Focus on decrees n°2021-1354 and 2021-1355 of October 16, 2021
Preliminary reminders
The crisis exit procedure was created by article 13 of law n°2021-689 of May 31, 2021.
This is a simplified collective procedure intended for small businesses aimed at enabling them to rebound thanks to a restructuring of their debt.
Although this law applies in principle to procedures opened since June 2, 2021, decrees 2021-1354 and 2021-1355 now allow its effective application since they bring a certain number of much-awaited clarifications.
The companies concerned
The companies concerned are the same as those that can be the subject of a "classic" to meeting several cumulative conditions.
Thus the debtor:
- Must have less than 20 employees on the date of the opening request;
- Must be able to justify a balance sheet total of less than 3 million euros in declared liabilities (assessed at the closing date of the last financial year);
- Must be able to present accounts that appear regular, sincere and capable of giving a true image of the company's financial situation;
- Must continue its activity;
- Must be in a state of cessation of payments while having the funds to pay his salary debts;
- Must justify being able, within three months , to develop a draft plan to ensure the sustainability of the business.
The opening of the procedure
- It can only be opened at the request of the manager;
- The documents attached to the opening request are listed in article 1 of decree 2021-1354;
- If the debtor was engaged in a conciliation procedure, the court decides on the opening of the procedure after a report from the conciliator;
- A legal representative whose mission is to monitor the management of the business manager and to act in the name and in the collective interest of the creditors is appointed by the court;
- Designation of controllers is possible.
Observation period
- It is limited to three months;
- Within a maximum period of two months , the court orders the continuation of the observation period if it appears that the debtor has sufficient financing capacities during a hearing, the date of which is set in the opening judgment;
- During this period, the proceedings may be terminated by the court at the request of the debtor, the legal representative or the public prosecutor;
- The current contracts regime is partially neutralized;
- The system of refunds and claims is not applicable.
Determination of liabilities
- There is no procedure for declaring claims or verifying claims;
- The list of claims of each creditor is established by the debtor within 10 days of the opening judgment ,
- The conformity of this list with the company's accounting documents is verified by the agent;
- The creditors concerned may transmit to the judicial representative their request for updating or contesting within one month from either the publication of the judgment in BODACC, or if it is later, from the communication by the judicial representative of the information the debtor is the holder ;
- The appointed representative informs of the opening of the procedure the persons co-obligated or having granted a personal surety or having assigned an asset as collateral, the existence of which has been brought to his attention (by the debtor or by any means).
- When a claim has not been mentioned on the list and is brought to his attention, the designated agent informs the creditor and invites him to specify the characteristics of his claim;
- The supervising judge, who will only intervene if the creditor contests the existence or the amount of the claim appearing on the list, may admit the claim, reject it, note that it is the subject of an ongoing proceeding or find that he is incompetent to decide the dispute;
- The decision of the supervising judge will only have effects between the debtor, the creditor and the legal representative;
- The commitments for the settlement of the liabilities which will appear in the plan may be established on the basis of this list as long as the receivables are not disputed.
Liability treatment plan
The debtor prepares the draft plan with the assistance of the appointed representative, then presents it to the court, which is seized at any time to rule on the said draft.
The procedures for adopting the plan are those currently prescribed for a safeguard plan subject to the following reservations:
- The plan cannot include employment provisions that the debtor could not fund immediately;
- It is not prohibited to provide for dismissals but their financial consequences must be borne by the debtor, the AGS not intervening;
- The amount of the annuities provided for by the plan as of the 3rd year cannot be less than 8% of the liabilities established by the debtor;
- The plan can only affect the claims mentioned on the list drawn up by the debtor, arising prior to the opening judgment;
- The plan cannot have any impact on claims arising from an employment contract, maintenance claims, tort claims, claims below a certain amount, subsequent claims.
The consequences of not stopping a plan
- If a plan is not adopted within three months of the opening judgment, the court, seized by way of petition, opens, at the request of the debtor, the appointed representative or the public prosecutor, a procedure of reorganization or liquidation. judicial, if the conditions are met;
- This decision, notified to the debtor within eight days of its pronouncement , puts an end to the crisis resolution processing procedure.
- There is therefore no conversion of procedure but the opening of a new procedure which will make it possible to run the time limits which are normally intended to run during the observation period.
Remedies
- Judgments and orders issued in connection with the crisis resolution procedure are automatically enforceable on a provisional basis (except those issued pursuant to Articles L.622-8 and L.626-22 of the Commercial Code);
- The provisional execution may be suspended by the first president when the means in support of the appeal appear serious;
- In the event of an appeal by the public prosecutor against a judgment opening the procedure or stopping the plan, the provisional execution is stopped as of right from the date of this appeal;
- The First President of the Court of Appeal may, at the request of the Attorney General, take any precautionary measure for the duration of the appeal instance;
- parties to appeal ten days from the date of notification of the decisions;
- Opposition and third-party opposition are filed by declaration to the registry within ten days of the pronouncement of the decision, or the publication of the decision in BODACC, or even from the day of publication, where applicable. , insertion in a medium of legal announcements;
Miscellaneous
- Unless otherwise provided, the rules of the Code of Civil Procedure are applicable;
- The notifications made by the clerk are made by registered letter;
- The date of service is that of the signature of the acknowledgment of receipt, failing that, that of presentation of the registered letter;
- The judgments of the court are rendered in public hearings, with the exception of those rejecting the request to open the crisis resolution procedure;
- Some of the decisions made in the post-crisis processing procedures are automatically mentioned in the RCS;
- The said mentions are canceled automatically when the procedure has been terminated due to the debtor's inability to present a plan within three months, when it has been noted that the execution of the plan has been completed. or when the plan is still in progress at the end of a period of one year from its approval.
