Bankruptcy Law

Article L. 628-1 of the Commercial Code introduced an accelerated safeguard procedure, to which certain provisions of the general regime are not applicable . The specific procedure of accelerated financial safeguard, which had effects only with respect to financial creditors, was integrated into the general regime of accelerated safeguard procedure by the Ordinance of 15 September 2002 .
The accel …

Opening conditions

Article L. 628-1 of the Commercial Code introduced an accelerated safeguard procedure, to which certain provisions of the general regime are not applicable . The specific procedure of accelerated financial safeguard, which had effects only with respect to financial creditors, was integrated into the general regime of accelerated safeguard procedure by the Ordinance of 15 September 2002 .

The accelerated safeguard procedure is reserved for debtors who have already entered into a conciliation procedure and who can prove that they have drawn up a draft plan designed to ensure the continuity of the company. The draft plan must be likely to receive sufficiently broad support from the parties affected by the opening of the procedure to make its adoption likely within the time-limit provided for in the first paragraph of Article L. 628-8. Where the debtor's accounts show that the nature of the indebtedness makes it likely that a plan will be adopted only by creditors having the status of finance companies, credit institutions and assimilated, as well as by all holders of a claim acquired from them or from a supplier of goods or services and, where applicable, bondholders, the debtor may request the opening of a safeguard procedure, the effects of which are limited to these creditors.

The procedure can only be opened against a debtor whose accounts have been certified by a statutory auditor or established by a chartered accountant.

The fact that the debtor is in cessation of payments is not an obstacle to the opening of the accelerated safeguard procedure, if this situation does not precede for more than forty-five days the date of the request to open the preliminary conciliation procedure.

Article L. 628-2 provides that the court must rule on the opening of the procedure after receiving a report from the conciliator on the progress of the conciliation and the prospects for the adoption of the draft plan by the affected parties concerned. It may obtain communication of the documents and acts relating to the conciliation and, where applicable, the ad hoc mandate. The opening of the procedure is examined in the presence of the public prosecutor.

The court appoints one or more receivers pursuant to Article L. 628-3. When the conciliator is registered on the list, the court designates him or her either as a receiver or as a legal representative, depending on the profession he or she practices. By a specially reasoned decision, it may designate another person. In addition, at the request of the debtor, the court may exempt the debtor from making the inventory provided for in Article L. 622-6.

Where the debtor is not subject to the obligation to constitute classes of affected parties, Article L. 628-4 makes the opening of the accelerated safeguard procedure conditional upon such constitution. To this end, the court orders their constitution in the opening judgment.

Finally, in accordance with Article L. 628-5, the public prosecutor must refer the matter to the court for the purpose of terminating the accelerated safeguard procedure if it is established that the debtor had been in cessation of payments for more than forty-five days when he sent or handed in the request mentioned in Article L. 611-6.

These are the provisions relating to the termination of current contracts ipso jure and the termination ordered by the bankruptcy judge at the request of the receiver (C. com., art. L. 622-13, III and IV) and those of sections 3 and 4 of chapter IV.

Ordinance No 2021-1193 of 15 September 2021 amending Book VI of the Commercial Code.

Bankruptcy Law

283. Opening conditions

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Les notions juridiques connexes

283. Opening conditions

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Les notions juridiques connexes

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