Bankruptcy Law

In accordance with Article L. 661-6, III of the Commercial Code, appeals against judgments which adopt or reject the plan for the sale of a business constitute an action, the exercise of which is reserved, in order not to delay its implementation unnecessarily, to the public prosecutor, the debtor, the assignee and the co-contracting party whose contract is transferred pursuant to the disposal pla …

Appeal

In accordance with Article L. 661-6, III of the Commercial Code, appeals against judgments which adopt or reject the plan for the sale of a business constitute an action, the exercise of which is reserved, in order not to delay its implementation unnecessarily, to the public prosecutor, the debtor, the assignee and the co-contracting party whose contract is transferred pursuant to the disposal plan.

The debtor has standing to appeal against the judgment that must adopt the disposal plan , unless, for lack of standing, it does not propose a receivership plan, does not oppose the transfer, and the only interests it supports are those of its manager in respect of the guarantees taken out by the latter .

The transferee is only entitled to appeal against the judgment adopting the disposal plan if the latter imposes obligations on him other than the commitments he entered into during the preparation of the plan . Under no circumstances may he bring an action to have the plan declared null and void on this basis .

The other party to the contract who has been sold under the disposal plan may also appeal against the judgment. However, he may only appeal against the part of the judgment that transfers the contract  and not against the appropriateness of the choice of buyer . The appeal period available to the assigned co-contractor, which is 10 days from the date of delivery of the judgment, does not run if the co-contractor has not been summoned to the hearing, informed of the judgment within 48 hours of its delivery or served with the judgment . The lessor of the premises required to maintain the business, whose contract is continued by virtue of an express provision in the judgment adopting the plan, has the status of an assigned co-contractor and the right to appeal against the decision . However, the lessor's appeal against the disposal plan is abusive if it does not show any intention of taking over the business and its sole purpose is to delay the transferee from taking possession . Furthermore, a lessor is not required to bring an action against an ordinance ordering the sale of a business if he does not intend to have the sale declared null and void or rescinded, but rather to rescind the right to the lease of the building in which the business is operated, since the lease is merely a component of the business .

Ultimately, an appeal can only be lodged by a party to the proceedings. This is not the case for the unsuccessful purchaser , for co-contractors whose contracts were neither referred to nor included in the disposal plan , or for creditors holding security interests , since they are not parties to the judgment which must adopt the sale plan. The fact that no appeal was available to the representative of the debtor's social and economic committee was not held to constitute a breach of his right to an effective remedy, which does not imply the right to a second hearing, since he had been summoned and heard by the court before the plan was adopted . By way of exception, the Court of Cassation allows an appeal by a co-contractor who is not included in the plan, where the court that must adopt the plan has exceeded its powers by automatically ordering the resolution of the contract .

Lastly, the judgment that must adopt the disposal plan is not subject to third-party objection , unless the court has exceeded its powers. This cannot be said of a court that adopts the plan for the sale of a debtor company without ordering the transfer to the transferee of the charge on a real estate security in accordance with the conditions set out in Article L. 642-12(4) of the Commercial Code, so that its decision cannot be the subject of a third-party objection . Similarly, a third-party objection lodged against a ruling that the resolution of the plan is valid only for the future is inadmissible since such a ruling does not constitute an abuse of power .

Cass. com., 12 July 2017, LawLex202100001071JBJ (LJ).

Cass. com., 23 October 2019, LawLex202100001140JBJ (LJ).

Cass. com. 27 March 2012, LawLex202300002546JBJ (RJ); Cass. 3e civ. 19 May 2010, LawLex202200007587JBJ (LJ). See also Cass. com. 28 June 2011, LawLex202100001144JBJ (LJ), holding that the court has exceeded its powers if it considers the appeal admissible.

Cass. com., 15 December 2009, LawLex202100001677JBJ (LJ) ; 22 November 1994, LawLex202300004400JBJ (RJ).

Cass. com., 14 June 2017, LawLex202100001222JBJ (LJ) ; 19 December 2018, LawLex202300004451JBJ (RJ).

Cass. com., 2 July 2013, LawLex202100001141JBJ (LJ).

Cass. com., 10 March 2009, LawLex202300004398JBJ (RJ).

Cass. com., 24 May 2018, LawLex202100001150JBJ (LJ).

CA Versailles, 10 March 2020, LawLex202300005014JBJ (RJ).

Cass. com., 6 February 1996, LawLex202300004943JBJ (RJ).

CA Paris, 23 January 2020, LawLex202000000104JBJ (RJ).

CA Lyon, 12 January 2006, LawLex202300002522JBJ (RJ).

Cass. com., 9 May 2007, LawLex202300002624JBJ (RJ).

CA Caen, 9 November 2010, LawLex202300004424JBJ (RJ).

Cass. com., 22 October 1996, LawLex202100005167JBJ (RJ).

Bankruptcy Law

607. Appeal

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

607. Appeal

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise