Bankruptcy Law

The provisions of Article R. 621-21 of the Commercial Code, applicable to the receivership procedure by virtue of Article R. 641-11, set out the ordinary law remedies available against the ordinances of the bankruptcy judge. Under the terms of paragraph 2 of this text, “[i]f the bankruptcy judge has not ruled within a reasonable time, the matter may be referred to the court at the request of a par …

Available remedies

The provisions of Article R. 621-21 of the Commercial Code, applicable to the receivership procedure by virtue of Article R. 641-11, set out the ordinary law remedies available against the ordinances of the bankruptcy judge. Under the terms of paragraph 2 of this text, “[i]f the bankruptcy judge has not ruled within a reasonable time, the matter may be referred to the court at the request of a party or the public prosecutor”. Paragraph 3 adds that “[t]he ordinances of the bankruptcy judge shall be deposited without delay with the court registry, which must provide them to the legal representatives and notify them to the parties and to the persons whose rights and obligations are affected” .

Remedies against ordinances may be lodged with the court within ten days of communication or notification . The notification of an ordinance of the bankruptcy judge by way of service at the initiative of a party is authorized and starts the time-limit for appeal, when it clearly reproduces the provisions of Article R. 621-21 of the Commercial Code . The time-limit for remedy against the ordinances of the bankruptcy judge does not run in respect of the liquidator when notification has been made not by service but by registered letter with acknowledgement of receipt . The public prosecutor's office may also lodge a reasoned petition with the court within ten days of being notified of the ordinance .

Ordinances ruling on a claim are subject to remedy, open to persons whose rights and obligations are affected by such decisions, within a period of 10 days from notification of the decision, and not to third-party opposition . On the other hand, the remedy period does not run in respect of third parties who have not been notified of the ordinance : the court would be exceeding its powers if it declared inadmissible as late the remedy exercised by the debtor against an ordinance which has not been duly notified to him . Remedies are lodged by declaration against a receipt or by registered letter with acknowledgement of receipt to the court registry . It is examined at the first useful hearing of the court and the interested parties and legal representatives are notified. A court ruling on a remedy lodged against an ordinance of the bankruptcy judge concerning the realization of a debtor's real estate under compulsory liquidation may be appealed only by the public prosecutor and not by the debtor, unless there is an excess of authority . The ordinances of the bankruptcy judge may only be challenged before the court in charge of the insolvency procedure, and not before the court itself, by way of summary proceedings .

However, some ordinances can be remedy directly before the court of appeal. This is the case, in particular, for ordinances by which the bankruptcy judge rules on the admission of claims . The appeal must be declared inadmissible if the parties fail to comply with the ten-day time-limit following notification .

Whereas prior to the adoption of the Safeguard Law , an appeal against a judgment ruling on a remedy against the ordinance of the bankruptcy judge was admissible only if the latter had been rendered as a result of an excess of power , it has since been accepted that such a judgment may be appealed, in accordance with the rules of the Code of Civil Procedure .

Under the terms of Article L. 661-6, I, 1° of the Commercial Code, judgments or ordinances relating to the appointment or replacement of the receiver, liquidator, commissioner for the enforcement of the plan, liquidator, auditors or expert(s) may only be appealed by the public prosecutor. These provisions have not been held to be contrary to the Constitution, since they have neither the object nor the effect of closing the ordinary law remedy available to creditors under Article R. 621-21 of the same code against the ordinances of the bankruptcy judge before the court in charge of the insolvency procedure . The only exception to this rule is in cases of excess of power . However, the bankruptcy judge's refusal to appoint all the creditors who so request, even if there are fewer than five of them, does not constitute an excess of power which would authorize remedy by a person other than the public prosecutor .

Lastly, only the public prosecutor is entitled to lodge an appeal in cassation against rulings ruling on remedies lodged against the official receiver's ordinances .

Cass. com. 29 May 2019, LawLex202100005022JBJ (RJ), holding that the guarantor of the trademark assignee is not a person whose rights and obligations are directly affected by an ordinance of the bankruptcy judge, which authorizes the debtor to assign the trademarks that are the subject of the licensing agreement binding him to a third party.

Cass. com., 8 March 2017, LawLex202100006438JBJ (LJ).

C. com., art. R. 624-7, applicable to the court-supervised liquidation by reference to art. R. 641-28.

Cass. com., 17 May 2011, LawLex202100005019JBJ (RJ).

Law 2005-845 of 26 July 2005 on safeguarding businesses.

Cass. com. 6 December 1994, LawLex202100005197JBJ (RJ); 19 December 2000, LawLex202100002189JBJ (LJ). The same condition was required for the admissibility of an appeal-nullity, see Cass. com. 14 February 1995, LawLex202100005026JBJ (RJ); 6 June 1995, LawLex202100005027JBJ (RJ), both of which held that an appeal-nullity lodged against a judgment confirming an ordinance of the bankruptcy judge issued in violation of the principle of contradiction is admissible; 27 May 2003, LawLex202100005023JBJ (LJ).

C. com., art. R. 662-1. Cass. com, 29 November 2016, LawLex202100005017JBJ (LJ); 7 February 2012, LawLex202100002190JBJ (RJ), solution applicable even if inaccurately qualified as a judgment of last resort.

Cass. com., 21 February 2012, LawLex202100002205JBJ (S).

Cass. com., 29 September 2015, LawLex202100002203JBJ (LJ).

Cass. com., 18 September 2012, LawLex202200010845JBJ (LJ).

Cass. com., 10 March 2015, LawLex202100003665JBJ (LJ) and LawLex202100005020JBJ (RJ).

Cass. com., 24 January 2018, LawLex202200010595JBJ (LJ).

Cass. com., 1 July 2020, LawLex202100005024JBJ (LJ).

Cass. com., 11 February 2014, LawLex202100005150JBJ (RJ).

Cass. com., 11 October 2016, LawLex202200011160JBJ (LJ).

Bankruptcy Law

678. Available remedies

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678. Available remedies

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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