Bankruptcy Law

When the AGS refuses, for whatever reason, to pay a claim appearing on a statement of claims resulting from an employment contract, Article L. 625-4 of the Commercial Code  requires it to make its refusal known to the judicial liquidator , who must immediately inform the employees' representative and the employee concerned. There is no requirement for the AGS to formulate a refusal to pay within the time-limits set by Article L. 3253-21 of the Labor Code for payment to the judicial liquidator of the sums shown on the statements of employee claims .

As a third party to the procedure between the employee and the company placed under an insolvency procedure, AGS is entitled to contest the scope of its guarantee, in all cases where the conditions of the guarantee do not appear to have been met . It can therefore oppose the payment of claims that have been definitively established in proceedings to which it has neither been a party nor represented . The third-party objection lodged by ASSEDIC and AGS against a decision fixing the amount of wage claims cannot be declared inadmissible, since these bodies cannot be considered as having been represented in the proceedings by the employer and, given the conditions under which the wage guarantee may be invoked, they justify an interest distinct from that of the employer or the employee .

In order to refuse its guarantee, the AGS may, in particular, invoke non-compliance with the provisions of Article L. 1221-3 of the Labor Code and the nullity of a non-competition clause . The bankruptcy judge's admission of a wage claim as a privileged claim does not prevent the AGS from contesting, for any reason whatsoever, the principle and amount of the guarantee .

On the other hand, AGS cannot invoke the irregularity of amendments to the employee's employment contract drawn up prior to the transfer of the business to justify a refusal of cover . Similarly, in the absence of fraud on the part of an employee who does not request the transfer of his or her employment contract to the transferee of his or her employer's business, the AGS has no right of its own to refuse its guarantee in recognition of such a transfer . The payment of an indemnity to compensate for loss caused by late payment of wages and failure to produce the documents needed to regularize paid leave must be guaranteed by the AGS, since this claim is directly related to the employer's non-performance of obligations resulting directly from the employment contract . Nor can the AGS base its refusal to cover claims for compensation arising from the termination of a protected employee's employment contract on the absence of notice of redundancy .

Applicable to the court-supervised liquidation procedure by reference to art. L. 641-14.

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776. Refusal to guarantee unpaid wages