Bankruptcy Law

The duties of the commissioner for the execution of the plan are listed in Article L. 626-25 of the Commercial Code. The functions referred to are in part those previously exercised by the receiver and the legal representative, whose functions cease with the adoption of the plan .
Firstly, the text gives the commissioner for the execution of the plan the power to pursue actions brought before the  …

Nature of the functions performed

The duties of the commissioner for the execution of the plan are listed in Article L. 626-25 of the Commercial Code. The functions referred to are in part those previously exercised by the receiver and the legal representative, whose functions cease with the adoption of the plan .

Firstly, the text gives the commissioner for the execution of the plan the power to pursue actions brought before the judgment adopting the plan and to which the receiver or the legal representative were parties. He is deemed to pursue such actions by virtue of his legal power of substitution, even if his writings were filed in the form of conclusions of voluntary intervention . As the continuation of actions brought before the opening judgment is reserved to the commissioner for the execution of the plan, the receiver subsequently appointed commissioner for the execution of the plan may no longer, in his first capacity, appeal to the Court of Cassation in a dispute between the debtor and a third party . A commissioner for the execution of the plan may only pursue an action brought by a debtor in good standing if the legal representative has taken over the proceedings in the collective interest of the creditors . If this is the case, he is entitled to pursue the contractual liability action brought by the debtor against his bank for abusive support .

The power of the commissioner for the execution of the plan is nevertheless restricted by the limits of the powers of the receiver or the legal representative. In fact, he cannot take over actions initiated by one of them when the latter was not himself entitled to initiate them. Thus, he is not competent to bring an action for payment of damages against the bank and the administrative and financial director of the debtor after the judgment adopting the plan, for having contributed, through wrongful acts, to the reduction of the assets or the aggravation of the liabilities, since he cannot pursue an action that the receiver did not have the capacity to initiate . Nor can he pursue an action in contractual liability against a carrier that was improperly initiated by a receiver , or an action brought during the observation period, to which the legal representative did not have to be called . Nevertheless, an action by the commissioner for the execution of the plan against the debtor's bank for abusive breach of credit, brought after the judgment adopting the plan, is admissible, even if he intervened in the action brought by the debtor, even though the latter did not have standing to act, as long as he is defending the collective interest of the creditors .

Secondly, the commissioner for the execution of the plan may not only continue the actions taken by the legal representative before the judgment adopting the plan to defend the collective interest of the creditors, but also initiate on their behalf an action for the recovery of a claim that arose prior to the opening judgment, after the adoption of the plan . Pursuant to Article L. 626-25(4) he is competent to bring an action for the payment of damages against any person, even if that person holds a claim that originated prior to the judgment opening the insolvency procedure, who has contributed by his wrongful acts to the reduction of the assets or the aggravation of the liabilities , even if the loss of turnover complained of was partly manifested after the opening of the insolvency procedure . He may also validly exercise a revocatory action (action paulienne) on behalf of the creditors and in their collective interest, with a view to obtaining the return of commercial instruments held by a third party  or to bring an action in liability .

On the other hand, the commissioner for the execution of the plan does not represent the debtor . Several consequences follow from this principle. First, any action for payment must, during the execution of the plan, be directed exclusively against the debtor, and not the commissioner for the execution of the plan . Secondly, the commissioner is not entitled to pursue an action brought by the debtor prior to the opening of its insolvency procedure  or to bring a liability action against a co-contractor in order to obtain compensation for a loss suffered by the latter , unless he is acting to repair the collective loss of the creditors resulting from a reduction in the assets or an increase in the liabilities . Nor may he exercise actions that belong to the debtor, such as the right to appeal against a decision ruling on an application for the resiliation of a commercial lease granted with a view to the recovery of a subsequent debt . Similarly, a commissioner for the execution of the plan of assignment does not have the capacity to bring, in place of the debtor, an action seeking compensation for the damage resulting for the latter from an abuse in the fixing of prices by his co-contractor . Finally, the ut singuli action brought by the partners against the members of the supervisory and management boards of a debtor company in respect of the continuation of a loss-making activity and management faults, falls outside the monopoly of the commissioner for the execution of the safeguard plan, who can only act on behalf of and in the collective interest of the creditors .

In addition, the commissioner for the execution of the plan may obtain all documents and information useful to his mission . He reports to the president of the court and to the public prosecutor any failure to implement the plan or any fact likely to prevent such implementation . He informs the social and economic committee . Any sum collected by the commissioner for the excution of the plan is immediately paid into a deposit account at the Caisse des dépôts et consignations. In the event of delay, the commissioner for the execution of the plan owes, for the sums that he has not paid, interest at a rate equal to the legal interest rate plus five points .

When the mission of the commissioner for the execution of the plan ends, and in the absence of a legal extension of his powers and a new legal authorization, he no longer has standing to pursue a legal action duly initiated against the managers of a debtor company . Even if he remains in office to sell assets not included in the plan of assignment, he no longer has standing to act for the nullity of acts performed during the suspect period . Article L. 626-25(3) specifies that if the commissioner for the execution of the plan is no longer in office, the actions are pursued by a legal representative specially appointed for this purpose by the court.

Cass. com., 25 October 1994, LawLex202200004476JBJ (RJ): as soon as he is appointed, the legal representative is no longer entitled to transmit to the bankruptcy judge a supplementary list with his proposal of admission or rejection, since such a power belongs henceforth to the commissioner for the execution of the plan.

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Bankruptcy Law

264. Nature of the functions performed

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264. Nature of the functions performed

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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