Bankruptcy Law

1) Receiver's initiative
The Ordinance of 18 December 2008  amended Article L. 631-19 of the Commercial Code, which gave both the debtor and the receiver the option of drawing up a draft plan . Henceforth, unlike the safeguard procedure, the initiative for the draft plan is reserved for the receiver. In accordance with Article L. 631-19, I(2) of the Commercial Code, the receiver draws up the draft …

Receiver's proposal

The Ordinance of 18 December 2008  amended Article L. 631-19 of the Commercial Code, which gave both the debtor and the receiver the option of drawing up a draft plan . Henceforth, unlike the safeguard procedure, the initiative for the draft plan is reserved for the receiver. In accordance with Article L. 631-19, I(2) of the Commercial Code, the receiver draws up the draft plan “with the assistance of the debtor”. Accordingly, in his economic and social report, the receiver cannot reproach the debtor company for not having submitted a draft plan .

The preparation of the draft plan opens an important consultation phase. It is the receiver's responsibility to present, where appropriate, to the classes of affected parties the proposals for non-monetary contributions made by the holders of the debtor's capital who are affected by the draft plan . The social and economic committee and the legal representative are also informed and consulted on the measures that the receiver intends to propose in the draft plan in the light of the information and offers received  and on those that are submitted to a vote of the classes of affected parties .

In addition, where the debtor carries on an activity that is subject to administrative authorization, approval, agreement or accreditation, Article L. 626-2-1 of the Commercial Code  provides that the receiver must consult the administrative, supervisory and pricing authority on the draft plan.

If a receiver has not been appointed, Article L. 627-3 of the Commercial Code  allows the debtor, during the observation period, to draw up a draft plan with the possible assistance of an expert appointed by the court. The debtor notifies the legal representative and the bankruptcy judge of the proposed payment of claims and provides the information, consultations and communications provided for in Article L. 626-8. In the event of a continuation plan, the debtor retains the powers it had under the safeguard procedure. On the other hand, under Article L. 631-21-1, if the court considers that the sale of all or part of the business is feasible, it must appoint a receiver, if one has not already been appointed, to take all necessary steps to prepare for the sale and, where applicable, to carry it out.

Article L. 631-19, I(3) gives any affected party the option of submitting a draft plan, which will be the subject of a report by the receiver and will be submitted, alongside the plan proposed by the debtor, to a vote of the classes. Article R. 631-34 specifies that the affected party that intends to submit proposals must send them to the debtor and the receiver, by any means, no later than fifteen days before the date of the vote on the draft plan presented by the debtor. The proposals of the affected parties submitted within this time period, together with all the information required, are presented to the classes by the receiver, in accordance with the procedures laid down for the vote on the debtor's draft plan. Article L. 631-19, I(4) adds that when the draft plan, adopted in accordance with the provisions of Article L. 626-30-2, and, where applicable, Article L. 626-32, is not the one proposed by the debtor, it gives rise to the communications provided for in Article L. 626-8.

Ordinance 2008-1345 of 18 December 2008 reforming the law governing companies in difficulty.

See in particular, Cass. com., 25 March 1997, LawLex202200004071JBJ (RJ) ; 6 October 1992, LawLex202200004072JBJ (RJ).

CA Paris, 22 March 2016, LawLex202200009582JBJ (RJ).

Art. L. 631-19, I, para. 2, which refers to art. L. 626-30-2, pursuant to which “holders of the debtor's capital, if they are affected by the draft plan, may make a non-monetary contribution to the restructuring, in particular by making use of their experience, reputation or professional contacts”.

Applicable to the receivership on reference from art. L. 631-19 C. com.

Applicable to the receivership on reference from art. L. 631-21 C. com.

Bankruptcy Law

547. Receiver's proposal

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547. Receiver's proposal

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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