Bankruptcy Law

Article L. 621-1 of the Commercial Code provides that the court seized of an application to open safeguard proceedings shall rule after hearing or duly calling the debtor and the person or persons designated by the social and economic committee (comité social et économique). The hearing takes place in court chambers in order to preserve the confidentiality of the statements. These provisions are n …

Hearings in court chambers

Article L. 621-1 of the Commercial Code provides that the court seized of an application to open safeguard proceedings shall rule after hearing or duly calling the debtor and the person or persons designated by the social and economic committee (comité social et économique). The hearing takes place in court chambers in order to preserve the confidentiality of the statements. These provisions are not incompatible with the freedom of expression and the right to a fair trial . The presence of the public prosecutor in person at the hearing is not required if he has been represented by an acting assistant prosecutor . The hearing first concerns the debtor in the safeguard proceedings. If the debtor is not summoned to appear, the opening judgment may be null and void, as his hearing is a formality of public policy. The fact that the manager has filed pleadings does not replace his hearing in chambers . On the other hand, the opening judgment cannot be annulled for failure to summon the debtor to the hearing as long as the summons to appear in chambers was served on him, with an indication of the facts likely to motivate the seizure of the court, at the address of his headquarters and of his activity, as determined during the preliminary investigation by the bailiff (huissier instrumentaire) .

The hearing shall also include the persons designated by the social and economic committee in accordance with the terms of Article R. 621-2 of the Commercial Code, which states that "[b]efore a decision is taken on the opening of the proceedings, the court registrar, at the request of the president of the court, shall notify the debtor i.e. the legal representative of the legal entity or the natural person that he must convene a meeting of the social and economic committee in order to designate the persons entitled to be heard by the court and to exercise the remedies in accordance with Article L. 661-10. A copy of this notice is sent by the court registrar to the secretary of the social and economic committee. The minutes are filed at the court registry.

The safeguard procedure cannot be opened, under pain of nullity of the opening judgment, without having convened the institutions representing the personnel . Even if they have not been heard in the end, they must at least have been called. On the other hand, the judgment opening an insolvency procedure cannot be annulled even in the absence of a formal designation of a representative of the employees, as long as the employee representative presented himself upon invitation in the court chamber, assisted by his lawyer, and that all the employees received a copy of the convocation by e-mail . Similarly, the mere fact that the employee representative of the debtor company was not heard by the court cannot invalidate the contested judgment, since she was summoned and appeared at the hearing .

Paragraph 2 of Article L. 621-1 of the Commercial Code adds that, where the debtor exercises a liberal profession subject to a legislative or regulatory status or whose title is protected, the court shall make its decision after having heard or duly called, under the same conditions, the professional order or competent authority to which the debtor belongs, where applicable. The opening judgment must be annulled if it does not appear from the documents produced that the court heard or called the representative of the Association of registered accountants ("Ordre des experts-comptables") before making its decision , or summoned the Association of masseurs and physiotherapists ("Ordre des masseurs kinésithérapeutes") , when the procedure is opened with a member of these professions. On the other hand, the court may open insolvency proceedings against a private investigation agent without hearing the Observatoire des détectives de France or the Confédération nationale des enquêteurs et détectives professionnels, since they cannot be classified as a professional order . The absence of a hearing or of a summons to the professional order, while it may lead to the nullity of the judgment, does not affect the referral to the court , so that the court of appeal which sets aside the judgment may then rule on the opening of the proceedings by way of evocation.

Finally, Article L. 662-3 of the Commercial Code gives the court the power to hear any person whose statement it deems useful.

Cass. com., 26 May 1998, LawLex202200000089JBJ (LJ).

Cass. com., 2 November 2016, LawLex202100004433JBJ (RJ).

CA Rouen, 3 December 2020, LawLex202100006077JBJ (LJ).

CA Nancy, 27 June 2012, LawLex202100006081JBJ (LJ).

CA Versailles, 22 September 2011, LawLex202200000090JBJ (RJ).

CA Aix-en-Provence, 30 April 2008, LawLex202200000500JBJ (RJ).

Cass. com., 22 May 2013, LawLex202100002073JBJ (LJ).

CA Aix-en-Provence, 12 June 2014, LawLex202100006030JBJ (LJ).

Cass. com., 8 April 2015, LawLex202100006079JBJ (RJ).

CA Aix-en-Provence, 22 September 2016, LawLex202100004511JBJ

Cass. com., 27 May 2008, LawLex202100003655JBJ (LJ).

Bankruptcy Law

60. Hearings in court chambers

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60. Hearings in court chambers

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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