Newsletter n° 18 – Business law
REGULATIONS
Creation of the national file of prohibitions to manage
Decree of February 19, 2015
Reform of collective procedures
Bill of February 18, 2015
JURISPRUDENCE
… of February 17, 2015
Admissibility of the call for nullity of the works council for excess of power
… of February 17, 2015
Clarification on the form and content of a warning to have to declare a claim
… of February 10, 2015 The licitation of the undivided property can be pronounced in the event of collective proceedings of an undivided co-owner
… of March 10, 2015 Clarification relating to mismanagement
… of March 10, 2015 Action to claim movable property: burden of proof
… of February 27, 2015 Fate of the co-trustee of a discharged surety
… of March 3, 2015 Clarification on the notion of significant imbalance
… of February 10, 2015 Obligation to deliver
… of February 10, 2015 Compensable damages upon termination of commercial relations
… of February 10, 2015 Condition of regularity of the call for payment of the guarantee
of February 10, 2015 Methods of dismissal of the statutory auditor
REGULATIONS
Creation of the national file of prohibitions to manage
Created by the law of simplification of law and reduction of administrative procedures of March 22, 2012, the national file of prohibitions to manage was the subject of a decree of February 19, 2015.
This decree, whose entry date in force is fixed on January 1, 2016, determines the methods of registration and deletion of data in the file, the methods of communication of these.
Registration and deletion from the file
The measures prohibiting management must be registered in the national file of prohibitions to manage by the clerk of the commercial court responsible for keeping the RCS in which the natural person who is the subject or the legal person of which he was the de facto or de jure manager.
In the absence of registration in the RCS, it is up to the clerk of the commercial court that pronounced these measures to proceed with the registration in the file. Registration must take place as soon as the decision of the court is no longer subject to any appeal suspending execution.
The registration in the national file of prohibitions to manage includes, in particular, the elements making it possible to identify the person and information relating to the measure pronounced against him (nature, date, duration).
When the measure prohibiting management is the subject of removal from the RCS, the clerk responsible for keeping this register, if necessary informed by the clerk of the commercial court which pronounced the raising or by the public prosecutor if the increase is pronounced by a civil or criminal court, as soon as the decision is no longer subject to an appeal suspending execution, proceeds without delay to the deletion of the corresponding registration from the national file of prohibitions to manage.
Similarly, when the measure comes to an end, the measure must be canceled automatically. In the event of cancellation, the elements mentioned during registration can no longer be communicated and are erased from the file.
Communication of data
The decree establishes the list of persons who may be recipients of the information recorded in the file.
This list mainly targets agents from different administrations such as judicial police officers or agents from the general directorate of public finances. The decree also specifies that the request for communication and the communication of data must be made electronically. The consultations, modifications and queries of the national file of prohibitions to manage are recorded and kept for a period of thirty months from their recording. Finally, the rights of access and rectification provided for by articles 39 and 40 of law no. 78-17 of 6 January 1978 as amended relating to data processing, files and freedoms are exercised with the National Council commercial courts.
Reform of collective procedures
The bill to ratify Ordinance No. 2014-1088 of September 26, 2014 supplementing Ordinance No. 2014-326 of March 12, 2014 reforming the prevention of business difficulties and collective proceedings has been tabled in the Senate February 18, 2015.
This bill provides for a single article under which the ordinance is ratified.
JURISPRUDENCE
Admissibility of the call-nullity of the works council for abuse of power
Com. February 17, 2015 (n°14-10.279) FS-PB:
The appeal of the judgment stopping the transfer plan noted by the central committee of a company in receivership was declared inadmissible by the Court of Appeal.
In support of the decision, the Court of Appeal specified that the consultation of the works council prior to the adoption of the plan providing for redundancies is purely consultative and does not allow the works council to claim the quality party to the decision. The Court of Cassation reverses the judgment. According to the Court, even if the appeal-reversal of the judgment ruling on the transfer plan is in application of the provisions of article L. 661-6 III of the open commercial code only to the debtor, to the Public Prosecutor, to the transferee or to the co-contractor, the works council may lodge an appeal for nullity for abuse of power.
Nature and content of the warning to declare
Com. February 17, 2015 (n°13-24.403) FS-PB:
In this case, the representative of a company in receivership warned a creditor to have to declare his claim.
As the warning reproduced the texts provided for in article R.622-21 of the Commercial Code in a wording prior to that in force, the Court of Appeal declared that it was irregular and had not caused the time limit to run of declaration with regard to the privileged part of the claim. Two questions were put to the Court of Cassation. On the one hand, it was necessary to determine whether the irregularity of the warning can be sanctioned in the absence of proof of a grievance and if, on the other hand, the warning of having to declare a debt is irregular therefore that it contains an earlier version of the texts. The Court of Cassation first responds that the warning is not a procedural act. The nullity of the act is therefore not subject to the application of article 114 of the Code of Civil Procedure which requires in particular to provide proof of a grievance caused by the irregularity. The Court then overturned the judgment insofar as the Court of Appeal did not consider whether the warning in question was not sufficient to inform the creditor of his rights and obligations.
The licitation of the undivided property can be pronounced in the event of collective proceedings of an undivided co-owner
Com. February 10, 2015 (n°13-24.659) FS-PB
A building, which became undivided after the owners divorced, was occupied by the husband.
The latter repaid the installments of the loan, renegotiated the conditions and then obtained a new loan designating him as the sole borrower. Invoking the default of the borrower, the latter was summoned by the bank and called his co-divider in guarantee. After the wife's death, her heirs took over the proceedings. The liquidation of the matrimonial regime having also given rise to difficulties, a judgment of February 8, 2011 ruled on these difficulties and ordered the auction of the building. The husband appealed against this judgment after being placed in receivership on January 20, 2011. As part of this procedure, a judgment of January 26, 2012 stopped the recovery plan and declared the building inalienable. In the appeal instance, the heirs then formed third party incidental opposition to the last judgment. The Court of Appeal notably rejected the heirs' request for the auction of the undivided building. According to the Court of Appeal, the incidental third party opposition formed by the heirs is inadmissible because it is late and only the debtor can submit a request to lift the inalienability. The Court of Cassation partially overturned the judgment on the grounds that under the terms of article 815 of the Civil Code, no one can be forced to remain in joint ownership and that partition can always be brought about.
Clarification relating to the mismanagement
Com. March 10, 2015 (No. 12-15.505) FS-PB:
The manager of a liquidated SARL was found liable for mismanagement that contributed to the company's lack of assets on the grounds that she had not provided sufficient funds when the company was created. The judgment is overturned by the commercial chamber of the Court of Cassation insofar as the insufficiency of the contributions granted to a company during its incorporation, which is attributable to the partners, does not constitute a fault in management.
Action to claim movable property: burden of proof
Com. March 10, 2015 (n°13-23.424) FS-PB
The creditor of a company placed in receivership claimed professional kitchen units, which he had sold to him with retention of title and whose price was partially unpaid.
The Court of Appeal considered that the debtor did not provide proof that the claim related to movable property incorporated into another property, the separation of which could not be carried out without causing them to suffer damage, or to property attached in perpetuity and authorized the creditor to recover certain property. The Court of Cassation took the opposite position and quashed the judgment. According to the Court of Cassation, it is up to the claimant to establish the existence in kind of the assets claimed in the debtor's assets on the day of the opening of the collective proceedings and, consequently, that the separation of the movable assets incorporated in a other good can be done without damage.
Fate of the co-guarantor of an discharged surety
Mix. February 27, 2015 (No. 13-13.709) PBRI:
In this case, the plaintiff, manager of a company to which several loans had been granted, had stood surety for these loans. His co-trustee having been relieved of his commitments because of their manifest disproportion, only the plaintiff had therefore been summoned for payment following the company's default. The plaintiff then invoked against the bank the fact of having been deprived of recourse against his co-trustee and claimed the benefit of article 2314 of the Civil Code which provides that the surety is discharged, when the subrogation to rights, hypothecs and privileges of the creditor, can no longer, by the fact of this creditor, operate in favor of the surety.
The question was therefore put to the Court of Cassation as to whether the surety can rely against the creditor on the impossibility of any subrogation in the rights of the latter against another surety.
The Court of Cassation's reasoning can be broken down into two stages. First of all, the Court specifies that the penalty provided for by Article L.341-4 of the Consumer Code deprives the suretyship contract of effect with regard to both the creditor and the co-trustees, who cannot act subsequently. against the surety discharged from his commitment. It then considers that in the absence of transmission of a right of which he would have been deprived, the co-trustee cannot claim the benefit of article 2314 of the Civil Code in his relationship with the bank.
Clarification on the notion of significant imbalance
Com. March 3, 2015 (No. 13-27.525) FS-PB:
In this case, the Minister for the Economy summoned a distributor for the purpose of putting an end to practices creating a significant imbalance in its relations with its suppliers.
This significant imbalance was the result of two clauses taken from a single standard agreement used by the distributor.
The first of these clauses concerned the terms for revising the tariff, while the second concerned the terms for calculating the rate of service and the penalties owed by the supplier in the event of a breach. The price revision clause provided that the price reduction initiated by the distributor would automatically generate an obligation to renegotiate for the parties while the suppliers would find themselves forced to justify objective elements on the basis of which they intended to proceed with an increase, it being specified that any modification requires the consent of the distributor.
Due to the absence of reciprocity in the conditions for implementing the price revision depending on whether the initiative lies with the distributor or its suppliers, the Court of Cassation considered that the significant imbalance was established.
The penalty clause for its part provided for a system of penalties in the event of non-compliance by the supplier with a minimum service rate of 98.5% without providing a precise definition.
The Court of Cassation ruled that the general and imprecise nature of the disputed clause had the effect of making this penalty system automatic, thus creating an imbalance between the rights and obligations of the parties.
It is important to specify that the Court of Cassation carried out an overall analysis of the significant imbalance in both cases. In the context of the tariff revision clause, the absence of reciprocity of the contractual provisions to which is added the lack of proof provided by the distributor of the existence of a clause likely to rebalance the contract has made it possible to characterize the significant imbalance between the rights and obligations of the parties to the contract. The significant imbalance resulting from the penalty clause was characterized by the absence of reciprocity and counterparty compensating for the imbalance in question. Also, the Court of Cassation came here to specify that the judges of the merits had, in order to characterize the significant imbalance in the rights and obligations of the parties to a contract, to analyze not only the disputed clauses but also to carry out a concrete and global assessment of the contracts. in question.
We can therefore assume that if another clause certainly likely to cause an imbalance between the parties but this time in favor of the supplier had been inserted in the said contract, thus rebalancing the rights and obligations of the parties, the Court of Cassation would not have no doubt confirmed the appeal judgment under which the distributor was ordered to cease these practices and to pay a civil fine.
Obligation to issue
Com. February 10, 2015 (no. 13-24.501) F-PB:
In this case, a company ordered a machine financed by means of a financial lease.
After signing the acceptance report, the buyer ceased to pay the rent on the grounds that no standard part could have been manufactured with a precision consistent with that to which the supplier had agreed. The buyer then sued the supplier and the financial lessor for rescission of the sales contract and the financial lessor requested that the buyer be condemned to pay him various sums and to return the equipment. The Court of Appeal pronounced the rescission of the sale due to a breach of the obligation to deliver. The supplier then challenged this decision before the Court of Cassation. According to the supplier, the unreserved acceptance by the lessee and the sending of the acceptance report to the lessor constituted recognition of the conformity of the equipment with the contractual specifications. The Court of Cassation confirmed the judgment of the Court of Appeal on the grounds that the obligation to deliver complex machines is only fully executed once the actual development of the thing sold has been completed.
Compensable losses upon termination of commercial relations
Com. February 10, 2015 (n°13-26.414):
The Court of Cassation recalls here that only damages resulting from the brutality of the rupture and not from the rupture itself are compensable.
Condition of regularity of the call for payment of the guarantee
Com. February 10, 2015 (n°12-26.580) FS-PB:
In this case, a company had paid a deposit on a purchase.
The guarantor had issued a first-demand guarantee for the return of this deposit expiring on September 30, 2008. The seller having been subject to judicial liquidation, the contract was not executed. On September 25, 2008, the buyer, represented by his counsel, had proposed to the guarantor, who had accepted, the extension of the guarantee to November 30, 2008. The guarantor finally refused to execute the guarantee after the call for payment of the buyer's representative dated November 25, 2008. The buyer therefore sued him for payment. In this judgment, the Court of Cassation, rejects the appeal against the judgment of the Court of Appeal declaring the appeal of the guarantee irregular and rejecting the requests for payment. Indeed, the Court of Cassation indicates "that after having stated that the strict respect of the conditions of form and drafting of the call of the guarantee, as provided for by the letter of guarantee and the Uniform Rules of guarantees on request, publication CCI n° 458, is the counterpart of the autonomy of the guarantee, that the beneficiary must respect them to bring it into play and that the guarantor must check the apparent regularity of the request addressed to him before paying , the judgment holds that the request for payment of the first-demand guarantee was made by the company's lawyer, who had to demonstrate special authority for this purpose, which has not been shown to have attached to the faxes of September 25 and November 25, 2008 or to the letters confirming them”.
Terms of dismissal of the auditor
Com. February 10, 2015 (n° 13-24.312) FS-PB:
The managing director and chairman of a company whose accounts were being audited summoned the auditor to relieve him of his duties.
The latter invoked the inadmissibility of the action for lack of quality of the company. The Court of Appeal rejected the plea of inadmissibility on the grounds that the summons had been issued by the company taken in the person of its general manager and president. The Court of Cassation overturned the ruling on the grounds that the company whose accounts were audited was not among the persons or entities entitled to request that the duties of its auditor be relieved.
