not violate the provisions of Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, nor those of Article L. 511-1 of the Code of Civil Enforcement Procedures .

CA Paris, 12 February 2018, LawLex202300008527JBJ (LJ).

CA Paris, 21 June 2023, LawLex202300008526JBJ (LJ).

Cass. com., 31 May 2011, LawLex202200010367JBJ (LJ).

CA Versailles, 8 September 2022, LawLex202300007869JBJ (LJ).

CA Nîmes, 6 November 2014, LawLex202200009540JBJ (LJ).

CA Dijon, 14 August 2014, LawLex202200009537JBJ (LJ).

Cass. com., 27 November 2019, LawLex202300008532JBJ (LJ).

Bankruptcy Law

992. Interim protective measures (mesures conservatoires)

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992. Interim protective measures (mesures conservatoires)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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