Bankruptcy Law

Under Article L. 623-1 of the Commercial Code, the receiver, with the assistance of the debtor and possibly one or more experts, is responsible for drawing up a report on the economic and social situation of the company. The economic and social report specifies the origin, the importance and the nature of the company's difficulties. The receiver, charged with drawing up the economic and social bal …

Report on the economic, social and environmental situation of the debtor

Under Article L. 623-1 of the Commercial Code, the receiver, with the assistance of the debtor and possibly one or more experts, is responsible for drawing up a report on the economic and social situation of the company. The economic and social report specifies the origin, the importance and the nature of the company's difficulties. The receiver, charged with drawing up the economic and social balance sheet of the debtor company, does not have to respect the adversarial principle with respect to its former manager since his report is intended to be produced in court and to be discussed in adversarial manner, including with the latter .

A banking institution may not oppose a request for communication, issued by the bankruptcy judge in the context of the right to information conferred upon it by the provisions relating to the preparation of the economic, social and environmental balance sheet of the company, of the position of all the accounts of the liquidated companies and of the detailed list of credit transactions with the indication of the names of the issuing banks, as well as of the identity of the payers . Nor can he oppose the banking secrecy to the request for communication of information sent to him by the bankruptcy judge to obtain information on the exact economic and financial situation of the company with a view to drawing up a plan .

The receiver who has established his diagnosis of the difficulties of the company within the economic and social report and not in a separate document and who justifies by a letter to the debtor that he has organized a meeting with the latter cannot incur liability for failure to comply with the obligations provided for by Articles L. 623-1 et seq. . Unlike the economic, social and environmental report drawn up in the context of the safeguard procedure, the report of the receiver, or failing that, of the debtor, which is intended to inform the court as to whether or not to order the continuation of the observation period, does not have to be in written form . In addition, the communication of the economic and social report to the debtor the day before the hearing does not constitute a violation of the rights of the defense as long as the debtor's lawyer has not requested the referral of the case . Article R. 623-1 of the Commercial Code specifies that the receiver must file the balance sheet with the court registrar and communicate it to the authorities and persons mentioned in Article L. 626-8, by registered letter with acknowledgement of receipt.

If the company operates one or more classified installations within the meaning of Title I of Book V of the Environmental Code, the economic and social report is supplemented by an environmental report that the receiver must commission . Article R. 623-2 provides that this assessment is carried out by the debtor or by a technician appointed by the bankruptcy judge, if the latter deems such intervention necessary. It covers the identification and description of the site(s) where the classified facility(ies) are operated and their environment, the existence of potential pollution, the emergency safety measures already taken, planned or to be taken and the measures taken to monitor the impact of the operation on the environment.

Finally, Article R. 663-9 adds that the receiver is paid a fee for drawing up the economic, social and environmental report, which varies according to the number of employees employed by the debtor or its turnover. However, when the balance sheet total is greater than or equal to a certain threshold, the fee is determined solely on the basis of this balance sheet total. This remuneration is acquired in particular when the court has ruled on the safeguard plan. It is increased by 50% if the plan is approved. The remuneration of the receiver for carrying out the economic and social assessment of the company is different from that allocated for the establishment of the diagnosis of the safeguard procedure, set out in Article R. 663-4 of the same code . The remuneration allocated to the receiver for the diligence relating to the diagnosis of the procedure is not conditional upon the establishment of a diagnosis in the form of a written report distinct from the economic, social and environmental report .

CA Aix-en-Provence, 16 April 2015, LawLex202100005244JBJ (RJ).

CA Reims, 27 January 1999, LawLex202200002877JBJ (RJ).

CA Poitiers, 12 May 1993, LawLex202100005253JBJ (RJ).

CA Versailles, 13 February 2014, LawLex202100005257JBJ (RJ).

CA Orléans, 25 January 2007, LawLex202100005249JBJ (RJ).

Cass. com., 9 January 1990, LawLex202100005252JBJ (RJ).

CA Versailles, 11 March 2009, LawLex202100005251JBJ (RJ).

Cass. com., 8 June 2010, LawLex202100005250JBJ (RJ).

Bankruptcy Law

197. Report on the economic, social and environmental situation of the debtor

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197. Report on the economic, social and environmental situation of the debtor

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