Bankruptcy Law

Article L. 642-3, paragraph 1, of the Commercial Code prohibits the debtor, in respect of any of its assets, de jure or de facto managers of the legal entity under judicial liquidation, relatives or allies up to and including the second degree of these managers or of the debtor as an individual, and persons having or having had the status of controller during the proceedings, from making an offer, …

Offerors

Article L. 642-3, paragraph 1, of the Commercial Code prohibits the debtor, in respect of any of its assets, de jure or de facto managers of the legal entity under judicial liquidation, relatives or allies up to and including the second degree of these managers or of the debtor as an individual, and persons having or having had the status of controller during the proceedings, from making an offer, directly or through an intermediary.

These same persons may not acquire, within five years of the transfer, all or part of the assets included in the transfer, directly or indirectly, nor acquire shares or equity securities in any company whose assets include, directly or indirectly, all or part of these assets, as well as securities giving access, within the same period, to the company's capital. The bidder must certify that he or she is not subject to any of the aforementioned incapacities, and must enclose his or her annual financial statements for the past three years and his or her projected financial statements  if he or she is required to prepare them.

The prohibition on making an offer is based on the exercise of de jure or de facto management authority. Thus, the manager of a debtor company is not allowed to submit an offer to the receiver for the purchase of the legal entity's business . Conversely, a former de jure manager of a debtor company who has been banned from managing the company is not, in the absence of fraud, deprived of the right to submit an offer to purchase the business . De facto management, exclusive of 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 debtor's assumption, even temporarily, of managerial functions is likely to disqualify the bid 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, as a manager, all acts of management and administration necessary for the operation of the debtor, even if he was appointed by the judicial authority and performed his duties under the supervision of 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 .

Furthermore, the interposition of persons within the meaning of Article L. 642-3 of the Commercial Code refers to the intervention of a legal entity that conceals, in any way whatsoever, the participation of the debtor company's managers in the acquisition transaction . The interposition of persons between the managers of the debtor company and a SCI successful bidder (non-trading property company) is characterized when the assets acquired by the latter do not fall within its corporate purpose, when it does not have the financial resources for the transaction and when a resolution of its general assembly authorizes it to sell the acquired assets to a third party, whose managers are the same as those of the debtor .

However, when the procedure concerns a farm, the court may waive these prohibitions and authorize the transfer 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 may, at the request of the public prosecutor, authorize the transfer to one of the persons referred to in the first paragraph, by a specially reasoned decision, after seeking the opinion of the auditors .

Deeds concluded in violation of this prohibition may be annulled at the request of any interested party or of the public prosecutor, presented within three years of their conclusion. Where they are subject to publicity, the period runs from the date of being made public  .

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

880. Offerors

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880. Offerors

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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