Bankruptcy Law

In accordance with Article L. 661-6, III of the Commercial Code, appeals against court rulings which must adopt or reject the business sale plan are reserved for the public prosecutor, the debtor, the assignee and the co-contractor transferred under the sale plan, so as not to delay implementation unnecessarily.
The debtor is entitled to appeal against the court ruling which must adopt the assignm …

Appeal

In accordance with Article L. 661-6, III of the Commercial Code, appeals against court rulings which must adopt or reject the business sale plan are reserved for the public prosecutor, the debtor, the assignee and the co-contractor transferred under the sale plan, so as not to delay implementation unnecessarily.

The debtor is entitled to appeal against the court ruling which must adopt the assignment plan , unless, in the absence of an interest in acting, he does not oppose the assignment, and the only interests he supports are those of his manager in respect of the guarantees taken out by the latter .

The transferee is only entitled to appeal against the court ruling must adopting the transfer 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 sale under the plan may also appeal against the court ruling. However, he or she can only appeal against the part of the court ruling 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 ruling, cannot run if he has not been summoned to the hearing, nor informed of the ruling within 48 hours of it, nor served with notice . The lessor of the premises necessary to maintain the business, whose contract is continued by virtue of an express provision of the court ruling on the plan must adopt, has the status of assigned co-contractor and the right to appeal the ruling . However, the lessor's appeal against the transfer plan is abusive if it does not show any intention of taking over the business, and its sole purpose is to delay the transferee's taking possession . Furthermore, the lessor is not obliged to remedy an order for the sale of a business, if he does not intend to obtain the nullity or rescission of the sale, but rather the cancellation of the leasehold rights of the building in which the business is operated, since the leasehold rights constitute only one element of the business .

Ultimately, an appeal can only be lodged by a party to the proceedings. This is not the case for the ousted buyer , for co-contractors whose contracts were neither mentioned nor included in the sale plan , or for creditors holding security interests , since they are not parties to the court ruling must adopting the sale plan. The absence of an appeal to the representative of the debtor's social and economic committee has not been held to constitute a violation of his right to an effective remedy, which does not imply the right to a second hearing, since he was 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 not included in the plan, where the court which adopts the plan has exceeded its powers by automatically ordering the termination of the contract .

Lastly, the court ruling which must adopt the transfer plan is not subject to third-party appeal , unless the court has acted ultra vires. This is not the case if the court adopts the plan for the sale of the debtor company, without ordering the transfer to the assignee 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-nullity . Similarly, a third-party objection lodged against a court ruling that the resolution of the plan is valid only for the future is inadmissible, since such a decision 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), noting the excessive powers of the court ruling on the appeal.

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

893. Appeal

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893. Appeal

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