Bankruptcy Law

The provisions of Article R. 621-21 of the Commercial Code, applicable to the receivership procedure by virtue of Article R. 631-16, lay down the rules governing appeals under ordinary law against the ordinances of the bankruptcy judge. Under the terms of paragraph 2 of this text, “[i]f the bankruptcy judge has not ruled within a reasonable time, the matter may be referred to the court at the requ …

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The provisions of Article R. 621-21 of the Commercial Code, applicable to the receivership procedure by virtue of Article R. 631-16, lay down the rules governing appeals under ordinary law against the ordinances of the bankruptcy judge. Under the terms of paragraph 2 of this text, “[i]f the bankruptcy judge has not ruled within a reasonable time, the matter may be referred to the court at the request of a party or the public prosecutor”. Paragraph 3 adds that “[t]he ordinances of the bankruptcy judge are deposited without delay with the court registry, which communicates them to the legal representatives and notifies them to the parties and to the persons whose rights and obligations are affected ” .

Ordinances may be appealed to the court within ten days of communication or notification . Notification of an ordinance by the bankruptcy judge by way of service at the initiative of a party is authorized, and starts the appeal period, when it clearly reproduces the provisions of Article R. 621-21 of the Commercial Code . The public prosecutor may also submit a reasoned request to the court within ten days of the notification of the ordinance . Ordinances ruling on a claim may be appealed within a period of 10 days, starting from the date of notification of the ordinance, by any person whose rights and obligations are affected by the ordinance, but not by a third party . On the other hand, the time-limit for appeal does not apply to third parties who have not been notified of the ordinance : the court would be exceeding its powers if it declared inadmissible as late an appeal lodged by the debtor against an ordinance which had not been duly notified to him . The appeal is lodged by declaration against a receipt or by registered letter with acknowledgement of receipt sent to the court registry . It is examined at the first useful court hearing, and the interested parties and the legal representatives are notified. The ordinances of the bankruptcy judge may only be contested before the insolvency court, and not before the judge himself, by way of summary proceedings .

However, some ordinances can be appealed directly to the court of appeal. This is the case, in particular, for those ordinances by which the bankruptcy judge rules on the admission of claims . The appeal must be declared inadmissible if the parties fail to comply with the ten-day time-limit following notification .

Whereas prior to the enactment of the Safeguard Law , an appeal against a judgment ruling on an appeal against the ordinance of the legal representative was admissible only if the latter had been rendered as a result of an abuse of power , it has since been accepted that such a judgment may be appealed, in accordance with the rules of the Code of Civil Procedure .

Under the terms of Article L. 661-6, I, 1° of the Commercial Code, judgments or ordinances relating to the appointment or replacement of the receiver, the legal representative, the commissioner for the enforcement of the plan, the liquidator, the controllers and the expert(s) may only be appealed by the public prosecutor. These provisions have not been deemed to be contrary to the Constitution, since they have neither the purpose nor the effect of depriving the creditors of their right of action under Article R. 621-21 of the same code against the ordinances of the bankruptcy judge before the court in charge of the insolvency procedure . The only exception to this rule is in cases of abuse of power . However, the bankruptcy judge's refusal to appoint as controllers all the creditors who so request, even if there are fewer than five of them, does not constitute an abuse of power that would authorize an appeal by a person other than the public prosecutor .

Cass. com., 29 May 2019, LawLex202100005022JBJ (RJ), holding that the guarantor of a trademark assignee is not a person whose rights and obligations are directly affected by an order of the bankruptcy judge, which authorizes the debtor to assign the trademarks that are the subject of the licensing agreement binding him to a third party.

Cass. com., 17 May 2011, LawLex202100005019JBJ (RJ).

Law No 2005-845 of 26 July 2005 on safeguarding businesses.

Cass. com. 6 December 1994, LawLex202100005197JBJ (RJ); 19 December 2000, LawLex202100002189JBJ (LJ). The same condition was required for the admissibility of an appeal-nullity, see Cass. com. 14 February 1995, LawLex202100005026JBJ (RJ); 6 June 1995, LawLex202100005027JBJ (RJ), both holding that an appeal-nullity lodged against a judgment confirming an order of the bankruptcy judge made in violation of the principle of contradiction is admissible; 27 May 2003, LawLex202100005023JBJ (LJ).

C. com., art. R. 662-1. - Cass. com. 29 November 2016, LawLex202100005017JBJ (LJ); 7 February 2012, LawLex202100002190JBJ (RJ), solution applicable even if inaccurately classified as a judgment of last resort.

Cass. com., 21 February 2012, LawLex202100002205JBJ (S).

Cass. com., 29 September 2015, LawLex202100002203JBJ (LJ).

Cass. com., 10 March 2015, LawLex202100003665JBJ (LJ) ; LawLex202100005020JBJ (RJ).

Cass. com., 1st July 2020, LawLex202100005024JBJ (LJ).

Cass. com., 11 February 2014, LawLex202100005150JBJ (RJ).

Cass. com., 8 March 2017, LawLex202100006438JBJ (LJ).

C. com., art. R. 624-7, applicable to receivership by reference from art. R. 631-29.

Bankruptcy Law

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Les notions juridiques connexes

339. Remedies available

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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