Bankruptcy Law

The extension of the procedure based on the merger of assets or the fictivity of a legal entity necessarily entails the opening of a single insolvency procedure and does not allow the maintenance of separate procedures , since it implies a global overview of the different assets. This does not, however, mean that acts performed prior to the extension judgment can be called into question, as the latter does not have retroactive effect to the date of the initial opening judgment .

The principle of the unity of the insolvency procedure requires that all the companies concerned be placed in an identical situation . Once it has been established that the assets and liabilities of companies belonging to a group have been merged, they cannot be treated differently . While the single procedure does not eliminate the legal personality of each of the companies, nor create indivision between them , it does prevent the legal representative from distinguishing between operations on an asset-by-asset basis . It precludes the adoption of a continuation plan that only concerns one company, without considering the fate of the assets and liabilities of the other . Likewise, where a receivership procedure has been extended to other debtors and the same plan has been adopted in favor of the debtors subject to the single procedure, the extension of procedure ceases when the plan is rescinded . However, the joinder of proceedings opened after the rescision of the plan having put an end to an extension of procedure may be pronounced on condition that the existence of a merger of assets between the debtors is characterized by facts subsequent to the judgment adopting the plan and not to its rescision .

Lastly, unity rules out shareholders of one of the companies involved in the proceedings acting against the others, for lack of legal interest , since they can no longer have competing interests.

Cass. com., 28 May 2002, LawLex202100002139JBJ (RJ).

Cass. com., 28 September 2004, LawLex202100002156JBJ (LJ).

Cass. com., 1st October 1997, LawLex202100002154JBJ (LJ).

See in particular Cass. com., 17 February 1998, LawLex202100002142JBJ (RJ).

Cass. com., 30 June 2009, LawLex202100004163JBJ (RJ). See also 1ère civ., 13 February 2001, LawLex202100004165JBJ (RJ).

Cass. com., 18 January 2005, LawLex202100002153JBJ (LJ).

Cass. com., 7 January 2003, LawLex202100002143JBJ (LJ).

Cass. com., 8 December 2021, LawLex202200000191JBJ (RJ); 23 June 1998, LawLex202100004175JBJ (RJ).

Cass. com., 8 December 2021, cited above.

Cass. com., 6 July 2010, LawLex202100006538JBJ (RJ).

307. Global procedure and merger of assets