Bankruptcy Law

In order to benefit from privileged treatment, a claim that has arisen regularly after the opening judgment must be justified by the needs of the procedure or the observation period . As the objective of the receivership is to enable the business to continue, maintain employment and pay off liabilities , there is every reason to favor creditors who participate in the receivership by contributing f …

Claim arising for the purposes of the procedure

In order to benefit from privileged treatment, a claim that has arisen regularly after the opening judgment must be justified by the needs of the procedure or the observation period . As the objective of the receivership is to enable the business to continue, maintain employment and pay off liabilities , there is every reason to favor creditors who participate in the receivership by contributing funds (new money) or providing services necessary for the company's survival.

Claims for lawyers' fees incurred in connection with the adoption of an assignment plan , as well as claims for costs incurred in connection with the proceedings leading to the adoption and securing of such a plan , are considered to have arisen for the purposes of the procedure and therefore benefit from the legal privilege with the rank attributed to legal costs . The same applies to fees for assisting the debtor in exercising his own rights . Claims for compensation arising from the termination of an employment contract ordered by a legal representative must also be considered as having been properly incurred after the opening judgment, for the purposes of the procedure .

Conversely, a claim for compensation for loss asserted by a franchisor who criticises a former franchisee for continuing to use the customer rallying signs attached to the franchise network after the termination of the contract and the opening of the receivership does not constitute a claim arising for the purposes of the procedure . The same applies to a claim based on loss of profit resulting from the legal representative's waiver of the right to continue the leasing contracts .

Regular and subsequent claims may also benefit from the privilege provided for in Article L. 622-17 of the Commercial Code  if they arise for the purposes of the observation period. A claim arising from the payment of invoices to the debtor's suppliers, with a view to the continuation of the worksite that had been subcontracted to the debtor, during the observation period of the debtor's receivership, must be considered as having arisen for the purposes of the observation period .

The Court of Cassation appears to have developed an alternative criterion that does not formally correspond to the letter of Article L. 622-17. It considers that sums the payment of which constitutes a legal obligation for the debtor in insolvency procedure are claims “inherent in the activity pursued” by the debtor and therefore benefit from the preferential right of payment recognized by Article L. 622-17. This is the case for the property tax on companies (cotisation foncière des entreprises) , the insurance contribution for involuntary unemployed workers (cotisation d'assurance des travailleurs involontairement privés d'emploi)  and the social solidarity contribution and the additional contribution (contribution sociale de solidarité et contribution additionnelle) . In reality, such a criterion can easily be linked, despite the terminology used, to the needs of the procedure or the observation period.

Lastly, the Ordinance of 18 December 2008  amended Article L. 622-17, which initially required the subsequent claim to have arisen for the purposes of the procedure or the observation period, for the debtor's professional activity . Now that this last condition has disappeared, non-business claims should theoretically be able to benefit from the payment privilege if the conditions that were maintained are met. However, case law is reluctant to recognize the privileged nature of such claims. For example, a decision handed down under the new wording of Article L. 621-7 held that a debtor's housing rent claim, which fell due after the judgment opening the insolvency procedure, did not constitute a claim arising for the purposes of the procedure . However, this decision is open to criticism because such a claim, which arose as consideration for a service provided to the debtor, should be considered a privileged subsequent claim. Similarly, it has been held that when the debtor company is no longer in business during the observation period, its manager's travel expenses cannot be classified as a claim arising for the purposes of the procedure and charged to the debtor .

See for an application, Cass. com. 15 June 2022, LawLex202200006456JBJ (LJ), 6 September 2022, 17 considering that the debtor cannot be ordered to pay a claim for restitution arising from an action for rescission of a contract that predated the insolvency procedure but was brought after them, provided that it is not a claim that arose for the purposes of the procedure or the observation period.

Cass. com., 9 May 2018, LawLex202100002463JBJ (RJ).

Cass. com., 24 March 2021, LawLex202100005846JBJ (LJ).

Cass. com., 17 September 2013, LawLex202100002475JBJ (RJ).

Cass. com., 15 June 2011, LawLex202100002462JBJ (RJ).

Ord. No 2008-1345 of 18 December 2008 concerning the reform of the law on companies in difficulty.

See for an application, Cass. com., 11 October 2016, LawLex202100002477JBJ (LJ).

Cass. com., 12 March 2013, LawLex202100002468JBJ (LJ).

Cass. com., 1 December 2015, cited above.

Cass. com., 7 October 2020, LawLex202100006125JBJ (LJ).

Cass. com., 15 October 2013, LawLex202100001072JBJ (LJ).

Comp. Cass. com. 2 December 2014, LawLex202100002385JBJ (S), holding that the claim arising from an order to pay the legal fees of a creditor bank cannot be considered to have arisen for the purposes of the procedure since it cannot be described as useful to its purpose and does not constitute the consideration for a service provided to it.

Cass. com., 1 December 2015, LawLex202100001073JBJ (LJ).

Cass. soc., 16 June 2010, LawLex202100002472JBJ (LJ).

Cass. com., 20 September 2016, LawLex202100002471JBJ (RJ).

Cass. com., 18 September 2007, LawLex202100002470JBJ (RJ).

Applicable to the receivership on the basis of Article L. 631-14 C. com.

Bankruptcy Law

442. Claim arising for the purposes of the procedure

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442. Claim arising for the purposes of the procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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