Bankruptcy Law

Where the company's recovery so requires, the court may, at the request of the public prosecutor, order the sale of the shares, equity securities or securities giving access to the capital held by one or more of the company's managers, with the sale price being set by an expert . The court must rule after hearing or duly summoning the managers and the person or persons appointed by the social and  …

Forced disposal of the manager's shareholdings

Where the company's recovery so requires, the court may, at the request of the public prosecutor, order the sale of the shares, equity securities or securities giving access to the capital held by one or more of the company's managers, with the sale price being set by an expert . The court must rule after hearing or duly summoning the managers and the person or persons appointed by the social and economic committee. Pending completion of the sale, the court may appoint a legal representative to exercise the voting rights attached to these rights .

The status of manager is assessed on the date on which the plan is approved and not with regard to any resignation after that date, which would only occur in order to frustrate the measure . The compulsory sale of a manager's shares may not be ordered if the manager is no longer a manager on the date on which the court rules on the measure , in particular by virtue of a resignation which, although not published, was effective on that date . Where the receivership plan is subject to the sale of a manager's shares, it is not necessary for the manager to have been definitively ousted at the date of adoption of the plan after payment of the value of his shares . The provision of the judgment ordering the transfer of the shares held by one or more managers is subject to appeal by the latter .

An application by the Public Prosecutor's Office for the compulsory sale of an manager's shares is subject to the provisions of Article R. 631-34-1 of the Commercial Code, which requires the application to be made to the court by way of a petition setting out the facts on which the adoption of the measure is based .

Article L. 631-19-1(4) specifies that it is impossible to order the sale of shareholdings when the debtor carries on a liberal professional activity subject to a legislative or regulatory status. This exclusion is not contrary to the principle of equality before the law, provided as such entities are placed in a situation different from that of other entities and that it is based on an objective and rational criterion related to the purpose of the law . Similarly, the forced sale of shareholdings is unthinkable in the context of a plan adopted without the agreement of the classes of parties affected .

It was criticized that the provisions of Article L. 631-19-1 of the Commercial Code would disproportionately infringe a manager's right of ownership. The Constitutional Council dismissed the complaint, pointing out that the manager could avoid being deprived of this right by relinquishing his or her duties , that the measure applied only if the undertaking's receivership so required, that it was ordered at the request of the public prosecutor and that the sale price was set by an expert .

Cass. com., 26 January 2016, LawLex202100003579JBJ (RJ).

Cons. constit., 7 October 2015, cited above; Cass. com., 11 October 2016, LawLex202100002031JBJ (RJ).

Cons. constit., 7 October 2015, cited above.

CA Limoges, 12 October 2017, LawLex202200009359JBJ (RJ).

Cass. com., 9 February 2010, LawLex202100002029JBJ (RJ).

Cass. com., 19 February 2008, LawLex202100002028JBJ (RJ).

Cass. com., 26 January 2016, cited above.

Cass. com., 26 June 2001, LawLex202100002037JBJ (RJ).

Cass. com., 22 May 2013, LawLex202100002036JBJ (RJ).

Cons. constit., 7 October 2015, LawLex202100002851JBJ (RJ).

Bankruptcy Law

551. Forced disposal of the manager's shareholdings

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551. Forced disposal of the manager's shareholdings

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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