1. Condition for the regularization of the compulsory conciliation clause
2. Status of party to an approved transaction
3. Compensation between a current account and a securities account
4. Insolvency proceedings: sanction for excessive duration
5. Summons to open proceedings for insolvency: the status of creditor
6. Modalities for extending collective proceedings
1. Condition for regularizing the compulsory conciliation clause
Mix.
December 12, 2014 (n°13-19.684) PBRI: In this case, a contract binding the parties in dispute provided for a conciliation clause prior to referral to the court.
The question asked was whether the conciliation procedure, made compulsory in the event of a dispute by a clause in the contract, could be implemented, if it had not been implemented prior to the legal proceedings, during them. here, to regularize the resulting inadmissibility. The Court of Cassation responds negatively on the grounds that " the situation giving rise to the end of non - acceptance drawn from the failure to implement a contractual clause which establishes a procedure, mandatory and prior to referral to the judge, favoring a solution of the dispute by recourse to a third party, is not likely to be regularized by the implementation of the clause during the proceedings ".
2. Quality of party to a transaction homologated
1st Civ.
January 8, 2015 (n°13-27.377) F-PB: In this case, a settlement protocol concluded between several companies had been approved by the president of a high court.
The manager of one of these companies having stood surety, one of the parties had enforcement measures taken against him. The guarantor then decided to seize the judge of the execution of a request tending to the cancellation of these measures. Judges were asked to determine whether the surety was a party to the transaction.
The Court of Appeal answered in the negative and annulled the enforcement measures.
According to the court, only companies were targeted as parties to the approved transactional protocol. Moreover, the surety commitment even integrated into the protocol, did not confer on the surety the quality of party to the transaction to which it had been given enforceable force. Consequently, the surety bond required the obtaining of an enforceable title against the surety to allow the exercise of the means of execution. The Court of Cassation takes up this reasoning and rejects the appeal lodged against the decision of the Court of Appeal.
3. Compensation between a current account and a
Com securities account.
December 16, 2014 (n°13-17.046) F-PB: A company is placed in receivership and then in compulsory liquidation.
A bank's claim for the debit balance of the current account was admitted. The bank then brought an action in order to be authorized to offset this balance with the balance of a securities account in the name of the debtor. The Court of Cassation considers that the absence of fungibility of the articles of a current account agreement and the articles of a securities account agreement excludes the unit of accounts between these two accounts.
4. Insolvency proceedings: penalty for excessive length
Com.
December 16, 2014 (n°13-19.402) FP-PBRI: A debtor was placed in judicial settlement then liquidated assets on July 23, 1976 and October 26, 1979. He then seized the court, by motion of March 24, 2011, d a request for termination of the proceedings on the grounds that their duration exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and constituted a violation of his right to property protected by Article 1 of Protocol No 1 to the said Convention.
The Court of Appeal sanctioned the excessive length of the liquidation procedure by ordering its closure.
Pursuant to Articles L. 643-9 of the Commercial Code, in its wording resulting from the law of July 26, 2005 on the protection of companies, together Articles 6 § 1 of the Convention for the Protection of Human Rights and Freedoms and 1st of Additional Protocol No. 1 to this Convention, the Court of Cassation quashed the judgment of the Court of Appeal.
In support of its decision, the Court specifies that when there is a realizable asset of such a nature as to satisfy the creditors in whole or in part, the violation of the debtor's right to be judged within a reasonable time and of that which results therefrom, of his right to administer his assets and dispose of them, is not sanctioned by the closure of the proceedings for the liquidation of the assets but opens up to him the action for damages provided for in Article L. 141-1 of the Code of the judicial organization, which he can exercise under his own rights.
5. Summons at the opening of insolvency proceedings: the status of creditor
Com.
December 2, 2014 (n°13-20.203) F-PB: Failure to settle a debt, a debtor had been sentenced in summary proceedings to pay a provision.
Main insolvency proceedings were subsequently opened by the Milan court against the debtor. The creditor then seized a commercial court in France with a request for the opening of secondary insolvency proceedings. The question arose whether the creditor had standing to request the opening of insolvency proceedings.
According to the Court of Cassation, for lack of being able to prove a certain, liquid and payable claim on the debtor on the day of his summons at the opening of this secondary insolvency procedure, the creditor did not have the quality of creditor required by the Article L. 640-5, paragraph 2, of the Commercial Code nor, consequently, that referred to in Article 29 b) of EC Regulation No. 1346/2000 relating to insolvency proceedings.
6. Modalities of extension of a collective procedure
Com.
December 16, 2014 (n°13-24.161) F-PB: Three companies united by capital ties, each declared their state of cessation of payments separately.
The court then opened a judicial reorganization procedure common to the three companies. The Court of Appeal noted that the companies were integrated with regard to their legal ties and their activities and were bound by a cash agreement, that there was a fund raising for the benefit of the parent company and that the request for conciliation had been made at group level, that no possibility of partial sale of activity appeared and that the companies did not demonstrate the interest, for them, of continuing the procedure under separate assets.
The Court of Cassation overturned the decision of the Court of Appeal. The Court in fact considered that the elements retained by the Court of Appeal were unsuitable for characterizing the confusion of the assets of the companies or the fictivity of some of them, the only ones capable of justifying the existence, by way of extension, of a single collective procedure.
