Bankruptcy Law

Article L. 6423(1) of the Commercial Code  prohibits the debtor, in respect of any of its assets or liabilities, the de jure or de facto managers of the legal entity in receivership, the relatives or relations up to and including the second degree of these managers or of the debtor as an individual, and persons who are or have been controllers during the procedure from submitting an offer, either  …

Offerors

Article L. 6423(1) of the Commercial Code  prohibits the debtor, in respect of any of its assets or liabilities, the de jure or de facto managers of the legal entity in receivership, the relatives or relations up to and including the second degree of these managers or of the debtor as an individual, and persons who are or have been controllers during the procedure from submitting an offer, either directly or through an intermediary.

The same persons may not, within five years of the disposal, acquire, directly or indirectly, all or part of the assets included in the disposal, or acquire shares or equity securities in any company whose assets include, directly or indirectly, all or part of these assets, or securities giving access, within the same period, to the company's capital. The offerors of the offers must certify that he is not subject to any of these disqualifications and must attach, where he is required to do so, his annual accounts for the last three financial years and his projected accounts .

The prohibition on submitting an offer is based on the exercise of de jure or de facto management powers. Accordingly, the director of an SNC undergoing receivership is not allowed to submit an offer to the receiver to purchase the legal entity's business . Conversely, a former de jure manager of a debtor company who has been disqualified from managing the company is not, in the absence of fraud, prevented from making an offer to acquire the company . De facto management, which excludes the right to submit an offer, may be exercised by a former employee of the debtor association . However, the rejection of a takeover bid by a former manager cannot be based on a presumption of de facto management, based solely on his capacity as a majority shareholder of the debtor through an intermediary legal entity . The exercise, even temporarily, of management functions by the debtor is likely to disqualify the offer submitted. This is the case for the offer made by the debtor's provisional receiver, who, for a few months, assumed the legal powers vested in the debtor's management bodies and performed, like a manager, all the acts of management and administration necessary for the operation of the debtor, even though he was appointed by the judicial authority and performed his duties under the supervision of the professional bodies . On the other hand, the chartered accountant of a debtor company, who is neither an organ of the procedure nor a person mandated to intervene in them, cannot be guilty of the offense of acquiring the debtor's assets on his own behalf .

In addition, the interposition of persons within the meaning of Article L. 642-3 of the Commercial Code refers to the involvement of a legal entity that conceals, in any way whatsoever, the participation of the managers of the debtor company in the acquisition transaction . The interposition of persons between the managers of the debtor company and an SCI that has been awarded a contract is characterized by the fact that the assets acquired by the latter are not part of its corporate purpose, that it does not have the financial resources for the transaction and that a resolution of its general meeting authorizes it to sell the assets acquired to a third party, whose managers are the same as those of the debtor .

However, where the procedure concerns a farm, the court may waive these prohibitions and authorize the disposal to one of the persons referred to in the first paragraph of Article L. 642-3, with the exception of the auditors and the debtor in respect of any of his assets. In other cases and subject to the same exceptions, the court, at the request of the public prosecutor, may authorize the assignment to one of the persons referred to in the first paragraph by a specially reasoned judgment, after having sought the opinion of the controllers .

Acts entered into in breach of this prohibition may be annulled at the request of any interested party or the public prosecutor within three years of their conclusion. Where they are subject to publicity, the period runs from the date of publicity .

Applicable to the receivership procedure on reference from art. L. 631-22 C. com.

C. com. R. 642-1, para. 1, applicable to the receivership procedure by reference to art. R. 631-40 C. com.

C. com. L. 642-3, para. 2, applicable to the receivership procedure on reference from art. L. 631-22 C. com.

C. com. L. 642-3, para. 3, applicable to the receivership procedure by reference from art. L. 631-22 C. com.

Cass. com., 26 May 1998, LawLex202300002548JBJ (RJ).

Cass. com., 23 September 2014, LawLex202100001132JBJ (LJ).

Cass. com., 8 January 2020, LawLex202300002623JBJ (LJ).

Cass. com., 23 September 2014, LawLex202100001132JBJ (RJ).

Cass. com., 13 November 2002, LawLex202100001138JBJ (RJ) ; 4 October 2005, LawLex202100001139JBJ (RJ).

Cass. crim., 15 December 2004, LawLex202100001136JBJ (LJ).

Cass. com., 8 March 2017, LawLex202100001135JBJ (LJ).

Bankruptcy Law

594. Offerors

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594. Offerors

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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