Bankruptcy Law

Pursuant to Article L. 623-1 of the Commercial Code, applicable to the receivership procedure by reference of Article L. 631-18, the receiver, with the assistance of the debtor and possibly one or more experts, is responsible for drawing up an economic and social report on the business. The economic and social report shall provide the origin, extent and nature of the company's difficulties. The re …

Report on the debtor's economic, social and environmental situation

Pursuant to Article L. 623-1 of the Commercial Code, applicable to the receivership procedure by reference of Article L. 631-18, the receiver, with the assistance of the debtor and possibly one or more experts, is responsible for drawing up an economic and social report on the business. The economic and social report shall provide the origin, extent and nature of the company's difficulties. The receiver responsible for drawing up the economic and social balance sheet of the debtor company does not have to comply with the adversarial principle in relation to its former manager, since his report is intended to be produced in court and to be discussed in adversarial proceedings, including with the former manager .

In addition, the bankruptcy judge has a right of information which enables him to gather information from various bodies likely to give him accurate information on the economic, financial, social and patrimonial situation of the debtor , which he then communicates to the receiver to help him draw up his balance sheet . In exercising this right to information, a banking institution may not invoke banking secrecy , in particular to deny it access to the position of all the accounts of the companies being wound up and the detailed list of credit transactions with the names of the issuing banks, as well as the identity of the payers .

A receiver who has drawn up a diagnosis of the company's difficulties in the economic and social report rather than in a separate document and who provides proof in a letter to the debtor that he has organized a working meeting with the debtor may not be held liable for failure to comply with the obligations set out in Articles L. 623-1 et seq . The economic, social and environmental report drawn up as part of the receivership must be in writing . Furthermore, communication of the economic and social report to the debtor on the eve of the hearing does not constitute a violation of the rights of the defense if the debtor's lawyer has not requested that the case be adjourned . Article R. 623-1 of the Commercial Code, applicable to receivership by virtue of Article R. 631-28, provides that the receiver must file the balance sheet with the registry and send it to the authorities and persons mentioned in Article L. 626-8, by registered letter with acknowledgement of receipt.

If the company operates one or more classified facilities within the meaning of Title I of Book V of the Environmental Code, the economic and social report is supplemented by an environmental report that the receiver arranges to be drawn up . Article R. 623-2, which is also applicable by reference to Article R. 631-28, provides that this assessment is carried out by the debtor or by a technician appointed by the bankruptcy judge, if the latter deems such an intervention necessary. It concerns the identification and description of the site or sites where the classified facility or facilities are operated and their environment, the existence of potential pollution, the emergency safety measures already taken, planned or to be taken and the measures taken to monitor the impact of the operation on the environment.

Lastly, Article R. 663-9 adds that the receiver is paid a fee for preparing the economic, social and environmental report, which varies according to the number of employees employed by the debtor or its turnover. However, where the balance sheet total is equal to or greater than a certain threshold, the fee is determined solely on the basis of the balance sheet total. This fee is earned in particular when the court has ruled on the receivership plan. It is increased by 50% if the plan is adopted. The receiver's remuneration for drawing up the company's economic and social balance sheet is different from that allocated for drawing up the diagnosis of the receivership procedure, set out in Article R. 663-4 of the same code , even though they are not conditional on separate documents being drawn up .

CA Aix-en-Provence, 16 April 2015, LawLex202100005244JBJ (RJ).

C. com., art. L. 623-2, applicable to receivership by reference to art. L. 631-18.

Cass. com., 8 June 2010, LawLex202100005250JBJ (RJ).

CA Poitiers, 12 May 1993, LawLex202100005253JBJ (RJ).

CA Reims, 27 January 1999, LawLex202200002877JBJ (RJ).

CA Versailles, 13 February 2014, LawLex202100005257JBJ (RJ).

CA Orléans, 25 January 2007, LawLex202100005249JBJ (RJ).

Cass. com., 9 January 1990, LawLex202100005252JBJ (RJ).

C. com., art. L. 623-1(3) applicable by reference from art. L. 631-18.

CA Versailles, 11 March 2009, LawLex202100005251JBJ (RJ).

Bankruptcy Law

499. Report on the debtor's economic, social and environmental situation

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499. Report on the debtor's economic, social and environmental situation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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