Bankruptcy Law

The former Article L. 626-30-2 of the Commercial Code provided that the decision on the draft plan was taken by each committee by a two-thirds majority of the amount of the claims held by the members having cast a vote, as indicated by the debtor and certified by its statutory auditor(s) or, where no such auditor had been appointed, established by its chartered accountant.
From now on, in its word …

Distribution of votes

The former Article L. 626-30-2 of the Commercial Code provided that the decision on the draft plan was taken by each committee by a two-thirds majority of the amount of the claims held by the members having cast a vote, as indicated by the debtor and certified by its statutory auditor(s) or, where no such auditor had been appointed, established by its chartered accountant.

From now on, in its wording resulting from the Ordinance of 15 September 2021 , Article L. 626-30, V provides that the receiver must submit to each affected party the modalities for the distribution in classes and the calculation of the votes corresponding to the claims or rights affected allowing them to express a vote. The amount of the claims taken into consideration is the amount indicated by the debtor and certified by his auditor(s) or, where no auditor has been appointed, established by his chartered accountant. In the case of affected parties who are beneficiaries of a fiduciary deed set up as a guarantee by the debtor, only the amounts of their claims not accompanied by such a guarantee are taken into account. These terms and conditions are also notified to the legal representative.

In accordance with Article R. 626-58, the receiver shall determine the amount, calculated inclusive of all taxes, of the claims held by the members of the classes called to vote. At least twenty-one days before the date of the vote, he must notify each affected party, on the basis of Article L. 620-30, V of the terms and conditions for the allocation into classes and the calculation of the votes retained, within the class or classes to which it is assigned. By the same act, the receiver must specify the criteria used for the composition of the classes of affected parties and must draw up a list thereof. The receiver must also submit these distribution and calculation methods to the debtor and the legal representative. He must inform the public prosecutor thereof.

In case of disagreement, each affected party, the debtor, the public prosecutor, the legal representative or the receiver may refer the matter to the bankruptcy judge . Indeed, the status of affected party and the methods of classifying and calculating the votes corresponding to the claims or rights allowing to cast a vote may be contested by each affected party, the debtor, the receiver, the legal representative and the public prosecutor. The bankruptcy judge shall be seized of this contestation by petition within ten days from the notification of the receiver, under penalty of inadmissibility .

The classes of affected parties must decide within a period of twenty to thirty days following the transmission of the draft plan. At the request of the debtor or the receiver, the bankruptcy judge may increase or reduce this period, which may not, however, be less than fifteen days.

The decision must be made by each class by a two-thirds majority of the votes held by the members casting a vote. Nevertheless, within a class, the vote on the adoption of the plan may be replaced by an agreement having received, after consultation with its members, the approval of two thirds of the votes held by them.

Under Article L. 626-31, the court shall rule on the draft plan adopted by each of the classes and shall verify in particular that the affected parties, sharing a sufficient community of interest within the same class, benefit from equal treatment and are treated in proportion to their claim or right. When affected parties have voted against the draft plan, the court must also verify that none of them is in a less favorable situation, as a result of the plan, than they would be if the order of priority for the distribution of assets in court-supervised liquidation or the sale price of the business pursuant to Article L. 642-1, or a better alternative solution were applied in case the plan were not validated.

Ordinance 2021-1193 of 15 September 2021 amending Book VI of the Commercial Code.

Bankruptcy Law

257. Distribution of votes

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Les notions juridiques connexes

257. Distribution of votes

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Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise