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    France

    Commercial Code, Book VI, Insolvency Act
    French Version
    Updated 28 April 2012
    English version
    Updated 01 January 2005

    Commercial Code, Book VI, Insolvency Regulations
    French Version
    Updated 28 April 2012

    Updates

    Adaptation of French law to the Regulation on insolvency proceedings by Catherine OTTAWAY from Hoche Avocats (Paris, France)

    On 11 April 2018, the Minister for Justice presented a bill ratifying Order No 2017-1519 of 2 November 2017 adapting French law to Regulation (EU) No 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings.

    This order was issued on the basis of the authorization provided for in article 110 of Act No. 2016-1547 of 18 November 2016 on the modernization of justice in the twenty-first century.

    The Order adapts French law in order to facilitate the implementation of the mechanisms created by the Regulation and to enable courts and practitioners to act quickly in often complex insolvency cases, where economic and social issues require exemplary responsiveness.

    The Ordinance thus creates within Book VI of the Commercial Code a Title IX devoted to the procedures covered by the European Regulation.

    It accompanies the implementation of the commitment mechanism which makes it possible to simplify and speed up the treatment of the insolvency of a company operating in several Member States. It also specifies procedural rules to facilitate the treatment of corporate group insolvency and the emergence of a global solution common to the group. These provisions strengthen the incorporation of European law into national law and to promote the recovery of firms in difficulty.

     

    The text of the Bill is available here.

    The text of the Order 2017-1519 of 2 November 2017 is available here.




    Act no. 2012-387 of 22 March 2012 on Simplification of Law

    The new procedure called “accelerated safeguard procedure” (sauvegarde financière accélérée – SFA) came into force on 1 March 2011 but has already been subject to modification by the lawmaker. (SFA was initially introduced by law no. 2010-1249 on Banking and Financial Regulation of 22 October 2010.)

    The decree no. 2011- 236 of 3 March 2011 was enacted to specify the new procedure of the SFA. However, a problem had been identified in the SFA even before it had entered into force. The lawmaker had wanted to create a new tool reducing conflicts of interests between banks and financial holding companies in the context of secondary LBOs. However, SFA was limited to companies that have more than 150 employees or a turnover of more than €20 million. Financial holding companies were therefore excluded from the scope of SFA as they seldom reach these thresholds.

    The decree was supposed to broaden the scope of SFA, but, given its importance, the provision was incorporated into the Law on Simplification and Improvement of 13 April 2011.

    However, this provision was declared, inter alia, unconstitutional for procedural reasons on 12 May 2011.

    So the legislature has now reintroduced this provision in law no. 2012-387 of 22 March 2012 on Simplification of Law.

    Accordingly, the SFA procedure is finally applicable to financial holding companies.

    Insolvency Act (Amendment) concerning the “accelerated safeguard procedure” has been published on 23 March 2012 (JORF n°0071 du 23 mars 2012 page 5226).



    The text is available in French at:
    http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=?cidTexte=JORFTEXT000025553296&dateTexte=&oldAction=rechJO&categorieLien=id


     

    Act no. 2012-346 of 12 March 2012 relating to protective measures applicable to “sauvegarde, redressement judiciaire et liquidation judiciaire” proceedings

    The French legislature issued a new law no. 2012-346 on 12 March 2012 on protective measures applicable to safeguard, reorganisation and liquidation procedures.

    Before the passing of this law, the president of the court could only order protective measures such as seizure or sale of a debtor’s assets if a liquidation was extended to cover other assets intermingled with those of the debtor or if the debtor was culpable.

    This new law now allows the president of the court to order protective measures against a debtor’s assets based on the extension of a safeguard, reorganization or liquidation procedure due to confusion of assets.

    The purpose of the new law is to limit the diversion of the debtor’s assets in all insolvency procedures.
    Insolvency Act (Amendment) concerning the protective measures has been published on 13 March 2012 (JORF n°0062 du 13 mars 2012 page 4497) and is immediately applicable.

    The text is available in French at:
    http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000025489848&dateTexte=&categorieLien=id

    A commentary is published in the 2012 Spring edition of Eurofenix by Catherine Ottaway, Partner, Hoche Société d'Avocats (Paris).

     

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