Newsletter n° 23 – Business law
LEGISLATIVE AND REGULATORY NEWS
Maintaining the RCS, Deleting the SIRENE directory and the RSEIRL
Decree of April 14, 2015
The decree of April 14 aims to clarify, adapt and simplify the provisions relating to the keeping of the RCS, deleting the SIRENE directory and the RSEIRL
JURISPRUDENCE
COMPANIES IN DIFFICULTY
Liability of the manager
Specificity of the action for liability for insufficient assets and starting point of the prescription
Admission of claim A proceeding in progress deprives the commissioner judge of the power to decide on the admission of a claim
Arbitration clause
The continuation of the execution of the contract imposes the observance of the stipulated arbitration clause
CONTRACTS
Suretyship
Lack of subrogation of the surety: burden of proof
The wrongful termination of the contests does not release the surety from its commitment to pay
Third party opposition of the surety to the arbitration award
Mortgage guarantees Methods of distribution of the debtor's available balance
Jurisdiction clause Penalty for imbalance resulting from a jurisdiction clause
COMPANIES
Real estate civil society
Loss of shareholder status is subject to reimbursement of the value of social rights
Obligation of shareholders to social debts
LEGISLATIVE AND REGULATORY NEWS – HOLDING OF THE RCS, DELETION FROM THE SIRENE DIRECTORY AND THE RSEIRL
New provisions 1 relating to keeping and deletions from the various registers are applicable from July 1, 2015.
Provisions relating to the Trade and Companies Register (RCS)
The first two amendments relate to the (RCS) and more particularly to the dissolution of companies. Indeed, under the terms of the new article R. 123-75 of the Commercial Code, in the event of the dissolution of a company entailing the universal transmission of its assets to the sole shareholder who is not a natural person, the court clerk may issue the certificate of non-opposition at the end of the period of thirty days from the publication of the dissolution and no longer within the period of one month from the completion of the transfer of the assets. The court clerk also has the option of registering ex officio the dissolution of a company by the occurrence of the statutory term, except in the event of extension (Art. R. 123-124 of the Commercial Code).
Changes to the national register of businesses and their establishments (SIRENE)
The National Institute of Statistics and Economic Studies (INSEE) is granted the possibility of deleting a person from the SIRENE directory in the event of deregistration from the social system for the self-employed (Art. R. 123-227 of the Commercial Code). The decree specifies that the removal from the SIRENE directory can only take place after removal of traders, natural or legal persons, subject to registration with the RCS, commercial agents, natural or legal persons, subject to registration in the special register of commercial agents and entrepreneurs registered in the register of individual entrepreneurs with limited liability (EIRL) (Art. R. 123-228 of the Commercial Code). In the event of multiple registrations, deletion from the SIRENE directory is subject to deletion from all registers (Art. R.123-230 of the Commercial Code).
Mentions made in the special register of EIRLs
From now on, in the absence of a request for cancellation by the contractor, in the event of total cessation of its activity, the judge responsible for monitoring the RCS can issue an order enjoining the person concerned to proceed with his cancellation.
Registration of the national file of prohibitions to manage
Finally, as of January 1, 2016, in the absence of registration of the natural person or the legal person of which he was the leader de jure or de facto, personal bankruptcies, measures prohibiting the directing, management, administrate or control, must be entered in the file of prohibitions to manage by the clerk of the commercial court, in whose jurisdiction these measures were pronounced, as soon as the decision is no longer subject to any suspensive appeal. execution.
JURISPRUDENCE
Liability for insufficient assets
Com. April 8, 2015 (n°13-28.512) F-PB:
In this case, the action for liability for insufficient assets against the manager of a company in compulsory liquidation was declared admissible.
The manager challenged the admissibility of this action. According to him, the action in liability for insufficiency of assets was combined on the one hand with the actions in extracontractual liability. The liability action regime for insufficient assets was combined with that of the liability action against the directors of public limited companies; which resulted in the action being time-barred by three years and that it could only be based on management faults not prescribed by virtue of article L.225-254 of the Commercial Code. The Court of Cassation, rejects the appeal and recalls that the action for liability for insufficient assets is independent of the special action for liability opened by Article L. 225-254 of the Commercial Code against the directors of a public limited company and the general action for extra-contractual civil liability. The Court then clarified that under the terms of Article L. 651-2, paragraph 3, of the Commercial Code, the action is time-barred three years from the judgment which orders the judicial liquidation, regardless of the date of commission of the mismanagement alleged against the manager prosecuted.
1 Decree No. 2015-417 of April 14, 2015 relating to the trade and companies register, the directory of companies and their establishments and the special register of individual entrepreneurs with limited liability
Admission of claim and pending proceedings
Com. April 8, 2015 (n°14-10.172) F-PBI:
In this case, a debtor in liquidation challenged the declaration of one of these creditors because of the existence of an appeal body relating to the condemnation of this debtor to pay a certain sum to the said creditor. .
This last case was removed from the roll and the Court of Appeal declared the admission of the claim. Pursuant to Articles 383 of the Code of Civil Procedure, L.624-2 and L.641-14 of the Commercial Code in its wording prior to the order of March 12, 2014, the Court of Cassation overturns the judgment to the extent where, an appeal proceeding in progress on the day of the judgment opening the collective proceedings, only suspended by a measure of striking off, deprives the judge-commissioner of the power to pronounce the admission or the rejection of the claim, insignificant that the impugned judgment is enforceable.
The continuation of the execution of the contract imposes the observation of the arbitration clause stipulated
1st Civil. April 1, 2015 (n°14-14.552) F-PB:
A liquidator who had pursued the execution of the contracts, seized the commercial court in order to obtain the payment of sums due by a co-contracting party despite specific stipulations containing an arbitration clause. The liquidator's request was declared inadmissible for failing to comply with the arbitration procedure. The liquidator then appealed to the Court of Cassation. In support of his claim, the liquidator claimed in particular that the arbitration clause is enforceable against the procedural bodies only as long as they act in representation of the debtor and not when they act on behalf of the creditors.
The Court of Cassation upheld the appeal judgment according to which "the liquidator had exercised the right to pursue the performance of the contracts with all the rights and obligations attached thereto, which implied compliance with the clause arbitration stipulated therein”.
Lack of subrogation of the surety: burden of proof
Com. April 8, 2015 (n°13-22.969) F-PB:
In this case, a bank having declared its debt out of time was not admitted to the distribution of the dividends provided for by the continuation plan of its debtor.
The bank therefore assigned the debtor's surety in execution of its commitment. The Court of Appeal condemned the surety to pay a certain sum because it had neither demonstrated that it could have derived an effective advantage from being admitted to the distributions and dividends, nor demonstrated the existence of a loss of luck. The Court of Cassation overturned the judgment on the grounds that the Court of Appeal reversed the burden of proof. It is up to the creditor and not to the surety to prove that the loss of the preferential right did not cause any prejudice.
The abusive termination of competitions does not release the surety from its commitment to pay
Com. March 24, 2015 (No. 13-16.076) FS-PB:
In this case, the manager of an EURL had made surety for the repayment of loans and the balance of a current account taken out with a bank.
The bank then demanded that the company return the means of payment, shortly before the company was put into liquidation, and then assigned the surety. The guarantor had, for its part, sought the responsibility of the bank because of an abusive termination of the competitions. The Court of Appeal rejected the bank's requests for reimbursement and ordered it to pay damages to the surety.
The Court of Cassation considers that by ruling in this way, while the surety is required, by virtue of the accessory nature of his commitment, to pay the bank the amount of the sums remaining due by the principal debtor, the claim for damages held by the first with regard to the second which can only give rise to compensation, the Court of Appeal violated article 1147 of the Civil Code.
Third party opposition of the surety against an arbitration award
Com. May 5, 2015 (n°14-16.644) FS-PBRI:
In this case, a debtor assigned to his creditor all the shares he held in the capital of a company.
On this occasion, the parties signed a liability guarantee agreement and a litigation management agreement, each agreement providing for an arbitration clause under the terms of which the arbitrators received the power of amicable composer as a last resort. By an act of the same day, not including any arbitration clause, a third party company gave joint surety for the debtor's commitments in favor of the creditor. The company whose shares had been sold having been ordered to pay a certain sum, the creditor called into play the guarantee of liabilities and an arbitration award condemned the debtor to pay the creditor the said sum.
Assigned by the creditor, the surety filed a third incidental opposition against the arbitration award, which was declared inadmissible by the Court of Appeal. Pursuant to Article 6§1 of the European Convention on Human Rights, the Court of Cassation quashed the appeal judgment insofar as it considered that "the effective right to a judge implies that the joint surety, who was not a party to the arbitration proceedings, is admissible to form a third party opposition against the arbitration award determining the amount of the debt of the principal debtor with regard to the creditor”.
Methods of distribution of the debtor's available balance
Com. May 5, 2015 (n°14-17.941) F-PB:
In this case, a company took out two loans of the same amount from two banks, secured by two mortgages registered on the same day.
The company having been placed in judicial liquidation, the banks declared their claims. After the realization of the property by the liquidator, the distribution of the balance of the price between the banks caused difficulties. The Court of Appeal considered that the available balance should be divided between the two banks in proportion to their respective mortgage claims as accepted as liabilities of the judicial liquidation.
The Court of Cassation confirms the judgment by specifying that in the event that two mortgage registrations, taken on the same day on the same building, are in competition and where the debtor's assets are insufficient to fulfill their rights holders, the distribution of debtor's money is made by contribution.
Penalty for imbalance resulting from a jurisdiction clause
1st Civil. March 25, 2015 (n°13-27.264) F-PB:
In order to finance works in France, a company concluded with a bank established in Switzerland, two framework credit agreements, including a jurisdiction clause (CAJ) indicating that "the borrower acknowledges that the exclusive forum for any procedure is Zurich or instead of the branch of the bank where the relationship is established” and that “the bank is however entitled to open proceedings against the borrower before any other competent court”.
Calling into question the financial arrangement in which this operation was part, carried out through the intermediary of the representative of a company domiciled in the United Kingdom and in which a bank established in France had participated, a company, coming under the rights of the borrower sued them, as well as the bank established in Switzerland before a French court, for compensation for its damage. The Court of Appeal accepts the objection of incompetence raised by the bank on the grounds that the imbalance resulting from the CAJ, consubstantial with a CAJ agreed between two contracting parties from different countries, is not sufficient to make it irregular with regard to the agreement from Lugano. The Court of Cassation censures the appeal judgment. According to the Court, by not examining whether the impugned imbalance, in that the disputed clause reserved for the bank the right to act against the borrower before "any other competent court" and did not specify on which objective elements this alternative jurisdiction was well-founded, was not contrary to the objective of foreseeability and legal certainty pursued by the Lugano Convention, the Court of Appeal deprived its decision of a legal basis.
The loss of associate status is subject to reimbursement of the value of social rights
Com. May 5, 2015 (n°14-10.913) F-PB:
After the judicial liquidation of a partner and co-manager of a civil real estate company (SCI), the liquidator summoned the managers to appoint a provisional administrator for the SCI.
One of the managers and the SCI object to the judgment of the Court of Appeal for having granted this request whereas under the terms of the SCI's statutes in the event of the judicial liquidation of one of the partners, he ceased to be part of society. The Court of Cassation rejects the appeal lodged against the decision of the Court of Appeal because it follows from Article 1860 of the Civil Code that the loss of partner status cannot be prior to the reimbursement of the value of its social rights .
Obligation of partners to social debts
3rd Civil. May 6, 2015 (n°14-15.222) FS-PBI:
Due to a sound insulation defect, an SCI and its insurer were sued by the syndicate of co-owners in order to obtain compensation for this damage.
The insurer was subsequently ordered to pay the liquidator of the SCI a sum corresponding to the amount of the repairs actually borne by the SCI, an amount which did not correspond to the amount of the declaration of claim insofar as, the court of appeal had deducted from the total amount, the payments made by partners on the grounds that they had paid their personal debt with regard to third parties.
The Court of Cassation affirms on the contrary, that “the partner of a civil partnership, who disinterested a social creditor in application of article 1857 of the civil code, pays the debt of the company and not a personal debt”.
