Bankruptcy Law

Article L. 621-1 of the Commercial Code, which applies to court-supervised liquidation procedure on the basis of Article L. 641-1 of the Commercial Code, stipulates that the court hearing an application to open proceedings must rule after having heard or duly summoned the debtor and the person(s) designated by the social and economic committee. Under Article L. 662-3, the hearing takes place in ca …

Hearings in chambers

Article L. 621-1 of the Commercial Code, which applies to court-supervised liquidation procedure on the basis of Article L. 641-1 of the Commercial Code, stipulates that the court hearing an application to open proceedings must rule after having heard or duly summoned the debtor and the person(s) designated by the social and economic committee. Under Article L. 662-3, the hearing takes place in camera in the court chambers, in order to preserve the confidentiality of the statements made. These provisions are not incompatible with freedom of expression and the right to a fair trial .

First and foremost, the hearing concerns the debtor in the court-supervised liquidation procedure. If the debtor is not summoned to appear , or if he is summoned under material conditions that only enable him to be informed on the day of the hearing , the opening judgment is likely to be null and void, as the hearing of the debtor is a formality of public order. The fact that the manager has set up a lawyer and filed pleadings is no substitute for a hearing in chambers . On the other hand, the opening judgment cannot be annulled for failure to summon the debtor to the hearing, as long as the summons to appear in chambers was served on the debtor, with an indication of the facts justifying the referral to the court, at the address of the debtor's registered office and place of business, as determined during the preliminary investigation by the judicial commissioner . A creditor may not invoke the debtor's failure to be summoned to the hearing to obtain the nullity of the judgment refusing to open the insolvency procedure, since this causes harm only to the debtor .

The hearing is also open to persons appointed by the social economic committee, in accordance with the provisions of Article R. 621-2 of the Commercial Code, applicable to the court-supervised procedure by virtue of Article R. 641-1. According to this text, "[b]efore a decision is taken on the opening of the procedure, the court registrar, at the request of the president of the court, notifies the legal representative of the debtor legal entity or the debtor individual that he must convene the social and economic committee, in order to designate the persons entitled to be heard by the court and to exercise the remedies in accordance with Article L. 661-10. A copy of this notice is sent by the court registrar to the secretary of the social and economic committee. The appointment report is filed with the court registry. In the absence of a social and economic committee, the insolvency procedure may not be opened, on pain of nullity of the opening judgment, in the absence of convocation of employee delegates, which may not be invoked either by the debtor  or by a creditor . Even if they have not been heard in the end, the employee representative bodies must at least have been summoned . On the other hand, a judgment opening an insolvency procedure cannot be annulled, even in the absence of a formal appointment of an employee representative, provided that the employee representative was invited to appear in chambers, assisted by his lawyer, and that all employees received a copy of the summons by e-mail . Similarly, the mere fact that the debtor company's employee representative was not heard by the court does not invalidate the contested judgment, since she was summoned and attended the hearing .

Paragraph 2 of Article L. 621-1 of the Commercial Code adds that, where the debtor is a member of a liberal profession governed by a legislative or regulatory statute or whose title is protected, the court must hear the professional association or competent authority to which the debtor belongs. Similarly, the court may not rule on the extension of an insolvency procedure unless it has heard or duly summoned the professional association or competent authority to which the debtor concerned by the extension is subject, including where they are already acting as controllers in the procedure . The obligation to consult also applies to the conversion of safeguard or receivership proceedings into a court-supervised procedure . The opening judgment must be annulled if it is not clear from the documents submitted that the court heard or called the representative of the the Order of Chartered Accountants before making its decision , or summoned the Order of masseurs and physiotherapists , when the procedure is opened against a member of these professions. On the other hand, the court may open an insolvency procedure against a private investigator without hearing the Observatory of French Detectives (Observatoire des détectives de France) or the National Confederation of Professional Investigators and Detectives (Confédération nationale des enquêteurs et détectives professionnels), since they cannot be classified as a professional order . Failure to hear or summon the professional association, while it may invalidate the judgment, in no way affects the referral of the case to the court , so that the court of appeal which overturns the judgment may subsequently rule on the opening of the procedure by way of evocation.

Lastly, Article L. 662-3 of the Commercial Code authorizes the court to hear any person it deems useful.

Cass. com., 26 May 1998, LawLex202200000089JBJ (LJ).

CA Aix-en-Provence, 12 June 2014, LawLex202100006030JBJ (LJ).

Cass. com., 5 November 2013, LawLex202100004126JBJ (LJ).

CA Colmar, 3 May 2017, LawLex202100006078JBJ (LJ).

Cass. com., 8 April 2015, LawLex202100006079JBJ (LJ).

CA Aix-en-Provence, 22 September 2016, LawLex202100004511JBJ (LJ).

Cass. com., 27 May 2008, LawLex202100003655JBJ (LJ).

CA Rouen, 3 December 2020, LawLex202100006077JBJ (LJ).

CA Douai, 28 May 2015, LawLex202100005358JBJ (RJ).

CA Nancy, 27 June 2012, LawLex202100006081JBJ (LJ).

CA Versailles, 22 September 2011, LawLex202200000090JBJ (RJ).

CA Aix-en-Provence, 30 April 2008, LawLex202200000500JBJ (RJ).

Cass. com., 24 October 1995, LawLex202100002776JBJ (RJ).

CA Aix-en-Provence, 30 April 2008, cited above.

Cass. com., 22 May 2013, LawLex202100002073JBJ (LJ).

Bankruptcy Law

666. Hearings in chambers

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666. Hearings in chambers

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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