Bankruptcy Law

The extension of the procedure based on the merger of assets and liabilities or the fictivity of a legal entity necessarily entails the opening of a single insolvency procedure and precludes the maintenance of separate procedures , as it implies a global assessment of the different assets and liabilities. However, the fact that there is a single set of procedures does not mean that acts performed  …

Overall assessment

The extension of the procedure based on the merger of assets and liabilities or the fictivity of a legal entity necessarily entails the opening of a single insolvency procedure and precludes the maintenance of separate procedures , as it implies a global assessment of the different assets and liabilities. However, the fact that there is a single set of procedures does not mean that acts performed prior to the extension judgment can be called into question, as the extension judgment does not have retroactive effect to the date of the initial judgment opening the procedure .

The principle of the uniqueness of an insolvency procedure requires that all the companies concerned be placed in an identical situation . Once the merger of assets and liabilities of the companies in a group has been established, these companies cannot be treated differently . Although a single procedure does not eliminate the legal personality of each of the companies, nor create indivision between them , it does prohibit the liquidator from distinguishing transactions on an asset-by-asset basis . It precludes the adoption of a continuation plan that only concerns one company without considering the fate of the assets and liabilities of the other . Similarly, where an insolvency procedure has been extended to other debtors and the same plan has been adopted in favor of the debtors subject to the single procedure, the extension of the procedure ceases when that plan is resolved . However, the joinder of the proceedings opened after the resolution of the plan having put an end to an extension of the procedure may be pronounced on condition that the existence of a merger of assets and liabilities between the debtors is characterized by facts subsequent to the judgment adopting the plan and not to its resolution .

Lastly, the fact that there is only one single procedure means that the shareholders of one of the companies involved in the procedure cannot act against the others, as they no longer have any conflicting interests .

Cass. com., 28 May 2002, LawLex202100002139JBJ (RJ).

Cass. com., 28 September 2004, LawLex202100002156JBJ (LJ).

Cass. com., 1 October 1997, LawLex202100002154JBJ (LJ).

See in particular Cass. com., 17 February 1998, LawLex202100002142JBJ (RJ).

Cass. com., 30 June 2009, LawLex202100004163JBJ (RJ). See also 1ère civ., 13 February 2001, LawLex202100004165JBJ (RJ).

Cass. com., 18 January 2005, LawLex202100002153JBJ (LJ).

Cass. com., 7 January 2003, LawLex202100002143JBJ (LJ).

Cass. com., 8 December 2021, LawLex202200000191JBJ (RJ) ; 23 June 1998, LawLex202100004175JBJ (RJ).

Cass. com., 8 December 2021, cited above.

Cass. com., 6 July 2010, LawLex202100006538JBJ (RJ).

Bankruptcy Law

648. Overall assessment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

648. Overall assessment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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