Chronicle of the law of companies in difficulty: back to school 2024 – Business

Friday 15th November 2024 01:19 AM

Some statistics

Statistics from the Bank of France. At the end of September 2024, statistics from the Banque de France reveal that 63,741 insolvencies had been noted over twelve months, compared to 63,280 the previous month. The progression is strong, more than 20%, but it decreases each month. Please refer to the table which details the sectors of activity concerned.

AGS Statistics. The AGS produces quarterly statistical bulletins and it is useful to cite that of the second quarter of 2024 (Legislative Watch, August 22, 2024). Thus, the number of cases opened by the AGS increased by 5.6% on 2^e quarter 2024, remembering that over the last twelve months, more than 60,000 collective procedures have been opened. During this second quarter, more than 89,000 employees benefited from AGS intervention, an increase of 20.3% compared to the same period of the previous year. In addition, more than 37% of cases opened during this quarter concerned judicial recovery procedures and 61% of cases opened by the AGS were for cases in compulsory liquidation. It should be noted that 85.3% of AGS interventions concern companies with fewer than ten employees (see Bull. No. 46 of the AGS), welcoming the fact that 99.5% of requests are processed within the five days and 83.2% within two days of receipt. It should also be noted that there are very significant regional disparities with, for example, a decrease for the Paris region and a significant increase in the North and South-East regions.

Finally, a jump in contributions recovered during the 2^e quarter 2024, an increase of 38.1% compared to the same period of the previous year. For the 1^is half-year 2024, 646.7 million euros were recovered, which represents an increase of 32% compared to last year. However, it should be noted that the contribution rate has been increased by 0.20% since 1^is January 2024. From now on, revenue from recoveries and contributions has made it possible to cover 85% of the amounts advanced.

Amicable liquidations

Decree No. 2024-751 of July 7, 2024 (JO July 8 ; Permanent watch, August 20, 2024, obs. A. Thobie), entered into force on 1^is October 2024, reinforced the publicity of amicable liquidation and dissolution confusion operations by universal transfer of assets. This is to prevent companies in cessation of payments or wishing to avoid tax or social adjustments from benefiting from this mechanism. The decree now provides that the liquidator must also produce two additional documents, a tax certificate and a social certificate to prevent this risk. The social certificate is qualified by article L. 243-15 of the social security code, “certificate of vigilance”.

2023 annual report of the Court of Cassation

In retrospectit is useful to read this report to check the judgments which appear significant. The “Companies in difficulty” section is discussed on pages 191 et seq. of this report.

Firstly, it concerns the conflict between consumer protection in matters of lending and the authority of res judicata attached to a decision to admit a debt. The Court of Appeal held that decisions admitting debts have the authority of res judicata with regard to the debtor, in relation to the debts established (Civil Code, art. 1355). After opinion of the 2^e civil chamber, the commercial chamber however formulated an exception in matters of unfair clause (Com. Feb. 8, 2023, no. 21-17.763, Dalloz Actualité, Feb. 14, 2023, obs. C. Hélaine; D. 2023. 293 ; ibid. 1430, chrono. S. Barbot and C. Bellino ; ibid. 1715, obs. F.-X. Lucas and P. Cagnoli ; ibid. 2024. 650, obs. H. Aubry, E. Poillot and N. Sauphanor-Brouillaud ; RTD civ. 2023. 730, obs. N. Cayrol ; RTD com. 2023. 449, obs. A. Martin-Serf ).

Unsurprisingly, this report also publishes a summary of the judgment that we had already commented on (Com. July 7, 2023, no. 22-17.902, Dalloz Actualité, July 13, 2023, obs. C. Gailhbaud; D. 2023. 1357 ; ibid. 2268, ch. C. Bellino and T. Boutié ; ibid. 2024. 1691, obs. F.-X. Lucas and P. Cagnoli ; Rev. societies 2023. 547, obs. LC Henry ; RTD 2023. 628, chron. V. Ilieva and A. Mittelette ) relating to the thorny question of the justification by the legal representative of the insufficiency of funds and the possibility for the AGS to contest it. The Court of Cassation notes that relations between the AGS and institutional partners have become strained. However, the control a priori of the availability of funds requested by AGS was refused. The annual report cites the judgment, indicating that the obligation to provide prior justification for the insufficiency of available funds is only provided for in the event of safeguarding. It is only in this hypothesis that the AGS has the possibility of an immediate challenge.

Two judgments are also cited, both from December 13, 2023. One concerns the automatic seizure of the main residence (Com. Dec. 13, 2023, n° 22-19.749, Dalloz actuality, Dec. 21, 2023, obs. B. Ferrari; D. 2023. 2236 ; ibid. 2024. 1691, obs. F.-X. Lucas and P. Cagnoli ; ibid. 1877, obs. D. R. Martin et H. Synvet ; Rev. societies 2024. 208, obs. F. Reille ; RCJPP 2024. 52, chron. P. Roussel Galle and F. Reille ). If this exemption from seizure is unenforceable against the creditor, he can exercise his right of action on the property which was not included in the common security of the creditors of the judicial liquidation, even after the closure due to insufficient assets. Article L. 643-11 of the Commercial Code cannot prevent this. The other relates to the elusiveness of a building which has been the subject of a mortgage registration (Com. Dec. 13, 2023, no. 22-16.752, Dalloz actuality, Jan. 15, 2024, obs. M. Guastella; ; Rev. societies 2024. 208, obs. F. Reille ; RCJPP 2024. 49, chron. S. Piedelièvre and O. Salati ; ibid. 52, ch. P. Roussel Galle and F. Reille ). If the latter is unenforceable against a creditor, the latter can exercise his rights over the building, regardless of the closure for insufficient assets, which cannot justify the cancellation of the registration subject to the conditions of article 2438 of the civil code.

Effects of debt forgiveness

Michel di Martino opportunely recalled the advantages of granting debt forgiveness in order to enable the rescue of a company and the acceptance of its continuation plan with liabilities thus reduced (information note no. 175, July 11 2014). In particular, he gives us two considerations that deserve reflection:

the first is that the real cost of a rebate is reduced by 37.5% due to tax gains (corporate tax incident and recovery of VAT on the unpaid debt). On the other hand, he recalls that with an average inflation rate of 4%, a debt payable in ten years represents an amount reduced by 32%;
if we combine the effects of these elements, debt forgiveness becomes attractive by adding the fact that it reduces the risk of non-payment due to the reduction of liabilities, the debtor company having a lighter burden to repay.

Jurisprudence

Termination of a commercial lease. In this case (Com. June 12, 2024, no. 22-24.177 FS-B, Dalloz Actualité, July 12, 2024, obs. M. Guastella; D. 2024. 1125 ; RTD com. 2024. 541, obs. F. Kendérian ; Gas. Pal. July 2 2024, p. 20), a lessor had asked the receiver to record the termination of a lease. However, the rents due after the opening judgment had been paid by the tenant company. The lessor received this payment on the day he filed a request with the receiver. The question was therefore whether the judge-commissioner had the obligation to verify the payment on the day on which he rules on the rents and charges concerning the occupation subsequent to the opening of the procedure. The Court of Cassation came to affirm that this verification must be carried out (in accordance with arts. L. 622-14, 2^eL. 631-14, R. 622-13, para. 2, et R. 631-20 c. com.).

Prevention procedures. Let us point out an interesting judgment of the Commercial Chamber of July 3, 2024 (Com. July 3, 2024, no….