Newsletter n° 24 – Business law – August 2015
Summary
LEGISLATIVE AND REGULATORY NEWS
Telephone canvassing
Decree of May 19, 2015
Simplification of life for companies
Decree of May 18, 2015
Simplification of reporting obligations for companies
Ordinance of June 18, 2015
Employee representatives
Decree of June 3, 2015
JURISPRUDENCE
COMPANIES IN DIFFICULTY
Extension of procedure
Characterization of abnormal financial relations
Declaration of claim
Calculation of interest
Dispute of claim
Office of the judge
Admission of a claim
Methods of appeal
Action for compensation of employees
Admissibility of the action
Liquidation and Paulian action
Determination of the competent judge
Action for insufficiency of assets
Determination of the scope of the action
Dismissal of the liquidator
Applicable procedure
Safeguard and suretyship
CONTRACTS
Significant imbalance
Characteristic elements
Guarantee
Handwritten notes
Formalism: mention of the duration of the commitment
Assessment of the disproportion
Commercial agent contract
Validity of the trial period provided for in a commercial contract
Goodwill
The sale of the fund is not subject to the rules relating to door-to-door sales provided for by the Consumer Code
COMPANIES
Corporate officer
Effect of resignation
Commitment subscribed by the manager
Condition of nullity of the commitment
Legislative and regulatory news
Telephone canvassing
The Hamon law has extended the possibility for consumers to oppose cold calling for all professionals and no longer only for voluntary professionals associated with the Pacitel system. Failing this, the professional is liable to a sentence to pay a fine of 15,000 euros for a natural person and 75,000 euros for a legal person. The decree of 19 May 2015 1 , issued for the application of these Hamon provisions, specifies the operating methods of this opposition list.
The decree notably fixes the methods of registration on the opposition list, its content and the duration of registration.
The text establishes the conditions of access to the list for professionals.
Professionals who usually carry out telephone canvassing are also required to update prospecting files and remove the contact details of consumers registered on the opposition list. The decree determines the role and powers of the body responsible for managing the list of opposition to canvassing and also specifies the methods of control by the State, through the intermediary of a government commissioner.
This decree will enter into force on the first day of the fourth month following that of the designation of the organization in charge of the opposition list.
Simplification of business life
The decree of May 18, 2015 2 , issued for the application of the order of July 31, 2014 relating to company law, is structured around three axes. It first targets limited liability companies, then public limited companies and finally, securities.
Simplification of formalities in general partnerships and limited liability companies
The decree specifies that in the absence of publication of the amended articles of association in the RCS, the transferor or the transfer may, after formal notice from the manager and justifying the referral to the president of the court, file the deed of transfer of shares at the RCS.
The 2014 ordinance introduced the possibility of extending the period for holding the ordinary general meeting beyond six months by a court decision (L.223-26 of the Commercial Code).
The decree clarifies this provision and provides that the manager can now ask the president of the commercial court to extend the six-month period from the end of the financial year to convene the general meeting. The decree lays down the conditions allowing the summoning of partners and the electronic communication of documents by electronic means, in limited liability companies.
Provisions relating to public limited companies
The prior authorization to sign a regulated agreement must, according to the 2014 order, be motivated and justify the interest of the agreement for the company by specifying the financial conditions attached to it (Art. L.225- 38 of the Commercial Code). The decree supplements this provision and specifies that the chairman of the board of directors communicates to the auditors for each authorized agreement and commitment, the reasons justifying their interest for the company, retained by the board of directors (R. 225-30 1st paragraph of the Commercial Code).
Securities Provisions
In the continuity of the ordinance, the decree aims to harmonize the treatment of transferable securities with European standards. In particular, it sets the duration of the difference between the listing and subscription periods for preferential subscription rights for negotiable shares at two business days. It should be noted that this provision will enter into force as of October 1, 2016. Furthermore, the text determines the terms of sale and distribution of the sums resulting from this sale of fractional rights. The procedures for identifying bondholders are subject to harmonization with those of equity holders. Finally, the decree adapts the advertising specific to the buyback of preferred shares.
1 Decree No. 2015-556 of May 19, 2015 relating to the list of opposition to cold calling
2 Decree no. 2015-545 of May 18, 2015 issued pursuant to order no. 2014-863 of July 31, 2014 relating to company law, pursuant to article 3 of law no. 2014-1 of January 2, 2014 empowering the Government to simplify and secure business life
Simplification of reporting obligations for companies
The ordinance of June 18, 2015 3 was issued on the basis of law no. 2014-1545 of December 20, 2014 relating to the simplification of business life, which empowered the government to take measures to simplify reporting obligations in tax matters.
This text removes the reference to the special declaration of tax reduction and credit in the book of tax procedures, which now refers to a single declaration (Art. L. 172 G of the book of tax procedures).
The filing dates for certain annual declarations by professionals are harmonised. The deadline for filing these declarations is set for the second day following May 1 for tax credits and reductions calculated for fiscal years ending on or after December 31, 2015. This includes declarations sent in respect of:
- income tax: traders and industrialists, farmers placed under a real tax regime and persons carrying out a non-commercial activity;
- corporation tax: if the financial year ended on December 31 or if no financial year ended during a year, the declaration of profit or loss must be filed no later than the second working day following the May 1;
- the tax on advertising broadcast by sound and television broadcasting;
- company property taxes.
The simplification also concerns the reporting obligations for the tax on precious metals, jewellery, works of art, collectibles and antiques (Art. 150VM of the General Tax Code (CGI)) and for taxes collect for the supply of the common fund for agricultural work accidents (1622 of the CGI). In practice, these declarations will have to be made on other declaration media. For example, for the tax on precious metals, the professional subject to VAT may in particular make his declaration on the appendix to the monthly or quarterly declaration of receipts for the calculation of VAT. These new provisions will apply to declarations made as of February 1, 2016.
As of January 1, 2016, the declaration for deductions at source on wages, salaries, pensions, annuities, products, and earnings paid to persons not domiciled for tax purposes in France must be made no later than the 15th of the following month. the calendar quarter during which the payment took place (Art. 1671 A of the CGI).
Similarly, for the fiscal years ending on or after December 31, 2015, the declaration for withholding tax relating to income from shares and similar income, the beneficiaries of which do not have their actual domicile or registered office in France, and to interest and bond proceeds, must be made no later than the fifteenth day of the fourth month following the end of the financial year (Art. 1673 bis of the CGI). Equity products distributed by a company that is a member of a tax group to a company that is a member of this same group are included in the list of products that are not affected by the reporting obligation of the tax form for distributions paid. from January 1, 2015 (Art. 242 ter of the CGI).
Finally, the value of the technical merger loss must no longer appear in the follow-up statements attached to the declarations of results for the financial years ended on or after June 20, 2015 (Art. 54 septies I of the CGI).
3 Ordinance no. 2015-682 of June 18, 2015 on the simplification of employers' social declarations
Employees on boards of directors
The 2013 job security law imposed the designation of directors representing employees on the boards of certain companies.
This mainly concerns public limited companies with a board of directors or a management board and a supervisory board. These companies must then employ, at the end of two consecutive years, at least 5,000 employees if their head office is in France. For companies whose head office is abroad, the obligation applies when the company employs at least 10,000 employees. When the board of directors is made up of less than 12 members, it must include at least one director representing the employees.
Beyond that, at least 2 directors representing employees must be elected or appointed. On June 3, 2015, a decree4 was issued for the application of these provisions and specifies the time available to these directors to carry out their mission and the training methods.
These directors thus have training time which may not be less than twenty hours per year and preparation time which may not be less than fifteen hours nor more than half of the legal monthly working time per meeting. of the board of directors or the committee.
Case law
Companies in difficulty
Extension of procedure – Characterization of abnormal financial relationships
Com. June 16, 2015 (n°14-10.187) F-PB:
The liquidator of a SARL had assigned an SCI with a view to seeing him extend the liquidation of the SARL.
The liquidator's request having been accepted by the Court of Appeal, the SCI appealed to the Court of Cassation. The Court of Cassation dismissed the appeal. According to the Court, in order to characterize abnormal financial relations constituting a confusion of assets, the trial judges do not have to determine whether these have increased, to the detriment of its creditors, the liabilities of the debtor subject to the collective proceedings. whose extension is requested.
Declaration of claim – calculation of interest
Com. May 5, 2015 (n°14-13.213) FD:
Article R. 622-23 of the Commercial Code requires the indication of the methods of calculation of interest whose course is not fixed only in the case where their amount cannot be calculated on the day of the declaration of the debt. Thus, neither the declaration including the amount, already calculated, of the interest to be due, nor the admission order of the judge-commissioner, must provide for the methods of calculation of the interest.
Office of the judge in matters of debt dispute
Com. June 2, 2015 (n°14-10.391) F-PB:
A bank had challenged before the Court of Cassation, the rejection of its claim, insufficiently justified, since the statement of accounts only contained the debit line.
According to the Court of Cassation, when the debtor or the liquidator disputes the declaration of claim by invoking the absence or insufficiency of the justifications produced in support thereof, it is up to the creditor to pay in the proceedings, if necessary , additional documents without the Court of Appeal being required to invite him to do so.
Appeal against the admission of a claim
Com. May 19, 2015 (n°14-14.395) F-PB:
The debt of a bank had been challenged by the legal representative before being admitted by the judge-commissioner. The debtor then appealed against the decision and claimed that the clause in the loan agreement relating to interest was cancelled. This request was then declared inadmissible because it had not been submitted to the judge-commissioner.
4 Decree No. 2015-606 of June 3, 2015 relating to the time required for directors or members of the supervisory board elected or appointed by employees to exercise their mandate and the terms of their training within the company
According to the Court of Cassation, the debtor in receivership can exercise an appeal against the decision of the judge-commissioner ruling on the claim he has contested, regardless of the subject of this dispute. The appeal decision is therefore quashed.
Employee compensation action
Com. June 2, 2015 (n° 13-24.714) FS-PBRI:
Employees dismissed during a transfer plan had voluntarily intervened in proceedings initiated by the commissioners for the execution of the company's plan against a bank with a view to having its liability recognized for granting ruinous loans .
To declare inadmissible the voluntary intervention of the dismissed employees in compensation for damages resulting from the loss of their employment, the judgment had held that the damages alleged by them were inherent in the collective proceedings, of which they were the direct consequence, and that they were suffered indiscriminately and collectively by all the creditors.
The Court of Cassation overturns the judgment on the grounds that the action for compensation for the damages invoked by the dismissed employees is unrelated to the protection and reconstitution of the common pledge of the creditors and does not come under the monopoly of the enforcement officer plan.
Liquidation and Paulian action – determination of the competent judge
Com. June 16, 2015 (14-13.970) F-PB:
The exclusive jurisdiction of the insolvency court, provided for by Article R. 662-3 of the Commercial Code, only concerns disputes arising from this procedure or over which it has a legal influence. This is not the case with the Paulian action, distinct from the action for annulment of acts performed during the suspect period. It is therefore right that in this case, the Court of Appeal dismissed the jurisdiction of the Commercial Court of Antibes, place of opening of the collective proceedings, in favor of that of the Commercial Court of Paris , in the jurisdiction of which the headquarters of the defendant company is located.
Area of action for insufficiency of assets
Com. June 30, 2015 (n°14-15.984) F-PB:
In this judgment, the Court of Cassation recalls that the action for liability for insufficient assets provided for by Article L. 651-2 of the Commercial Code can only be brought by the liquidator against the de jure or de facto managers. of a legal entity governed by private law. Consequently, article L.651-2 of the Commercial Code is not applicable when the judicial liquidation concerns a craftsman practicing on an individual basis and not a legal person.
Dismissal procedure of the liquidator
Com. July 7, 2015 (No. 14-13.195) FS-PB:
The amicable liquidation of a company and the appointment of a liquidator had been decided during a general meeting.
The liquidator, failing to draw up and present the accounts, was sued for dismissal by the minority shareholders. Their request was declared inadmissible on the grounds that it follows from the combined application of the provisions of Articles L. 237-25, paragraph 4, and L. 238-2 of the aforementioned code that the liquidator cannot be dismissed, for non- compliance with the obligations imposed on him by article L. 237-25, without the judge in chambers having been previously asked to order him under penalty to fulfill these same obligations.
The judgment is quashed by the Court of Cassation insofar as the admissibility of the liquidator's request for revocation made on the basis of Article L. 237-25 of the Commercial Code is not subject to prior referral , for the purposes of an injunction, of the president of the court ruling in summary proceedings pursuant to article L. 238-2 of the same code.
Backup and surety
Com. June 2, 2015 (n°14-10.673) FS-PB:
The managers of a company had stood surety for all of the company's commitments to a bank.
The company had been the subject of a safeguard procedure and the bank had declared its claim and then had been authorized to register provisional judicial mortgages on property belonging to the sureties. The bank then assigned the guarantors, who were condemned to the joint payment of certain sums which would become due as and when the deadlines of the safeguard plan. The Court of Cassation upheld the judgment. According to the Court, the creditor is entitled, pursuant to Articles L. 622-28 and R. 622-26 of the Commercial Code, to register on the property of the surety of the principal debtor subject to a safeguard procedure a provisional judicial mortgage and, to validate this precautionary measure, is required to assign the surety in order to obtain against it an enforceable title covering all the sums due. However, the forced execution of the latter cannot be implemented as long as the backup plan is respected.
Contracts
Significant imbalance
Com. May 27, 2015 (n°14-11.387) F-PB:
The Court of Cassation once again ruled on the question of the balance of the clauses contained in the contracts between a purchasing group and its suppliers and articulates its decision around several points.
First of all, the Court of Cassation characterizes the supplier's bid according to two elements.
On the one hand, the Court notes that the disputed clauses were inserted in all the contracts signed by the suppliers, who did not have the real power to negotiate them and notes on the other hand, that the suppliers could not take the risk to be dereferenced by the purchasing group. The Court then held that there was a significant imbalance resulting from the general conditions of purchase and the terms of their acceptance. In this respect, the Court notes several types of clauses (distortion of payment deadlines, automatic exclusion of discounts for early payment of rebates and services and the costs inherent in the destruction by consumers of products and/or their packaging) imposing on suppliers obligations without compensation, which, because of their systematic nature and imposed by the purchasing group, characterize an imbalance of obligations to the detriment of the supplier.
Finally, the Court of Cassation rules on the basis of the penalty clauses. According to the purchasing group, a penalty clause can only be sanctioned on the basis of article 1152 of the Civil Code. The Court of Cassation rejects this argument and specifies that the provisions of Article 1152 of the Civil Code do not preclude the application of Article L. 442-6 I 2° of the Commercial Code to a penalty clause, as soon as when the conditions are met.
Guarantee: handwritten notes
1st Civil. July 9, 2015 (n°14-21.051) F-PB:
A bank lodged an appeal against the appeal judgment considering that the guarantor, a natural person, illiterate, who was not the scribe of the handwritten notes made on the guaranty document that the bank had had written, could not guarantee of a company according to a private deed.
The Court of Cassation rejected the appeal against this decision on the grounds that a natural person who is unable to precede his signature with the handwritten information required by Articles L. 341-2 and L. 341-3 of the Code of consumption intended to ensure its protection and informed consent, can only validly commit itself by notarial deed as surety towards a professional creditor.
Formalism: mention of the duration of the commitment
1st Civil. July 9, 2015 (n° 14-24.287) F-PB:
The Court of Appeal pronounced the nullity of surety commitments insofar as the duration of the surety commitment had to be clearly specified in the handwritten note without it being necessary to refer to the printed clauses of the deed.
According to the Court of Appeal, the imprecision of this mention affected the understanding of the duration of the surety commitments and consequently their validity even if the duration of the guaranteed transaction, in this case eighty-four months, was indicated on the first page of the surety bonds. The Court of Cassation confirmed the decision of the Court of Appeal on the grounds that if the provisions of Article L. 341-2 of the Consumer Code do not specify how the duration of the guarantee commitment must be expressed in the handwritten statement, the fact remains that, as this is an essential element allowing the guarantor to measure the exact scope of his commitment, this statement had to be expressed without it being necessary to refer to the printed clauses of the deed.
Assessment of the disproportion of the bond
1st Civil. June 3, 2015 (No. 14-13.126; 14-17.203) FS-PB:
The Court of Appeal had considered that the suretyship was not manifestly disproportionate to the income of the surety insofar as his tax assessment did not take into account the expected income from the investment made by the guaranteed company, which this was not significant.
The first civil chamber of the Court of Cassation adopts the position of the commercial chamber on this issue and reverses the judgment on the grounds that the proportionality of the commitment of the surety cannot be assessed with regard to the expected income from the operation. guarantee.
Validity of the trial period in the commercial agent contract
Com. June 23, 2015 (n°14-17.894) F-PB:
A company challenged before the Court of Cassation its order to pay compensation for termination of contract to a commercial agent when it had terminated the contract during the trial period stipulated in the contract.
Indeed, the Court of Appeal had considered: "that assuming that the stipulation of a trial period in such a contract is not in itself unlawful, it cannot have the effect of depriving the commercial agent of his right to compensation". The Court of Cassation breaks on the grounds that the status of commercial agents, which assumes for its application that the agreement is definitively concluded, does not prohibit a trial period.
Sale of business
1st Civil.
July 9, 2015 (1n°14-17.051) F-PB: The plaintiff intended to see the nullity of the mandate she had concluded at her home in order to seek a buyer for her business.
To this end, she claimed to benefit from the protective provisions relating to door-to-door selling and intended to challenge the validity of the mandate on the grounds that the mandate lacked the detachable withdrawal form provided for by law under penalty of nullity of the contract and that in any event the mandatary should not have taken any action before the expiry of the seven-day period following the conclusion of the mandate. According to the Court of Cassation, for a trader, the sale of his goodwill is directly related to his activity, so that the operation is excluded from the scope of application of article L. 121-22 of the Code of consumption, in its wording prior to law n° 2014-344 of March 17, 2014.
Companies
Effect of the resignation of the corporate officer
Com. May 12, 2015 (n° 14-12.483) F-PB:
The president of a simplified joint-stock company had resigned the day he received a summons to an interview before the president of the commercial court.
The court then, on an ex officio referral, opened judicial liquidation proceedings against the company. The former president, who contested the date chosen for the cessation of payments, had then filed a third party opposition to this judgment. The Court of Appeal had declared the third party opposition inadmissible.
According to the Court of Appeal, the former chairman was not a third party to the procedure insofar as his resignation had not been the subject of any legal publicity formality and therefore remained, in the company's reports with third parties, including the commercial court, its legal representative on the date of the opening judgment. On the contrary, the Court of Cassation held that, since the duties of corporate officer had come to an end as a result of his resignation, it being immaterial that this had not been the subject of legal publicity measures, the result was that could not appear as legal representative of the company in the proceedings subsequently brought against it before the commercial court.
Commitment made by the manager
Com. May 12, 2015 (n°13-28.504) F-PB:
If it is established, the conflict with the corporate interest of the security subscribed by a limited liability company to guarantee the debt of a third party is not, in itself, a cause of nullity of the commitment.
