Bankruptcy Law

Article L. 631-5(1) of the Commercial Code originally allowed the court to open receivership procedure on its own initiative. Pursuant to Article R. 631-3 of the Commercial Code, the court was required to convene the parties beforehand. Consequently, the judgment which, on application to open safeguard procedure, opened receivership procedure, necessarily had to be overturned for failure to comply with the requirement to convene the parties in advance .

In 2012, the Constitutional Council, seized of a priority question of constitutionality, considered that the power of the commercial court to initiate receivership procedure of its own motion violated the constitutional principle of impartiality if it was not surrounded by sufficient guarantees against prejudgment of the case . The Constitutional Council subsequently extended the solution to court-supervised liquidation . The unconstitutionality of the court's ex officio referral applies only to judgments handed down after the date of publication of the Constitutional Council's decision, and does not call into question proceedings opened previously .

The communication of information to the public prosecutor by the commercial court registry, at the origin of the latter's application to initiate receivership procedure, cannot be considered as a circumvention of the prohibition to take action, since the registry, although representing a component of the court, is nonetheless a distinct entity .

CA Paris, 13 December 2012, LawLex202100005104JBJ (RJ).

Cons. constit., 7 December 2012, LawLex202100002850JBJ (RJ).

Cons. constit. 7 March 2014, LawLex202100006178JBJ (LJ).

Cass. com., 8 April 2015, LawLex202100004372JBJ (RJ).

CA Douai, 28 May 2020, LawLex202100005356JBJ (RJ).

320. Violation of the constitutional principle of impartiality