Bankruptcy Law

Legal representatives, whose appointment is mandatory without any threshold conditions, unlike judicial receivers, are subject to the rules governing the organization of the profession set forth in Articles L. 812-1 et seq. of the Commercial Code. Under the terms of Article L. 622-20 of the Commercial Code, “[t]he legal representative designated by the court has sole authority to act on behalf of  …

Powers and missions

Legal representatives, whose appointment is mandatory without any threshold conditions, unlike judicial receivers, are subject to the rules governing the organization of the profession set forth in Articles L. 812-1 et seq. of the Commercial Code. Under the terms of Article L. 622-20 of the Commercial Code, “[t]he legal representative designated by the court has sole authority to act on behalf of and in the insolvency interest of the creditors ” . In this capacity, he may, in particular, act for the extension of the procedure  or its conversion , or request the appointment of an auctioneer in the event of the debtor's failure to undertake inventory operations . The monopoly of the legal representative renders inadmissible the action of a partner or a creditor on behalf of the creditors , or in the interest of the latter . On the other hand, the legal representative can only legally act in the interest of all the creditors and not in the personal interest of one of them or a group of creditors . The latter may nevertheless act individually in order to obtain compensation when the reparations likely to be attributed to them as a collective loss are insufficient and they have suffered losses that are distinct from those of the other creditors .

The legal representative is also given the task of verifying the liabilities through the declarations of claims that he receives . Indeed, Article L. 624-1 provides that “the court-appointed receiver shall establish, after having solicited the debtor's observations, the list of declared claims with his proposals for admission, rejection or referral to the competent court”. Article L. 626-24 of the Commercial Code specifies that “the legal representative remains in office for the time necessary to verify and finalize the statement of claims”. He may be entrusted with other missions such as the pursuit of certain legal actions and enforcement procedures  , and proceedings pending before the labor court on the date of the opening judgment . When there is a serious possibility for the company to be safeguarded, the court adopts a plan to this end, which puts an end to the observation period . The legal representative participates in the elaboration of the safeguard plan and, when the proposals for the settlement of debts concern remissions or deadlines, obtains the agreement of the creditors . He then draws up a statement of the responses made by the creditors . In the context of the adoption of a plan, the legal representative may proceed with the transfer of the debtor's assets  and subsequently be appointed as the commissionner responsible for ensuring the execution of the plan .

The court may, either ex officio or on the proposal of the bankruptcy judge or at the request of the public prosecutor, replace the court-appointed receiver . The court registrar's automatic entry of the replacement order in the Company and trade register (Registre du commerce et des sociétés) makes the change of court-appointed receiver effective against third parties who intend to serve him with a document .

Legal representative do not have any vested right to their appointment by a court, so that the damage linked to the absence of a mandate, when this engages the responsibility of the State, must be measured in terms of the lost opportunity and cannot be equal to the advantage that this opportunity would have provided if it had been realized .

Finally, when he gives a lawyer the task of representing him in court, he is not entrusting a third party with part of the tasks involved in the performance of his mandate and which are his personal responsibility .

The “court-appointed receiver” of the Law No 2005-845 of 26 July 2005 on the safeguarding of companies replaces the former “creditors' representative” of the Law No 85-98 of 25 January 1985 on the receivership and court-supervised liquidation of companies.

Cass. com., 11 March 2020, LawLex202200000325JBJ (LJ).

Cass. 1ère civ., 26 September 2007, LawLex202200000326JBJ (LJ).

Cass. com., 30 June 2021, LawLex202100005899JBJ (LJ).

C. com., Art. L. 621-11 ; Art. L. 622-10.

Cass. com., 3 June 1997, LawLex202100005441JBJ (LJ).

Cass. com., 9 July 1996, LawLex202100005447JBJ (LJ).

Cass. com., 16 March 1993, LawLex202100002962JBJ (LJ) ; 9 November 2004, LawLex202100005446JBJ (LJ).

Cass. com., 14 December 1999, LawLex202100005464JBJ (LJ).

Bankruptcy Law

71. Powers and missions

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71. Powers and missions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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