Bankruptcy Law

A subsequent claim, which has arisen regularly, is eligible for the benefit of the provisions of Article L. 622-17 provided that it is justified by the needs of the procedure or the observation period. As the objective of the safeguard is to preserve the activity and employment, there is every reason to favor creditors who participate in the safeguard by contributing funds (new money) or providing …

Claim arising for the purpose of the procedure

A subsequent claim, which has arisen regularly, is eligible for the benefit of the provisions of Article L. 622-17 provided that it is justified by the needs of the procedure or the observation period. As the objective of the safeguard is to preserve the activity and employment, there is every reason to favor creditors who participate in the safeguard by contributing funds (new money) or providing services necessary for the company's sustainability.

The claims for the fees of the lawyer in charge of conducting the proceedings in connection with the adoption of the asset disposal plan , as well as the claim for costs incurred during the proceedings which led to the adoption and securing of the asset disposal plan , are considered as having been incurred for the purposes of the procedure and therefore benefit from the legal privilege with the rank attributed to legal costs . The same applies to fees for assistance of the debtor in the exercise of his own rights . Compensation claims resulting from the termination of an employment contract ordered by the legal representative must also be considered as having arisen regularly after the opening judgment, for the purposes of the procedure .

On the other hand, the claim for compensation for loss asserted by a franchisor who reproaches a former franchisee for continuing to use, after the termination of the contract and the opening of the insolvency procedure, the customer rallying signs attached to the franchise network, does not constitute a claim that has arisen for the purposes of the procedure . Similarly, a claim based on the loss of profit resulting from the legal representative's waiver of the continuation of the leasing contracts does not arise for the purposes of the procedure .

Subsequent and regular claims may also benefit from the payment privilege of Article L. 622-17 if they arise for the purposes of the observation period. A claim arising from the payment of invoices from the debtor's suppliers, with a view to the continuation of the worksite that was subcontracted to it, during the observation period of its insolvency procedure, must be considered as having arisen for the needs of the latter .

The Court of Cassation seemed to identify an alternative criterion which does not formally correspond to the letter of Article L. 622-17. Indeed, it considers that the sums whose payment constitutes a legal obligation for the debtor in insolvency procedure are claims “inherent to the activity pursued” by the latter and therefore benefit from the payment privilege recognized by Article L. 622-17. This is the case for the businesses' real estate contribution (cotisation foncière des entreprises) , the insurance contribution for involuntarily unemployed workers (contribution d'assurance des travailleurs involontaires privés d'emploi)  and the social welfare tax (contribution sociale de solidarité) and the additional contribution (contribution additionnelle) . In reality, such a criterion can easily be linked, despite the terminology used, to the needs of the procedure or the observation period.

Finally, the Ordinance of 18 December 2008  amended Article L. 622-17, which initially required that the subsequent claim must have arisen for the purposes of the procedure or the observation period, for the “professional activity” of the debtor . This last condition having disappeared, non-business claims should theoretically be able to benefit from the payment privilege if the conditions maintained are met. However, the case law is reluctant to admit the privileged nature of such claims. Thus, a decision rendered under the new wording of Article L. 621-7 held that a debtor's claim for housing rent, due after the opening judgment of the insolvency procedure, did not constitute a claim arising for the purposes of the procedure . Nevertheless, this decision seems open to criticism because such a claim, which arose in consideration of a service provided to the debtor, should be considered a privileged subsequent claim. Similarly, it has been held that when the debtor company no longer has any activity during the observation period, the travel expenses of its director cannot be classified as claims arising for the purposes of the procedure and charged to the company .

Cass. com., 7 October 2020, LawLex202100006125JBJ (LJ).

Cass. com., 15 October 2013, LawLex202100001072JBJ (LJ).

Cass. com., 15 June 2011, LawLex202100002462JBJ (RJ).

Ordinance No 2008-1345 of 18 December 2008 reforming the law on companies in difficulty.

See for an application, Cass. com, 11 October 2016, LawLex202100002477JBJ (LJ).

Cass. com., 12 March 2013, LawLex202100002468JBJ (LJ).

Cass. com., 1 December 2015, cited above.

Comp. Cass. com. of 2 December 2014, LawLex202100002385JBJ (S), holding that the claim arising from the award of attorney's fees to a creditor bank cannot be considered as having arisen for the purposes of the procedure since it cannot be classified as useful to its purpose of safeguarding the debtor company and does not constitute the consideration for a service provided to it

Cass. com., 1 December 2015, LawLex202100001073JBJ (LJ).

Cass. soc., 16 June 2010, LawLex202100002472JBJ (LJ).

Cass. com., 20 September 2016, LawLex202100002471JBJ (RJ).

Cass. com., 18 September 2007, LawLex202100002470JBJ (RJ).

Cass. com., 9 May 2018, LawLex202100002463JBJ (RJ).

Cass. com., 24 March 2021, LawLex202100005846JBJ (LJ).

Cass. com., 17 September 2013, LawLex202100002475JBJ (RJ).

Bankruptcy Law

177. Claim arising for the purpose of the procedure

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177. Claim arising for the purpose of the procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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