COMMERCIAL CODE
COMMERCIAL CODE
With the participation of Louis VOGEL, Professor at the University of Paris II and, for the Book VI on Businesses in difficulty, of Françoise PEROCHON, Professor at the University of Montpellier I
BOOK I Commerce in general Articles L110-1 to
L146-4 TITLE I The commercial act Articles L110-1 to
L110-4
Article L110-1 The law provides that commercial instruments are: 1° All purchases of chattels in order to resell this, either in kind or after having worked and developed this; 2° All purchases of real property in order to resell this, unless the purchaser has acted in order to construct one or
more buildings and to sell these en bloc or site-by-site; 3° All intermediate operations for the purchase, subscription or sale of buildings, business or shares of property
companies; 4° All chattels rental undertakings; 5° All manufacturing, commission and land or water transport undertakings; 6° All supply, agency, business office, auction house and public entertainment undertakings; 7° All exchange, banking or brokerage operations; 8° All public banking operations; 9° All obligations between dealers, merchants and bankers; 10° Bills of exchange between all persons.
Article L110-2 The law also deems commercial instruments to be: 1° All construction undertakings and all purchases, sales and resales of ships for inland and foreign-going
navigation; 2° All sea shipments; 3° All purchases and sales of ship’s tackle, apparatus and foodstuffs; 4° All chartering or chartering and bottomry loans; 5° All insurances and other contracts relating to maritime trade; 6° All agreements and conventions on crew wages and rents; 7° All engagements of seamen for the service of commercial ships.
Article L110-3 With regard to traders, commercial instruments may be proven by any means unless the law specifies otherwise.
Article L110-4 I.- Obligations deriving from trade between traders or between traders and non-traders shall be prescribed after ten
years unless they are subject to special shorter periods of prescription. II.- All claims for payment shall be prescribed: 1° For food supplied to seamen on the captain’s orders, one year after delivery; 2° For the supply of materials and other items needed for the construction, equipment or supply of the ship, one
year after these foodstuffs are provided; 3° For built structures, one year after the acceptance of the structures. III.- Claims for payment of the wages of officers, seamen and other crewmembers shall be prescribed after five
years in accordance with Article 2277 of the Civil Code.
TITLE II Traders Articles L121-1 to
L128-6
CHAPTER I Definition and status Articles L121-1 to
L121-3
SECTION I
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COMMERCIAL CODE Capacity of trader Articles L121-1 to
L121-3
Article L121-1 Traders are those who carry out commercial instruments and who make this their usual profession.
Article L121-2 Minors, even when declared of full age and capacity, may not be traders.
Article L121-3 Spouses of traders shall be deemed to be traders only if they carry out a separate commercial activity from that of
their spouse.
SECTION II Spouses of craftspeople and traders working in the family-owned undertaking
CHAPTER II Foreign traders Articles L122-1 to
L122-4
Article L122-1 (Order No. 2004-279 of 25 March 2004 Art. 1 1 Official Journal of 27 March 2004)
A foreign national shall not be engaged in a commercial, industrial or handicraft occupation in France in a manner which requires his registration or inclusion in the register of companies or the trade register without the prior consent of the Prefect of the Department in which he envisages conducting his business initially.
Article L122-2 Any breach of the requirements of Article L.122-1 and of those in the implementing decree specified in Article
L.122-4 shall be punished by a prison sentence of six months and a fine of 25 000 F. In cases of recidivism, the penalties shall be doubled. The court may also order the closure of the establishment.
Article L122-3 (Order No. 2004-279 of 25 March 2004 Art. 1 2 Official Journal of 27 March 2004)
I. - The provisions of Articles L. 122-1 and L. 122-2 do not apply to the citizens of a European Community member state, a European Economic Area member state or a member state of the Organisation for Economic Cooperation and Development acting on their own behalf or on behalf of either another citizen of such a State or a company incorporated pursuant to the legislation of such a State and having its registered office, its principal administrative establishment or its principal place of business in such a State.
II. - However, when a foreign national or a company referred to in I creates an agency, a branch or a subsidiary on French soil or provides services there, the benefit of I shall be granted only if:
1. The foreign national is established in a European Community member state, a European Economic Area member state or a member state of the Organisation for Economic Cooperation and Development;
2. The company, if it has only its registered office in the European Community, a European Economic Area member state or a member state of the Organisation for Economic Cooperation and Development, conducts a business which has an effective and continuous link with the economy of such a State.
Article L122-4 A Conseil d'Etat decree shall fix the conditions for implementing this chapter.
CHAPTER III General obligations of traders Articles L123-1 to
L123-28
SECTION I Commercial and companies register Articles L123-1 to
L123-11
Subsection 1 Persons required to register Articles L123-1 to
L123-5-1
Article L123-1 I.- A commercial and companies register shall be kept in which the following shall be registered as a result of their
declaration: 1° Natural persons with the capacity of trader, even if they are required to register in the trades register; 2° Companies and economic interest groups which have their registered office in a French department and which
have a legal personality in accordance with Article 1842 of the Civil Code or with Article L.251-4; 3° Commercial companies whose registered office is situated outside a French department and which have an
establishment in one of these departments;
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COMMERCIAL CODE 4° French public establishments of an industrial or commercial nature; 5° Other legal persons whose registration is specified by the acts and regulations; 6° Commercial delegations or commercial agents of foreign States, authorities or public establishments established
in a French department. II.- The registrations and instruments or documents filed as specified by a Conseil d'Etat decree shall appear in the
register in order to be brought to the attention of the public.
Article L123-2 No-one may be registered in the register if they do not meet the conditions required in order to carry out their
activity. Legal persons must also have complied with the formalities specified by the legislation and regulations in force relating thereto.
Article L123-3 If a trader who is a natural person fails to request registration by the specified deadline, the judge hearing the case
shall, either automatically or at the request of the procureur de la République or any person proving that they have an interest in this, make an order requiring the trader to request registration.
In accordance with the same conditions, the judge may order any person registered in the commercial and companies register, who has not requested these by the specified deadlines, to make the additional entries or corrections which must be made in the register, to make the entries or corrections needed in the event of incorrect or incomplete declarations or to deregister.
The clerk of a court delivering a decision requiring a person to register must notify this decision to the clerk of the Tribunal de commerce whose jurisdiction covers the registered office or main establishment of the interested party. The clerk of the Tribunal de commerce receiving the decision shall refer this to the judge responsible for overseeing the register.
Article L123-4 (Law No 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
If any person ordered to request a registration, a supplementary or amending entry, or a striking-off in the trade register should fail to comply with that requirement without an excuse deemed to be valid within two weeks of the date on which the order made by the judge entrusted with supervision of the list directing him to complete one of those formalities becoming final, a fine of €3,750 euros shall be imposed on that person.
The court may, moreover, deprive the person concerned of the right to vote in, and to stand in, elections to the commercial courts, the chambers of commerce and industry and the industrial tribunals for a period of up to five years.
The court orders that the registration, the notations or the striking-off that must be recorded in the companies register be entered therein within a specified timeframe, at the request of the person concerned.
Article L123-5 The act of giving, in bad faith, incorrect or incomplete information with a view to registration, removal of the
registration or additional entries or corrections in the commercial and companies register shall be punished by a fine of 30 000 F and a prison sentence of six months.
The provisions of the second and third paragraphs of Article L.123-4 shall apply in the cases specified in this article.
Article L123-5-1 (inserted by Act No 420 of 15 May 2001, Article 123 II, Official Gazette of 16 May 2001)
At the request of any interested party or the procureur de la République, the president of the court, ruling in interlocutory proceedings, may enjoin, subject to a penalty, the manager of any legal person to file the documents and instruments with the commercial and companies register which this legal person is required to do by the acts or regulations.
The president may, in accordance with the same conditions and to this same end, appoint a representative responsible for fulfilling these formalities.
Subsection 2 Keeping of the register and effects attached to registration Articles L123-6 to
L123-9-1
Article L123-6 The commercial and companies register shall be kept by the clerk of each Tribunal de commerce. It shall be
overseen by the president of the court or a judge entrusted with this responsibility who shall be competent for all disputes between the person under obligation and the clerk.
Article L123-7 The registration of a natural person shall involve the presumption of the capacity of trader. However, this
presumption shall not be binding on third parties and administrations which provide proof to the contrary. Third parties and administrations shall not be permitted to rely on this presumption if they know that the liable person is not a trader.
Article L123-8 The person obliged to register who has not requested this by the expiration of a period of fifteen days from the start
of their activity may not rely on, until registration, the capacity of trader with regard to both third parties and public
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COMMERCIAL CODE administrations. However, this person may not invoke their failure to register in order to avoid the responsibilities and obligations inherent in this capacity.
Without prejudice to the application of Article L.144-7, registered traders who assign their business or hand over the operation of this, particularly in the form of real estate management, may not plead the cessation of their commercial activity in order to avoid claims for damages to which they shall be subject due to the obligations contracted by their successors in the operation of the business until the day when the corresponding additional entry or removal of the registration has been carried out.
Article L123-9 Persons obliged to register may not, in carrying out their activity, raise in respect of third parties or public
administrations, which may, however, rely on these, the acts and instruments subject to entry unless the latter have been published in the register.
In addition, persons obliged to file instruments or documents in the annex to the register may not raise these against third parties or administrations unless the corresponding formality has been carried out. However, third parties or administrations may rely on these instruments or documents.
The provisions of the above paragraphs shall apply to the acts or instruments subject to entry or filing even if they are covered by another legal publication. Third parties and administrations which personally knew about these acts or instruments may not, however, rely on these.
Article L123-9-1 (inserted by Law No. 2003-721 of 1 August 2003 Article 2 (I) Official Gazette of 5 August 2003)
The court registrar or the body referred to in the last paragraph of Article 2 of Law No. 94-126 of 11 February 1994 relating to individual initiative and enterprise shall deliver a receipt, free of charge, for the submission of an application to create a business to any person subject to registration, as soon as that person has submitted a duly completed application for registration. The said receipt allows the necessary formalities to be completed with the public bodies and the private bodies entrusted with rendering a public service, under the personal responsibility of the natural person having tradesman status or who is acting on behalf of the company being formed. It bears the legend:"Registration pending".
The implementing provisions for the present Article are defined in a Conseil d'Etat decree.
Subsection 3 Place of domicile of registered persons Articles L123-10 to
L123-11
Article L123-10 (inserted by Law No. 2003-721 of 1 August 2003 Article 6 (I) (1) Official Gazette of 5 August 2003)
Natural persons applying for registration in the companies register or the trade register must declare their business address and substantiate possession thereof.
Natural persons may declare the address of their place of residence and conduct their business there, barring any legislative provision or contractual stipulation to the contrary.
Natural persons who do not have business premises may declare their place of residence, solely for the purpose of providing a business address. Such a declaration does not give rise to any change of use or to application of the commercial lease regulations.
NB: Law No. 2003-721 of 1 August 2003 Article 6 II: These provisions apply to businesses listed in the companies register or the trade register on the date of promulgation of Law No. 2003-721 of 1 August 2003.
Article L123-11 (Law No 2003-721 of 1 August 2003 Article 6 (I) (2) Official Gazette of 5 August 2003)
Any legal entity applying for registration in the companies register must substantiate possession of the premises which will house its registered office, alone or with others, or, if the registered office is to be located abroad, the agency, branch or representation established on French soil.
A company is allowed to have its registered address in premises occupied by several businesses under the conditions determined in a Conseil d'Etat decree. That decree also stipulates the equipment or services that are required to justify the reality of the registered office of the company domiciled there.
NB: Law No. 2003-721 of 1 August 2003 Article 6 II: These provisions apply to businesses registered in the companies register or the trade register on the date of promulgation of Law No. 2003-721 of 1 August 2003.
SECTION II Accounts of traders Articles L123-12 to
L123-28
Subsection 1 Financial liabilities applicable to all traders Articles L123-12 to
L123-24
Article L123-12 All natural or legal persons with the capacity of trader shall enter in their accounts the movements affecting the
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COMMERCIAL CODE assets of their undertaking. These movements shall be recorded chronologically.
These persons must check, by means of a stocktake at least once every twelve months, the existence and value of the assets and liabilities of the undertaking.
They must prepare annual accounts at the end of the financial year in view of the entries made in the accounts and the stocktake. These annual accounts shall consist of the balance sheet, profit and loss account and an annex which shall form an inseparable whole.
Article L123-13 The balance sheet shall describe individually the assets and liabilities of the undertaking and shall clearly show the
equity capital. The profit and loss account shall summarise the income and expenditure for the financial year without taking into
account their date of receipt or payment. It shall show, according to the difference after deducting the depreciation and provisions, the profit or loss for the financial year. The income and expenditure, classed by category, shall be presented in the form of either tables or lists.
The amount of the undertaking’s commitments in terms of pensions, supplemental pensions, compensation and allowances due to retirement or similar advantages of its staff members or partners and its managing agents shall be indicated in the annex. In addition, undertakings may decide to enter in the balance sheet, in the form of a provision, the amount corresponding to all or part of these commitments.
The annex shall supplement and comment on the information given in the balance sheet and the profit and loss account.
Article L123-14 The annual accounts shall be honest and truthful and shall ensure a fair representation of the assets, financial
situation and results of the undertaking. When the application of an accounting requirement is not sufficient to ensure the fair representation indicated in this
article, additional information must be provided in the annex. If, in an exceptional case, the application of an accounting requirement proves to be unsuitable in order to ensure a
fair representation of the assets, financial situation or results, an exception must be made to this. This exception shall be indicated in the annex and duly reasoned, with an indication of its effect on the assets, financial situation and results of the undertaking.
Article L123-15 The balance sheet, profit and loss account and annex shall include as many headings and items as are needed to
ensure a fair representation of the assets, financial situation and results of the undertaking. Each item in the balance sheet and profit and loss account shall contain the figure relating to the corresponding item for the previous financial year.
The classification of the elements of the balance sheet and profit and loss account, the elements forming the equity capital and the texts to be included in the annex shall be fixed by decree.
Article L123-16 Traders, whether natural or legal persons, may, in accordance with the conditions fixed by a decree, adopt a
simplified presentation of their annual accounts when these do not exceed, at the end of the financial year, the figures fixed by decree for two of the following criteria: the total of their balance sheet, the net amount of their turnover or the average number of permanent employees during the financial year. They shall lose this option when this condition is not met for two successive financial years.
Article L123-17 Unless an exceptional change occurs in the trader’s situation, whether a natural or legal person, the presentation of
the annual accounts and the valuation methods used may not be altered from one financial year to the next. If alterations occur, these shall be described and justified in the annex.
Article L123-18 On its date of entry into the capital assets, property acquired for money consideration shall be recorded at its cost of
acquisition, property acquired free of charge shall be recorded at its market value and property produced shall be recorded at its cost of production.
For fixed assets, the values used in the stocktake shall, if applicable, take account of the depreciation plans. If the value of a fixed asset falls below its net book value, the latter shall be reduced to the stocktake value at the end of the financial year, whether or not the depreciation is final.
Wasting assets shall be valued either at its weighted average cost of acquisition or production or by considering that the first item out is the first item in.
The asset appreciation noted between the stocktake value of an item and its entry value shall not be entered in the accounts. If this results from a revaluation of all the tangible and capital assets, the revaluation difference between the current value and the net book value may not be used to offset losses. It shall be clearly entered on the liabilities side of the balance sheet.
Article L123-19 The assets and liabilities shall be valued separately. No offsetting may be applied between the assets and liabilities items of the balance sheet or between the income
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COMMERCIAL CODE and expenditure items of the profit and loss account.
The opening balance sheet for a financial year shall correspond to the closing balance sheet for the previous financial year.
Article L123-20 The annual accounts must respect the precautionary principle. In order for these accounts to be prepared, traders,
whether natural or legal persons, shall be presumed to be continuing their activities. Even in the absence or insufficiency of any profit, the necessary depreciation and provisions must be established. The risks and losses occurring during the financial year or during a previous financial year shall be taken into
account, even if they are identified between the end date of the financial year and that of the preparation of the accounts.
Article L123-21 Only the profits made by the end date of a financial year may be entered in the annual accounts. The profit made
on a partially executed transaction, accepted by the other contracting party, may be entered, after the stocktake, when its completion is certain and when it is possible, using the projected accounting documents, to value the overall profit of the transaction with sufficient safety.
Article L123-22 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The accounting documents are expressed in euros and drafted in the French language. The accounting documents and supporting documentation are kept for ten years. The accounting documents relating to the recording of transactions and the inventory are prepared and maintained
without blanks or alterations of any kind in conditions determined in a Conseil d'Etat decree.
Article L123-23 Duly kept accounts may be accepted in the courts in order to act as proof between traders in respect of commercial
instruments. If the accounts have not been duly kept, they may not be invoked by their author for the latter’s benefit. The communication of accounting documents may be ordered in the courts only in cases of succession, joint
ownership and partition of a company and in the event of administrative order or court-ordered winding-up.
Article L123-24 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
All traders are required to open a current account with a bank or the post office.
Subsection 2 Financial liabilities applicable to certain traders who are natural persons Articles L123-25 to
L123-28
Article L123-25 As an exception to the provisions of the first and third paragraphs of Article L.123-12, natural persons placed
voluntarily or ipso jure under the effective simplified taxation system may record claims and debts only at the end of the financial year and shall not have to prepare an annex.
Article L123-26 As an exception to the provisions of the second paragraph of Article L.123-13, natural persons placed voluntarily or
ipso jure under the effective simplified taxation system may record in their profit and loss account, according to its payment date, expenditure whose frequency does not exceed one year, excluding purchases.
Article L123-27 As an exception to the provisions of the third paragraph of Article L.123-18, natural persons placed voluntarily or
ipso jure under the effective simplified taxation system may carry out a simplified valuation of the stocks and work in process according to a method fixed by decree.
Article L123-28 As an exception to the provisions of Articles L.123-12 to L.123-23, natural persons subject to the taxation system for
micro-undertakings may not be required to prepare annual accounts. They must, in accordance with the conditions fixed by decree, record on a day-by-day basis the accounts received and the expenses paid and they must produce an end-of-year statement of the accounts received and expenses paid, the financial debts, the fixed assets and the stocks valued in a simplified manner.
However, when their annual turnover does not exceed an amount of 120 000 F, natural persons registered in the commercial and companies register may keep only one book chronologically recording the amount and origin of the income which they receive due to their professional activity. A decree shall fix the conditions in accordance with which this book shall be kept.
CHAPTER IV Cooperative associations of retailers Articles L124-1 to
L124-16
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COMMERCIAL CODE Article L124-1 (Act No. 2001-420 of 15 May 2001 Art. 64 I, II and III Official Journal of 16 May 2001) (Order No. 2004-274 of 25 March 2004 Art. 1 Official Journal of 27 March 2004)
Through the collective efforts of their members, retail cooperative societies seek to improve the conditions in which they conduct their business. To that end, they may, inter alia, directly or indirectly engage in the following activities on behalf of their members:
1. Supplying them with some or all of the goods, commodities, services, equipment and materials they need in order to conduct their business by, inter alia, establishing and maintaining stocks of all kinds of goods, by building, purchasing, or leasing and managing private shops and warehouses, and by carrying out in their own premises or those of their members any appropriate works, conversions or modernisation;
2. Bringing together on one site the businesses belonging to their members, creating and managing all services collectively needed to operate those businesses, building, purchasing or renting the buildings required for their activities or those of their members, and managing them, all as provided for in Chapter V of the present Part;
3. Within the framework of the legislative provisions relating to financial activities, to facilitate access by the members and their clients to the various financing and credit facilities available;
4. Carrying out activities which are complementary to those referred to above, and, inter alia, providing their members with assistance in relation to technical, financial and accounting management;
5. Purchasing businesses in respect of which, contrary to the provisions of Article L. 144-3, leasing-management rights are granted to a member within two months and which, under pain of the penalties laid down in the second and third paragraphs of Article L. 124-15, must be re-conveyed within a maximum period of seven years;
6. Drawing up and implementing a common commercial policy designed to ensure the development and permanence of its members by any means, including:
- the establishment of an appropriate legal framework; - the provision of trademarks or brand names which they own or have the use of; - the carrying out of commercial operations, of an advertising or other nature, which may include common pricing; - the development of common methods and models for purchasing, stocking and presenting products, and for the
architecture and organisation of the outlets; 7. Acquiring shareholdings, including majority interests, in directly or indirectly associated retail businesses.
Article L124-2 Cooperative associations of retailers may not allow non-member third parties to benefit from their services. However, cooperative associations of retail pharmacists may not refuse their services, in the event of an
emergency, to non-member retail pharmacists and to all the public or private establishments where patients are treated, when these establishments duly own a pharmacy.
Article L124-3 Cooperative associations of retailers shall be public limited companies with variable capital formed and operating in
accordance with the provisions of Book II, Title III, Chapter I. They shall be governed by the provisions of the present chapter and by those which are not contrary hereto in Book II, Titles I to IV and in Act No 1775 of 10 September 1947 defining the rules governing cooperation. The provisions of Book II, Titles I to IV on the formation of statutory reserves shall apply thereto.
Only associations and unions formed in order to carry out the operations referred to in Article L.124-1 and which comply, in respect of their formation and operation, with the requirements of this chapter may be regarded as cooperative associations of retailers or unions of these associations. Only these shall be authorised to take this title and to add it to their name.
Article L124-4 (Order No. 2004-274 of 25 March 2004 Art. 2 Official Journal of 27 March 2004)
Without prejudice to application of the provisions of Article 3 bis of Act No. 47-1775 of 10 September 1947 instituting cooperative status, any retail trading entity which is properly established in a Foreign State may become a member of cooperative retail societies. The same applies to the cooperative companies governed by the present Chapter, as well as companies which are registered in both the trade register and the register of companies. The cooperatives governed by the present Chapter may admit to membership natural persons or legal entities having relevant commercial activities and possessing the requisite competence.
Cooperative retail companies engaged in the activities referred to in 2 of Article L. 124-1 may, moreover, admit to membership any person referred to in Article L. 125-1.
Retailers whose cooperative is affiliated to another cooperative retail society may benefit directly from that society's services.
Article L124-5 The associations governed by this chapter may establish between them unions having the same aims as those
defined in Article L.124-1. These unions must comply, in respect of their formation and operation, with the same rules as said associations.
The second paragraph of Article 9 of the Act of 10 September 1947 defining the rules governing cooperation shall apply thereto.
Unions of cooperative associations of retailers may contain only cooperative associations of retailers or their members. Retailers whose cooperative is affiliated to a union may benefit directly from the services of this union.
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COMMERCIAL CODE Cooperative associations of retailers and their unions may form mixed unions with other cooperative associations
and their unions. As an exception to Article L.225-1, the number of members in a union governed by this article may be less than
seven.
Article L124-7 The articles of association may specify that cooperative associations of retailers shall be combined in accordance
with the conditions specified in Article 3a of the Act of 10 September 1947 defining the rules governing cooperation. In this case, these associations may not use the services of the cooperative association with which they are combined.
Article L124-8 The decisions of the general meeting shall only be valid when one-third of the members existing on the date of the
meeting are present or represented. However, the decisions of meetings convened in order to amend the articles of association shall only be valid if at
least half of the members existing on the date when the meeting is convened are present or represented. Members who have voted by post, where the articles of association authorise this, shall be taken into account for
determining the quorum. When the quorum is not reached, a new meeting shall be convened. Its decisions shall be valid whatever the
number of members present or represented.
Article L124-9 (Order No. 2004-274 of 25 March 2004 Art. 4 Official Journal of 27 March 2004)
The deliberations of the general meeting are taken on a majority of the votes held by the members present or represented. However, a majority of two thirds of the votes of the members present or represented is required for any change to the articles of association.
If the cooperative is engaged in the activities referred to in 2 of Article L. 124-1, this provision does not apply in the circumstances referred to in Article L. 125-10.
Article L124-10 The exclusion of a member may be ordered, as applicable, by the board of directors or the supervisory board, with
the interested party being duly heard. All members subject to an exclusion order shall be able to appeal against this decision before the general meeting
which shall rule on the appeal at the first routine meeting following the notification of exclusion. This exclusion shall enter into force on the date of notification of its acceptance by the general meeting.
However, the board of directors or the supervisory board, as applicable, may, in the interests of the association, suspend the exercise of the rights which the excluded member enjoys due to being a member of the cooperative until notification is sent to the latter of the general meeting’s decision. The duration of this suspension may not exceed one year.
If the decision to exclude a member is not justified by a serious and legitimate reason, the court, referred to within one month of the notification of refusal of the member’s appeal by the general meeting, may either reinstate the unduly excluded member or allocate damages thereto or order both of these measures.
When the cooperative carries out the activities specified in 2° of Article L.124-1, the provisions of this article shall not apply. Articles L.125-15 and L.125-16 shall apply.
Article L124-11 (Order No. 2004-274 of 25 March 2004 Art. 5 Official Journal of 27 March 2004)
If a cooperative is engaged in the activities referred to in 2 of Article L. 124-1, the redemption of the cooperative's shares held by a withdrawing or excluded member takes place, contrary to Article 18 of the act of 10 September 1947 instituting cooperative status, as provided for in Articles L. 125-17 and L. 125-18.
The said member nevertheless remains liable, towards both the cooperative and third parties, for a period of five years commencing on the day on which it definitively ceases to be a member, in respect of obligations which existed at the close of the financial year during which it left the cooperative. Pursuant to the previous paragraph, the board of directors or the supervisory board, as applicable, may retain some or all of the sums owed to the former member, for a maximum period of five years, limited to the amount required to guarantee the obligations for which it is liable pursuant to the present paragraph, unless the party concerned provides sufficient sureties.
Article L124-12 The routine shareholders’ meeting may, by ruling in accordance with the quorum and majority conditions of the
special shareholders’ meeting, convert into shares all or part of the refunds frozen in individual accounts and all or part of the refunds distributable to the cooperative members in the last financial year.
In the latter case, the rights of each cooperative member to the allotment of shares resulting from this increase in capital shall be identical to those which they would have to the distribution of the refunds.
Article 124-13 The central cooperative credit agency shall be authorised to carry out all financial transactions in favour of
associations formed in accordance with the provisions of this chapter. In particular it shall make available thereto the funds which are specifically allotted to the agency or which it may obtain in the form of loans or by rediscounting subscribed bills, it shall give its backing or act as guarantor in order to guarantee their loans and it shall receive and
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COMMERCIAL CODE manage their fund deposits.
Article L124-14 If a cooperative association or union governed by the provisions of this chapter is dissolved, and subject to the
provisions of the following paragraphs of this article, the net surplus of assets over the capital shall be passed either to other cooperative associations or unions of cooperatives or to works of general or professional interest.
However, a cooperative association or union may be authorised by an Order of the Minister for Economic and Financial Affairs, adopted following an opinion from the Cooperation Authority, to divide the net surplus of assets among its members. This division may not include the part of the net surplus of assets resulting from aid granted directly or indirectly to the association or union by the State or by a public authority. This part must be repaid in accordance with the conditions specified by the authorisation Order.
The division between the members of the net surplus of assets shall occur ipso jure when the cooperative association carries out the activities referred to in 2° of Article L.124-1.
Article L124-15 All groups of retailers established in order to carry out one or more of the activities referred to in 1°, 3° and 4° of
Article L.124-1 must, if they have not adopted the form of a cooperative association of retailers governed by the provisions of this chapter, be formed as a public limited company, limited liability company, economic interest group or European economic interest group.
If a group of retailers is formed in breach of the provisions of the previous paragraph, this shall be punished by a fine of 60 000 F.
The court may also order the cessation of the operations of the body in question and, if applicable, the confiscation of the commodities purchased and the closure of the premises used.
Article L124-16 Cooperative associations of retailers for joint purchasing and their unions formed in accordance with Act No 1070 of
2 August 1949 shall be regarded as meeting the provisions of this chapter without needing to amend their articles of association.
However, the associations benefiting from the provisions of the previous paragraph shall bring their articles of association into line when they amend these subsequently.
CHAPTER V Collective shops of independent traders Articles L125-1 to
L125-19
SECTION I Formation of the collective shop Articles L125-1 to
L125-9
Article L125-1 The provisions of this chapter shall apply to natural or legal persons gathered in the same place and under the
same name in order to operate, according to common rules, their business or their undertaking registered in the trades register without giving up ownership of this, thus creating a collective shop of independent traders.
Article L125-2 The persons referred to in Article L.125-1 shall form, in the form of an economic interest group, public limited
company with variable capital or a cooperative association of retailers, a legal person which shall own and use or solely use the buildings and annexed areas of the collective shop, define and implement the common policy and organise and manage the common services.
The economic interest group, company or association which owns all or part of the land, buildings and annexed areas of the collective shop may not return all or part of this property to its members during the existence of said shop.
Only economic interest groups, public limited companies with variable capital and cooperative associations of retailers which comply, in respect of their formation and operation, with the requirements of this chapter may be regarded as collective shops of independent traders. These alone shall be authorised to take this title and to add it to their name.
Article L125-3 The economic interest group, company or association which has recourse to leasing shall be regarded as a user
within the meaning of Article 5b of Order No 837 of 28 September 1967.
Article L125-4 Each member of the economic interest group, company or association shall hold inseparable shares in the use of a
space determined by the formation agreement or articles of association and shall benefit from common services. The formation agreement or articles of association may allot any holder another space for seasonal activities. The meeting of members or the general meeting, as applicable, shall alone be competent to amend, with the
agreement of the interested parties, the spaces thus allotted. The provisions of this chapter on partner’s shares shall apply to the shares referred to in the first paragraph above.
Article L125-5
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COMMERCIAL CODE When a business or an undertaking registered in the trades register is transferred to or created in the collective
shop, no contribution shall be made to the group, company or association for the shares allotted to its owner. The shares in the group, company or association shall not represent the value of the business or undertaking. Any contributions other than in cash are also prohibited.
Article L125-6 In the event of leasing-management of the business or the undertaking registered in the trades register, only the
lessor shall be a member of the group, company or association. The transfer within the collective shop of a pre-existing business or undertaking may occur only with the agreement
of the lessee-manager.
Article L125-7 The owner of a business subject to a preferential right or charge specified by Chapters I to III of Title IV of this book
must, prior to joining a collective shop and to transferring this business to said shop, comply with the publication formalities specified in Articles L.141-21 and L.141-22.
If the preferred creditor or charge has not notified any objection by filing this with the registry within ten days of the last in date of the publications specified in Articles L.141-12 and L.141-13, this creditor shall be deemed to have agreed to the membership of the owner of the business.
In the event of an objection, the lifting of this shall be ordered by the courts if the owner of the business proves that the securities which the creditor has are not reduced by membership of the collective shop or that guarantees which are at least equivalent are offered thereto. If the objection is not lifted, the trader may not become a member of the collective shop while remaining the owner of the business.
Article L125-8 The formation agreement or articles of association shall, in order to be valid, and under the joint liability of the
signatories, contain the express specification that no business shall be subject to the preferential right or a charge specified in Chapters I to III of Title IV of this book or, in the opposite case, that no objection has been formed prior to the membership of one of the members or that the lifting of the objection has been ordered by the courts.
Article L125-9 Collective shops of independent traders already created in the form of a legal person may, by their adaptation or
conversion, be placed under the system specified by this chapter. All members may, through interlocutory proceedings, request the appointment of a representative specially
entrusted with convening the meeting in order to rule on these adaptations or conversions. Notwithstanding any provision to the contrary, these decisions shall be taken by a majority in number of the
members forming the legal person. Those who did not take part in this may, however, withdraw by demanding the redemption of their shares in accordance with the conditions specified in Articles L.125-17 and L.125-18.
SECTION II Administration of the collective shop Articles L125-10 to
L125-11
Article L125-10 Internal regulations shall be annexed to the formation agreement or articles of association, as applicable. The formation agreement or articles of association, and the internal regulations, may be amended only by the
meeting, or the general meeting, as applicable, ruling by an absolute majority in number of the members of the group, company or association or, if the formation agreement or articles of association specify this, by a larger majority. The same shall apply to decisions on approval or exclusion.
Other decisions shall be taken in accordance with the conditions specific to each of the forms specified in Article L.152-2. However, notwithstanding the provisions of Book II, the articles of association of a public limited company with variable capital formed pursuant to this chapter may stipulate that each of the shareholders has one vote at the general meeting, whatever the number of shares held thereby.
Article L125-11 The internal regulations shall determine the rules for ensuring a common business policy. It shall fix the general
operating conditions and in particular: 1° The days and times of opening and, if applicable, the seasonal periods of closure or the annual holidays; 2° The organisation and management of the common services and the distribution of the charges corresponding to
these services; 3° Subject to the legislation in force in this respect, the development of competing activities and the determination of
the annexed activities which may be carried out by each member in competition with those of other members of the shop;
4° The choice of advertising and decor specific to each space and possibly their harmonisation; 5° The collective or individual actions to promote the shop, particularly those of a seasonal nature.
SECTION III Approval and exclusion Articles L125-12 to
L125-18
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COMMERCIAL CODE Article L125-12
The formation agreement or articles of association, as applicable, may subordinate any assignment of shares to the approval of the transferee by the meeting of the group or by the general meeting of the company or association, as applicable. The meeting or general meeting shall decide within one month of the date of the approval request.
The formation agreement or articles of association, as applicable, may also subject to this approval the legal successors of a deceased shareholder who did not participate in his activity in the collective shop.
Refusal of approval shall confer the right to compensation in accordance with the conditions specified in Articles L.125-17 and L.125-18.
Article L125-13 The approval clause shall not be binding in the event of a forced sale of shares, whether or not these have been
subject to a charge.
Article L125-14 The formation agreement or articles of association, as applicable, may subordinate the leasing-management of a
business or craft manufacturing company in the collective shop to the approval of the lessee-manager by the meeting. In the event of administrative order or winding-up proceedings of the owner, this clause may not be invoked if the
conclusion of a real estate management contract is authorised by the court in accordance with the provisions of Title II of Book VI.
Article L125-15 The administrative body of the collective shop may send a warning to any member who, personally or through the
persons to whom the latter has entrusted the operation of his business or undertaking, breaches the internal regulations. In the event of real estate management, this warning shall also be notified to the lessee-manager. If, in the following three months, this warning does not produce any effect and if the legitimate interests of the
collective shop or of certain of its members are compromised, the meeting of members, or the general meeting, as applicable, shall have the option of deciding, by the majority specified in Article L.125-10, on the exclusion of the interested party.
Until the exclusion decision becomes final, the person excluded shall be able to put forward one or more transferees in accordance with the conditions determined by the formation agreement or articles of association.
Article L125-16 Subject to the shares valuation procedure specified in the second paragraph of Article L.125-17, any member of a
collective shop may refer to the Tribunal de grande instance, within one month of its notification by registered letter with a request for acknowledgement of receipt, any decision taken pursuant to Articles L.125-12, L.125-14 and the third paragraph of Article L.125-15.
The court may declare void or alter the decision referred thereto or replace this with its own decision. Notwithstanding any clause to the contrary, recourse to the courts shall suspend the implementation of the referred
decision, except in the event of an exclusion decision motivated by the non-use of spaces or by the non-payment of charges.
Article L125-17 In the event of exclusion, departure or death accompanied by the refusal of approval of the transferee or
successors, the shareholder or, in the event of death, the latter’s legal successors, shall be able to transfer or dispose of the business or the undertaking registered in the trades register. The new allottee of the space or, failing this, the group, company or association, as applicable, shall reimburse thereto the value of their shares plus, where applicable, the asset appreciation which may have resulted from their developments to the space which they held.
This value shall be fixed by the meeting or general meeting, as applicable, at the same time as the exclusion decision or that refusing to approve the transferee or successors is taken. In the event of disagreement, this shall be determined on the date of these decisions by an expert appointed by an order of the president of the Tribunal de grande instance ruling in interlocutory proceedings. This order shall not be open to any appeal, notwithstanding any clause to the contrary. The expert report shall be subject to the approval of the president of the Tribunal de grande instance ruling in interlocutory proceedings.
Article L125-18 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
In the cases referred to in the first paragraph of Article L. 125-17, the group or the company can only proceed with the installation of a new beneficiary if it has paid the former holder of the shares or, if he is deceased, his assigns, the sums referred to in the said Article L. 125-17, or, failing that, a consideration determined by the presiding judge of the district court ruling on a summary basis.
However, such prior payment is not required when a guarantee has been provided for the value of those sums or of that provision by a lending institution or a financial institution duly authorised for that purpose, or when that amount has been placed in the hands of a representative, designated if necessary by an order made on a summary basis.
Moreover, if it is a cooperative, the board of directors or the executive board, as applicable, can invoke the provisions of the second line of Article L. 124-11.
SECTION IV Dissolution Article L125-19
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COMMERCIAL CODE Article L125-19
Unless a clause in the formation agreement or articles of association specifies otherwise, the administrative order or winding-up proceedings of one of the members shall not lead ipso jure to the dissolution of the economic interest group.
CHAPTER VI Mutual guarantee schemes Article L126-1
Article L126-1 The rules creating mutual guarantee schemes between traders, industrialists, manufacturers, craftspeople,
commercial companies, members of the professions and owners of property or property rights and also between the operators mentioned in Article L.524-1 shall be fixed by the Act of 13 March 1917.
CHAPTER VII The business-plan support contract for the creation or takeover of a business activity Articles L127-1 to
L127-7
Article L127-1 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The support provided for a business plan to create or take over a business activity is defined in a contract through which, using the means available to it, a legal entity undertakes to provide specific and continuous help to a natural person who is not in full-time employment and who undertakes to follow a preparatory programme covering the creation, takeover and management of a business activity. Such a contract can also be entered into by a legal entity and a manager who is the sole partner of another legal entity.
Article L127-2 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The business-plan support contract is entered into for a term which cannot exceed twelve months, renewable twice. The terms and conditions of the support and preparation programme and the respective commitments of the contracting parties are stipulated in the contract. It also determines the conditions under which the person benefiting therefrom can make commitments to third parties in relation to the planned business activity.
The contract is entered into in writing, otherwise it is null and void.
Article L127-3 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The fact that the legal entity providing support makes facilities available to the beneficiary to prepare him for the creation, or takeover and management, of the planned business activity does not, of itself, constitute any presumption of a relationship of subordination.
The provision of those means and any costs thereby incurred by the legal entity providing the support pursuant to the contract shall be posted to its balance sheet.
Article L127-4 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
If a business activity begins while the contract is still in force, the beneficiary must register the business if the nature thereof makes this necessary.
Before any registration is effected, the commitments made to third parties by the beneficiary while the support and preparation programme was ongoing are, in regard to those third parties, assumed by the mentor. After registration, the supporting legal entity and the beneficiary are jointly and severally bound by the commitments made by the latter pursuant to the stipulations of the support contract, until it expires.
Article L127-5 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The business-plan support contract for the creation or takeover of a business activity cannot have as its object or its effect infringement of the provisions of Articles L. 125-1, L. 125-2, L. 324-9 or L. 324-10 of the Labour Code.
The act of creating or taking over a business must be clearly distinguished from the supervisory function.
Article L127-6 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The professional and social situation of the beneficiary of the business-plan support contract is determined by Articles L. 783-1 and L. 783-2 of the Labour Code.
The supporting legal entity is liable in regard to third parties for any damage caused by the beneficiary as a consequence of the support and preparation programme referred to in Articles L. 127-1 and L. 127-2 prior to the registration referred to in Article L. 127-4. After the registration, the supporting legal entity guarantees the liability assumed under the support contract, provided that the beneficiary complied with the terms and conditions of the contract through to its expiry.
Article L127-7 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The publication formalities for business-plan support contracts for the creation or takeover of a business activity and the present chapter's other implementing measures are determined in a Conseil d'Etat decree.
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COMMERCIAL CODE CHAPTER VIII Concerning Incapacity to Practice a Commercial or Industrial Profession Articles L128-1 to
L128-6
Article L128-1 (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
No person shall, either directly or indirectly, for his own account or on behalf of another, engage in a commercial or industrial occupation, direct, administer, manage or control a commercial or industrial venture or a commercial company, in whatever capacity, if he has been the subject of a final judgement within the previous ten years:
1 For a crime; or 2 Has been sentenced to at least three months' imprisonment without suspension for: a) An offence covered by Part I of Book III of the Penal Code or an offence covered by special laws punished with
the penalties imposed for fraud and breach of trust; b) Handling stolen goods or an offence treated as handling stolen goods or similar thereto referred to in section 2 of
Chapter I of Part II of Book III of the Penal Code; c) Money laundering; d) Bribery or accepting or soliciting bribes, influence peddling, misappropriation and fraudulent conversion of
property; e) Forgery, falsification of securities or other fiduciary instruments issued by the public authorities, falsification of
marks of authority; f) Participation in an association of criminals; g) Drug trafficking; h) Procuring or an offence covered by sections 2 and 2 bis of Chapter V of Part II of Book II of the Penal Code; i) An offence covered by Section 3 of Chapter V of Part II of Book II of the Penal Code; j) A violation of the commercial companies legislation covered by Part IV of Book II of the present code; k) Bankruptcy; l) Making loans at usurious rates of interest; m) An offence envisaged by the Act of 21 May 1836 prohibiting lotteries, or the Act of 15 June 1907 regulating
gaming in clubs and the casinos of seaside resorts, thermal spas and health resorts, or Act No. 83-628 of 12 July 1983 relating to games of chance;
n) An offence against the laws and regulations relating to foreign financial dealings; o) Tax fraud; p) An offence referred to in Articles L. 115-16 and L. 115-18, L. 115-24, L. 115-30, L. 121-6, L. 121-28, L. 122-8 to
L. 122-10, L. 213-1 to L. 213-5, L. 217-1 to L. 217-3, and L. 217-6 to L. 217-10 of the Consumer Code; q) An offence referred to in Articles L. 324-9, L. 324-10 and L. 362-3 of the Labour Code; 3 Dismissal from functions as a public official or law official.
Article L128-2 (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
Persons engaged in an activity referred to in Article L. 128-1 who are convicted of an offence covered by that same article must cease their activity within three months of the date on which the court's decision giving rise to incapacity to conduct that business became final.
Article L128-3 (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
In the event of a final judgement being pronounced by a foreign court for an offence which, under French law, constitutes a crime or an offence referred to in Article L. 128-1, the criminal court of the convicted person's domicile shall declare, at the request of the public prosecutor and after verifying the correctness and legality of the conviction and having duly heard the person concerned in closed session, that there are grounds for applying the incapacity referred to in Article L. 128-1.
The said incapacity also applies to any non-reinstated person who is the subject of a disqualification order issued by a foreign court which is enforceable in France. The application for an enforcement order may, in this specific case only, be entered by the public prosecutor before the Tribunal de grande instance of the convicted person's domicile.
Article L128-4 (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
The court which ordered the dismissal referred to in 3 of Article L. 128-1 may, at the request of the public official or law official dismissed, either lift the incapacity referred to in the aforementioned Article, or reduce its term.
Article L128-5 (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
Whoever contravenes the incapacities provided for in Articles L. 128-1, L. 128-2 and L. 128-3 shall incur the penalties laid down in Article 313-1 of the Penal Code.
Persons guilty of the offence referred to in the previous paragraph may also incur the additional penalty of confiscation of goods or assets as provided for in Article 131-21 of the Penal Code.
Article L128-6
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COMMERCIAL CODE (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
The provisions of the present chapter shall not impede application of the rules specific to the practising of certain professions.
They apply to persons who act as commercial representatives.
TITLE III Brokers, agents on commission, carriers and commercial agents Articles L131-1 to
L134-17
CHAPTER I Brokers Articles L131-1 to
L131-11
Article L131-1 There are commodities brokers, shipbrokers, and land and water transport brokers.
Article L131-3 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Only land and water transport brokers constituted pursuant to the law are entitled, in the places in which they are established, to engage in land and water transport broking. They cannot combine their functions with those of the commodity brokers or shipping brokers designated in Article L. 131-1.
Article L131-5 Providers of investment services may, in conjunction with commodities brokers, negotiate and broker sales or
purchases of metals. They alone shall be entitled to fix the prices of these.
Article L131-11 If a broker is entrusted with a brokerage operation for a deal in which he has a personal interest and does not notify
this to the parties for whom he shall act as intermediary, this shall be punished by a fine of 25 000 F, without prejudice to the claim by the parties for damages. If he is registered in the list of brokers, drawn up in accordance with the regulations, he shall be removed from this and may not be registered in this again.
CHAPTER II Agents on commission Articles L132-1 to
L132-9
SECTION I Agents on commission in general Articles L132-1 to
L132-2
Article L132-1 Agents on commission are persons who act in their own name or under a company name on behalf of a principal. The duties and rights of agents on commission acting on behalf of a principal shall be determined by Title XIII of
Book III of the Civil Code.
Article L132-2 Agents on commission shall have a preferential right over the value of the commodities covered by their obligation
and over the documents relating thereto with regard to all commission claims against their principals, even those created during prior operations.
The preferential claim of the commission agent shall include, together with the principal amount, the interest, commission and additional expenses.
SECTION II Agents on commission for transport Articles L132-3 to
L132-9
Article L132-3 Agents on commission responsible for land or water transport shall be required to enter in their diary the declaration
of the nature and quantity of the commodities and, if this is required, their value.
Article L132-4 They shall act as guarantor for the arrival of the commodities and bills within the period specified by the bill of
lading, except in cases of legally recorded force majeure.
Article L132-5 They shall act as guarantor for the average or loss of commodities and bills unless there is a stipulation to the
contrary in the bill of lading or in a case of force majeure.
Article L132-6 They shall act as guarantor for the acts of the intermediate commission agent to whom they send the commodities.
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COMMERCIAL CODE Article L132-7
The commodities taken from the seller’s or consignor’s warehouse shall travel, unless otherwise agreed, at the risk of the person to whom they belong, except for the latter’s recourse against the commission agent and the carrier responsible for the transport.
Article L132-8 The bill of lading shall form a contract between the consignor, the carrier and the recipient or between the
consignor, the recipient, the commission agent and the carrier. Carriers shall therefore have a direct claim for payment of their services against the consignor and the recipient who shall act as guarantors for the payment of the transport cost. Any clause to the contrary shall be deemed to be unwritten.
Article L132-9 I.- The bill of lading must be dated. II.- It must specify: 1° The nature and weight or the capacity of the items to be transported; 2° The period within which the transport must be carried out. III.- It shall indicate: 1° The name and address of the commission agent through whom the transport is carried out, if there is one; 2° The name of the person to whom the commodities are being sent; 3° The name and domicile of the carrier. IV.- It shall set out: 1° The price of the carriage; 2° The compensation payable for late delivery. V.- It shall be signed by the consignor or the commission agent. VI.- It shall contain in the margin the makes and numbers of the items to be transported. VII.- The bill of lading shall immediately be copied by the commission agent into a numbered and initialled register
without any gaps.
CHAPTER III Carriers Articles L133-1 to
L133-7
Article L133-1 The carrier shall act as guarantor for the loss of the items to be transported, except in cases of force majeure. The carrier shall act as guarantor for the average other than that resulting from the inherent defect of the item or
from force majeure. Any clause to the contrary inserted in any bill of lading, price list or other document shall be invalid.
Article L133-2 If, due to the effect of the force majeure, the transport is not carried out within the agreed period, no compensation
may be claimed from the carrier for late delivery.
Article L133-3 The receipt of the transported items shall extinguish any claim against the carrier for average or partial loss if, within
three days of this receipt, not including public holidays, the recipient has not notified the carrier, by extra-judicial means or registered letter, of the reasoned protest.
If, within the period specified above, an expert report request is made pursuant to Article L.133-4, this request shall be valid as a protest without the notification specified in the first paragraph having to be carried out.
All stipulations to the contrary shall be null and void. This latter provision shall not apply to international transport.
Article L133-4 In the event of refusal of the items transported or presented in order to be transported, or of any dispute whatsoever
regarding the establishment or implementation of the shipping agreement or due to an incident occurring during and on the occasion of the transport, the state of the items transported or presented in order to be transported and, where necessary, their packaging, weight, nature, etc. shall be verified and recorded by one or more experts appointed by the president of the Tribunal de commerce or, failing this, by the president of the Tribunal de grande instance, through an Order made following a petition.
The petitioner shall be obliged, under their responsibility, to invite to this expert assessment, by an ordinary registered letter or by telegram, all parties liable to be involved in the case, in particular the consignor, recipient, carrier and commission agent. The experts must take an oath, without a hearing being required, before the judge who has appointed them or before the judge of the Tribunal de grande instance from which they originate. However, in urgent cases, the judge receiving the petition may dispense with fulfilling all or part of the formalities specified in this paragraph. This dispensation shall be specified in the Order.
The deposit or attachment of the items in dispute, and their subsequent transport to a public warehouse, may be ordered.
The sale of these items may be ordered up to the amount of the transport expenses or other expenses already incurred. The judge shall allot the product of the sale to those of the parties which advanced these expenses.
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COMMERCIAL CODE Article L133-5
The provisions contained in this chapter shall be common to both road and river carriers.
Article L133-6 Claims for average, loss or delay, to which the shipping agreement may give rise against the carrier, shall be
prescribed after one year, without prejudice to cases of fraud or inaccuracy. All other claims to which this agreement may give rise, against both the carrier or commission agent and the
consignor or recipient, and those which result from the provisions of Article 1269 of the New Code of Civil Procedure, shall be prescribed after one year.
The period of these prescriptions shall be calculated, in the event of total loss, from the day when the commodities should have been handed over and, in all other cases, from the day when the goods were handed over or offered to the recipient.
The period for bringing any action for a remedy shall be one month. This prescription shall run only from the day when the claim against the guarantor is made.
In the event of transport carried out on behalf of the State, the prescription shall start to run only from the day of notification of the ministerial decision specifying payment or final authorisation of payment.
Article L133-7 Carriers shall have a preferential right over the value of the commodities covered by their obligation and over the
documents relating thereto with regard to all transport claims, even those resulting from prior operations for which their principals, the consignors or the recipients remain in debt to them, insofar as the owner of the commodities over which the preferential right is exercised is involved in these operations.
The transport claims covered by the preferential right shall involve the transport expenses properly speaking, the supplementary remuneration payable for the additional services and tying-up of the vehicle during loading or unloading, the expenses incurred in the interest of the commodities, the customs duties, taxes, expenses and fines linked to a transport operation and the interest.
CHAPTER IV Commercial agents Articles L134-1 to
L134-17
Article L134-1 Commercial agents are agents who, as independent professionals not linked by contracts for services, shall be
permanently entrusted with negotiating and possibly concluding sale, purchase, rental or service provision contracts for and on behalf of producers, industrialists, traders or other commercial agents. Commercial agents may be natural or legal persons.
Agents whose representation tasks are carried out in the context of economic activities which are covered, with regard to these tasks, by special acts shall not come under the provisions of this chapter.
Article L134-2 Each party shall be entitled, at its request, to obtain from the other party a signed document indicating the contents
of the agency contract, including the contents of its riders.
Article L134-3 Commercial agents may agree, without needing authorisation, to represent new principals. However, they may not
agree to represent an undertaking competing with that of one of their principals without the latter’s agreement.
Article L134-4 The contracts concluded between commercial agents and their principals shall be in the common interest of the
parties. The relationships between commercial agents and principals shall be governed by an obligation of loyalty and a
reciprocal duty of information. Commercial agents must perform their mandate in a professional manner. Principals shall make sure that the
commercial agents are able to perform their mandate.
Article L134-5 Any element of the remuneration which varies according to the number or value of the deals concluded shall
constitute a commission within the meaning of this chapter. Articles L.134-6 to L.134-9 shall apply when the agents are remunerated in full or in part by the commission thus
defined. If the contract is silent on this, commercial agents shall be entitled to a remuneration in accordance with the usual
practice in the sector of activity covered by their mandate and in which they carry out their activity. In the absence of any usual practice, the commercial agent shall be entitled to a reasonable remuneration which takes account of all the elements involved in the operation.
Article L134-6 For any commercial transactions concluded during the term of the agency contract, commercial agents shall be
entitled to the commission defined in Article L.134-5 when these transactions have been concluded thanks to their intervention or when the transactions have been concluded with a third party whose custom they obtained previously for
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COMMERCIAL CODE transactions of the same kind.
When they are entrusted with a geographical sector or a specific group of persons, commercial agents shall also be entitled to the commission for any transaction concluded during the term of the agency contract with a person belonging to this sector or group.
Article L134-7 For any commercial transactions concluded after the agency contract ceases, commercial agents shall be entitled to
the commission when the transaction is mainly due to their activity during the agency contract and has been concluded within a reasonable period after the contract ceases or when, in accordance with the conditions specified in Article L.134-6, the order from the third party was received by the principal or by the commercial agent before the agency contract ceased.
Article L134-8 Commercial agents shall not be entitled to the commission specified in Article L.134-6 if this is due, pursuant to
Article L.134-7, to the previous commercial agent, unless the circumstances make it fair to share the commission between the commercial agents.
Article L134-9 The commission shall be acquired as soon as the principal has carried out the transaction or should have carried
this out under the agreement concluded with the third party or as soon as the third party has carried out the transaction. The commission shall be acquired at the latest when the third party has carried out its part of the transaction or
should have carried this out if the principal has carried out its own part. It shall be paid at the latest on the last day of the month following the quarter in which it was acquired.
Article L134-10 The right to the commission may be extinguished only if it is established that the contract between the third party
and the principal will not be performed and if this is not due to circumstances attributable to the principal. The commission which the commercial agent has already received shall be refunded if the right relating thereto is
extinguished.
Article L134-11 A term contract which continues to be performed by both parties after its term shall be deemed to have been
converted into an open contract. When the agency contract is an open contract, each party may end this by giving prior notice. The provisions of this
article shall apply to the term contract converted into an open contract. In this case, the calculation of the duration of the prior notice shall take account of the previous fixed term.
The period of prior notice shall be one month for the first year of the contract, two months for the second year started and three months for the third year started and for subsequent years. In the absence of agreement to the contrary, the end of the prior notice period shall coincide with the end of a calendar month.
The parties may not agree shorter periods of prior notice. If they agree longer periods, the prior notice period specified for the principal must not be shorter than that specified for the agent.
These provisions shall not apply when the contract ends due to serious negligence by one of the parties or the occurrence of a case of force majeure.
Article L134-12 If their relationship with their principal ceases, commercial agents shall be entitled to an indemnity for the loss
suffered. Commercial agents shall lose the right to this compensation if they have not notified the principal, within one year of
the cessation of the contract, that they intend to use their rights. The legal successors of commercial agents shall also benefit from the right to compensation when the cessation of
the contract is due to the death of the agent.
Article L134-13 The compensation specified in Article L.134-12 shall not be due in the following cases: 1° The cessation of the contract is caused by the serious negligence of the commercial agent. 2° The cessation of the contract is initiated by the agent unless this cessation is justified by circumstances
attributable to the principal or due to the age, infirmity or illness of the commercial agent, as a result of which the continuation of the latter’s activity can no longer be reasonably required;
3° In accordance with an agreement with the principal, the commercial agent cedes to a third party the rights and obligations held under the agency contract.
Article L134-14 The contract may contain a non-competition clause applying after its cessation. This clause must be established in writing and shall cover the geographical sector and, if applicable, the group of
persons entrusted to the commercial agent and the type of goods or services which the latter represents under the contract.
The non-competition clause shall be valid only for a maximum period of two years after a contract ceases.
Article L134-15
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COMMERCIAL CODE When the activity of commercial agent is carried out under a written contract, signed by the parties, which is
principally for another purpose, the parties may decide in writing that the provisions of this chapter do not apply to the part corresponding to the commercial agency activity.
This renunciation shall be invalid if the performance of the contract reveals that the commercial agency activity is actually being carried out as the principal or decisive element.
Article L134-16 Any clause or agreement contrary to the provisions of Articles L.134-2 and L.134-4, the third and fourth paragraphs
of Article L.134-11 and Article L.134-15 or establishing an exception, to the detriment of the commercial agent, to the provisions of the second paragraph of Article L.134-9, the first paragraph of Article L.134-10, Articles L.134-12 and L.134-13 and the third paragraph of Article L.134-14 shall be deemed to be unwritten.
Article L134-17 A Conseil d'Etat decree shall fix the conditions for applying this chapter.
TITLE IV The business Articles L141-1 to
L146-4
CHAPTER I Sale of the business Articles L141-1 to
L141-22
SECTION I Sale contract Articles L141-1 to
L141-4
Article L141-1 I.- In any instrument recording an assignment by private treaty of a business, agreed even in accordance with the
condition and in the form of another contract or a capital investment in a business, the seller shall be obliged to indicate: 1° The name of the previous seller, the date and nature of the instrument of acquisition from the latter and the price
of this acquisition for the fixed assets, goods and equipment; 2° The state of the preferential rights and charges affecting the business; 3° The turnover made by the seller during each of the last three years of operation or since the acquisition of the
business if the seller has operated this for less than three years; 4° The trading profits made during the same time; 5° The lease, its date and term and the name and address of the lessor and assignor, if applicable. II.- The omission of the information specified above may, at the request of the purchaser made within one year, lead
to the sale contract being declared void.
Article L141-3 The seller shall, notwithstanding any stipulation to the contrary, be bound by the guarantee relating to the
inaccuracy of the information provided thereby, in accordance with the conditions laid down by Articles 1644 and 1645 of the Civil Code.
Intermediaries, drafters of the contracts and their agents shall be jointly liable with the seller if they are aware of the inaccuracy of the information provided.
Article L141-4 The claim resulting from Article L.141-3 shall be brought by the purchaser within one year of the date when the
latter took possession of the business.
SECTION II Preferential right of the seller Articles L141-5 to
L141-22
Article L141-5 The preferential right of the seller of a business shall apply only if the sale has been recorded in a notarised
document or unattested document, which has been duly registered, and only if this has been entered in a public register held by the registry of the Tribunal de commerce in whose jurisdiction the business is operated.
This right shall cover only the elements of the business listed in the sale and in the entry in the register and, in the absence of precise specification, only the trade name and commercial name, the right to the lease, the customer base and the goodwill.
Separate prices shall be established for the fixed assets of the business, the equipment and the goods. The preferential right of the seller guaranteeing each of these prices, or those remaining due, shall be exercised
separately with regard to the respective prices of the resale for the goods, equipment and fixed assets of the business. Notwithstanding any agreement to the contrary, part payments other than down payments shall be allocated firstly
to the price of the goods and then to the price of the equipment. The resale price assigned shall be broken down if it applies to one or more elements not included in the initial sale.
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COMMERCIAL CODE Article L141-6
The entry in the register must be made, in order to be valid, within a fortnight of the date of the sale contract. It shall take preference over any entry in the register made in the same period by the purchaser. It shall be binding on the creditors of the purchaser subject to an administrative order or winding-up proceedings and on the latter’s estate accepted without liability to debts beyond the assets descended.
The action for rescission, established by Article 1654 of the Civil Code, shall, in order to be effective, be mentioned and expressly reserved in the entry in the register. This action may not be brought to the prejudice of third parties after the preferential right has lapsed. It shall be limited, like the preferential right, to solely the elements forming part of the sale.
Article L141-7 In the event of the court-ordered or amicable rescission of the sale, the seller shall be obliged to take back all the
elements of the business which formed part of the sale, even those for which the latter’s preferential right and the action for rescission have lapsed. The seller shall be responsible for the price of the goods and equipment existing at the time when the latter takes back possession, according to the estimate which shall be made of these by an expert in the presence of both parties, whether this is amicable or ordered by the court, subject to the deduction of what may still be due thereto, under the preferential right, with regard to the respective prices of the goods and equipment. The remainder, if any, shall be kept as the security for the registered creditors and, failing this, the unsecured creditors.
Article L141-8 The seller bringing the action for rescission shall notify this to the registered creditors of the business at the domicile
elected by them in their registrations. The judgment may be made only when a month has passed since this notification.
Article L141-9 The seller who has stipulated during the sale that, in the absence of payment within the agreed term, the sale shall
be rescinded ipso jure, or who has obtained an amicable rescission from the purchaser, must notify to the registered creditors, at the elected domiciles, the rescission incurred or granted which shall not become final until one month after this notification is made.
Article L141-10 When the sale of a business at public auction is applied for, either at the request of an court-appointed receiver or a
legal agent for the winding-up of undertakings or by court order at the request of any other legal successor, the applicant shall notify this to the previous sellers, at the domicile elected in their registrations, with a declaration that, if they fail to bring the action for rescission within one month of notification, they shall lose the right to bring this in favour of the successful bidder.
Article L141-11 (Act No. 2005-845 of 26 July 2005 Art. 1 I Official Journal of 27 July 2005 effective 1 January 2006)
Articles L. 624-11 to L. 624-18 do not apply to either the privilege or the action for rescission of the seller of a business.
Article L141-12 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Without prejudice to the provisions relating to contributions of business assets provided for in Articles L. 141-21 and L. 141-22, details of any sale or transfer of business assets, even if subject to conditions or in the form of another contract, and likewise any transmission of business assets via partition or auction, must be published within two weeks of being effected, at the acquirer's behest, in a periodical authorised to carry official notices available in the district or department in which the business operates and, within two weeks of such publication, must appear in the Official Gazette of Civil and Commercial Announcements.
Article L141-13 The publication of the extract or notice carried out pursuant to the previous article shall, in order to be valid, be
preceded either by the registration of the contract containing the transfer or, in the absence of a contract, by the declaration specified by Articles 638 and 653 of the General Tax Code. This extract shall, subject to the same penalty, indicate the date, volume and number of the registration or, in the event of a simple declaration, the date and number of the receipt for this declaration and, in both cases, the indication of the office where these operations took place. It shall also set out the date of the contract, the surnames, forenames and domiciles of the former and new owners, the nature and headquarters of the business, the stipulated price, including the charges or the valuation used as the basis for paying the registration fees, the indication of the period below fixed for objections and an election of domicile in the jurisdiction of the court.
Article L141-14 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Within ten days of the date of the second publication referred to in Article L. 141-12, any creditor of the previous owner, whether his debt is due or not, may lodge an appeal against the payment of the price at the elected domicile via a simple extrajudicial document. The appeal, if it is not to be declared null and void, must state the amount and cause of the debt and contain an election of domicile in the jurisdiction where the business is located. The lessor cannot lodge an appeal in respect of current rent or rent not yet due, notwithstanding any stipulations to the contrary. No amicable or judicial transfer in respect of the price or a portion of the price can be raised against creditors who have duly declared
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COMMERCIAL CODE their debts within the allotted timeframe.
Article L141-15 In the event of an objection to the payment of the price, the seller may, at any stage after the expiration of the
ten-day period, submit an urgent application to the president of the Tribunal de grande instance in order to obtain authorisation to receive the proceeds despite the objection, provided that the seller pays to the Consignments office, or to a third party appointed for this purpose, a sufficient sum, fixed by the judge ruling on the urgent application, in order to possibly meet the causes of the objection where the seller is recognised or judged to be in debt. The deposit thus ordered shall be specifically assigned, by the third-party holder, to guarantee the claims to secure which the objection has been made and to guarantee the exclusive preferential right which anyone else may have over this deposit without, however, a court-ordered transfer being able to result from this to the benefit of the objector or objectors in question with regard to other objecting creditors of the seller, if any. When the urgent order is enforced, the purchaser shall be discharged and the effects of the objection shall be assigned to the third-party holder.
The judge ruling on the urgent application shall grant the authorisation requested only if this is justified by a formal declaration from the purchaser involved in the case, made under the latter’s personal responsibility and formally noted thereby, that there are no objecting creditors other than those who have taken action against the purchaser. The purchaser, when the order is enforced, shall not be released from paying the price to other objecting creditors prior to said order, if any.
Article L141-16 If the objection has been made without title and cause or is invalid in its form and if there are no pending
proceedings at the outset, the seller may submit an urgent application to the president of the Tribunal de grande instance in order to obtain authorisation to receive the proceeds, despite the objection.
Article L141-17 The purchaser who pays the seller without having carried out the publications in the specified forms, or before the
expiration of the ten-day period, shall not be released with regard to third parties.
Article L141-18 If the sale or assignment of a business includes branches or establishments situated on French territory, the
registration and publication specified in Articles L.141-6 to L.141-17 shall also be carried out in a newspaper authorised to receive legal notices in the place of the registered office of these branches or establishments.
Article L141-19 (Act No. 2005-845 of 26 July 2005 Art. 161 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
During the twenty days following publication in the Official Bulletin of Civil and Commercial Notices referred to in Article L. 141-12, an authenticated copy or an original of the contract of sale shall be held at the elected domicile to facilitate easy consultation thereof by any objecting or registered creditor.
During that same period, any registered creditor or creditor who has lodged an objection within the ten-day period stipulated by Article L. 141-14 may inspect the contract of sale and the objections at the elected domicile and, if the price is not sufficient to pay off the registered creditors and those who have made themselves known through an objection, may, within ten days of the publication in the Official Bulletin of Civil and Commercial Notices referred to in Article L. 141-12, and pursuant to Articles L. 141-14 to L. 141-16, make a bid one sixth higher than the principal price asked for the business, excluding equipment and goods.
The one-sixth increase is not admissible after the court-ordered sale of a business or a sale effected at the request of a court-appointed receiver or court-appointed liquidator, or of joint co-owners of the fund, by way of public auction pursuant to Articles L. 143-6 and L. 143-7, or in accordance with Article L. 642-5.
The public officer instructed to proceed with the sale shall allow only those persons whose solvency is known to him, or who have deposited either with him or with the Caisse des dépôts et consignations, for specific allocation to payment of the price, a sum not lower than either half the total price of the first sale or the portion of the price of the said sale stipulated as being payable in cash, plus the amount of the higher bid.
The auction with the price increased by one sixth shall take place under the same conditions and within the same time limit as the sale in respect of which the higher bid was made.
If the buyer against whom the higher bid is made is dispossessed as a result thereof, he shall, under his own responsibility, deliver all the objections lodged to the successful bidder, against a receipt, within eight days of the sale, if he did not make them known earlier via a notation inserted in the articles and conditions. The effect of the said objections shall be applied to the sale price.
Article L141-20 When the sale price is finally fixed, whether or not there has been a higher bid, the purchaser, in the absence of an
agreement between the creditors for the amicable distribution of this price, shall be obliged, following formal notice from any creditor, and within the next fortnight, to deposit the due portion of the price, and the remainder where this may be due, to cover all the objections made thereto together with the registrations affecting the business and the assignments notified thereto.
Article L141-21 Except where this results from a merger or division operation subject to the provisions of the fourth paragraph of
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COMMERCIAL CODE Article L.236-2 and Articles L.236-7 to L.236-22, any contribution in the form of a business made to a company being formed or already in existence must be brought to the attention of the third parties in accordance with the conditions specified by Articles L.141-12 to L.141-18 by an advertisement in the legal notices newspapers and in the official gazette of civil and commercial notices.
However, if following the application of the acts and regulations in force on the publication of company documents, the information specified by these articles is already contained in the issue of the legal notices newspaper where the advertisements must be made, this may be carried out by simple reference to this publication.
In these advertisements, the election of domicile shall be replaced by the indication of the registry of the Tribunal de commerce where creditors of the contributor must declare their claims.
Article L141-22 Within ten days of the last in date of the publications specified in Articles L.141-12 and L.141-13, any unregistered
creditor of the contributing partner shall inform the registry of the Tribunal de commerce covering the business location of their capacity of creditor and the sum due thereto. The clerk shall issue thereto a receipt for this declaration.
If the partners or one of them fails to make, within the next fortnight, a request to cancel the company formation or contribution, or if the cancellation is not ordered, the company shall be obliged, jointly with the main debtor, to pay the liability declared and justified within the above period.
In the event of a contribution of a business by one company to another company, in particular following a merger or division, the provisions of the above paragraph shall not apply when Articles L.236-14, L.236-20 and L.236-21 should apply or when the option specified in Article L.236-22 is exercised.
CHAPTER II Charge on the business Articles L142-1 to
L142-5
Article L142-1 Charges may be taken on a business without conditions and formalities other than those specified by this chapter
and Chapter II below. Taking a charge on a business does not give a secured creditor the right to have the business arrogated in payment
up to the full amount due.
Article L142-2 The charge subject to the provisions of this chapter may cover the following items only as forming part of a
business: style and real estate management, leasing rights, clientele and custom, commercial furniture, equipment and tools used for the operation of the business, patents, licences, trademarks, industrial drawings and designs, and in general the intellectual property rights attached thereto.
A certificate of addition subsequent to the taking of a charge, which includes the patent to which it applies shall follow the fate of this patent and, as shall it, of the charge constituted.
Unless otherwise stated explicitly and precisely in the instrument creating it, the charge shall cover only the style and trademark, leasing rights, clientele and custom.
If the charge relates to a business and its branches, these must be designated by the precise indication of their registered address.
Article L142-3 The contract of charge shall be ascertained by a notarised document or by a duly registered unattested document. The preferential charge resulting from the contract of charge shall be constituted by the simple fact of entry in a
public register held at the registry of the Tribunal de commerce within the judicial area in which the business is operated. The same formality must be completed at the registry of the Tribunal de commerce within the judicial area in which
each of the branches of the business included in the charge is situated.
Article L142-4 (Act No. 2005-845 of 26 July 2005 Art. 1 I Official Journal of 27 July 2005 effective 1 January 2006)
Registration must take place, under pain of becoming null and void, within fifteen days of the date of the memorandum and articles of association.
In the event of court-ordered receivership or liquidation proceedings, Articles L632-1 to L632-4 shall apply to pledges of business assets.
Article L142-5 The ranking of secured creditors among themselves shall be determined by the date of their registrations. Creditors
registered on the same date shall rank equally.
CHAPTER III Provisions common to the sale and charge of the business Articles L143-1 to
L143-23
SECTION I Use of the security and redemption of registered claims Articles L143-1 to
L143-15
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COMMERCIAL CODE Article L143-1
In the event of assignment of the business, all registered charges shall become due ipso jure if the owner has failed to inform the secured creditors at least two weeks in advance of their intention to assign the business and the new registered office which they intend to give it.
Within two weeks of the notice given to them or within two weeks of the day on which they have learned of the assignment, all vendors and secured creditors must have the new headquarters of the business annotated in the margin of the existing entry in the register and, if the business has been transferred to another judicial area, have the original registration and its date carried over into the register of the court of this judicial area, indicating the new registered office.
If it causes a depreciation of the business, assignment of the business without the consent of the vendor or the secured creditors may render the debts owed to them due.
The registration of a charge may also cause earlier debts incurred for the purpose of operation of the business to become due.
Applications to the Tribunal de commerce for termination of the term made pursuant to the previous two subparagraphs shall be subject to the rules of procedure decreed in subparagraph four of Article L. 143-4.
Article L143-2 An owner seeking to cancel the lease on the building in which a business with charges registered against it
operates must notify previously registered creditors of its application at the domicile elected by them in their registry entries. The judgment may be given only after one month has passed since the notification.
An amicable termination of the lease may not become definitive until one month after the notification of it which has been given to secured creditors at the elected domiciles.
Article L143-3 Any creditor pursuing distraint proceedings and any debtor against whom or which they are brought may apply to
the Tribunal de commerce within the judicial area in which the business operates for the sale of the distrained business with its associated equipment and goods.
At the request of a plaintiff creditor, the Tribunal de commerce shall order that, in the absence of payment within the deadline allowed to the debtor, the sale of the business shall take place at the request of the said creditor after completion of the formalities specified in Article L. 143-6.
The same shall apply if, upon proceedings instigated by the debtor, the creditor applies to proceed with the sale of the business.
Should the creditor not request it, the Tribunal de commerce shall fix the deadline within which the sale of the business must take place at the request of the said creditor in accordance with the formalities specified in Article L. 143-6, and it shall order that, in the absence of the debtor having carried out the sale within the said deadline, the distraint proceedings shall be resumed and continued on the last steps.
Article L143-4 If required, the court shall appoint an interim manager of the business, fix the reserve prices, determine the primary
terms and conditions of the sale and appoint the public official who shall draw up the terms and conditions. When useful, special advertising shall be regulated by the judgment or, by default, by order of the presiding judge of
the Tribunal de commerce given on application. The latter may, by judgment given, authorise the plaintiff, if there is no other registered creditor or opposing party
and with the exception of preferential expenses for the benefit of the party or parties concerned, to receive the price directly and against a simple receipt either from the purchaser or from the public official mandated to conduct the sale as the case may be, in deduction from or up to the amount of their claim in principal, interest and expenses.
The Tribunal de commerce shall decree within two weeks of the first hearing by judgment not liable to stay of execution, enforceable at a moment’s notice. An appeal against the judgment shall be a stay. It shall be formed within two weeks of its service on the opposing party and judged by the court within one month. The order shall be enforceable at a moment’s notice.
Article L143-5 Vendors and secured creditors of the business may also, even by virtue of shares under an unattested document,
have an order given for the sale of the business constituting their charge one week after an official demand for payment made to the creditor and to a third-party holder, if applicable, has remained unprofitable.
The demand must be brought before the Tribunal de commerce within the judicial area of which the business is operated, which shall rule as stated in Article L. 143-4.
Article L143-6 The plaintiff shall serve notice on the owner and the creditors registered prior to the decision ordering the sale at the
domicile elected by them in their registrations at least two weeks before the sale to accept communication of the terms and conditions, to supply their statements and observations and to attend the sale by auction if they so desire.
The sale shall take place at least ten days after the affixing of notices indicating: the names, occupations and domiciles of the plaintiff and the owner of the business, the decision by virtue of which the proceedings are instigated, an election of domicile within the area in which the Tribunal de commerce within the judicial area of which the business is operated, the various element constituting the said business, the nature of its activities, its location, the reserve prices, the place, date and time of the sale by auction, the name and domicile of the public official mandated to conduct the sale and custodian of the terms and conditions.
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COMMERCIAL CODE These notices must mandatorily be affixed, at the instigation of the public official, to the main door of the building
and of the town hall of the municipality in which the business is located, the Tribunal de commerce within the judicial area of which the business is located and on the door of the office of the public official mandated to conduct the sale.
The notice shall be inserted ten days prior to the sale in a newspaper authorised to receive legal advertisements and in the administrative district or Department in which the business is located.
Publication shall be ascertained by a statement included in the record of forced sale.
Article L143-7 If required, the presiding judge of the Tribunal de grande instance within the judicial area of which the business is
operated shall rule on the grounds for nullity of the sale procedure prior to adjudication and on the expenses within the judicial area of which the business is operated. Objections to these grounds must be made at least one week prior to the sale in order to be valid. Subparagraph four of Article L. 143-4 shall apply to the order made by the presiding judge.
Article L143-8 If the Tribunal de commerce before which a petition is brought for payment of a debt attached to the operation of a
business gives judgment against the defendant and if the creditor so requests, it may order the sale of the business by the same judgement. It shall order within the terms of subparagraphs one and two of Article L. 143-4 and shall fix the deadline after which the sale may be proceeded with if payment is not made.
The provisions of subparagraph four of Article L. 143-4 and Articles L. 143-6 and L. L43-7 shall apply to the sale as ordered by the Tribunal de commerce.
Article L143-9 Should the purchaser fail to execute the clauses of the sale, the business shall be sold by auction without reserve in
accordance with the forms specified by Articles L. 143-6 and L. 143-7. The irresponsible bidder shall be liable to the creditors of the vendor and the vendor himself, herself or itself, for the
difference between their price and that of the resale by auction without reserve, although not being entitled to lay claim to any surplus that may arise.
Article L143-10 The separate sale of one or more components of a business with charges registered against it, whether by distress
or by virtue of the provisions of this chapter, may not be carried out until ten days at the earliest after notification of the proceedings to those creditors who or which have registered at least two weeks prior to the notification, at the domicile they elected in their registrations. During this period of ten days, any registered creditor, irrespective of whether their claim has fallen due, may serve a writ on the interested parties before the Tribunal de commerce within the judicial area of which the business is operated, applying for all the components of the business to be sold at the request of the plaintiff or their own request, within the terms and conditions and in accordance with the provisions of Articles L. 143-3 to L. 143-7.
The equipment and goods shall be sold at the same time as the business at separate reserve prices or subject to separate prices if the terms and conditions obliges the adjudicator to take them according to experts’ statements.
A price breakdown must be given for those components of the business against which no preferential charges are registered.
Article L143-11 No higher bid will be allowed when the sale has taken place in accordance with the terms and conditions specified
in Articles L. 141-19, L. 143-3 to L. 143-8, L. 143-10 and L. 143-13 to L. 143-15.
Article L143-12 The preferential rights of the vendor and a registered creditor shall follow the business in whichever hands it may
pass. If the sale of the business has not been carried out by public auctions in accordance with the Articles specified in
Article L. 143-11, a purchaser wishing to protect him, her or itself against proceedings by secured creditors must serve notifications to all the secured creditors, before the proceedings or within two weeks in order to be valid, in accordance with the terms and conditions specified by decree.
Article L143-13 Where Article L. 143-11 does not apply, any creditor with a registered charge on the business may demand its sale
by public auction by offering to bid up the principal price, exclusive of the equipment and goods, by one tenth, and to give a guarantee for the payment of the prices and expenses or to give proof of sufficient creditworthiness.
In order to be valid, this demand, signed by the creditor, must be served upon the purchaser and the prior owner debtor within two weeks of the notifications, with service before the Tribunal de commerce of the business location of a plea for an order, in the event of dispute, on the validity of the higher bid, on the admissibility of the guarantee or creditworthiness of the higher bidder, and for an order that the business, with its associated equipment and goods, should be sold by public auction, and that the outbid purchaser should be obliged to communicate their title and the lease document or lease assignment document to the public official mandated to conduct the sale. The aforementioned deadline of two weeks may not be extended because of the distance between the elected domicile and the real domicile of secured creditors.
Article L143-14 With effect from notification of the higher bid, a purchaser having taken possession of the business shall be no
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COMMERCIAL CODE longer be entitled to administer and may no longer undertake any acts of administration. However, at any time during the proceedings they may apply to the Tribunal de commerce or to a judge sitting in chambers, according to the case, for the appointment of another administrator. This application may also be made by any creditor.
The higher bidder may not prevent the sale by public auction by waiver, even by paying the amount of the tender, other than by consent of all the secured creditors.
The formalities of the procedure and of the sale shall be carried out at the instigation of the higher bidder and, in the absence thereof, any registered creditor or the purchaser, at the cost and risk of the higher bidder and their guarantee remaining committed, in accordance with the rules specified in Articles L. 143-4, L. 143-5 to L. 143-7 and in subparagraph three of Article L. 143-10.
In the absence of auction, the higher bidder creditor shall be declared the purchaser.
Article L143-15 The purchaser shall be obliged to take the equipment and goods existing at the time of taking possession at the
prices fixed by an amicable or court-ordered counter-appraisal between the outbid purchaser, their vendor and the purchaser.
In addition to their purchase price, they shall be obliged to reimburse to the dispossessed purchaser the expenses and genuine expenses of their contract, of notifications, of registration and of publication specified in Articles L. 141-6 to L. 141-18 and, to whom it may concern, of accomplishing the resale.
Article L. 143-9 shall apply to the sale and to the sale by higher bid. An outbid purchaser who becomes the purchaser by means of the resale by higher bid shall have recourse as
provided by law against the vendor for the reimbursement of the amount in excess of the price specified by their title and for interest on this excess amount with effect from the date of each payment.
SECTION II Registration and removal of the registration formalities Articles L143-16 to
L143-20
Article L143-16 The registration and removal of the registration of a vendor’s or creditor’s preferential rights are subject to
formalities whose terms and conditions are fixed by Conseil d'Etat decree.
Article L143-17 In addition to the registration formalities specified in Article L. 143-16, sales and assignments of businesses
including trademarks and trademarks, industrial drawings or designs, charges on businesses which include patents or licences, brands or drawings or designs, must be registered with the National Industrial Rights Institute, on production of the certificate of registration issued by the clerk of the Tribunal de commerce, within two weeks following this registration in order to be valid with respect to third parties, sales, assignments and charges as they apply to patents and licences, trademarks and trademarks, and industrial drawings and designs.
The assignment of patents included in the assignment of a business shall remain subject to the rules decreed in Articles L. 613-8 onwards of the intellectual property code.
Article L143-18 If the title resulting from the registered preferential right is negotiable, negotiation by endorsement shall imply the
assignment of the preferential right.
Article L143-19 Registration shall preserve the preferential right for ten years with effect from its date. It shall cease to have effect if
it has not been renewed before expiration of this period. It guarantees two years of interest at the same ranking as the principal amount.
Article L143-20 (Law No 2003-721 of 1 August 2003 Article 3 Official Gazette of 5 August 2003)
Registrations are deleted either with the consent of the duly entitled interested parties or by virtue of a res judicata judgment.
Without a judgment, total or partial deletion cannot be effected by the registrar unless a duly registered notarially recorded or private instrument is lodged with the court through which the debtor or his properly subrogated transferee consents to the deletion and substantiates his rights.
Total or partial deletion of the registration made at the National Industrial Property Institute is effected upon production of the certificate of deletion issued by the registrar of the commercial court.
SECTION III Intermediaries and distribution of the price Articles L143-21 to
L143-23
Article L143-21 Any third party holder of the purchase price for the business with whom domicile has been elected must transfer it
within three months of the date of the deed of sale. On expiration of this deadline, the first to act may appeal to a judge sitting in chambers at the competent court of the
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COMMERCIAL CODE place of election of domicile, which shall order either deposit with the Deposit and Consignment Office or the appointment of a trustee charged with the distribution of the proceeds of the sale of the business.
Article L143-22 If the confiscation of a business is ordered by a criminal jurisdiction in application of Articles 225-16, 225-19 and
225-22 of the penal code and 706-39 of the penal proceedings code, the State must offer the confiscated business for sale in accordance with the terms and conditions specified by this title within a deadline of one year in the absence of an exceptional extension of this deadline by order of the presiding judge of the Tribunal de grande instance. Liability with respect to the creditors shall be limited to the sale price of this business.
This offer for sale must be carried out in the form of a legal advertisement made at least forty-five days prior to the sale, whether this is to take place by auction or in the form of a private sale.
Guarantees registered after the date of the statement of instigation of proceedings for any of the offences referred to in subparagraph one shall ipso jure be null and void in the absence of a court order to the contrary.
The administrative authority may, at any time, demand the determination of the rent at a rate corresponding to the rental value of the premises.
If the owner of the confiscated business is simultaneously the owner of the premises in which the business is operated, a lease must be drawn up, the terms and conditions of which shall be determined, in the absence of amicable agreement, by the presiding judge of the Tribunal de grande instance, who will rule within the terms and conditions specified for leases of immovable properties or for premises used for commercial, industrial or craft purposes.
Article L143-23 A Conseil d'Etat decree shall determine the executory measures for Chapters I and II above and this chapter, in
particular the fees to be allocated to the clerks of tribunaux de commerce, the terms and conditions under which registrations, cancellations and the issuing of statements and negative certificates concerning sales, assignments and charges relating to the business which include patents and licences, trademarks and trademarks, industrial drawings and industrial designs are carried out at the National Industrial Rights Institute.
It shall also determine the duties to be collected by the Conservatoire des Arts et Métiers (Museum and college of higher technology for training students in the application of science to industry) for the service of the National Industrial Rights Institute on registrations and statements of priority, subrogation and cancellation, statements of registration and certificates that none exist.
CHAPTER IV Real estate management Articles L144-1 to
L144-13
Article L144-1 Notwithstanding any clause to the contrary, any contract or agreement under the terms of which the owner or
operator of a business or a craft establishment grants the lease thereof totally or partially to a manager who operates it at their own risk shall be regulated by the provisions of this chapter.
Article L144-2 The tenant manager shall be classified as a merchant. They shall be subject to all the obligations which arise
therefrom. If the business is a craft establishment, the tenant manager shall be registered in the craft directory and shall be
subject to all the obligations which arise therefrom..
Article L144-3 (Order No. 2004-274 of 25 March 2004 Art. 10 I Official Journal of 27 March 2004)
Natural persons or legal entities who/which grant leasing-management rights must have operated the business or handicraft establishment placed under leasing-management for at least two years.
Article L144-4 The period stated in Article L. 144-3 may be done away with or reduced by order of the presiding judge of the
Tribunal de grande instance given on ordinary application by the interested party, after having consulted the public ministry, in particular when the interested party can prove that they are unable to operate their business personally or through the intermediary of agents.
Article L144-5 (Order No. 2004-274 of 25 March 2004 Art. 10 II Official Journal of 27 March 2004)
Article L. 144-3 shall not apply to: 1. The State; 2. The territorial authorities; 3. Credit institutions; 4. Persons of full age subject to a legal protection measure or persons hospitalised on account of mental illness as
provided for in Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code, in relation to the business which they owned prior to the entry into force of the legal protection measure or the commencement of hospitalisation;
5. The heirs or legatees of a deceased trader or craftsperson, and likewise the beneficiaries of a division between relatives in direct ascending line, in connection with the business thus transmitted;
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COMMERCIAL CODE 6. The public institution created by Article L. 325-1 of the Planning Code; 7. A spouse who is the recipient of a business or a handicraft establishment following the dissolution of a marriage,
when the said spouse has participated in its exploitation for at least two years prior to the dissolution of the marriage contract or the division;
8. The lessor of a business, when the main object of the leasing-management is to achieve retail sales of the products made or distributed by the business under an exclusive contract;
9. The lessors of cinema, theatre and music hall businesses.
Article L144-6 At the date of the real estate management, the debts owed by the lessor of the business relating to the operation of
the business may be declared due immediately by the Tribunal de commerce where the business is located, if it considers that the real estate management endangers their recovery.
In order not to be out of time, the proceedings must be started within a deadline of three months from the date of publication of the management contract in a newspaper authorised to receive legal advertisements.
Article L144-7 Until publication of the real estate management contract and for a period of six months with effect from this
publication, the lessor of the business shall be jointly liable with the tenant manager for debts entered into by the latter during the operation of the business.
Article L144-8 The provisions of Articles L. 144-3, L. 144-4 and L. 144-7 shall not apply to real estate management contracts
entered into by court-appointed agents charged in any capacity whatsoever with the administration of a business, on condition that they have been authorised for the purposes of the said contracts by the authority having given them their mandate and that they have complied with the specified publication measures.
Article L144-9 Termination of the real estate management shall render immediately due all debts relating to the operation of the
business or the craft establishment entered into by the tenant manager during the period of management.
Article L144-10 Any real estate management contract and any other agreement containing similar clauses granted by the owner or
the operator of a business which does not comply with the conditions specified in the articles above shall be null and void. However, the contracting parties may not invoke this nullity against third parties.
The nullity specified in the preceding subparagraph shall lead to forfeiture of the contracting parties rights which they could potentially have held from the provisions of Chapter V of this title regulating relations between lessors and lessees with respect to the renewal of building leases or of premises used for commercial, industrial or craft purposes.
Article L444-11 If the real estate management contract includes an escalator clause, a rent revision may be requested,
notwithstanding any agreement to the contrary, whenever the rent calculated in accordance with this clause is increased or reduced by more than one quarter in comparison with the price previously determined contractually or by court order.
Should one of the factors used for the calculation of the escalator clause disappear, the revision may be requested and carried out only if the economic conditions are changed to the point of causing a variation of more than one quarter of the rental value of the business.
Article L 144-12 The party wishing to request the revision must notify the other party of this by registered letter with confirmation of
delivery or by extra-judicial means. In the absence of amicable agreement, proceedings shall be instigated and judged in accordance with the
provisions laid down for matters of the revision of prices of leases of immovable properties or for premises used for commercial or industrial purposes.
The judge must, while taking into consideration all the relevant factors, adjust the scope of the escalator clause to the fair rental value on the date of notification. The new price shall apply with effect from this same unless the parties have agreed upon an earlier or more recent date before or during the proceedings.
Article L144-13 The provisions of Articles L. 144-11 and L. 144-12 shall not apply to leasing transactions with regard to businesses
or craft establishments mentioned in 3. of Article one of Act No 66455 of 2 July 1966 relating to undertakings carrying out leasing.
The provisions of Article L. 144-9 shall not apply if the tenant manager having leased a business or a craft establishment by means of a leasing contract exercises the purchase option.
CHAPTER V Commercial lease Articles L145-1 to
L145-60
SECTION I
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COMMERCIAL CODE Scope Articles L145-1 to
L145-3
Article L145-1
I.- The provisions of this chapter shall apply to leases of immovable properties or for premises in which the business is operated irrespective of whether this business is owned by a merchant or a manufacturer registered in the commercial and companies register or to a head of an undertaking registered in the craft directory, whether trading or not, and also:
1. To leases for premises or immovable properties accessory to the operation of a business when their loss would be likely to compromise the operation of the business and they belong to the owner of the premises or the real property where the principal place of business is located. Should there be more than one owner, the associated premises must have been leased to the certain knowledge of the lessor with a view to shared use
2. To leases of undeveloped land on which buildings for commercial, industrial or craft use are erected, either before or after the lease, on condition that these buildings have been erected or operated with the explicit consent of the owner.
II. – If the business is operated under the form of a real estate management in application of Chapter IV of this title, the owners of the business shall nevertheless benefit from these provisions without having to prove registration in the commercial and companies register or in the craft directory.
Article L145-3 The provisions of this chapter shall not apply to long leases with the exception of matters relating to rent revision.
However, they shall apply in the cases specified in Articles L. 145-1 and L. 145-2 to leases entered into by long leaseholders, subject to the period of renewal granted to their subtenants not having the effect of extending occupation of the premises beyond the expiration date of the long lease.
SECTION II Term Articles L145-4 to
L145-7
Article L145-4 The term of the lease contract may not be less than nine years. However, in the absence of agreement to the contrary, the lessee shall have the option of giving notice on
expiration of a term of three years in the forms and deadline of Article L. 145-9. The lessor shall have the same option if they intend to invoke the provisions of Articles L. 145-18, L. 145-21 and L.
145-24 in order to build, rebuild, raise the height of the existing real property or to carry out the works prescribed or authorised within the framework of an real property restoration operation.
A lessee having made a request to take advantage of their rights to retirement from the social security system to which they subscribe or having been accepted as a beneficiary of an invalidity pension allocated within the framework of the social security system shall have the option of giving notice in the forms and deadline of Article L. 145-9.
The provisions of the preceding subparagraph shall apply to the sole member of a one-man limited liability company or a majority shareholder manager of at least two years’ tenure of a limited liability company when they are the leaseholder.
Article L145-5 When the lessee enters the premises, the parties may depart from the provisions of this chapter on condition that
the lease is agreed for a term of no more than two years. If the lessee remains and is allowed to remain in possession on expiration of this term, a new lease shall be formed,
the effect of which shall be regulated by the provisions of this chapter. The same shall apply in the event of explicit renewal of the lease or of agreement between the same parties of a
new lease for the same premises. The provisions of the two preceding subparagraphs shall not apply if the lease is of a seasonal nature.
Article L145-6 During the course of the original lease or a renewed lease, the lessor of premises used for commercial, industrial or
craft purposes may retake possession of the premises in whole or in part to carry out works requiring the evacuation of the premises included within a sector or perimeter specified in Articles L. 313-3 and L. 313-4 of the town planning code and authorised or prescribed within the conditions specified in the said articles, on condition of offering to transfer the lease to equivalent premises within the same real property or within another real property. This offer must specify the characteristics of the premises offered, which must enable continuation of the exercise of the tenant’s previous activity. The offer must be notified one year in advance.
Within a deadline of two months, the tenant must either communicate their acceptance or refer the reasons for their refusal to the competent court, in the absence of which they shall be deemed to have accepted the offer.
Article L145-7 A tenant whose lease is assigned shall be entitled to a dipossession compensation which includes compensation for
the prejudicial consequences of temporary loss of enjoyment taking into account, if applicable, of the provisional installation carried out at the lessor’s expense and reimbursement of their normal expenses of removal and
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COMMERCIAL CODE reinstallation.
Once the offer has been accepted or acknowledged as being valid by the competent court and after expiration of the deadline of one year with effect from confirmation of the offer, the tenant must leave the premises with effect from the premises offered being made effectively available and payment of provisional compensation of an amount determined within the forms specified in Article L. 145-19.
The price and accessory terms and conditions of the lease may be amended at the request of the first to act.
SECTION III Renewal Articles L145-8 to
L145-13
Article L145-8 The right to renewal of a lease may be invoked only by the owner of the business operated in the premises. In the absence of legitimate reasons, the converted business must, if appropriate, in the conditions specified in
section 8 of this chapter, have been operated effectively during the three years prior to the date of expiration of the lease or of its renewal as specified in Article L. 145-9, this latter date being either the date for which the notice has been given or, if a request for renewal has been made, the customary term following this request.
Article L145-9 Notwithstanding Articles 1736 and 1737 of the civil code, leases for premises subject to the provisions of this
chapter shall end only by virtue of a notice given in accordance with custom and practice in respect of premises and at least six months in advance.
In the absence of notice, a written lease shall continue by tacit renewal beyond the term stated in the contract, in conformity with Article 1738 of the civil code and subject to the reserves specified by the preceding subparagraph. Beyond the term of nine years, a lease with a period conditional upon an event, the occurrence of which will authorise the lessor to demand its cancellation shall terminate only by virtue of notice given six months in advance and for a customary term. This notice must state the occurrence of the event specified in the contract.
If the lease is for several terms and the lessor terminates the lease at the end of the first nine years or on expiration of one of the subsequent terms, the notice must be given within the deadline stated in subparagraph one above.
The notice must be given by extra-judicial means. In order to be valid, it must state the reasons for which it is given and state that a lessee wishing either to dispute the notice or demand payment of compensation for eviction must refer the matter to the court within a deadline of two years with effect from the date for which the notice has been given in order not to be out of time.
Article L145-10 In the absence of notice, a tenant wishing to renew their lease must request this either within the six months prior to
expiration of the lease or, if appropriate, at any time during its renewal. The request for renewal must be served on the lessor by extra-judicial means. In the absence of conditions or
notifications to the contrary on the part of this latter, it may be addressed equally validly ether to the lessor or to the manager, who shall be deemed to be authorised to receive it. Should there be more than one owner, a request addressed to one of them shall be valid in respect of them all in the absence of conditions or notifications to the contrary.
In order to be valid, it must reproduce the terms of the subparagraph below. Within three months of service of the request for renewal, the lessor must inform the lessee, within the same forms,
if they refuse the renewal, stating the reasons for this refusal. Should the lessor fail to communicate their intentions within this deadline, the lessor shall be deemed to have accepted the principle of renewal of the previous lease.
In order to be valid, the extra-judicial means giving notice of refusal to renew the lease must state that a lessee wishing either to dispute the refusal to renew the lease or demand payment of compensation for eviction must refer the matter to the court before expiration of a deadline of two years with effect from the date on which notice of the refusal to renew was served.
Article L145-11 A lessor wishing, while not being opposed to the principle of renewal, to obtain an amendment of the price of the
lease must give notice of the rent they propose within the period of notice specified in Article L. 145-9 or in the reply to the request for renewal specified in Article L. 145-10, in the absence of which the new price shall be due only with effect from a demand made subsequently in accordance with the terms and conditions defined by Conseil d'Etat decree.
Article L145-12 The term of the renewed lease shall be nine years in the absence of agreement between the parties on a longer
term. The provisions of subparagraphs two and three of Article L. 145-4 shall apply during the term of the renewed lease.
The new lease shall take effect from expiration of the preceding lease or, if appropriate, from its renewal, this latter date being either that for which the notice had been given or, if a request for renewal has been made, the customary term which follows this request.
However, if the lessor has communicated, either by giving a period of notice or by refusal of renewal, their intention not to renew the lease and if, subsequently, they decide to renew it, the new lease shall take effect from the date on which this acceptance has been communicated to the lessee by extra-judicial means.
Article L145-13
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COMMERCIAL CODE Subject to the provisions of the Act of 28 May 1943 relating to the application to foreigners of the laws on rental
leases and farm leases, the provisions of this section may be invoked by merchants, manufacturers and persons registered in the crafts directory of foreign nationality, acting directly or via an intermediary only if they have fought in the French or Allied armies during the 1914 and 1939 wars or if they have children holding French nationality.
The preceding subparagraph shall not apply to citizens of Member States of the European Community or of Member States of the European Economic Area.
SECTION IV Refusal of renewal Articles L145-14 to
L145-30
Article L145-14 A lessor may refuse the renewal of a lease. However, except in cases of the exceptions specified in Articles L.
145-17 onwards, the lessor must pay the evicted tenant compensation for eviction equal to the prejudice caused by the absence of renewal.
This compensation shall include in particular the market value of the business, determined in accordance with custom and practice of the profession, potentially increased by the normal expenses of removal and reinstallation, plus the expenses and duties of assignment of a business of the same value, except in the event of the owner providing proof that the prejudice is lower.
Article L145-15 Irrespective of their form, clauses, conditions and arrangements which have the effect of frustrating the right of
renewal laid down by this chapter or the provisions of Articles L. 145-4, L. 145-37 and L. 145-41, subparagraph one of Article L. 145-42 and Articles L. 14547 to L. 145-54 shall be null and void.
Article L145-16 Irrespective of their form, agreements whose object is to prohibit the tenant from assigning their lease or the rights
held by virtue of this chapter to a purchaser of their business or undertaking shall also be null and void, In the event of the merger of companies or the contribution of part of the assets of a company carried out within the
conditions specified in Article L. 236-22, the company resulting from the merger or the company receiving the contribution shall, notwithstanding any condition to the contrary, replace the party in whose favour the lease was granted in respect of all rights and obligations resulting from this lease.
If the guaranty obligation can no longer be maintained within the terms and conditions of the agreement in the event of assignment, merger or contribution, the court may substitute any guaranties it may deem sufficient.
Article L145-17 I. – A lessor may refuse the renewal of a lease without being obliged to pay any compensation if: 1. They can provide proof of a serious and legitimate reason against the tenant whose lease is ending. However,
should this involve either failure to perform an obligation or cessation of operation of a business ion the absence of genuine and legitimate reason, taking into account the provisions of Article L. 145-8, the breach committed by the lessee may be invoked only if has been continued or renewed more than one month after the lessor has given formal notice to cause it to cease. In order to be valid, this formal notice must be served by extra-judicial means, stating the reason invoked and reproducing the terms of this subparagraph;
2. If proof is provided that the building must be totally or partially demolished due to being acknowledged by the administrative authority as in an unfit condition for occupation or if proof is provided that the it may no longer be occupied without danger due to its condition.
II. - In the event of rebuilding of a new building containing commercial premises by the owner or their beneficiary, the tenant shall have a preferential right to enter into a lease in the rebuilt building, subject to the terms and conditions specified in Articles L. 145-19 and L. 145-20.
Article L145-18 A lessor shall be entitled to refuse the renewal of a lease in order to build or rebuild the existing building, subject to
payment to the ejected tenant of the compensation specified in Article L. 145-14. The same shall apply for the carrying out of works requiring the evacuation of the premises included within a sector
or perimeter specified in Articles L. 313-3 and L. 313-4 of the town planning code and authorised or prescribed within the conditions specified in the said articles.
However, the lessor may avoid payment of this compensation by offering the ejected tenant premises corresponding to their needs and means located in an equivalent site.
If applicable, the tenant shall receive compensation for their temporary loss of enjoyment and for the depreciation of their business. The tenant’s normal removal and installation expenses shall also be reimbursed.
Should a lessor invoke the benefit of this article, they must refer to the provisions of subparagraph 3 and specify the new terms and conditions of rental in the document refusing to renew the lease or the notice. Within a deadline of three months, The tenant must either communicate their acceptance by extra-judicial means or refer the matter to the competent court within the conditions specified in Article L. 145-58.
Should the parties disagree only in respect of the terms and conditions of the new lease, these shall be determined in accordance with the procedure specified in Article L. 145-56.
Article L145-19
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COMMERCIAL CODE In order to exercise the preferential right specified in Article L. 145-17, on leaving the premises or no later than three
months of so doing, a tenant must give notice to the owner of their desire so to do by extra-judicial means, informing the owner of their new domicile; in order to be valid, the tenant must also give notice of any subsequent change of domicile.
Prior to letting or occupying the new premises themselves, an owner having received such notice must advise the tenant in the same way that they are prepared to grant them a new lease. In the absence of agreement between the parties on the terms and conditions of this lease, these shall be determined in accordance with the procedure specified in Article L. 145-56.
The tenant shall have a deadline of three months in which to confirm their decision or to refer the matter to the competent court. In order to be valid, this deadline must be stated in the notice referred to in the preceding subparagraph. On expiration of this deadline, the owner may dispose of the premises.
An owner failing to comply with the provisions of the preceding subparagraphs shall be liable, on demand by their tenant, to pay damages to this latter.
Article L145-20 Should the building rebuilt within the conditions specified in Article L. 145-17 have a surface area greater than that
of the original building, the preferential right shall be limited to those premises with a surface area equivalent to that of the premises previously occupied or likely to satisfy the same commercial needs as these latters.
Should the rebuilt building not permit the reinstallation of all the occupants, preference shall be given to those tenants holding the oldest leases and having communicated their intention to occupy the premises.
Article L145-2l An owner may also defer renewal of the lease for a period of up to three years if they intend to raise the height of
the building and if this raising necessitates the temporary eviction of the tenant. In such an event, the tenant shall be entitled to compensation equal to the prejudice suffered up to a maximum of three years’ rent.
Article L145-22 An owner shall be entitled to refuse the renewal of a lease exclusively in respect of the part involving the living
accommodation associated with commercial premises in order to occupy them themselves or to enable their spouse, members of their family of ascending or descending order, or those of their spouse to occupy them, subject to the beneficiary of the takeover not having access to accommodation corresponding to their normal needs and those of the members of their family normally living or domiciled with them.
However, a takeover in the conditions stated above may not be exercised on premises used for hotel purposes or for furnished rentals, nor on premises used for hospital or teaching purposes.
Similarly, a takeover may not be exercised if the tenant provides proof that the loss of enjoyment of the living accommodation causes a serious difficulty to the operation of the business or if the commercial premises and the living accommodation form an indivisible whole.
Should the building have been bought for money consideration, the lessor may benefit from the provisions of this article only if their deed of purchase has a legal date more than six years prior to the refusal of renewal.
The beneficiary of the takeover right shall be liable to place the accommodation which may be left vacant by the exercise of this right, if any, at the disposal of the tenant whose premises they take over.
In the event of partial takeover as specified in this article, the rent for the renewed lease shall take into account the prejudice caused to the tenant or to their beneficiary in the exercise of their activity.
Unless prevented by a legitimate reason, the beneficiary of the takeover must occupy the premises personally within a deadline of six months with effect from the date of departure of the evicted tenant and for a term of no less than six years, in the absence of which the evicted tenant shall be entitled to compensation for eviction in proportion to the size of the premises taken over.
Article L145-23 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The provisions of Article L. 145-22 do not apply to lessors of foreign nationality, whether they act directly or through an intermediary, unless they fought in the French or allied forces during the wars of 1914 and 1939 or have children with French nationality.
The previous paragraph does not apply to citizens of a Member State of the European Community or of a State which is a party to the Agreement on the European Economic Area.
Article L145-24 The right to renewal shall not be demurrable against an owner having obtained a building permit for living
accommodation on all or part of one of the plots of land referred to in Article L. 145-1 (2). Irrespective of the circumstances, this right of takeover may be exercised only in respect of the part of the land
essential for the building. Should its effect be to cause the mandatory cessation of the commercial, industrial or craft operation, the provisions of Article L. 145-18 shall apply.
Article L145-25 An owner or principal tenant being simultaneously the lessor of the premises and the vendor of the business
operated there and having received total price may refuse the renewal only on condition of payment of the compensation for eviction specified in Article L. 145-14, unless able to provide proof of an acknowledged serious and legitimate reason against the lessee.
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COMMERCIAL CODE Article L145-26
The renewal of leases concerning immovable properties owned by the State, departments, municipalities and public establishments may not be refused without the joint ownership being obliged to pay the compensation for eviction specified Article L. 145-14, even if its refusal is justified for public purposes.
Article L145-27 Should it be proved that a lessor has exercised the rights conferred upon them by Articles L. 145-17 onwards purely
with a view to fraudulently frustrating the rights of a tenant, in particular through letting and resale transactions, irrespective of whether these transactions are of a civil or commercial nature, the tenant shall be entitled to compensation equal to the amount of the prejudice suffered.
Article L145-28 No tenant entitled to claim compensation for eviction may be forced to vacate the premises before having received
it. They shall be entitled to remain in the premises under the terms of the expired lease contract until payment of this compensation. However, the occupation compensation shall be determined in accordance with the provisions of sections 6 and 7, taking into consideration all the relevant factors.
By derogation from the preceding subparagraph, in the single case specified in subparagraph two of Article L. 145-18, the tenant shall be obliged to vacate the premises upon payment of provisional compensation determined by the presiding judge of the Tribunal de grande instance ruling in the light of an expert assessment previously ordered within the forms determined by Conseil d'Etat decree in application of Article L. 145-56.
Article L145-29 In the event of eviction, the premises must be handed back to the lessor in time for the first day of the term of
occupation following the expiration of the deadline of two weeks with effect from payment of the compensation into the hands of the tenant themselves or, potentially, of a receiver. In the absence of agreement between the parties, the receiver shall be appointed by the judgment ordering payment of the compensation or, by default, by ordinary order on application.
The receiver shall pay the compensation to the tenant against their sole receipt if there are no objections on the part of creditors and in exchange for the keys to the vacant premises upon proof of payment of taxes, rents and subject to tenant’s repairs.
Article L145-30 In the event of failure to hand over the keys on the date specified and after formal notice, the receiver shall withhold
1% per day of lateness of the amount of the compensation and shall return this amount withheld to the lessor against their sole receipt.
Should the deadline of two weeks specified in Article L. 145-58 have ended without the lessor having exercised their right of repentance, the compensation for eviction must be paid to the tenant or, potentially, to a receiver within a deadline of three months with effect from the date of a summons to pay by extra-judicial means which, in order to be valid, must reproduce this subparagraph.
SECTION V Sub-leasing Articles L145-31 to
L145-32
Article L145-31 Unless otherwise stated in the lease or with the lessor’s agreement, no sub-leasing, whether total or in part, shall be
allowed. In the event of authorised sub-leasing, the owner shall be called upon to be a party to the document. Should the sub-leasing rent be in excess of the primary lease price, the owner shall have the option of requiring a
corresponding increase in the rent for the primary lease, which increase, in the absence of agreement between the parties, shall be determined in accordance with a procedure laid down by Conseil d'Etat decree in application of the provisions of Article L. 145-56.
The tenant must notify the owner of their intention to sub-lease by extra-judicial means or by registered letter with confirmation of delivery. Within two weeks of receipt of this notice, the owner must give notice of whether they intend to be a party to the document. Should the lessor refuse or fail to reply despite the authorisation specified in subparagraph one, they shall be disregarded.
Article L145-32 A subtenant may request the renewal of their lease from the primary tenant within the measure of the rights held by
this latter with respect to the owner. The lessor shall be called upon to be a party to the document, as specified in Article L. 145-31.
On expiration of the primary lease, the owner shall be obliged to renew only if they have explicitly or tacitly authorised or agreed to the sub-leasing and if, in the event of partial sub-leasing, the premises comprising the object of the primary lease do not form an indivisible whole materially or in the joint intention of the parties.
SECTION VI Rent Articles L145-33 to
L145-40
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COMMERCIAL CODE Article L145-33 (Act No. 2001-1168 of 11 December 2001 Art. 33 V Official Journal of 12 December 2001)
The amount of the rent payable under the renewed or revised leases corresponds to their rental value. Failing agreement thereon, the said value shall be determined on the basis of: 1 The features of the premises concerned; 2 The use of the premises; 3 The respective obligations of the parties; 4 The local commerciality factors; 5 The prices commonly applied in the vicinity. A Conseil d'Etat Decree determines the relative weightings of these elements.
Article L145-34 (Act No. 2001-1168 of 11 December 2001 Art. 33 VI Official Journal of 12 December 2001)
Barring any substantial change in the elements indicated in 1 to 4 of Article L145-33, the rate of change applied to the rent payable upon entry into force of a renewed lease, if the term thereof does not exceed nine years, cannot exceed the variation in the quarterly national Construction Cost Index published by the Institut national de la statistique and des études économiques since the date on which the initial rent for the expired lease was determined. Failing any contractual clause specifying the reference quarter for the said index, the variation in the quarterly national Construction Cost Index calculated over the nine-year period preceding the most recently published index shall be used.
If renewal takes place subsequent to the date initially stipulated for expiry of the lease, the variation shall be calculated on the basis of the most recently published index for a term equal to the time elapsed between the initial date of the lease and the date of its effective renewal.
The provisions of the above paragraph do not apply when, through the effects of tacit renewal, the term of the lease exceeds twelve years.
Article L145-35 Disputes arising from the application of Article L. 145-34 shall be submitted to a departmental conciliation committee
composed of an equal number of lessors and tenants and of qualified persons. The committee shall endeavour to conciliate the parties and give an opinion.
Should the matter be referred to a court in parallel with the competent committee by one or other of the parties, it may not give a verdict until the committee has given its opinion.
The committee shall be disseized if it fails to give an opinion within a deadline of three months. The composition of the committee, the method of appointment of its members and its operating rules shall be
determined by decree.
Article L145-36 The factors to be used in determining the prices of leases of land, premises built with a view to single occupation
and premises exclusive for office use shall be laid down by Conseil d'Etat decree.
Article L145-37 The rents for leases of immovable properties and premises regulated by the provisions of this chapter, whether
renewed or not, may be revised at the request of one or other of the parties, subject to the reserves specified in Articles L. 145-38 and L. 145-39 and under the conditions laid down by Conseil d'Etat decree.
Article L145-38 (Act No. 2001-1168 of 11 December 2001 Art. 26 Official Journal of 12 December 2001)
Application for a review cannot be made until at least three years have elapsed since the date on which the lessee entered into possession or since the commencement of the renewed lease.
Further applications may be made every three years with effect from the date on which the new amount becomes applicable.
Notwithstanding the provisions of Article L145-33, and failing production of proof of a material change in the local commerciality factors which has of itself given rise to a variation of more than 10% of the rental value, the rent increase or decrease following a triennial review shall not exceed the variation in the quarterly Construction Cost Index since the previous amicable or judicial determination of the rent.
Under no circumstances shall any investment made by the lessee or any capital gains or losses resulting from its management during the term of the lease be taken into account for calculation of the rental value.
Article L145-39 Furthermore and by derogation from Article L. 145-38, should the lease include an escalator clause, a revision may
be requested whenever the rent calculated in accordance with this clause is increased or reduced by more than one quarter in comparison with the price previously determined contractually or by court order.
Article L145-40 Rents paid in advance, in whatever form and even as a guarantee, shall bear interest for the account of the tenant
at the rate charged by the Bank of France for advances against securities for amounts in excess of that corresponding to the price of the rent for more than two terms.
SECTION VII
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COMMERCIAL CODE Cancellation Articles L145-41 to
L145-46
Article L145-41 Any clause inserted in a lease providing for cancellation ipso jure shall not take effect until after a summons to pay
has remained unprofitable for one month. In order to be valid, the summons to pay must state this deadline. A court to which an application is made within the forms and conditions specified in Articles 1244-1 to 1244-3 of the
civil code may, by granting deadlines, suspend the execution and the effects of cancellation clauses if the cancellation is not determined or pronounced by a court order having acquired the status of judgment res judicata. The cancellation clause shall not take effect if the tenant discharges themselves in accordance with the conditions determined by the court.
Article L145-42 Ipso jure cancellation clauses for cessation of activity shall cease to take effect during the time necessary for the
execution of conversions carried out in application of the provisions of section 8. This period may not exceed six months from the date of agreement on non-specialisation or the court order
authorising it.
Article L145-43 Merchants and persons registered in the craft directory who are tenants of the premises in which their business is
located, who are allowed to follow a conversion training course or a promotional training course within the meaning of Article L. 900-2 (3. and 5.) of the labour code, the minimum duration of which is fixed by order and the maximum duration of which may not exceed one year unless it involves a so-called promotional training course benefiting from the authorisation specified in Article L. 961-3 of the said code shall be exempted from the obligation to operate during the term of their training course.
Article L145-44 Should the merchant or craftsperson, on conclusion of one of the training courses specified in Article L. 145-43,
vacate the premises of which they are the tenant to convert their activity by transferring it into other premises or to take up paid employment, the lease shall be cancelled ipso jure and without compensation on expiration of a deadline of three months with effect from the date that this is notified to the lessor.
Article L145-45 An administrative order and winding-up proceedings shall not cause the ipso jure termination of the lease on
immovable properties used for the debtor’s industry, trade or craft, including premises annexed to these properties and used as their living accommodation or that of their family. Any provision to the contrary shall be deemed to be null and void.
Article L145-46 If the lessor is simultaneously the owner of the leased real property and of the business operated therein and if the
lease relates to both simultaneously, the lessor must pay the tenant, on their departure, compensation corresponding to the profit that they may draw from the asset appreciation contributed either to the business or to the rental value of the real property by material improvements carried out by the tenant with the owner’s explicit agreement.
SECTION VIII Non-specialisation Articles L145-47 to
L145-55
Article L145-47 A tenant may add related and/or complementary activities to the activity specified in the lease. To this end, they must notify the owner of their intention by extra-judicial means, stating the activities they envisage
exercising. This formality shall be deemed to be equivalent to formal notice to the owner to give notice, within a deadline of two months in order to avoid forfeiture, of whether they dispute the related and/or complementary nature of these activities. In the event of objection, the Tribunal de grande instance to which the matter is referred by the first to act shall make an order in accordance in particular with the trend in commercial custom and practice.
At the time of the first three-year revision following the notification referred to in the preceding subparagraph, by derogation from the provisions of Article L. 145-38, the additional commercial activities may be taken into account in determining the rent if these have, in themselves, caused a change in the rental value of the rented premises.
Article L145-48 A tenant may, at their request, be authorised to exercise in the rented premises one or more different activities from
those specified in the lease, taking into account the economic climate and the necessities of rational organisation of delivery when these activities are compatible with the intended purpose, characteristics and location of the real property or group of properties.
However, the principal tenant of premises included in a whole constituting a commercial unit defined by a building programme may not exercise this option during a period of nine years with effect from the date on which they took possession.
Article L145-49
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COMMERCIAL CODE In order to be valid, the request made to the lessor must include a statement of the activities whose exercise is
envisaged. It shall be constituted by extra-judicial means and notice shall be given in the same form to secured creditors of the business. These latters may request that the change of activity should be subject to conditions of a nature that safeguards their interests.
Within one month of this request, the lessor must give notice, in the same form, to those of their tenants with respect to which they may be obliged not to let with a view to the exercise of similar activities to those referred to in the request. In order to avoid being out of time, these must give notice of their attitude within one month of this notification.
In the absence of the lessor having given notice of their refusal, acceptance or the conditions to which their agreement is subject within three months of the request, they shall be deemed to have acquiesced to the request. This acquiescence shall not constitute an obstacle to the exercise of the rights specified in Article L. 145-50.
Article L145-50 A change of activity may justify the payment by the tenant of compensation equal to the amount of the prejudice that
the lessor shall be able to prove. In exchange for the benefit procured, at the time of the conversion this latter may also request the amendment of
the price of the lease without the provisions of Articles L. 145-37 to L. 145-39 being applicable. The rights of secured creditors shall be exercised on the converted business in accordance with their previous
ranking.
Article L145-51 If a tenant who has applied to exercise their rights to retirement or who has been granted the benefit of an invalidity
pension allowed by the invalidity/life insurance scheme for the craft professions or the industrial and trade professions has given notice to their landlord and to secured creditors of the business of their intention to assign their lease, stating the nature of the activities whose exercise is envisaged and the proposed price, the lessor shall have a preferential right of repurchase within a deadline of two months subject to the terms and conditions stated in the notification. Should the lessor fail to exercise this right, their agreement shall be deemed to have been obtained if hey have not referred the matter to the Tribunal de grande instance within this same deadline of two months.
The nature of the activities whose exercise is envisaged must be compatible with the intended purpose, characteristics and location of the real property.
The provisions of this article shall apply to the sole member sole member of a one-man limited liability company or a majority shareholder manager since at least two years of a limited liability company when they are the leaseholder.
Article L145-52 The Tribunal de grande instance may authorise the total or partial conversion despite the refusal of the lessor if this
refusal is not justified by a serious and legitimate reason. Should the parties disagree only in respect of the price of the new lease, this shall be determined in accordance
with the procedure specified pour the fixing of the prices of revised leases. In other cases, the matter shall be referred to the court.
Article L145-53 Refusal of the conversion shall be sufficiently justified if the lessor proves that they intend to reoccupy the premises
on expiration of the current three-year term, either in application of Articles L. 145-18 to L. 145-24, or with a view to carrying out works prescribed or authorised within the framework of an urban renovation or real property restoration transaction.
A lessor who has fraudulently invoked one of the reasons specified in the preceding subparagraph or who has not satisfied the conditions given to justify the refusal of a tenant’s request may not object to a new request for a conversion of activity other than for serious and legitimate reasons unless they may be held responsible for failure of execution. They may also be ordered by a court to pay the tenant compensation equal to the prejudice suffered by this latter.
Article L145-54 The asset appreciation conferred upon the business by the conversion specified in Article L. 145-48 shall not be
taken into account if the real property in which the business is operated must be demolished or restored, or if the business must be expropriated within the framework of a property renovation or restoration transaction decided upon less than three years after the request specified in subparagraph 1 of the said article.
Article L145-55 A tenant who has made a request in accordance with Articles L. 145-47, L. 145-48 or L. 145-49 may withdraw it at
any time up to the expiration of a deadline of two weeks with effect from the date on which the decision has become a judgment res judicata by notifying the lessor by extra-judicial means and, in this event, shall bear all the expenses of the proceedings.
SECTION IX Procedure Articles L145-56 to
L145-60
Article L145-56 The rules of competence and procedure for dispute relating to a lease shall be laid down by Conseil d'Etat decree.
Article L145-57
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COMMERCIAL CODE The tenant shall be obliged to continue paying the rents due at the previous price or, if applicable, at the price which
may in all events be determined provisionally by the court to which the matter has been referred during the term of the proceedings relating to determination of the price of the revised or renewed lease, unless there is to be a reckoning between the lessor and the lessee after definitive determination of the price of the rent.
The parties shall draw up a new lease on the terms and conditions laid down by the court within a deadline of one month following service of notice of the definitive decision unless the tenant declines the renewal or the lessor refuses this, subject to the party demonstrating their disagreement being liable to bear all the expenses. Should the lessor fail to have sent the draft lease drawn up in accordance with the aforementioned decision to the lessee for signature within this deadline or, in the absence of agreement within one month of this sending, the order or judgment fixing the price or the terms and conditions of the new lease shall be deemed to constitute the lease.
Article L145-58 Until the expiration of a deadline of two weeks with effect from the date on which the decision has become a
judgment res judicata, the owner may decline to pay the compensation subject to being liable to bear the expenses of the proceedings and to agree to the renewal of the lease, the terms and conditions of which shall be determined, in the event of disagreement, in accordance with the regulatory provisions laid down to this effect. This right may be exercised only if the tenant is still occupying the premises and has not already rented or purchased another real property intended for their reinstallation.
Article L145-59 The owner’s decision to refuse renewal of the lease in application of the last subparagraph of Article L. 145-57 or to
decline to pay the compensation in accordance with the conditions specified in the last subparagraph of Article L. 145-58 shall be irrevocable.
Article L145-60 All proceedings exercised by virtue of this chapter shall be time-barred after two years have elapsed.
CHAPTER VI Nominee Managers Articles L146-1 to
L146-4
Article L146-1 (inserted by Act No. 2005-882 of 2 August 2005 Art. 19 Official Journal of 3 August 2005)
Natural persons or legal entities who manage a business in return for payment of a commission proportionate to the turnover are known as "nominee managers" when the contract entered into with the principal on behalf of whom they manage that business, sometimes within the framework of a network, who remains the owner thereof and bears the risks associated with its operation, confers a mission on them which gives them a free hand within the framework thus established to determine their working conditions, to take on staff and to arrange substitutes for themselves within the business at their own expense and under their own responsibility.
The nominee manager is registered in the trade and companies register and, if applicable, the trade register. The contract is referred to in the said registers and details thereof are published in a journal authorised to publish legal notices.
The provisions of the present chapter do not apply to professions governed by Chapter II of Part VIII of Book VII of the Labour Code.
Article L146-2 (inserted by Act No. 2005-882 of 2 August 2005 Art. 19 Official Journal of 3 August 2005)
The principal provides the nominee manager with all the information he needs for his work, as specified by decree, before the contract is signed, to enable him to commit himself in full knowledge of the facts.
Article L146-3 (inserted by Act No. 2005-882 of 2 August 2005 Art. 19 Official Journal of 3 August 2005)
A framework agreement entered into by the principal and the nominee managers to whom he is contractually bound, or their representatives, determines, inter alia, the amount of the guaranteed minimum commission payable under all nominee-management contracts entered into by the said principaL.The said minimum commission takes account of the size of the establishment and its operational facilities.
Failing agreement thereon, the Minister for Small and Medium-Sized Businesses determines the amount of the minimum commission.
Article L146-4 (inserted by Act No. 2005-882 of 2 August 2005 Art. 19 Official Journal of 3 August 2005)
The contract binding the principal and the nominee manager may be terminated at any time under terms determined by the parties. If the contract is terminated by the principal, however, with no serious fault being attributable the nominee manager, the principal shall, unless the parties have agreed more favourable terms, pay him compensation equal to the amount of the commissions, or the guaranteed minimum commission referred to in Article L146-3, earned during the six months preceding termination of the contract, or during the term of the contract if it is shorter than six months.
BOOK II
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COMMERCIAL CODE
Commercial companies and economic interest groups Articles L210-1 to L252-13
TITLE I Preliminary provisions Articles L210-1 to
L210-9
Article L210-1 The commercial nature of a company shall be determined by its form or by its objects. General partnerships, limited partnerships, limited liability companies and joint-stock companies are trading
companies by virtue of their form, irrespective of their objects.
Article L210-2 The form, duration, which may not exceed ninety-nine years, the business name, the registered office, the purpose
of the company and the amount of the registered capital shall be determined by the company’s memorandum and articles of association.
Article L210-3 Companies whose registered office is located on French territory shall be subject to French law. Third parties may avail themselves of the registered office, but this shall not be demurrable with respect to them by
the company if its real office is located in another place.
Article L210-4 The mandatory publication formalities at the time of formation of the company and in the event of subsequent deeds
and deliberations shall be laid down by Conseil d'Etat decree.
Article L210-5 The transactions of limited liability companies and joint-stock companies occurring prior to the sixteenth day of
publication in the Official Gazette of civil and commercial advertisements of deeds and indications subject to this publication shall not be demurrable in respect of third parties able to prove that it had been impossible for them to have become acquainted therewith
Should there be any discrepancy in the publication of deeds and indications relating to limited liability companies and joint-stock companies between the text filed with the commercial and companies register and the text published in the Official Gazette of civil and commercial advertisements, this latter shall not be demurrable with respect to third parties; however, they may avail themselves of it unless the company is able to prove that they have been acquainted with the text filed with the commercial and companies register.
Article L210-6 Trading companies shall have legal personality with effect from their registration in the commercial and companies
register. The conversion in due form of a company shall not give rise to the creation of a new legal personality. The same shall apply with respect to extension.
Persons who have acted in the name of a company in formation before it has acquired enjoyment of legal personality shall be held jointly and indefinitely liable for the acts thus accomplished unless the company, after having been formed and registered in due form, takes over its obligations thus entered into. These obligations shall then be deemed to have been entered into from the start by the company.
Article L210-7 A company shall be registered after the clerk of the competent court has verified the due form of its formation in
accordance with the conditions laid down by the legislative and regulatory provisions relating to the commercial and companies register.
If the memorandum and articles of association do not contain all the statements required by law and the regulations or if a formality laid down by these for the formation of the company has been omitted or not accomplished in due form, any interested party shall be entitled to apply to a court for an order to be made that the formation must be regularised or a fine imposed. The ministère public is competent to act in respect of the same ends.
The provisions of the preceding subparagraphs shall apply in the event of amendment of the memorandum and articles of association. The proceedings specified in subparagraph two shall be time-barred after three years have elapsed with effect from either registration of the company in the commercial and companies register or the amending entry in the said register and the filing in the annex of the said register of the documents amending the memorandum and articles of association.
Article L210-8 The founders of the company and the initial members of its management, administration, executive and monitoring
bodies shall be jointly liable for any prejudice caused by an error in any obligatory statement in the memorandum and articles of association as well as by any omission or failure to accomplish in due form any formality specified by law and the regulations for the formation of the company.
The provisions of the preceding subparagraph shall apply in the event of amendment of the memorandum and articles of association, and of the members of management, administration, executive, monitoring and audit bodies holding office at the time of the said amendment.
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COMMERCIAL CODE Proceedings shall be time-barred after ten years have elapsed with effect from the accomplishment of one or the
other, according to the case, of the formalities referred to in subparagraph four of Article L. 210-7.
Article L210-9 Neither the company nor third parties may, in order to avoid their obligations, avail themselves of an irregularity in
the appointment of persons charged with managing, administrating or directing the company if this appointment has been published in due form.
The company may not avail itself, with respect to third parties, of appointments and withdrawals from office of the persons referred to above while these have not been published in due form.
TITLE II Provisions specific to various commercial companies Articles L221-1 to
L229-15
CHAPTER I General partnerships Articles L221-1 to
L221-17
Article L221-1 The partners in a partnership shall all be deemed to be merchants and shall have unlimited joint liability for the
debts of the partnership. A partnership’s creditors may not pursue payment of the debts of the partnership against a partner until after having
fruitlessly given the partnership formal notice to pay by extra-judicial means.
Article L221-2 A general partnership shall be designated by its business name, in which may be incorporated the names of one or
more partners and which must be immediately preceded or followed by the words “société en nom collectif” (general partnership).
Article L221-3 All the partners shall be managers unless otherwise specified in the memorandum and articles of association, which
may appoint one or more managers, who may or may not be partners, or provide for such appointment by means of a subsequent deed.
Should a legal personality be a manager, its executives shall be subject to the same conditions and obligations and incur the same civil and penal liabilities as though they were managers in their own right, without prejudice to the joint liability of the legal personality which they manage.
Article L221-4 In dealings between partners and in the absence of limitation of their powers by the memorandum and articles of
association, the manager may perform all acts of management in the interests of the partnership. In the event of there being more than one manager, each shall hold separately the powers specified in the
preceding subparagraph, except that each shall have the right to object to any transaction prior to its conclusion.
Article L221-5 In dealings with third parties, the manager shall bind the partnership by acts within the purpose of the company. In the event of there being more than one manager, each shall hold separately the powers specified in the
preceding subparagraph. An objection formulated by one manager to the acts of another manager shall not be effective with respect to third parties unless it is proved that they were aware thereof.
Clauses of the memorandum and articles of association limiting the powers of the managers resulting from this article shall not be demurrable with respect to third parties.
Article L221-6 Decisions which exceed the powers accorded to the managers shall be taken by unanimous agreement of the
partners. However, the memorandum and articles of association may specify that certain decisions shall be taken by a specified majority.
The memorandum and articles of association may also specify that decisions shall be taken by means of consultation by exchange of letters if a general meeting is not requested by one of the partners.
Article L221-7 (Order No. 2004-1382 of 20 December 2004 Art. 6 Official Journal of 22 December 2004)
The management report, inventory and annual accounts drawn up by the chief executive are subject to approval by the meeting of members within six months of the close of the said financial year.
To that end, the documents referred to in the previous paragraph, the text of the proposed resolutions and, where applicable, the auditor's report, the consolidated accounts and the group's management report, are sent to the members in the manner and within the time limits determined in a Conseil d'Etat decree. Any deliberation which violates the provisions of the present paragraph and its implementing decree may be declared void.
Any clause contrary to the provisions of the present article and its implementing decree is deemed not to exist. The third to sixth paragraphs of Article L. 225-100 and Article L. 225-100-1 apply to the management report when all
the shares are held by persons having one of the following forms: public limited company, partnership limited by shares,
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COMMERCIAL CODE limited liability company.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L221-8 Partners who are not managers shall have the right to obtain, twice per year, communication of the partnership’s
books and documents and to ask written questions on the company’s management, which written replies must be given.
Article L221-9 The partners may appoint one or more auditors within the terms specified in Article L. 221-6. At least those partnerships which exceed, at the end of the financial year, the figures laid down by Conseil d'Etat
decree for two of the following criteria shall be obliged to designate an auditor: their balance sheet total, the amount of their turnover excluding VAT or the average number of employees during the financial year.
Even if these thresholds are not reached, one partner may apply to the court for an auditor to be appointed.
Article L221-10 (Law No 2003-706 of 1 August 2003 Article 112 Official Gazette of 2 August 2003)
I. - The auditors, who must be chosen from the list referred to in Article L. 225-219, are appointed for a term of six financial years.
II. and III. - Paragraphs repealed. IV. - Resolutions passed when the auditors have not been ?properly appointed, or based on a report from auditors
who were appointed or retained contrary to the provisions of the present Article are null and void. The nullity is extinguished if the said resolutions are expressly confirmed by a general meeting on the basis of a report from properly appointed auditors.
Article L221-11 The provisions relating to the powers, the incompatibilities referred to in Article L. 225-222, the functions, the
obligations, the liability, the substitution, the challenging, the dismissal and the remuneration of auditors of public companies shall apply to general partnerships, subject to the specific rules applicable to these latters.
The auditor shall be advised of shareholders’ meetings and consultations no later than at the same time as its partners. They shall have access to shareholders’ meetings.
The documents referred to in subparagraph one of Article L. 221-7 shall be made available to the auditor subject to the conditions and deadlines laid down by Conseil d'Etat decree.
Article L221-12 If all the partners are managers or if one or more managers chosen among the partners are designated in the
memorandum and articles of association, the dismissal of one of them from their office may be decided only by unanimous agreement of the other partners. It shall cause the dissolution of the partnership unless its continuation is specified in the memorandum and articles of association or if the other partners decide upon it by unanimous agreement. The dismissed manager may then decide to withdraw from the partnership and demand the repayment of their shares, the value of which shall be determined in accordance with Article 1843-4 of the civil code. Any clause contrary to Article 1843-4 of the said code shall be deemed null and void.
If one or more of the partners are managers and are not designated in the memorandum and articles of association, each of them may be dismissed from their office subject to the conditions specified in the memorandum and articles of association or, in the absence thereof, by a decision taken by unanimous agreement of the other partners, whether managers or not.
A manager who is not a partner may be dismissed conditions subject to the conditions specified in the memorandum and articles of association or, in the absence thereof, by a decision taken by unanimous agreement of the partners.
Should the dismissal be decided without due cause, it may give rise to damages.
Article L221-13 The shares may not be represented by negotiable securities. They may be sold only with the consent of all the
partners. Any clause to the contrary shall be deemed null and void.
Article L221-14 The assignment of shares must be determined in writing. It shall be rendered demurrable with respect to third
parties under the terms specified in Article 1690 of the civil code. However, service of notice may be replaced by the deposit of an original of the deed of assignment at the registered office in exchange for a certificate of this deposit issued by the manager.
It shall not be demurrable with respect to third parties until after these formalities have been accomplished and, moreover, after publication in the commercial and companies register.
Article L221-15 The partnership shall terminate on the death of one of the partners, subject to the provisions of this article. Should it have been specified that, in the event of the death of one of the partners, the partnership should continue
with their heir or only with the surviving partners, these provisions shall be followed with the exception of specifying that the heir must be approved by the partnership in order to become a partner.
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COMMERCIAL CODE The same shall apply if it has been specified that the partnership should continue with the surviving spouse, or with
one or more of the heirs, or with any other person designated by the memorandum and articles of association or, if these so authorise, by the provisions of a will.
If the partnership continues with the surviving partners, the heir shall be simply a creditor of the partnership and shall be entitled only to the value of the deceased partner’s shares. The heir shall similarly be entitled to this value if it has been specified that they must be approved by the partnership in order to become a partner and if this approval has been refused.
If the partnership continues subject to the conditions specified in subparagraph three above, the beneficiaries of the specification shall be obliged to pay the estate the value of the shares allocated to them.
In all the situations specified in this article, the value of the shares shall be determined as of the date of death in accordance with Article 1843-4 of the civil code.
In the event of continuation and if one of or more of the partner’s heirs are unemancipated minors, these latters shall be liable for the debts of the partnership only up to the power of the deceased partner’s estate. Moreover, the partnership must be converted, within a deadline of one year from the death, into a limited partnership in which the minor becomes a partner. In the absence thereof, it shall be dissolved.
Article L221-16 (Act No. 2005-845 of 26 July 2005 Art. 162 I Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
When a winding-up order is made or a total assignment plan is imposed, or when a prohibition on involvement in a commercial business or an incapacity order becomes final in regard to a partner, the company is dissolved unless its continuation is stipulated in the memorandum and articles of association or unless the other partners unanimously so decide.
If the company continues, the value of the shares and voting rights to be repaid to the departing partner is determined pursuant to Article 1843-4 of the Civil Code. Any clause contrary to Article 1843-4 of the said code is deemed unwritten.
Article L221-17 By derogation from the provisions of Articles L. 221-2 and L. 222-3, general partnerships which were using the
name of one or more deceased founding partners in their business name on 1 April 1967 may be authorised to retain this name in their business name.
A Conseil d'Etat decree shall determine the conditions to which this authorisation shall be subject. This decree shall also define the conditions under which an objection may be referred by third parties to judicial
courts.
CHAPTER II Limited partnerships Articles L222-1 to
L222-12
Article L222-1 Managing partners shall have the statute of general partners. Limited partners shall be liable for the debts of the partnership only in respect of the amount of their contribution.
This may not be a contribution in the form of services.
Article L222-2 The provisions relating to general partnerships shall apply to limited partnerships, subject to the rules specified in
this chapter.
Article L222-3 A limited partnership shall be designated by its business name, in which may be incorporated the names of one or
more partners and which must be immediately preceded or followed by the words “société en commandite simple” (limited partnership).
Article L222-4 The memorandum and articles of association of the partnership must contain the following indications: 1. The amount or the value of the contributions of all the partners 2. The share in this amount or this value of each active partner and limited partner 3. The total share of the active partners and the share of each limited partner in the dividends and in the residual.
Article L222-5 Decisions shall be taken in accordance with the conditions specified in the memorandum and articles of association. However, a general meeting of all the partners shall be legally convened if requested by either one active partner or one quarter by number and by capital of the limited partners.
Article L222-6 A limited partner may not carry out any external act of management, even by virtue of a power of attorney. In the event of infringement of the prohibition specified in the preceding subparagraph, the limited partner shall be
held jointly liable with the active partners for any debts and obligations of the partnership which may result from the
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COMMERCIAL CODE prohibited acts. According to the number and size of these, they may be declared jointly liable for all obligations of the partnership or for some only.
Article L222-7 Limited partners shall have the right to obtain, twice per year, communication of the partnership’s books and
documents and to ask written questions on the company’s management, which written replies must be given.
Article L222-8 I. - Shares may be assigned only with the consent of all the partners. II. - However, the memorandum and articles of association may specify: 1. That the shares of limited partners may be freely assigned between partners 2. That the shares of limited partners may be freely assigned to third parties outside the partnership with the consent of all the active partners and the majority by number and by capital of the limited
partners. 3. That an active partner may assign some of their shares to a limited partner or to a third party outside the
partnership subject to the conditions specified in 2. above.
Article L222-9 The partners may not change the nationality of the partnership other than by unanimous agreement. All other
amendments of the memorandum and articles of association may be decided upon with the consent of all the active partners and the majority by number and by capital of the limited partners.
Clauses decreeing more onerous majority conditions shall be deemed null and void.
Article L222-10 The partnership shall continue despite the death of a limited partner. Should it be specified that, despite the death of an active partner, the partnership shall continue with their heirs,
these shall become limited partners if they are unemancipated minors. Should the deceased partner have been the sole active partner and if their heirs are all unemancipated minors, the deceased partner must be replaced by a new active partner or the partnership must be converted within a deadline of one year with effect from the death. In the absence thereof, the partnership shall be dissolved ipso jure on expiration of this deadline.
Article L222-11 If an order is made for the administrative order or winding-up proceedings in respect of one of the active partners, or
if an order prohibiting the exercise of a commercial profession or if an incapacity order is made in respect of one of the active partners, the partnership shall be dissolved unless it has one or more other active partners, its continuation is specified in its memorandum and articles of association or if the partners so decide by unanimous agreement. In this event, the provisions of subparagraph two of Article L-221-16 shall apply.
Article L222-12 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The provisions of Article L. 221-17 are applicable to limited partnerships.
CHAPTER III Limited liability companies Articles L223-2 to
L223-43
Article L223-2 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II Official Gazette of 22 September 2000 in force on l January 2002) (Law No 2003-721 of 1 August 2003 Article 1 (I) Official Gazette of 5 August 2003)
The amount of the company's capital is determined by the memorandum and articles of association. It is divided into equal capital shares.
Article L223-3 (Order No. 2004-274 of 25 March 2004 Art. 11 Official Journal of 27 March 2004)
The number of members of a limited liability company shall not exceed one hundred. If such a company comes to have more than one hundred members, it shall be dissolved after a period of one year has elapsed unless the number of members has become equal to or lower than one hundred, or the company has been converted, during that period.
Article L223-4 Should all the shares in a limited liability company be gathered together in the ownership of one shareholder, the
provisions of Article 1844-5 of the civil code relating to court-ordered dissolution shall not apply.
Article L223-5 A limited liability company may not have another limited liability company comprising only one person as its sole
member. In the event of infringement of the provisions of the preceding subparagraph, any interested party may apply for the
dissolution of irregularly constituted companies. If the irregularity results from the gathering together in the ownership of one shareholder of all the shares in a limited liability having more than one member, the application for dissolution may not be made less than one year after the gathering together of the shares. Irrespective of the circumstances, a court
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COMMERCIAL CODE may grant a maximum deadline of six months to regularise the situation and may not order the dissolution if compliance has taken place on the date on which the court gives judgment on the merits of the case.
Article L223-6 All the members must be parties to the deed of formation of the company, either in person or via a proxy on
production of a special authorisation.
Article L223-7 (Act No 2001-420 of 15 May 2001 Article 1241 Official Gazette of 16 May 2001)
The total number of shares created must be subscribed by the members. They must be fully paid if they represent contributions in kind. At least one fifth of the face value of shares representing contributions in cash must be paid. The balance may be paid in one or more payments at the managing member’s discretion, within a deadline which may not exceed five years with effect from registration of the company in the commercial and companies register. However, the registered capital must be paid in full before any new shares may be subscribed in cash for the transaction to be valid.
If applicable, the memorandum and articles of association shall specify the terms and conditions under which shares may be subscribed in the form of services.
The ownership of the shares shall be stated in the memorandum and articles of association. Funds arising from the payment of shares must be deposited within the conditions and deadlines specified by
Conseil d'Etat decree.
Article L223-8 (Order No. 2004-274 of 25 March 2004 Art. 15 Official Journal of 27 March 2004)
The company's authorised representative shall not withdraw the funds resulting from the paying-up of the shares until the company is entered in the register of companies.
If the company is not incorporated within six months of the first deposit of funds, or if it is not entered in the register of companies within that same period, the contributors may individually institute legal proceedings seeking permission to withdraw the amount of their contributions. In the same circumstances, a representative of all the contributors may directly request withdrawal of the funds from the custodian.
If the contributors subsequently decide to form the company, new funds must be deposited.
Article L223-9 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II Official Gazette of 22 September 2000 in force on l January 2002)
The memorandum and articles of association must contain a valuation of each contribution in kind. This shall be made in the light of a report annexed to the memorandum and articles of association and drawn up by and under the responsibility of an auditor of the formation proceedings appointed by unanimous decision of the future members or, in the absence thereof, by a court order applied for by the proceeding future partner.
However, the future members may decide by unanimous decision that the use of an auditor of the formation proceedings shall not be mandatory if no contribution in kind exceeds a value of 7 500 euros and if the total value of all the contributions in kind not subject to valuation by an auditor of the formation proceedings does not exceed half the capital.
If the company is formed by only one person, the auditor of the formation proceedings shall be appointed by the sole member. However, the use of an auditor of the formation proceedings shall not be mandatory if the conditions specified in the preceding subparagraph are complied with.
If there is no auditor of the formation proceedings or if the stated value is different from that suggested by the auditor of the formation proceedings, the members shall be jointly liable for five years with respect to third parties for the value attributed to contributions in kind at the time of formation of the company.
Article L223-10 Initial managers and members to whom nullity of the company is attributable shall be jointly liable with respect to the
other members and third parties for the prejudice resulting from cancellation. Proceedings shall be time-barred by the deadline specified in subparagraph one of Article L. 235-13.
Article L223-11 (Order No. 2004-274 of 25 March 2004 Art. 12 Official Journal of 27 March 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XV Official Journal of 10 December 2004)
A limited liability company which is required by virtue of Article L. 223-35 to appoint an auditor and whose accounts for the last three twelve-month accounting periods have been duly approved by its members, may issue registered bonds without making a public offering.
The bond issue is decided by the meeting of the members pursuant to the provisions applicable to general meetings of shareholders. Such securities are subject to the provisions applicable to bonds issued by joint-stock companies, with the exception of those envisaged in Articles L. 228-39 to L. 228-43 and L. 228-51.
Upon each issue of bonds by a company which fulfils the conditions of the first paragraph, the company shall make a notice available to the subscribers concerning the conditions of issue and an information document as determined in a Conseil d'Etat decree.
Under pain of the guarantee being declared null and void, a limited liability company is prohibited from guaranteeing an issue of transferable securities unless the issue is made by a regional development company or is a bond issue which benefits from a subsidiary guarantee from the State.
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COMMERCIAL CODE Article L223-12
The shares may not be represented by negotiable securities.
Article L223-13 (Order No. 2004-274 of 25 March 2004 Art. 13 Official Journal of 27 March 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XV Official Journal of 10 December 2004)
The shares are freely transferable through succession or in the event of liquidation of community of property between spouses and are freely assignable between spouses and between ascendants and descendants.
The articles of association may nevertheless stipulate that the spouse, an heir, an ascendant or a descendant may only become a member after having been approved as provided for in Article L. 223-14. The time limit set for the company to decide on an application for approval shall not exceed that determined in Article L. 223-14, and the majority required shall not be greater than that determined in the said article, failing which the stipulation shall be null and void. If approval is refused, the provisions of the third and fourth paragraphs of Article L. 223-14 apply. If none of the solutions envisaged in those paragraphs is arrived at within the time allowed, approval is deemed to have been granted.
The articles of association may stipulate that in the event of the death of a member, the company shall continue with his heir or with the surviving members only. If the company continues with the surviving members only, or if the heir is refused approval, the latter is entitled to the value of the shares and voting rights of his predecessor in title.
It may also be stipulated that the company shall continue with the surviving spouse, with one or more of the heirs, or with any other person designated in the articles of association or, if the said articles so permit, in the last will and testament.
In the cases envisaged in the present article, the value of the shares and voting rights is determined on the day of death pursuant to Article 1843-4 of the Civil Code.
Article L223-14 (Act No. 2003-721 of 1 August 2003 Art. 1 III Official Journal of 5 August 2003) (Order No. 2004-274 of 25 March 2004 Art. 14 Official Journal of 27 March 2004)
The shares may only be transferred to third parties outside the company with the consent of the majority of the members representing at least one half of the shares, unless the articles of association stipulate a greater majority.
If the company has more than one member, the transfer proposal is notified to the company and to each of the members. If the company has not made its decision known within three months of the date of the last notification given pursuant to the present paragraph, consent for the transfer is deemed to have been given.
If the company has refused to consent to the transfer, the members are required, within three months of such refusal, to purchase or arrange the purchase of the shares at a fixed price as provided for in Article 1843-4 of the Civil Code, unless the transferor waives his right to transfer his shares. The valuation fees are borne by the company. If the chief executive so requests, this time limit may be extended by a court decision, which extension shall not exceed six months.
With the transferring member's consent, the company may also decide, within the same time limit, to reduce its capital by the amount of the nominal value of that member's shares and buy up those shares at a price determined as provided for above. The company may be granted a time limit for payment of not more than two years by a court decision, if duly justified. The sums owed bear interest at the legal rate applicable to commercial transactions.
If, upon expiry of the time allowed, none of the solutions envisaged in the third and fourth paragraphs above has been arrived at, the member proceed with the transfer initially planned.
With the exception of succession, liquidation of community of property between spouses, or a donation in favour of a spouse, an ascendant or a descendant, the transferring member may only avail himself of the provisions of the third and fifth paragraphs above if he has held his shares for at least two years.
Any clause contrary to the provisions of the present article is deemed not to exist.
Article L223-15 Should the company have given its consent to a proposal to take a charge on shares subject to the conditions
specified in subparagraphs one and two of Article L. 223-14, this consent shall imply consent to the transferee in the event of the forced sale of the charged shares in accordance with the provisions of subparagraph one of Article 2078 of the civil code unless the company prefers to repurchase the shares after the assignment with a view to reducing its capital.
Article L223-16 Shares may be freely assigned between members. Should the memorandum and articles of association contain a clause limiting transferability, the provisions of Article
L. 223-14 shall apply. However, in this event the memorandum and articles of association may reduce the majority or shorten the deadline specified in the said article.
Article L223-17 The assignment of shares shall be subject to the provisions of Article L. 221-14.
Article L223- 19 The manager or the auditor if one is appointed shall submit to the shareholders' meeting or append to the
documents communicated to the members in the event of a consultation by exchange of letters a report on agreements entered into directly or via intermediaries by the company and any of its managers or members. The shareholders' meeting shall rule on this report. The managers or members concerned may not participate in the vote and their shares
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COMMERCIAL CODE shall not be taken into account for the calculation of the quorum and the majority.
However, should no auditor have been appointed, the agreements entered into by a manager who is not a member shall be subject to the prior approval of the shareholders' meeting.
By derogation from the provisions of subparagraph one, if a company enters into an agreement with its sole member, this shall simply be entered in the register of decisions.
Agreements not approved shall, nevertheless, remain effective subject to the contracting manager and, if applicable, member being jointly or severally liable, according to the case, for any consequences of the agreement prejudicial to the company.
The provisions of this article shall extend to agreements entered into with a company of which a member with unlimited liability, manager, director, general manager, member of the management or member of the supervisory board is simultaneously a manager or member of the limited liability company.
Article L223-20 The provisions of Article L. 223-19 shall not apply to agreements relating to ordinary transactions conducted under
normal conditions.
Article L223-21 Managers and members other than legal personality shall be prohibited from contracting loans from the company
irrespective of their form, from arranging for it to grant them a loan account or other borrowing whatsoever, or to arrange for the company to stand surety for them or act as their guarantor in respect of their obligations to third parties. Any such arrangement shall be null and void. This prohibition shall apply to the legal agents of members that are legal personalities.
The prohibition shall apply to the spouse and relatives in the ascending and descending line of the persons referred to in the preceding subparagraph, as well as to any intermediary.
However, if the company operates a financial establishment, this prohibition shall not apply to current commercial transactions entered into subject to normal terms and conditions.
Article L223-22 Managers shall be jointly or severally liable, according to the circumstances, to the company or to third parties for
breaches of the legislative or regulatory provisions applicable to limited liability companies, for breaches of the memorandum and articles of association, and for their errors of management.
Should more than one manager have cooperated in the same circumstances, the court shall determine the contributory share of each in the reparations.
In addition to proceedings for reparation of prejudice suffered personally, the members may instigate civil liability proceedings against the managers, either individually or as a group subject to the conditions laid down by Conseil d'Etat decree. The plaintiffs shall be authorised to pursue reparation for the entirety of the prejudice suffered by the company to which, if applicable, damages may be granted.
Any clause in the memorandum and articles of association having the effect of subordinating the exercise of civil proceedings to prior notice to or authorisation of the shareholders’ meeting, or which contains a waiver of the exercise of these proceedings shall be deemed null and void.
No decision by the shareholders’ meeting may have the effect of extinguishing civil liability proceedings against the managers for errors committed in the performance of their office.
Article L223-23 The liability proceedings specified in Articles L. 223-19 and L. 223-22 shall be time-barred after three years with
effect from the prejudicial act or, if it has been dissembled, from its disclosure. However, proceedings shall be time-barred after ten years if the act is classified as criminal.
Article L223-24 In the event of an administrative order or winding-up proceedings being instigated in application of the provisions of
book VI, title II, the persons referred to in these provisions may be rendered liable for the debts of the company and shall be subject to the prohibitions and forfeitures in accordance with the conditions specified by the said provisions.
Article L223-25 (Order No. 2004-274 of 25 March 2004 Art. 17 Official Journal of 27 March 2004)
The chief executive may be dismissed by a decision of the members as provided for in Article L. 223-29, unless the articles of association stipulate a larger majority. If dismissal is decided upon without good cause, it may give rise to damages.
The chief executive may also be dismissed by the courts on good grounds, at the request of any member. Contrary to the first paragraph, the chief executive of a limited liability company operating a press business within
the meaning of Article 2 of Act No. 86-897 of 1 August 1986, which reforms the law and jurisdiction applicable to the press, may be dismissed only by a decision of the members representing at least three quarters of the share capital.
Article L223-26 (Order No. 2004-1382 of 20 December 2004 Art. 5 Official Journal of 22 December 2004)
The management report, the inventory and the annual accounts established by the chief executive are subject to approval by the meeting of members within six months of the close of the financial year.
To that end, the documents referred to in the previous paragraph, the text of the proposed resolutions and, where
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COMMERCIAL CODE applicable, the auditor's report, the consolidated accounts and the group's management report, are sent to the members in the manner and within the time limits determined in a Conseil d'Etat decree. Any deliberation which violates the provisions of the present paragraph and its implementing decree may be declared void.
After dispatch of the communication referred to in the previous paragraph, any member is entitled to submit written questions which the chief executive must reply to at the meeting.
As provided for in a Conseil d'Etat decree, the members may at any time have sight of the company documents determined by the said decree pertaining to the previous three financial years.
Any clause contrary to the provisions of the present article and its implementing decree is deemed not to exist. The third to sixth paragraphs of Article L. 225-100 and Article L. 225-100-1 apply to the management report. Where
applicable, Article L. 225-100-2 applies to the consolidated management report. NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first
financial year commenced on or after 1 January 2005.
Article L223-27 (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Order No. 2004-274 of 25 March 2004 Art. 18 Official Journal of 27 March 2004)
The decisions are taken at a meeting. The articles of association may nevertheless stipulate that, with the exception of those referred to in the first paragraph of Article L. 223-26, all decisions or certain decisions may be taken via written consultation of the members or may result from the consent of all the members expressed in an act.
The members are invited to attend meetings in the manner and within the time limits determined in a Conseil d'Etat decree. The meeting is convened by the chief executive or, failing this, by the auditor, if there is one. The meeting shall not be held until the time limit for production of the documents referred to in Article L. 223-26 has expired.
One or more members holding one half of the shares or, if they represent at least one quarter of the members, holding one quarter of the shares, may request that a meeting be convened. Any clause to the contrary is deemed not to exist.
Any member may ask the court to appoint a representative to convene the meeting and determine its agenda. In the event of the death of the sole chief executive, the auditor or any member may convene a meeting of the
members for the sole purpose of replacing the chief executive. Such meetings are convened in the manner and within the time limits determined in a Conseil d'Etat decree.
Any irregularly convened meeting may be cancelled. An action for voidance is nevertheless inadmissible if all the members were present or represented.
Article L223-28 Each member shall be entitled to participate in the decisions and shall have a number of votes equal to that of the
company’s shares they hold. A member may mandate their spouse to represent them on condition that the company is not composed only of the
two spouses. If there are more than two members, a member may mandate another member to represent them. They may not mandate any person other than those permitted by the memorandum and articles of association. A member may not mandate another person to vote a proportion of their shares and vote the other proportion in
person. Any clause contrary to the provisions of subparagraphs one, two or four above shall be deemed null and void.
Article L223-29 In the shareholders’ meetings or on the occasion of consultation by exchange of letters, decisions shall be passed
by one or more members representing more than half the company’s shares. Should this majority not be obtained in the absence of specification to the contrary in the memorandum and articles
of association, the members shall be summoned to a second meeting or consulted a second time, according to the circumstances, and decisions shall be passed by a majority of the votes cast, irrespective of the number of parties voting.
Article L223-32 In the event of an increase in capital by the subscription of shares in cash, the provisions of the final subparagraph
of Article L. 223-7 shall apply. Funds arising from the subscription of shares may be withdrawn by the company’s proxy holder after the deposit
receipt has been issued. Should the increase in capital not be carried out within the deadline of six months with effect from the first deposit of
the funds, the provisions of subparagraph two of Article L. 223-8 may be applied.
Article L223-33 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
If the increase in capital is effected, either wholly or partly, by means of contributions in kind, the provisions of the first line of Article L. 223-9 are applicable. However, the valuer of contributions in kind is appointed by a decision of the court at the behest of a partner.
When a valuer of contributions in kind has not been consulted, or when the valuation used differs from that proposed by the valuer of contributions in kind, the company's managers and the persons who subscribed to the increase in capital are jointly and severally liable for five years, in regard to third parties, for the value assigned to the said contributions.
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COMMERCIAL CODE Article L223-34
A reduction of capital may be authorised by the shareholders’ meeting ruling in accordance with the conditions laid down for amendments to the memorandum and articles of association. Under no circumstances may it interfere with the equality of the members.
If auditors have been appointed, notice of the proposed reduction of capital shall be communicated to them within the deadline laid down by Conseil d'Etat decree. They shall make their opinion on the causes and conditions of the reduction known to the shareholders’ meeting.
Should the shareholders’ meeting approve a proposed reduction of capital not motivated by losses, creditors whose debt antedates the date on which the minutes of the deliberation are filed with the clerk may lodge an objection to the reduction within the deadline laid down by Conseil d'Etat decree. A court order shall reject the objection or order either the repayment of the debts or the formation of guarantees if the company offers them and if they are judged adequate. Reduction of capital transactions may not begin during the deadline for objections.
A company may not purchase its own shares. However, a shareholders’ meeting which has decided in favour of a reduction of capital not motivated by losses may authorise the manager to buy a specified number of shares in order to cancel them.
Article L223-35 The members may appoint one or more auditors in accordance with the conditions specified in Article L. 223-29. At least those limited liability companies which exceed, at the end of the financial year, the figures laid down by
Conseil d'Etat decree two of the following criteria shall be obliged to designate an auditor: their balance sheet total, the amount of their turnover excluding VAT or the average number of employees during the financial year.
Even if these thresholds are not reached, one or more members representing at least one tenth of the capital may apply to the court for an auditor to be appointed.
Article L223-36 Members who are not managers shall have the right, twice per financial year, to ask written communication of the
company’s books and documents and to ask the manager written questions concerning any matter which might compromise continuity of the operation. The manager’s reply shall be communicated to the auditor.
Article L223-37 One or more partners representing at least one tenth of the registered capital may, either individually or as a group
under any form whatsoever, apply to the court for one or more experts to be appointed and charged with presenting a report on one or more management transactions.
The ministère public and the works council are competent to act in respect of the same ends. Should the court accede to the application, the court order shall determine the scope of the mission and the powers
of the experts. It may rule that the fees shall be for the account of the company. The report shall be addressed to the applicant, to the ministère public, to the works council, to the auditor and to the
manager. This report must also be annexed to that drawn up by the auditor for the next general meeting and receive the same publicity.
Article L223-38 (Law No 2003-706 of 1 August 2003 Article 112 Official Gazette of 2 August 2003)
I. - The auditors, who must be chosen from the list referred to in Article L. 225-219, are appointed for a term of six financial years.
II. and III. - Paragraphs repealed. IV. - Resolutions passed when the auditors have not been ?properly appointed, or based on a report from auditors
who were appointed or retained contrary to the provisions of the present Article are null and void. The nullity is extinguished if the said resolutions are expressly confirmed by a general meeting on the basis of a report from properly appointed auditors.
Article L223-39 The provisions relating to the powers, the incompatibilities referred to in Article L. 225-222, the functions, the
obligations, the liability, the substitution, the challenging, the dismissal and the remuneration of auditors of public companies shall apply to limited liability companies, subject to the specific rules applicable to these latters.
The auditors shall be advised of shareholders’ meetings and consultations no later than at the same time as the members. They shall have access to shareholders’ meetings.
The documents referred to in subparagraph one of Article L. 223-26 shall be made available to the auditor subject to the conditions and deadlines laid down by Conseil d'Etat decree.
Article L223-40 The repayment of dividends not corresponding to profits made in reality may be imposed upon the members who
have received them. Proceedings for repayment shall be time-barred after three years with effect from the date on which the dividends
became payable.
Article L223-41 A limited liability company shall not be dissolved if a court order for the court-ordered winding-up, personal
bankruptcy, prohibition from management as specified by Article L. 625-8 or legal disability measure is made with
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COMMERCIAL CODE respect to one of the members.
It shall also not be dissolved by the death of a member unless otherwise specified in the memorandum and articles of association.
Article L223-42 (Law No 2003-721 of 1 August 2003 Article 1 (IV) Official Gazette of 5 August 2003)
If, on account of losses recorded in the accounting documents, the company's capital were to fall below half of the value of the share capital, the partners shall, within four months of approving the accounts that show that loss, decide whether there are grounds for early dissolution of the company.
If dissolution is not decided with the majority required by the memorandum and articles of association, the company is required, not later than the end of the second financial year following that in which the losses were recorded, to reduce its capital by an amount at least equal to that of the losses which could not be charged to reserves, if, during that period, the shareholders' equity has not been reconstituted to a level at least equal to one half of the share capital.
In either case, the resolution adopted by the partners is published in accordance with the terms prescribed in a Conseil d'Etat decree.
If the chief executive or the auditor should fail to secure a decision, or if the partners are unable to validly deliberate, any interested party may ask the court to dissolve the company. The same applies if the provisions of the second paragraph above have not been applied. In all such cases, the court may grant the company a maximum period of six months in which to put the situation in order, and cannot order its dissolution if the situation has already been put in order by the day on which it rules on the merits.
The provisions of the present Article do not apply to companies in receivership or subject to a recovery plan.
Article L223-43 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II Official Gazette of 22 September 2000 in force on 1 January 2002)
The conversion of a limited liability company into a general partnership, a limited partnership or a limited partnership that issues shares shall require the unanimous agreement of all its members.
Conversion into a limited company must be decided by the majority required for amendments to the memorandum and articles of association. However, it may be decided upon by members representing the majority of the shares if the shareholders’ funds stated on the last balance sheet exceed 750 000 euros.
The decision must be preceded by a report by a registered auditor on the company’s situation. Any conversion carried out in breach of the rules in this article shall be null and void.
CHAPTER IV General provisions applicable to joint-stock companies Articles L224-1 to
L224-3
Article L224-1 A joint-stock company shall be designated by a business name, which must be immediately preceded or followed by
a statement of the duration of the company and the amount of the registered capital. The name of one or more members may be included in the business name. However, the names of limited partners
may not be included in the business name of a limited partnership that issues shares.
Article L224-2 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II Official Gazette of 22 September 2000 in force on 1 January 2002)
The registered capital must be at least 225 000 euros if the company’s shares are offered to the public and at least 37000 euros in the contrary case.
A reduction of the registered capital to a lesser amount may be decided upon only subject to the suspensive condition of an increase in capital destined to raise this to an amount at least equal to the amount specified in the preceding subparagraph unless the company is converted into another form of company. In the event of failure to comply with the provisions of this subparagraph, any interested party may apply to the court for the dissolution of the company. This dissolution may not be ordered if the situation has been regularised on the date on which the court gives judgment on the merits of the case.
By derogation from subparagraph one, the capital of press journalist’s companies must be at least 300 euros if they are constituted in the form of a limited company
Article L224-3 (Law No 2001-420 of 15 May 2001 Article 100 Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 98 Official Gazette of 2 August 2003)
When a company, regardless of its form, which does not have an auditor is converted into a joint-stock company, one or more conversion auditors, responsible for estimating the value of the items that comprise the corporate assets and the special advantages, are appointed either by a unanimous decision of the partners or by a decision of the court at the request of the company's executives or one of their number. The conversion auditors may be tasked with drafting the report on the company's situation referred to in the third paragraph of Article L. 223-43. In which case, only one report is written. The conversion auditors are subject to the incompatibilities referred to in Article L. 225-224. The company's auditor can be appointed as a conversion auditor. The report is made available to the partners.
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COMMERCIAL CODE The partners adjudicate on the valuation of the assets and the awarding of the special advantages. They can only
reduce them unanimously. Failing the express approval of the partners duly recorded in the minutes, the conversion is null and void.
CHAPTER V Public limited companies Articles L225-2 to
L225-1
Article L225-1 A limited company is a company whose capital is divided into shares and which is formed among members who
shall bear any losses only up to the amount of their contributions. The number of members may not be less than seven.
SECTION I Formation of public limited companies Articles L225-2 to
L225-16
Subsection 1 Formation with a public offering Articles L225-2 to
L225-11
Article L225-2 The draft memorandum and articles of association shall be drawn up and signed by one or more founders, who
shall file one copy with the clerk of the Tribunal de commerce of the district in which the registered office is located. The founders shall publish a notice in accordance with the conditions laid down by Conseil d'Etat decree. No
subscription may be received if the formalities specified in subparagraphs one and two above have not been complied with.
Persons who have forfeited the right of directorship or management of a company or who are disqualified from holding these offices may not be founders.
Article L225-3 The capital must be fully subscribed. Shares subscribed in cash must be paid in respect of at least fifty percent paid of their face value. The balance may
be paid in one or more payments, at the discretion of the board of directors or the management according to the case, within a deadline which may not exceed five years with effect from registration of the company in the commercial and companies register.
Shares subscribed in kind must be paid in full at the time of their issue. Shares may not represent contributions in the form of services.
Article L225-4 The subscription of shares in cash shall be evidenced by a subscription form drawn up in accordance with the
conditions laid down by Conseil d'Etat decree.
Article L225-5 Funds arising from subscriptions in cash and the subscribers’ list, specifying the amounts paid by each subscriber,
shall be deposited in accordance with the conditions laid down by Conseil d'Etat decree, which shall also determine the conditions under which the right to communication of this list shall be opened.
With the exception of the deposits referred to by the decree specified in the preceding subparagraph, no party may hold the sums gathered on behalf of a company in formation for more than one week.
Article L225-6 Subscriptions and payments shall be evidenced by a receipt issued by the depository at the time of deposit of the
funds, on presentation of the subscription forms.
Article L225-7 Once the receipt of deposit has been issued, the founders shall summon the subscribers to a constitutive
shareholders’ meeting in accordance with the conditions and deadlines laid down by Conseil d'Etat decree. This meeting shall confirm that the capital has been fully subscribed and that the shares have been paid in respect of the amount due. It shall decide on the adoption of the memorandum and articles of association, which may be amended only by unanimous decision of all the subscribers, appoint the first directors or members of the supervisory board and designate one or more auditors. The minutes of the session of the meeting shall observe, if applicable, the acceptance of their office by the directors or members of the supervisory board and by the auditors.
Article L225-8 In the event of contributions in kind as in the event of the specification of special benefits for persons who may or
may not be members of the company, one or more auditors of the formation proceedings shall be designated by court order at the request of one or more of the founders. They shall be subject to the incompatibilities specified by Article L. 225-224.
The auditors of the formation proceedings shall appraise, subject to their own responsibility, the value of the contributions in kind and the special benefits. The report, filed with the clerk with the proposed memorandum and
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COMMERCIAL CODE articles of association, shall be held at the disposal of the subscribers in accordance with the conditions laid down by Conseil d'Etat decree.
The constitutive shareholders’ meeting shall rule on the valuation of the contributions in kind and the granting of special benefits. It may reduce them only by unanimous decision of all the subscribers.
In the absence of explicit approval by the contributors and the beneficiaries of special benefits stated in the minutes, the company shall not be formed.
Article L225-9 Subscribers of shares shall participate in the vote or mandate another person to represent them in accordance with
the conditions specified in Articles L. 225-106, L. 225-110 and L. 225-113. The constitutive shareholders’ meeting shall deliberate in accordance with the quorum and majority conditions
specified for special shareholders’ meetings.
Article L225-10 Should the general meeting deliberate on the approval of a contribution in kind or the granting of a special benefit,
the shares of the contributor or the beneficiary shall not be taken into account in the calculation of the majority. The contributor or the beneficiary shall not be entitled to participate in the deliberation either in person or as a proxy.
Article L225-11 Funds arising from subscriptions in cash may not be withdrawn by the company’s proxy holder before it is registered
in the commercial and companies register. Should the company not be formed within the deadline of six months with effect from the deposit of the proposed
memorandum and articles of association with the registry, any subscriber may apply to a court for the appointment of a proxy authorised to withdraw the funds and return them to the subscribers, subject to deduction of the expenses of distribution.
A new deposit of funds and the declaration specified in Articles L. 225-5 and L. 225-6 must be made if the contributors decide subsequently to form the company.
Subsection 2 Formation without a public offering Articles L225-12 to
L225-16
Article L225-12 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
When there is no public issue, the provisions of Subsection 1 apply, with the exception of Articles L. 225-2, L. 225-4, L. 225-7, the second, third and fourth paragraphs of Article L. 225-8, and Articles L. 225-9 and L. 225-10.
Article L225-13 Payments shall be evidenced by a certificate issued by the depository at the time of deposit of the funds, on
presentation of the list of shareholders, stating the amounts paid by each of them.
Article L225-14 The memorandum and articles of association must contain an evaluation of any contributions in kind. This shall be
carried out by an auditor of the formation proceedings, who shall draw up a report under their own responsibility to be annexed to the memorandum and articles of association.
The same procedure must be followed if special benefits are specified.
Article L225-15 The memorandum and articles of association must be signed by the shareholders either in person or via a proxy on
production of a special authorisation, after the issue of the deposit receipt and after the report specified in Article L. 225-14 has been placed at the disposal of the shareholders in accordance with the conditions and deadlines laid down by Conseil d'Etat decree.
Article L225-16 The first directors and the first members of the supervisory board and the first auditors shall be designated in the
memorandum and articles of association.
SECTION II Management and administration of public limited companies Articles L225- 17 to
L225-95-1
Subsection 1 Board of directors of the general management Articles L225- 17 to
L225-42-1
Article L225- 17 (Law No 2001-420 of 15 May 2001 Article 104 (I) and Article 105 Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 128 Official Gazette of 2 August 2003)
A limited company is administered by a board of directors composed of at least three members. The memorandum
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COMMERCIAL CODE and articles of association stipulate the maximum permissible number of board members, which shall not exceed eighteen.
In the event of the death, resignation or removal from office of the chairman of the board of directors, the board may, if it has been unable to replace him from among its members, and without prejudice to the provisions of Article L. 225-24, appoint an additional director to perform the chairman's functions.
Article L225-18 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The directors shall be appointed by the constitutive shareholders’ meeting or by the routine shareholders’ meeting. In the circumstances specified by Article L. 225-16, they shall be designated in the memorandum and articles of association. The term of their office shall be determined by the memorandum and articles of association but may not exceed six years in the event of appointment by general meetings or three years in the event of appointment in the memorandum and articles of association. However, in the event of merger or division, the appointment may be made by the special shareholders’ meeting.
The directors shall be eligible for re-election unless otherwise specified in the memorandum and articles of association. They may be dismissed at any time by the routine shareholders’ meeting.
Any appointment made in breach of the preceding provisions shall be null and void, with the exception of those which may be made in accordance with the conditions specified in Article L. 225-24.
Article L225-l9 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The memorandum and articles of association must specify an age limit for the exercise of the office of director either for all the directors or for a specific percentage of them.
In the absence of an explicit provision in the memorandum and articles of association, the number of directors over the age of seventy years may not be more than one third of the directors in office.
Any appointment made in breach of the provisions in the preceding subparagraph shall be null and void. In the absence of an explicit provision in the memorandum and articles of association specifying another procedure,
the oldest director shall be deemed to be retiring from office when the age limit for the directors specified in the memorandum and articles of association or by law is exceeded.
Article L225-20 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
A legal personality may be appointed as a director. On their appointment, they must designate a permanent representative, who shall be subject to the same conditions
and obligations and who shall incur the same civil and penal liabilities as if they were a director in their own name, without prejudice to the joint liability of the legal personality they represent.
Should the legal personality dismiss its representative, it must appoint their replacement at the same time.
Article L225-21 (Law No 2001-420 of 15 May 2001 Article 105 and Article 1001 (1) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (I) Official Gazette of 30 0ct 2002)
No natural person shall concurrently hold more than five directorships of limited companies having their registered office on French soil.
Contrary to the provisions of the first paragraph, this shall not apply to directorships or supervisory board membership of companies which are controlled, within the meaning of Article L. 233-16, by the company of which that natural person is a director.
For the purposes of the present Article, directorships of companies whose shares are not quoted on a regulated stock market within the meaning of Article L. 233-16 and are held by a single company count as one directorship, subject to the number of such directorships held not exceeding five.
Any natural person who is in breach of the provisions of the present Article shall resign from one of his directorships within three months of being appointed, or from the directorship in question within three months of the occurrence of the event which resulted in a condition of the previous paragraph no longer being met. Upon expiry of that period, he shall be deemed to have resigned either from his new directorship or from the directorship which no longer meets the conditions laid down in the previous paragraph, whichever applies, and shall return the remuneration received. This shall not affect the validity of the deliberations in which he participated.
Article L225-22 (Act No. 2001-420 of 15 May 2001 Art. 105 Official Journal of 16 May 2001) (Act No. 2001-1168 of 11 December 2001 Art. 33 II Official Journal of 12 December 2001)
An employee of the company can only become a director if his contract of employment relates to actual employment. He shall not lose the benefit of that contract of employment. Any directorship conferred in breach of this paragraph is null and void. Such voidance shall not entail voidance of the deliberations that the illegally appointed director participated in.
The number of directors bound to a company by a contract of employment shall not exceed one third of the serving directors.
However, directors elected by the employees, directors representing the employee shareholders or the company's open-end investment company pursuant to Article L225-23, and, in public companies with worker participation, the
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COMMERCIAL CODE representatives of the workers' cooperative society, are not included in the number of directors bound to the company by a contract of employment referred to in the previous paragraph.
In the case of a merger or demerger, the contract of employment may have been entered into with one of the merged companies or with the demerged company.
Article L225-23 (Law No 2001-152 of 19 February 2001 Article 24 (1) and Article 25 (I) Official Gazette of 20 February 2001) (Law No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001) (Law No 2002-73 of 17 January 2002 Article 217 (1) and (2) Official Gazette of 18 January 2002)
If the report presented to the general meeting by the board of directors pursuant to Article L. 225-102 establishes that the shares held by the companies' staff and by the staff of affiliated companies within the meaning of Article L.225-180 represent more than 3% of the company's share capital, one or more directors shall be elected by the general meeting of shareholders on a proposal from the shareholders as provided for in Article L. 225-102 and as prescribed in the relevant decree. Those directors shall be elected from among the employee-shareholders or, if appropriate, from among the employee-shareholders who are members of the supervisory board of a company investment trust which holds shares in the company. Such directors are not counted when the minimum and maximum numbers of directors are determined pursuant to Article L. 225-17.
If an extraordinary general meeting is not held within eighteen months of the report being presented, any employee-shareholder may request the presiding judge, ruling on a summary basis, to direct the board of directors, under pain of a coercive fine, to convene an extraordinary general meeting and submit draft resolutions to it aimed at amending the memorandum and memorandum and articles of association as provided for in the preceding paragraph and in the final paragraph of the present Article.
If the request is upheld, the coercive fine and the legal costs shall be paid by the directors. Companies whose board of directors includes one or more directors designated by the members of the supervisory
boards of company investment trusts representing the members, or one or more employees elected pursuant to the provisions of Article L. 225-27, are exempted from the obligations referred to in the first paragraph.
If an extraordinary general meeting is convened pursuant to the first paragraph, it also rules on a draft resolution to provide for the election of one or more directors by the staff of the company and of the direct or indirect subsidiaries having their registered office in France. If appropriate, these representatives are designated as provided for in Article L. 225-27.
Article L225-24 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
In the event of vacancy due to the death or resignation of one or more directors, the board of directors may make appointments on a provisional basis between general meetings. Should the number of directors have fallen below the legal minimum, the remaining directors must immediately convene the routine shareholders’ meeting with a view to completing the board’s numbers.
Should the number of directors have fallen below the minimum number specified in the memorandum and articles of association without, however, being below the legal minimum, the board of directors must make appointments on a provisional basis with a view to completing its numbers within a deadline of three months with effect from the date on which the vacancy arises.
The appointments made by the board by virtue of subparagraphs one and two above shall be subject to confirmation by the very next routine shareholders’ meeting. In the absence of confirmation, the deliberations made and the acts carried out beforehand by the board shall remain no less valid.
Should the board fail to make the required appointments or to convene the meeting, any interested party may apply to the court for the designation of a proxy charged with convening the general meeting in order to make the appointments or to confirm the appointments specified in subparagraph three.
Article L225-25 (Act No 2001-420 of 15 May 2001 Article 105(3) Official Gazette of 16 May 2001)
Each director must own a number of the company’s shares determined by the memorandum and articles of association.
Should a director not own the required number of shares on the date of their appointment or should they cease to own them during the term of their office, they shall be deemed to have resigned from office if they have not regularised the situation within a deadline of three months.
The provisions of subparagraph one shall not apply to shareholder employees appointed as directors in application of Article L. 225-23.
Article L225-26 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The auditors shall ensure, under their own responsibility, compliance with the provisions specified in Article L. 225-25 and shall give notice of any breach in their report to the annual general meeting.
Article L225-27 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The memorandum and articles of association may specify that, in addition to the directors whose number and method of appointment are specified in Articles L. 225-17 and L. 225-18, the board of directors shall contain directors
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COMMERCIAL CODE elected either by the company’s employees or by the employees of the company and those of its direct or indirect subsidiaries which have their registered office located on French territory. The number of these directors may not exceed four, or five in companies whose shares are not listed on a regulated stock exchange, nor may they exceed one third of the number of the other directors. Should the number of directors elected by the employees be equal to or in excess of two, engineers, executives and similar shall have one less directorship.
The directors elected by the employees shall not be taken into account for the determination of the minimum number and the maximum number of directors specified in Article L. 225-17.
Article L225-28 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The directors elected by the employees must have an employment contract with the company or with one of its direct or indirect subsidiaries which have their registered office located on French territory antedating their appointment by at least two years and corresponding to a real employment. However, the condition of length of service shall not be required if the company has been formed for less than two years on the date of their appointment.
All the company’s employees and, if applicable, all the employees of its direct or indirect subsidiaries which have their registered office located on French territory, whose employment contract antedates the date of the date of the election shall be electors. The ballot shall be by secret vote.
Should at least one directorship be reserved for engineers, executives and similar, the employees shall be divided into two electing bodies voting separately. The first electing body shall comprise engineers, executives and similar, the second the other employees. The memorandum and articles of association shall determine the distribution of the directorships by electing body in accordance with the employee structure.
The candidates or lists of candidates may be proposed either by one or more representative trades union organisations within the meaning of Article L. 423-2 of the employment code or by one twentieth of the electors or, if their number is in excess of two thousand, by one hundred of them.
Should there be one directorship to fill for the whole of the electoral body, a majority vote with two ballots must be held. Should there be one directorship to fill in an electing body, the election must be held by majority vote with two ballots within this electing body. In addition to the name of the candidate, each candidature must include the name of their potential replacement. The candidate having obtained the absolute majority of the votes cast in the first ballot or the relative majority in the second ballot shall be declared elected.
In the other cases, the election shall be by proportional representation based on the list according to the highest vote and without vote splitting. The list must include a number of candidates double that of the directorships to be filled.
In the event of a tied vote, the candidates with the earliest-dated employment contracts shall be declared elected. The other terms and conditions of the vote shall be determined by the memorandum and articles of association. Disputes relating to the electorate, eligibility and the due form of the electoral operations shall be brought before the
trial judge, who shall give a final decision in accordance with the conditions specified by subparagraph one of Article L. 433-11 of the employment code.
Article L225-29 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The directors shall be eligible for re-election unless otherwise specified in the memorandum and articles of association.
Any appointment made in breach of Articles L. 225-27, L 225-28 and this article shall be null and void. This nullity shall not cause that of the deliberations in which the irregularly appointed director has participated.
Article L225-30 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The office of director elected by the employees shall be incompatible with any office of trades union representative, member of the works council, employee representative or member of the company’s health, safety and working conditions committee. A director who holds one or more of these offices at the time of their election must resign from it or them within one week. Should they fail to do so, they shall be deemed to have resigned their office of director.
Article L225-31 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
Directors elected by the employees shall not lose the benefit of their employment contract. Their remuneration as an employee may not be reduced by virtue of the exercise of their office.
Article L225-32 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
Breach of the employment contract shall terminate the office of director elected by the employees. Directors elected by the employees may not be dismissed other than for fault in the performance of their office by
order of the presiding judge of the Tribunal de grande instance, given in session in chambers at the request of the majority of the members of the board of directors. The order shall be immediately enforceable.
Article L225-33 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
Except in the event of termination at the employee’s initiative, the breach of the employment contract of a director elected by the employees may be pronounced only by the board of judgment of the conseil de prud'hommes ruling in the form of summary proceedings. The order shall be immediately enforceable.
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COMMERCIAL CODE Article L225-34 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
I. - In the event of the vacancy of an office of director elected by the employees due to death, resignation, dismissal, breach of employment contract or for any other reason whatsoever, the vacant office shall be filled in the following manner:
1. If the election has taken place by majority vote with two ballots, by the replacement 2. If the election has taken place by list, by the candidate appearing on the same list immediately after the last
candidate elected. II. The term of office of the director thus designated shall end on the arrival of the normal term of office of the other
directors elected by the employees.
Article L225-35 (Law No 2001-420 of 15 May 2001 Article 105 and Article 106 (1) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 129 Official Gazette of 2 August 2003)
The board of directors determines the broad lines of the company's business activities and ensures their implementation. Without prejudice to the powers expressly invested in meetings of the shareholders, and in so far as the memorandum and articles of association permit, it deals with all matters relating to the conduct of the company's business and decides all pertinent issues through its deliberations.
In its dealings with third parties, the company is bound even by acts of its board of directors which do not come within the purview of the company's corporate mission, unless it can prove that the third party knew that a specific action was extraneous to that mission or, given the circumstances, could not have been ignorant of that fact, and mere publication of the memorandum and articles of association does not suffice to constitute such proof.
The board of directors shall carry out the inspections and verifications which it considers appropriate. The company's chairman or general manager is required to send all the documents and information necessary to perform this task to each director.
Undertakings, avals and guarantees given by companies other than banks or other financial institutions must be authorised by the board of directors as prescribed in a Conseil d'Etat decree. That decree also determines the conditions under which any transaction which exceeds that authorisation can be raised against third parties.
Article L225-36 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The transfer of the registered office within the same department or within an adjacent department may be decided upon by the board of directors, subject to confirmation of this decision by the next routine shareholders’ meeting.
Article L225-36-l (inserted by Act No 2001-420 of 15 May 2001 Article 105 and 106(2) Official Gazette of 16 May 2001)
The company’s memorandum and articles of association shall determine the rules relating to the convening and deliberations of the board of directors.
Should it not have met for more than two months, at least one third of the members of the board of directors may call upon the chairman to convene it with a specified agenda.
The general manager may also call upon the chairman to convene the board of directors with a specified agenda. The chairman shall be bound by the requests addressed to them by virtue of the two preceding subparagraphs.
Article L225-37 (Act No. 2001-420 of 15 May 2001 Art. 105 and Art. 109 1 Official Journal of 16 May 2001) (Act No. 2003-706 of 1 August 2003 Art. 117 I 1, II Official Journal of 2 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 5 I, Art. 7 I Official Journal of 27 July 2005)
The board of directors may validly deliberate only if at least half of its members are present. Any clause to the contrary is deemed unwritten.
Unless the memorandum and articles of association require a larger majority, the decisions are taken on a majority vote of the members present or represented.
Unless the board is convened to deal with matters referred to in Articles L232-1 and L233-16, and barring any contrary provision in the memorandum and articles of association, the internal regulations may provide for directors who participate in the meeting via videoconferencing or via a telecommunications medium which permits their identification and guarantees their effective participation to be deemed to be present for calculation of the quorum and the majority. The nature of, and implementing regulations for, such media are determined in a Conseil d'Etat decree. The memorandum and articles of association may limit the nature of the decisions which may be made at such meetings and provide for a right of objection for a given number of directors.
Barring any contrary provision in the memorandum and articles of association, the chairman of the meeting has a casting vote in the event of a split vote.
The directors, and any other persons invited to attend board meetings, are bound by secrecy in regard to any information of a confidential nature presented as such by the chairman of the board of directors.
In companies that make public offerings, the chairman of the board of directors describes the preparation and organisation of the board's work and the internal auditing procedures put in place by the company in a report attached to the report referred to in Articles L225-100, L225-102, L225-102-1 and L233-26. Without prejudice to the provisions of Article L225-56, the said report also indicates any limitations the board of directors places on the powers of the general manager.
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COMMERCIAL CODE Article L225-38 ( (Law No 2001-420 of 15 May 2001 Article 105 and Article 111 (1) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (6) Official Gazette of 2 August 2003)
Any agreement entered into, either directly or through an intermediary, between the company and its general manager, one of its assistant general managers, one of its directors, one of its shareholders holding a fraction of the voting rights greater than 10% or, in the case of a corporate shareholder, the company which controls it within the meaning of Article L. 233-3, must be subject to the prior consent of the board of directors.
The same applies to agreements in which a person referred to in the previous paragraph has an indirect interest. Agreements entered into between the company and another firm are also subject to prior consent if the company's
general manager, one of its assistant general managers or one of its directors is the owner, an indefinitely liable partner, a manager, a director or a member of that firm's supervisory board or, more generally, is in any way involved in its management.
Article L225-39 (Law No 2001-420 of 15 May 2001 Article 105 and Article 111 (5) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (1) Official Gazette of 2 August 2003)
The provisions of Article 225-38 are not applicable to agreements relating to current operations entered into under normal terms and conditions.
Such agreements are nevertheless made known to the chairman of the board of directors by the interested party unless they are of no significance to any party, given their objective or their financial implications. A list of such agreements and their objectives is sent to the members of the board of directors and to the auditors by the chairman.
Article L225-40 (Act No 2001-420 of 15 May 2001 Article 105 and Article 111(8) Official Gazette of 16 May 2001)
The interested party must inform the board immediately upon becoming aware of an agreement to which Article L. 225-38 applies. They may not participate in the vote on the requested prior approval of the Board. The chairman of the board of directors shall advise the auditors of all agreements authorised and shall submit them to the general meeting for approval.
The auditors shall present a special report on the agreements to the meting, which shall rule on this report. The interested party may not participate in the vote and their shares shall not be taken into account for the
calculation of the quorum and the majority.
Article L225-41 (Act No 2001-420 of 15 May 2001 Article 105 and Article 111(10) Official Gazette of 16 May 2001)
Agreements approved by the meeting shall produce their effects with respect to third parties, as shall those which it refuses, unless they are cancelled in the event of fraud.
Even in the absence of fraud, the prejudicial consequences to the company of refused agreements may be charged to the interested party and, potentially, to the other members of the board of directors.
Article L225-42 (Act No 2001-420 of 15 May 2001 Article 105 and Article 111(10) Official Gazette of 16 May 2001)
Without prejudice to the liability of the interested party, agreements referred to in Article L. 225-38 and entered into without the prior authorisation of the board of directors may be cancelled if they have prejudicial consequences for the company.
Nullity proceedings shall be time-barred after three years with effect from the date of the agreement. However, should the agreement have been dissembled, the starting point for the term of limitation shall be carried forward to the date on which it was revealed.
Nullity may be covered by a vote of the general meeting taken on the special report of the auditors setting out the circumstances by virtue of which the authorisation procedure has not been followed. The provisions of subparagraph four of Article L. 225-40 shall apply.
Article L225-43 (Act No 2001-420 of 15 May 2001 Article 105 and Article 111(11) Official Gazette of 16 May 2001)
In order for the contract to be valid, directors other than legal personalities shall be prohibited from contracting loans from the company irrespective of their form, from arranging for it to grant them a loan account or other borrowing whatsoever, or to arrange for the company to stand surety for them or act as their guarantor in respect of their obligations to third parties.
However, if the company operates a banking or financial establishment, this prohibition shall not apply to current commercial transactions entered into under normal conditions.
The same prohibition shall apply to the general manager, to assistant general managers and to permanent representatives of directors which are legal personalities. It shall also apply to the spouse and relatives in the ascending and descending line of the persons referred to in this article, as well as to any intermediary.
The prohibition shall not apply to loans granted to directors elected by the employees by the company in application of the provisions of Article L. 313-1 of the construction and dwelling place code.
Article L225-44 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
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COMMERCIAL CODE Subject to the provisions of Article L. 225-22 and Article L. 225-27, the directors may not receive any permanent or
other remuneration from the company other than those specified in Articles L. 225-45, L. 225-46, L. 225-47 and L. 225-53.
Any clause to the contrary in the memorandum and articles of association shall be deemed null and void and any decision to the contrary shall be deemed null and void.
Article L225-45 (Act No 2001-420 of 15 May 2001 Article 105 and Article 117(1) Official Gazette of 16 May 2001)
As remuneration for their activities and in the form of directors' fees, the general meeting may grant the directors an annual fixed amount which this meeting shall determine without being bound by the provisions of the memorandum and articles of association or previous decisions. The amount of these shall be charged to operating expenses. Their distribution among the directors shall be determined by the board of directors.
Article L225-46 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The board of directors may grant exceptional remunerations for missions or mandates conferred upon directors. In such cases, these remunerations shall be charged to operating expenses and subject to the provisions of Articles L. 225-38 to L. 225-42.
Article L225-47 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The board of directors shall elect a chairman from among its members who, in order for their appointment to be valid, must be a natural person. It shall determine their remuneration.
The chairman shall be appointed for a term which may not exceed their term of office as a director. They shall be eligible for re-election.
The board of directors may dismiss them at any time. Any provision to the contrary shall be deemed null and void.
Article L225-48 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The memorandum and articles of association must specify an age limit for the performance of the office of chairman of the board of directors which, in the absence of an explicit provision, shall be fixed at sixty-five years.
Any appointment made in breach of the provisions specified in the preceding subparagraph shall be deemed null and void. A chairman of the board of directors shall be deemed to retire from office on reaching the age limit.
Article L225-50 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
In the event of the temporary incapacity or death of the chairman, the board of directors, may delegate a director to the office of the chairman.
In the event of temporary incapacity, this delegation shall be made or a limited term. It may be renewed. In the event of death, it shall be valid until the election of the new chairman.
Article L225-51 (Law No 2001-420 of 15 May 2001 Article 105 and Article 106 (3) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 117 (I) (3) Official Gazette of 2 August 2003)
The chairman of the board of directors organises and oversees its work and reports to the General Meeting thereon. He sees to it that the company's management structures function well and ensures, in particular, that the directors are able to accomplish their task.
Article L225-51-1 (Act No 2001-420 of 15 May 2001 Article 105 and 106(4) Official Gazette of 16 May 2001)
The general management of the company shall be assumed under their responsibility by either the chairman of the board of directors or by another natural person appointed by the board of directors and bearing the title of general manager.
In accordance with the conditions defined by its memorandum and articles of association, the board of directors shall choose between the two forms of performance of the general management referred to in subparagraph one. The shareholders and third parties shall be informed of this choice in accordance with the conditions laid down by Conseil d'Etat decree
If the general management of the company is assumed by the chairman of the board of directors, the provisions of this sub-section relating to the general manager shall apply to them.
Article L225-52 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
In the event of the instigation of an administrative order or winding-up proceedings in application of title II of book VI, the persons referred to by these provisions may be rendered liable for the debts of the company and shall be subject to the prohibitions and forfeitures in accordance with the conditions specified by these provisions.
Article L225-53 (Act No 2001-420 of 15 May 2001 Article 105 and Article 107(1) Official Gazette of 16 May 2001)
On the proposal of the general manager, the board of directors may appoint one or more natural persons charged
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COMMERCIAL CODE with assisting the general manager, with the title of assistant general manager.
The memorandum and articles of association shall determine the maximum number of assistant general managers, which may not exceed five. The board of directors shall determine the remuneration of the general manager and the assistant general managers.
Article L225-54 (Act No 2001-420 of 15 May 2001 Article 105 and Article 107(2) Official Gazette of 16 May 2001)
The memorandum and articles of association shall specify an age limit for the performance of the office of general manager and the assistant general manager which, in the absence of an explicit provision, shall be fixed at sixty-five years.
Any appointment made in breach of the provisions specified in the preceding subparagraph shall be deemed null and void.
A general manager or assistant general manager shall be deemed to retire from office on reaching the age limit.
Article L225-54-1 (Law No 2001-420 of 15 May 2001 Article 105 and Article 110 (3) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (II) Official Gazette of 30 0ct 2002)
No natural person shall concurrently act as a general manager of more than one limited company having its registered office on French soil.
Contrary to the provisions of the first paragraph: - a natural person can concurrently act as a general manager, a director or the sole managing director of another
company which is controlled, within the meaning of Article L. 233-16, by the company of which that natural person is a general manager;
- a natural person who is a general manager of one company may also be a managing director, a director or the sole managing director of another company, provided that its shares are not quoted on a regulated stock market.
Any natural person who is in breach of the provisions of the present Article shall resign from one of his directorships within three months of being appointed, or from the directorship in question within three months of the occurrence of the event which resulted in a condition laid down in the previous paragraph no longer being met. Upon expiry of that period, he shall be deemed to have resigned either from his new directorship or from the directorship which no longer meets the conditions laid down in the previous paragraph, whichever applies, and shall return the remuneration received. This shall not affect the validity of the deliberations in which he participated.
Article L225-55 (Act No 2001-420 of 15 May 2001 Article 105 and Article 107(3) Official Gazette of 16 May 2001)
The general manager may be dismissed at any time by the board of directors. The same shall apply, on the proposal of the general manager, to the assistant general managers. Should the dismissal be decided without good cause, it may give rise to damages, except when the general manager assumes the office of chairman of the board of directors.
Should the general manager cease to or be unable to perform their office, the assistant general managers shall retain their office and remuneration, unless decided otherwise by the board, until the appointment of the new general manager.
Article L225-56 (Act No 2001-420 of 15 May 2001 Article 105 and Article 107(4) Official Gazette of 16 May 2001)
I. - The general manager shall be invested with the most extensive powers to act on behalf of the company in all circumstances. They shall exercise their powers subject to those that the Law allocates explicitly to shareholders’ meetings and to the board of directors.
They shall represent the company in its dealings with third parties. The company shall be bound even by those acts of the general manager not covered by the purpose of the company unless it is able to prove that the third party was aware that the act exceeded these objects or that could not have known it in view of the circumstances, the simple publication of the memorandum and articles of association being excluded from constituting this proof.
Provisions in the memorandum and articles of association and decisions of the board of directors limiting the powers of the managers resulting from this article shall not be demurrable with respect to third parties.
II. - In agreement with the general manager, the board of directors shall determine the scope and the term of the powers conferred upon the assistant general managers.
The assistant general managers shall have the same powers as the general manager with respect to third parties.
Article L225-22-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 8 I Official Journal of 27 July 2005)
In companies whose securities are admitted to trading on a regulated market, if a person bound by a contract of employment to the company or to any other controlled company or controlling company within the meaning of II and III of Article L233-16 is appointed as its general manager or chief executive officer, the said contract's provisions, if any, relating to elements of remuneration, compensation or benefits payable or likely to become payable on account of those functions being transferred or altered, or thereafter, shall be subject to the provisions of Articles L225-38 and L225-40 to L225-42.
NB: Act No. 2005-842 of 26 July 2005 Art. 8 II: the provisions of Article 8 I are applicable to agreements entered into with effect from 1 May 2005.
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COMMERCIAL CODE Article L225-42-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 8 I Official Journal of 27 July 2005)
In companies whose securities are admitted to trading on a regulated market, commitments made to their chairmen, general managers or chief executive officers, by the company itself or by any controlled or controlling company within the meaning of II and III of Article L233-16, relating to elements of remuneration, compensation or benefits payable or likely to become payable on account of their functions ceasing or changing, or thereafter, are subject to the provisions of Articles L225-38 and L225-40 to L225-42.
NB: Act No. 2005-842 of 26 July 2005 Art. 8 II: the provisions of Article 8 I are applicable to agreements entered into with effect from 1 May 2005.
Subsection 2 Management and supervisory board Articles L225-57 to
L225-90-1
Article L225-57 The memorandum and articles of association of any public limited company may stipulate that it shall be governed
by the provisions of this sub-section. If so, the company shall remain subject to all rules applicable to public limited companies, except those contained in Articles L. 225-17 to L.225-56.
It may be decided during the existence of the company that this stipulation shall be introduced into, or deleted from, its memorandum and articles of association.
Article L225-58 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II, Official Gazette of 22 September 2000, in force on 1 January 2002)
A public limited company shall be managed by a management consisting of not more than five members. Where the company's shares are admitted for trading on a regulated market, the said number may be increased to seven by the memorandum and articles of association.
In public limited companies with a share capital of less than 150,000 euros, the functions conferred on the management may be exercised by a single person.
The management shall exercise its functions under the supervision of a supervisory board.
Article L225-59 The members of the management shall be appointed by the supervisory board, which shall appoint one of the said
members as chairman. Where a single person exercises the functions conferred on the management, that person shall take the title of"sole
managing director". Members of the management, or the sole managing director, must be natural persons, failing which their
appointment shall be void. They may be chosen from outside the shareholders.
Article L225-60 The memorandum and articles of association must lay down an age limit for the exercising of the functions of a
member of the management or of a sole managing director. In the absence of any express provision, the said age limit shall be sixty-five years.
Any nomination made in breach of the provisions of the preceding sub-paragraph shall be void. On attaining the said age, a member of the management or the sole managing director shall be deemed to resign
from office.
Article L225-61 (Law No 2001-420 of 15 May 2001 Article 108 Official Gazette of 16 May 2001)
The members of the management or the sole managing director may be dismissed by the general meeting, and also, if the memorandum and articles of association so provide, by the supervisory board. If the decision to dismiss them is unreasonable, they may be entitled to sue for damages.
If the interested party has entered into a contract of employment with the company, their dismissal from the post of director shall not have the effect of terminating the said contract.
Article L225-62 The memorandum and articles of association shall determine the term of office of the management within limits of
between two and six years. In the absence of any provision in the memorandum and articles of association, the term of office shall be four years. If any post becomes vacant during the said term, the replacement director shall be appointed for the remainder of the mandate of the current management.
Article L225-63 The deed of appointment shall fix the method and amount of the remuneration to be paid to each member of the
management.
Article L225-64 The management shall have the widest powers to act on the company's behalf in any circumstances. It shall
exercise its said powers within the limits of the purpose of the company and subject to the powers expressly attributed by the law to the supervisory board and shareholders' meetings.
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COMMERCIAL CODE In dealings with third parties, the company shall be bound even by acts of the management that do not relate to its
objects, unless it can prove that the third party was aware that the act in question was beyond the scope of the said objects or that in the circumstances it could not have been unaware of that fact. Mere publication of the memorandum and articles of association is considered not to be sufficient proof thereof.
Provisions of the memorandum and articles of association limiting the powers of the management shall not be binding on third parties.
The management shall consider and take its decisions in accordance with the conditions laid down by the memorandum and articles of association.
Article L225-65 The supervisory board may decide to move the company's registered office within the same department or to an
adjacent department, subject to the ratification of its said decision by the next routine shareholders’ meeting.
Article L225-66 The chairman of the management or the sole managing director, as the case may be, shall represent the company
in its dealings with third parties. Nevertheless, the memorandum and articles of association may empower the supervisory board to attribute the
same power of representation to one or more other members of the management, who will then be known as the managing director(s).
Provisions of the memorandum and articles of association limiting the powers of representation of the company shall not be binding on third parties.
Article L225-67 (Law No 2001-420 of 15 May 2001 Article 105 and Article 110 (4) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (III) Official Gazette of 30 0ct 2002)
No natural person shall concurrently hold more than one directorship or sole managing directorship of companies having their registered office on French soil.
Contrary to the provisions of the first paragraph: - a natural person can concurrently act as a managing director or the sole managing director of another company
which is controlled, within the meaning of Article L. 233-16, by the company of which that natural person is a director or the sole managing director;
- a natural person who is a managing director of a company may also be a managing director or the sole managing director of another company, provided that its shares are not quoted on a regulated stock market.
Any natural person who is in breach of the provisions of the present Article shall resign from one of his directorships within three months of being appointed, or from the directorship in question within three months of the occurrence of the event which resulted in a condition laid down in the previous paragraph no longer being met. Upon expiry of that period, he shall be deemed to have resigned either from his new directorship or from the directorship which no longer meets the conditions laid down in the previous paragraph, whichever applies, and shall return the remuneration received. This shall not affect the validity of the deliberations in which he participated.
Article L225-68 (Act No. 2003-706 of 1 August 2003 Art. 117 I 2 Official Journal of 2 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 7 II, Art. 11 II Official Journal of 27 July 2005)
The supervisory board permanently supervises the executive board's management of the company. The memorandum and articles of association may make execution of the latter's transactions subject to prior
approval from the supervisory board. However, the assignment of real property, the total or partial assignment of equity holdings, the provision of sureties, security, avals and guarantees shall require the supervisory board's approval as determined in a Conseil d'Etat decree unless the company is a banking or financial institution. The said decree also determines how any transaction lacking such approval may be raised against third parties.
Throughout the year, the supervisory board carries out the verifications and inspections it considers appropriate and may request sight of any document it considers necessary for the accomplishment of its mission.
The executive board presents a report to the supervisory board at least once each quarter. Following the close of each accounting period and within a time limit determined in a Conseil d'Etat decree, the
executive board also presents to it, for verification and inspection purposes, the documents referred to in the second paragraph of Article L225-100.
The supervisory board presents its observations on the executive board's report and the accounts for the period to the general meeting referred to in Article L225-100.
In companies that make public offerings, the chairman of the supervisory board describes the preparation and organisation of the board's work and the internal auditing procedures put in place by the company in a report attached to the report referred to in the previous paragraph and in Article L233-26
Article L225-69 (Law No 2001-420 of 15 May 2001 Article 104 (2) Official Gazette of 16 May 2001)
The Supervisory board shall consist of at least three members. The memorandum and articles of association shall fix the maximum number of members of the board, which shall be limited to eighteen.
Article L225-70 The memorandum and articles of association must stipulate an age limit for the exercise of the functions of a
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COMMERCIAL CODE member of the supervisory board, applicable either to all members of the supervisory board or to a specific percentage of them.
In the absence of any express provision in the memorandum and articles of association, the number of members of the supervisory board who have attained the age of seventy years must not exceed one third of the members of the supervisory board currently in office.
Any appointment made in breach of the provisions of the preceding sub-paragraph shall be void. In the absence of any express provisions in the memorandum and articles of association stipulating some other
procedure, where the limit fixed by the memorandum and articles of association or the law as to the age of members of the supervisory board is exceeded, the oldest member of the supervisory board shall be deemed to have resigned from their post.
Article L225-71 (Law No 2001-152 of 19 February 2001 Article 24 (3) and (4) and Article 25 (II) Official Gazette of 20 February 2001) (Law No 2001-1168 of 11 December 2001 Article 33 (III) Official Gazette of 12 December 2001) (Law No 2002-73 of 17 January 2002 Article 217 (3) and (4) Official Gazette of 18 January 2002)
If the report presented to the general meeting by the executive board pursuant to Article L. 225-102 establishes that the shares held by the company's staff and by the staff of affiliated companies within the meaning of Article L.225-180 represent more than 3% of the company's share capital, one or more members of the supervisory board shall be elected by the general meeting of shareholders on a proposal from the shareholders as provided for in Article L. 225-102 and as prescribed in the relevant decree. Those members shall be elected from among the employee-shareholders or, if appropriate, from among the employee-shareholders who are members of the supervisory board of a company investment trust which holds shares in the company. Such members are not counted when the minimum and maximum numbers of supervisory board members are determined pursuant to Article L. 225-69.
If an extraordinary general meeting is not held within eighteen months of the report being presented, any employee-shareholder may request the presiding judge, ruling on a summary basis, to direct the executive board, under pain of a coercive fine, to convene an extraordinary general meeting and submit draft resolutions to it aimed at amending the memorandum and memorandum and articles of association as provided for in the preceding paragraph and in the final paragraph of the present Article.
If the request is upheld, the coercive fine and the legal costs shall be paid by the board members. Companies whose supervisory board includes one or more members designated by the members of the supervisory
boards of company investment trusts representing the members, or one or more employees elected pursuant to the provisions of Article L. 225-79, are exempted from the obligations referred to in the first paragraph.
If an extraordinary general meeting is convened pursuant to the first paragraph, it also rules on a draft resolution to provide for the election of one or more members of the supervisory board by the staff of the company and of the direct or indirect subsidiaries having their registered office in France. If appropriate, these representatives are designated as provided for in Article 225-79.
Article L225-72 (Law No 2001-420 of 15 May 2001 Article 115 (4) Official Gazette of 16 May 2001)
Every member of the supervisory board must own such number of shares in the company as is determined by the memorandum and articles of association.
If, on the day of their appointment, a member of the supervisory board does not own the requisite number of shares or if, during their period of office, they shall cease to own the same, they shall be deemed to have resigned their post, unless they shall have remedied the said situation within a period of three months.
The provisions of the first sub-paragraph shall not apply to paid employees holding shares who are appointed as members of the supervisory board pursuant to Article L. 225-71.
Article L225-73 The auditors shall be responsible, on their own liability, for ensuring that the rules laid down in Article L225-72 are
duly observed and shall disclose any breach thereof in their report to the annual general meeting.
Article L225-74 No member of the supervisory board may be a member of the management.
Article L225-75 Members of the supervisory board shall be appointed by the inaugural general meeting or the routine shareholders’
meeting. In the circumstances specified in Article L225-16, they shall be designated in the memorandum and articles of association. Their terms of office shall be determined by the memorandum and articles of association, but may not exceed six years where they are appointed by the general meetings and three years where they are appointed in the memorandum and articles of association.
They shall be eligible for re-election unless otherwise stipulated by the memorandum and articles of association. They may be dismissed by the routine shareholders’ meeting at any time.
Any appointment made in breach of the foregoing rules shall be void except any that may be made in the circumstances specified in Article L. 225-78.
Article L225-76 A legal person may be appointed on to the supervisory board. On appointment, it must designate a permanent
representative who shall be subject to the same conditions and obligations and shall incur the same civil and criminal
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COMMERCIAL CODE liabilities as if they were a member of the Board in their own name, without prejudice to the joint and several liability of the legal person they represent.
If a legal person dismisses its representative, it must simultaneously replace them.
Article 225-77 (Law No 2001-420 of 15 May 2001 Article 110 (5) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (IV) Official Gazette of 30 October 2002)
No natural person shall concurrently be a member of the supervisory board of more than five limited companies having their registered office on French soil.
Contrary to the provisions of the first paragraph, this shall not apply to supervisory board membership or directorships of companies which are controlled, within the meaning of Article L. 233-16, by the company on whose supervisory board that natural person sits.
For the purposes of the present Article, seats on the supervisory board of companies whose shares are not quoted on a regulated stock market, within the meaning of Article L. 233-16, that are occupied by a single company count as one directorship, subject to the number of such directorships held not exceeding five.
Any natural person who is in breach of the provisions of the present Article shall resign from one of his directorships within three months of being appointed, or from the directorship in question within three months of the occurrence of the event which resulted in a condition laid down in the previous paragraph no longer being met. Upon expiry of that period, he shall be deemed to have resigned either from his new directorship or from the directorship which no longer meets the conditions laid down in the previous paragraph, whichever applies, and shall return the remuneration received. This shall not affect the validity of the deliberations in which he participated.
Article L225-78 Should one or more vacancies on the supervisory board occur through death or resignation, the Board may make
temporary appointments between two general meetings. Where the number of members of the supervisory board shall have fallen below the legal minimum, the
management must immediately call an routine shareholders’ meeting to complete the membership of the supervisory board.
Where the number members of the supervisory board shall have fallen below the minimum required by the memorandum and articles of association, although not below the legal minimum, the supervisory board must make temporary appointments with the object of completing the membership of the Board within three months of the date on which the vacancy occurs.
Appointments made by the board pursuant to the first and third sub-paragraphs above shall be subject to ratification by the next routine shareholders’ meeting. If the appointments are not so ratified, any decisions previously taken and acts previously effected by the board shall nevertheless remain valid.
If the board shall neglect to make the requisite appointments or if the meeting shall not be called, any interested party may bring a legal action for the appointment of a representative to be responsible for calling a general meeting, with the object of making or ratifying the appointments referred to in the third sub-paragraph.
Article L225-79 It may be stipulated in the memorandum and articles of association that, apart from those members whose number
and method of appointment are specified in Articles L.225-69 and L.225-75, the supervisory board shall include members elected either by the company's personnel or by the personnel of the company and those of its direct or indirect subsidiaries whose registered offices are situated on French territory.
The number of members of the supervisory board elected by the employees may not exceed four, nor a third of the number of other members. Where the number of members elected by the employees is two or more, engineers, executives and employees of similar rank shall have at least one seat.
Members of the supervisory board elected by the employees shall not be taken into account when determining the minimum and maximum number of members stipulated in Article L.225-69.
Article L225-80 Conditions relating to eligibility, the electorate, the composition of electing bodies, voting methods, objections, terms
and conditions of office, dismissal, the protection of contracts of employment and the replacement of members of the supervisory board elected by the employees shall be fixed in accordance with the rules defined in Articles L.225-28 to L.225-34.
Article L225-81 The supervisory board shall elect from among its own members a chairman and a deputy chairman who shall be
responsible for calling meetings and conducting its discussions. It shall determine their remuneration if it sees fit. The chairman and deputy chairman of the supervisory board must be natural persons, failing which their
appointment shall be void. They shall hold office throughout the term of office of the supervisory board.
Article L225-82 (Act No. 2001-420 of 15 May 2001 Art. 109 2 Official Journal of 16 May 2001) (Act No. 2005-842 of 26 July 2005 Art. 5 II Official Journal of 27 July 2005)
The Supervisory Board may validly deliberate only if at least half of its members are present. Unless the memorandum and articles of association require a larger majority, the decisions are taken on a majority
vote of the members present or represented.
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COMMERCIAL CODE Unless the board is convened to deal with matters referred to in Articles L232-1 and L233-16, and barring any
contrary provision in the memorandum and articles of association, the internal regulations may provide for supervisory board members who participate in the meeting via videoconferencing or via a telecommunications medium which permits their identification and guarantees their effective participation to be deemed to be present for calculation of the quorum and the majority. The nature of, and implementing regulations for, such media are determined in a Conseil d'Etat decree. The memorandum and articles of association may limit the nature of the decisions which may be made at such meetings and provide for a right of objection for a given number of supervisory board members.
Barring any contrary provision in the memorandum and articles of association, the chairman of the meeting has a casting vote in the event of a split vote.
Article L225-83 (Law No 2001-420 of 15 May 2001, Article 117 II, Official Gazette of 16 May 2001)
The general meeting may allocate to members of the supervisory board, in remuneration for their work, by way of attendance fees, a fixed annual sum to be determined by the said meeting, which shall not be bound by the provisions of the memorandum and articles of association or previous decisions. The amount of the said sum shall be entered in the accounts as operating expenses. The distribution thereof among the members of the supervisory board shall be fixed by the latter.
Article L225-84 The supervisory board may allocate extraordinary payments in remuneration of duties or mandates entrusted to
members of the board. In any such case, the said payments, which shall be entered in the accounts as operating expenses, shall be subject to the provisions of Articles L.225-86 to L.225-90.
Article L225-85 Members of the supervisory board shall not receive any remuneration, whether permanent or otherwise, from the
company, other than that provided in Articles L.225-81, L.225-83 and L.3225-84, and, if appropriate, those payable under a contract of employment for a post actually held.
The number of members of the supervisory board bound to the company by a contract of employment must not exceed a third of the members in office at any given time. Nevertheless, members of the supervisory board elected in accordance with Articles L.225-79 and L.225-80 and those appointed
in accordance with the provisions of Article L.225-71 shall not be counted when determining the said number. Any clause to the contrary in the memorandum and articles of association shall be deemed non-existent and any
decision to the contrary shall be void.
Article L225-86 (Law No 2001-420 of 15 May 2001 111 (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (6) Official Gazette of 2 August 2003)
Any agreement entered into, either directly or through an intermediary, between the company and a member of the executive board or of the supervisory board, one of its shareholders holding a fraction of the voting rights greater than 10% or, in the case of a corporate shareholder, the company which controls it within the meaning of Article L. 233-3, must be subject to the prior consent of the supervisory board.
The same applies to agreements in which a person referred to in the previous paragraph has an indirect interest. Agreements entered into between the company and another firm are also subject to prior consent if a member of
the company's executive board or supervisory board is the owner, an indefinitely liable partner, a manager, a director or a member of that firm's supervisory board or, more generally, is in any way involved in its management.
Article L225-87 (Law No 2001-420 of 15 May 2001 Article 111 (7) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (2) Official Gazette of 2 August 2003)
The provisions of Article 225-86 are not applicable to agreements relating to current operations entered into under normal terms and conditions.
Such agreements are nevertheless made known to the chairman of the supervisory board by the interested party unless they are of no significance to any party, given their objective or their financial implications. A list of such agreements and their objectives is sent to the members of the supervisory board and to the auditors by the chairman.
Article L225-88 (Law No 2001-420 of 15 May 2001, Article 111(9), Official Gazette of 16 May 2001)
The interested party must inform the supervisory board as soon as they become aware of an agreement to which Article L.225-86 applies. If they sit as a member of the supervisory board, they may not take part in the vote on the consent requested.
The chairman of the supervisory board shall notify the auditors of all agreements approved and shall submit the same to the general meeting for approval.
The auditors shall present a special report on the said agreements to the meeting, which shall pass a resolution regarding the said report.
The interested party shall not be entitled to take part in the vote and their shares shall not be taken into account when calculating the quorum and the majority.
Article L225-89
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COMMERCIAL CODE (Law No 2001-420 of 15 May 2001, Article 111(12), Official Gazette of 16 May 2001)
Whether or not approved by the meeting, agreements shall have legal effect so far as third parties are concerned, unless the annulled for fraud.
Even where there is no fraud, the interested party, and other members of the management if appropriate, may be held liable for any consequences of unapproved agreements that are damaging to the company.
Article L225-90 Without prejudice to the liability of the interested party, any such agreements as are referred to in Article L.225-86, if
entered into without the prior consent of the supervisory board, may be annulled if they have had damaging effects on the company.
An action for annulment must be brought within three years of the date of the agreement. Nevertheless, if the agreement was concealed, time shall begin to run with effect from the date on which its existence became known.
The annulment of such an agreement may be covered by a vote of the general meeting acting on a special auditors' report stating the reasons why the consent procedure was not followed. The fourth sub-paragraph of Article L.225-88 shall apply.
Article L225-91 It shall be prohibited for members of the management and non-corporate members of the supervisory board to
obtain loans from the company in any form, or overdraft facilities, on a current account or otherwise, or to obtain any pledge of security or guarantee from the company for any obligations they may contract to third parties. Any agreement to do so shall be void.
This prohibition shall apply to permanent representatives of corporate members of the supervisory board. It shall likewise apply to the spouses, ascendants and descendants of persons referred to in this Article, or any intermediary.
Nevertheless, where the company operates a banking or financial institution, the prohibition shall not apply to ordinary transactions concluded on normal terms and conditions in the course of its business..
The prohibition shall not apply to loans granted by the company to members of the supervisory board elected by the employees, pursuant to Article 313-1 of the Building and Housing Code.
Article L225-92 Members of the management and the supervisory board, and likewise any person called to attend meetings of the
said boards, shall required to maintain the secrecy of any information of a confidential nature given as such by the chairman.
Article L225-93 Should proceedings be commenced for a Court order for financial reorganisation on insolvency or liquidation subject
to judicial supervision, pursuant to Title II of Book VI, the persons referred to in the said provisions may be held liable for the debts of the company and shall be subject to the relevant prohibitions and prohibition, as laid down by the said provisions.
Article L225-79-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 8 I Official Journal of 27 July 2005)
In companies whose securities are admitted to trading on a regulated market, if a person bound by a contract of employment to the company or to any other controlled company or controlling company within the meaning of II and III of Article L233-16 is appointed as a member of the executive board, the said contract's provisions, if any, relating to elements of remuneration, compensation or benefits payable or likely to become payable on account of those functions ceasing or changing, or thereafter, shall be subject to the provisions of Articles L225-86 and L225-88 to L225-90.
NB: Act No. 2005-842 of 26 July 2005 Art. 8 II: the provisions of Article 8 I are applicable to agreements entered into with effect from 1 May 2005.
Article L225-90-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 8 I Official Journal of 27 July 2005)
In companies whose securities are admitted to trading on a regulated market, commitments made to executive board members, by the company itself or by any controlled or controlling company within the meaning of II and III of Article L233-16, relating to elements of remuneration, compensation or benefits payable or likely to become payable on account of their functions ceasing or changing, or thereafter, are subject to the provisions of Articles L225-86 and L225-88 to L225-90.
NB: Act No. 2005-842 of 26 July 2005 Art. 8 II: the provisions of Article 8 I are applicable to agreements entered into with effect from 1 May 2005.
Subsection 3 Provisions common to managing agents of public limited companies Articles L225-94 to
L225-95-1
Article L225-94 (Law No 2001-420 of 15 May 2001 Article 110 (6) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (V) Official Gazette of 30 October 2002)
The limitation of the number of seats on the board of directors or the supervisory board that any one natural person can occupy concurrently by virtue of Articles L. 225-212 L. 225-77 is applicable to the concurrent holding of seats on
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COMMERCIAL CODE both the board of directors and the supervisory board.
For the purposes of Articles L. 225-54-1 and L. 225-67, it is permissible for a natural person to hold the general managership of one company and that of another company which is controlled by that company within the meaning of Article L. 233-16.
Article L225-94-1 (Law No 2001-420 of 15 May 2001 Article 110 (7) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (VI) Official Gazette of 30 October 2002) (Law No 2003-706 of 1 August 2003 Article 131 (1) Official Gazette of 2 August 2003)
Without prejudice to the provisions of Articles L. 225-21, L. 225-54-1, L. 225-67, L. 225-77 and L. 225-94, no natural person shall concurrently hold more than five posts as managing director, director, sole managing director or member of the supervisory board of limited companies having their registered office on French soil. For the purposes of these provisions, the assumption of general management duties by a director counts as a single post.
Contrary to the above provisions, this shall not apply to directorships, or supervisory board membership, of companies which are controlled, within the meaning of Article L. 233-16, by the company in which a post referred to in the first paragraph is occupied. (1)
Any natural person who is in breach of the provisions of the present Article shall resign from one of his directorships within three months of being appointed, or from the directorship in question within three months of the occurrence of the event which resulted in a condition laid down in the previous paragraph no longer being met. Upon expiry of that period, he shall be deemed to have resigned either from his new directorship or from the directorship which no longer meets the conditions laid down in the previous paragraph, whichever applies, and shall return the remuneration received. This shall not affect the validity of the deliberations in which he participated.
NB (1): These provisions enter into force on 16 November 2002.
Article L225-95 (Law No 2001-420 of 15 May 2000 Article 104 (3) Official Gazette of 16 May 2001)
In the event of a merger of public limited companies, the number of members of the board of directors or supervisory board, as the case may be, may exceed the total of eighteen specified in Articles L.225-17 and L.225-69, for a period of three years from the date of the merger, as laid down in Article L.236-4, but may not exceed twenty-four.
Article L225-95-1 (Act No. 2001-420 of 15 May 2001 Art. 110 8 Official Journal of 16 May 2001) (Act No. 2002-1303 of 29 October 2002 Art. 2 Official Journal of 30 October 2002) (Act No. 2003-706 of 1 August 2003 Art. 63 V Official Journal of 2 August 2003)
Notwithstanding the provisions of Articles L225-21, L225-77 and L225-94-1, a remit as a permanent representative of a venture capital company referred to in Article 1 of Act No. 85-695 of 11 July 1985 containing various provisions of an economic and financial nature, or of an innovation venture capital company referred to in III (B) of Article 4 of Act No. 72-650 of 11 July 1972 containing various provisions of an economic and financial nature, or of a management company authorised to manage open-end investment companies governed by paragraph 1 of Subsection 6 of Section 1 of Chapter IV of Part I of Book II and Articles L214-36 and L214-41 of the Monetary and Financial Code, are not taken into account.
If the conditions stipulated in the present article are no longer met, any natural person must resign from the functions which do not meet the requirements of Articles L225-21, L225-77 and L225-94-1 within three months. Upon expiry of that period, he shall be deemed to no longer represent the legal entity and must return the remuneration received. This shall not affect the validity of the deliberations he participated in.
Notwithstanding Articles L225-21, L225-54-1, L225-67 and L225-94-1, remits as chairman, general manager, sole general manager, executive board member or director of a local semipublic limited company performed by a representative of a territorial authority or of a group of territorial authorities are not taken into account for application of the rules relating to plurality of offices.
SECTION III Shareholders’ meetings Articles L225-96 to
L225-126
Article L225-96 (Act No. 2005-842 of 26 July 2005 Art. 6 I Official Journal of 27 July 2005)
Only an extraordinary General Meeting is authorised to amend any provision of the articles of association. Any clause to the contrary is deemed unwritten. It may nevertheless not increase the shareholders' commitments, without prejudice to transactions resulting from a properly executed share consolidation.
It may validly deliberate when first convened only if the shareholders present or represented hold at least one quarter of the voting shares and, if reconvened, one fifth of the voting shares. Failing this, the second meeting may be postponed to a date not later than two months after the date originally scheduled. In companies which do not make public offerings, the memorandum and articles of association may require higher quorums.
It rules on a majority of two thirds of the votes held by the shareholders present or represented.
Article L225-97 An special shareholders’ meeting may change the nationality of the company, provided that the new host country
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COMMERCIAL CODE shall have entered into a special agreement with France permitting the company to acquire its nationality and to transfer its registered office to the new host country's territory, while retaining its legal personality.
Article L225-98 (Act No. 2005-842 of 26 July 2005 Art. 6 II Official Journal of 27 July 2005)
The ordinary general meeting makes all decisions other than those referred to in Articles L225-96 and L225-97. It may validly deliberate when first convened only if the shareholders present or represented hold at least one fifth of
the voting shares. In companies which do not make public offerings, the memorandum and articles of association may require a higher quorum. If it is reconvened, no quorum is required.
It rules on a majority of the votes held by the shareholders present or represented.
Article L225-99 (Act No. 2005-842 of 26 July 2005 Art. 6 III Official Journal of 27 July 2005)
The holders of shares in a given category attend special meetings. A decision to vary the rights relating to a share category taken at a general meeting is not final until it has been
approved by that category's special meeting of shareholders. Special meetings may only validly deliberate when first convened if the shareholders present or represented hold at
least one third of the voting shares whose rights are to be varied and, if reconvened, one fifth of those shares. Failing this, the second meeting may be postponed to a date not later than two months after the date originally scheduled. In companies which do not make public offerings, the memorandum and articles of association may require higher quorums.
They rule as stipulated in the third paragraph of Article L225-96.
Article L225-100 (Act No. 2001-420 of 15 May 2001 Art. 118 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 I Official Journal of 26 June 2004) (Order No. 2004-1382 of 20 December 2004 Art. 3 Official Journal of 22 December 2004)
An ordinary general meeting is held at least once each year within six months of the close of the financial year, without prejudice to any extension of that time limit by a court decision.
The board of directors or the executive board presents its report and the annual accounts to the meeting and also, where applicable, the consolidated accounts and the management report relating thereto.
The said report includes an objective and exhaustive analysis of the company's business development, results and financial position, and in particular its borrowings relative to the volume and complexity of the business. To the extent necessary for an understanding of the company's business development, results or position, and independently of the key performance indicators of a financial nature which must be included in the report by virtue of other provisions of the present code, the analysis includes, where appropriate, the key performance indicators of a non-financial nature which relate to the company's specific business, such as information pertaining to environmental issues and personnel matters.
The report also includes a description of the main risks and uncertainties the company faces. The analysis referred to in the third paragraph contains, where applicable, references to the figures shown in the
annual accounts and additional explanations relating thereto. The report also contains indications concerning the company's use of financial instruments, when this is relevant for
an evaluation of its assets, its liabilities, its financial position and its profits or losses. These indications relate to the company's objectives and policy in regard to financial risk management, including its policy on the hedging of each main transaction category envisaged for which hedge accounting is used. They also relate to the company's exposure to price, credit, liquidity and cash-flow risks.
A summary table of the powers granted to the board of directors or the executive board by the general meeting of shareholders in connection with capital increases pursuant to Articles L. 225-129-1 and L. 225-129-2 is attached to the said report. The table shows the use made of those powers during the financial year.
In their report, the auditors comment on the fulfilment of the task entrusted to them by Article L. 225-235. The meeting deliberates and rules on all matters relating to the annual accounts and, where applicable, the
consolidated accounts, for the previous financial year. It exercises the powers vested in it, inter alia, by Article L. 225-18, the fourth paragraph of Article L. 225-24, the third
paragraph of Article L. 225-40, the third paragraph of Article L. 225-42 and Article L. 225-45, or, where applicable, Article L. 225-75, the fourth paragraph of Article L. 225-78, Article L. 225-83, the third paragraph of Article L. 225-88 and the third paragraph of Article L. 225-90.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L225-100-1 (inserted by Order No. 2004-1382 of 20 December 2004 Art. 4 Official Journal of 22 December 2004)
The third to sixth paragraphs of Article L. 225-100 do not apply to companies which, at the close of the financial year, do not exceed the figures determined by decree for two of the following criteria: the balance sheet total, the net amount of their turnover or the average number of permanent staff employed during the financial year. The present paragraph does not apply to companies whose financial instruments referred to in 1 or 2 of I of Article L. 211-1 of the Monetary and Financial Code are admitted to trading on a regulated market.
Companies which, at the close of the financial year, do not exceed the figures determined by decree for two of the
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COMMERCIAL CODE following criteria: the balance sheet total, the net amount of their turnover or the average number of permanent staff employed during the financial year, are not required to provide the information of a non-financial nature referred to in the last sentence of the third paragraph of Article L. 225-100. The present paragraph does not apply to companies whose financial instruments referred to in 1 or 2 of I of Article L. 211-1 of the Monetary and Financial Code are admitted to trading on a regulated market.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L225-100-2 (inserted by Order No. 2004-1382 of 20 December 2004 Art. 4 Official Journal of 22 December 2004)
When the company draws up consolidated accounts pursuant to Article L. 233-16, the consolidated management report includes an objective and exhaustive analysis of the business trend, of the results and of the financial position of all the companies included in the consolidation, and in particular their borrowings relative to the volume and complexity of the business. To the extent necessary for an understanding of the companies' business development, results or situation, the analysis increases the key performance indicators of a nature financial and, where applicable, non-financial nature which relate to the companies' specific business, such as information pertaining to environmental issues and personnel matters.
The report also includes a description of the main risks and uncertainties faced by all the companies included in the consolidation.
The analysis referred to in the first paragraph contains, where applicable, references to the figures shown in the consolidated accounts and additional explanations relating thereto.
The report also contains indications concerning the company's use of financial instruments, when this is relevant for an evaluation of its assets, its liabilities, its financial position and its profits or losses. These indications relate to the company's objectives and policy in regard to financial risk management, including its policy on the hedging of each main transaction category envisaged for which hedge accounting is used. They also relate to the company's exposure to price, credit, liquidity and cash-flow risks.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L225-101 Where, within two years of registration, a company acquires an asset belonging to a shareholder which is worth at
least one-tenth of its share capital, a valuer shall be appointed by a Court order to value the asset in question on his own liability, on an application by the chairman of the board of directors or the management, as the case may be. The appointment of the said valuer shall be subject to the incompatibility rules set out in Article L.225-224.
The valuer's report shall be made available to the shareholders. The routine shareholders’ meeting shall rule on the valuation of the asset, failing which the acquisition shall be void. The seller shall not have the right to vote either on its own behalf or as a representative.
The provisions of this Article shall not apply where the acquisition is effected on the Stock Exchange, under the supervision of a judicial authority or in connection with the company's ordinary business, concluded on normal terms and conditions.
Article L225-102 (Law No 2001-152 of 19 February 2001 Article 26 Official Gazette of 20 February 2001)
The report submitted to the routine meeting by the board of directors or the management, as the case may be, shall give an annual account of the number of shares of the company's capital held by employees at the last day of the financial year and shall establish the proportion of the share capital represented by shares held by company personnel and personnel of companies associated with it for the purposes of Article L.225-180 under a company savings scheme as provided for by Articles L.443-1 to L.443-9 of the Employment Code and by employees and former employees in connection with company investment trusts governed by Chapter III of Law No 88-1201 of 23 December 1988 relating to security investment trusts and creating debt investment trusts. Shares directly held by employees during the periods of inaccessibility specified in Articles L.225-194 and L.225-197, in Article 11 of Law No 86-912 of 6 August 1986 relating to terms and conditions of privatisation and Article 442-7 of the Employment Code shall also be taken into account.
Shares acquired by employees in connection with the buy-out of a company by its employees, as provided for by Law No 84-578 of 9 July 1984 on the development of economic initiatives, or by employees of a production workers' co-operative within the meaning of Law No 78-763 of 19 July 1978 laying down rules for production co-operatives shall not be taken into account when evaluating the proportion of capital as mentioned in the preceding sub-paragraph.
Where the Annual Report does not contain the information referred to in the first sub-paragraph, any interested party may make an interlocutory application to the Presiding Judge of the Court for an order to the effect that the board of directors or the management, as the case may be, must disclose the said information, subject to a daily penalty if it fails to do so.
Where the application is granted, any penalty and the expenses of the proceedings shall be payable by the directors or members of the management, as the case may be.
Article L225-102-1 (Act No. 2001-420 of 15 May 2001 Art. 116 I Official Journal of 16 May 2001) (Act No. 2003-706 of 1 August 2003 Art. 138 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 51 II Official Journal of 26 June 2004)
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COMMERCIAL CODE (Act No. 2005-842 of 26 July 2005 Art. 9 I Official Journal of 27 July 2005)
The report referred to in Article L225-102 itemises the total remuneration and benefits of all kinds paid to each company officer during the accounting period including any allotments of capital securities, debt instruments or securities giving access to the capital or giving entitlement to an allotment of debt instruments of a company or companies referred to in Articles L228-13 and L228-93.
It also indicates the amount of the remuneration and benefits of all kinds which each company officer received from controlled companies within the meaning of Article L233-16 or from the company which controls the company in which the duties are performed within the meaning of that same article during the accounting period.
The said report also describes and distinguishes between the fixed, variable and exceptional elements that make up that remuneration and those benefits as well as the criteria used to calculate them or the circumstances giving rise to them. It likewise indicates the commitments of all kinds made by the company in favour of the company officers relating to elements of remuneration, compensation or benefits payable or likely to be payable on account of them taking up or ceasing their functions or of their functions changing, or subsequently thereto. The information provided in this regard must specify the method used to determine those commitments. Barring arrangements made in good faith, payments and commitments made in violation of the provisions of the present paragraph may be cancelled.
It also includes a list of all the remits and functions performed in each company by each company officer during the accounting period.
It also includes a list of information as laid down in a Conseil d'Etat decree concerning the manner in which the company deals with the social and environmental consequences of its business. The present paragraph does not apply to companies whose securities are not admitted to trading on a regulated market.
The provisions of the last two paragraphs of Article L225-102 apply to the information referred to in the present article.
The provisions of the first to third paragraphs do not apply to companies whose securities are not admitted to trading on a regulated market and which are not controlled within the meaning of Article L233-16 by a company whose securities are admitted to trading on a regulated market. Moreover, these provisions do not apply to company officers who do not hold any remit in a company whose securities are admitted to trading on a regulated market.
Article L225-102-2 (inserted by Law No. 2003-699 of 30 July 2003 Article 23 Official Gazette of 31 July 2003)
For companies which operate at least one installation of a type indicated on the list provided in IV of Article L. 515-8 of the Environmental Code, the report referred to in Article L. 225-102 of the present code shall:
- provide details of the technological accident risk-prevention policy the company applies; - explain how the company has covered its civil liability in regard to property and persons which the use of such
installations gives rise to; - specify the measures the company has put in place to ensure proper compensation of the victims in the event of it
incurring liability for a technological accident.
Article L225-103 (Law No 2001-420 of 15 May 2001 Article 114 (2) Official Gazette of 16 May 2001)
I.- The general meeting shall be convened by the board of directors or the management, as the case may be. II.- If not so convened, the general meeting may also be convened: 1. By the auditors; 2. By a representative appointed by the Court, on an application either by any interested party, in the event of
emergency, or by one or more shareholders who together hold more than 5% of the share capital, or by an association of shareholders in accordance with the conditions laid down in Article L.225-120;
3. By the liquidators; 4. By the majority shareholders in terms of capital or voting rights after a public take-over bid or exchange offer or
the transfer of a controlling block of shares. III.- In companies subject to Articles L.225-57 to L.225-93, the general meeting may be convened by the supervisory
board. IV.- The foregoing provisions shall be applicable to special meetings. Shareholders applying for the appointment of
a judicial representative must hold at least one tenth of the shares of the relevant class. V. Unless otherwise provided by the memorandum and articles of association, shareholders' meetings shall be held
at the registered office or anywhere else in the same department.
Article L225-104 Shareholders' meetings shall be convened in the manner and subject to time limits to be laid down by an Order
approved by the Conseil d'Etat. Any meeting may be cancelled if incorrectly convened. An application for cancellation shall not, however, be admissible where all the shareholders were present or represented.
Article L225-105 (Law No 2003-706 of 1 August 2003 Article 119 Official Gazette of 2 August 2003)
The agenda for general meetings is determined by the convener. However, one or more shareholders representing at least 5% of the capital, or a shareholders' association which
meets the conditions laid down in Article L. 225-120, are entitled to request the inclusion of draft resolutions on the agenda. Such draft resolutions are included on the agenda for the meeting and brought to the knowledge of the
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COMMERCIAL CODE shareholders in the manner determined in a Conseil d'Etat decree. The said decree may reduce the percentage imposed by the present paragraph if the share capital exceeds a level specified therein.
The meeting cannot deliberate on an item which is not on the agenda. It may nevertheless remove one or more directors or supervisory board members from office and replace them, in any circumstances.
The agenda for the meeting cannot be amended when a second notice to attend is sent out. When the meeting is called upon to deliberate on changes to the company's financial or legal organisation in
respect of which the works council has been consulted pursuant to Article L. 432-1 of the Labour Code, that body's opinion is conveyed to it.
Article L225-106 (Law No 2001-152 of 19 February 2001 Article 27 Official Gazette of 20 February 2001)
A shareholder may be represented by another shareholder or by his or her spouse. Any shareholder may receive powers issued by other shareholders to represent them at a meeting, without limits
other than those imposed by the law or the memorandum and articles of association fixing the maximum number of votes a single person may hold either on his own behalf or as a proxy.
Before every general shareholders' meeting,, the chairman of the board of directors or the management, as the case may be, may organise a consultation with the shareholders mentioned in Article L.225-102 to enable them to appoint one or more proxies to represent them at the meeting in accordance with the provisions of this Article.
Such a consultation shall be obligatory where, following the amendment of the memorandum and articles of association pursuant to Article L.225-23 or Article L.225-71, the routine shareholders’ meeting is required to appoint to the board of directors or the supervisory board, as the case may be, one or more shareholder employees or members of the supervisory board of the company investment trusts that holds the company's shares.
Such a consultation shall also be obligatory where an special shareholders’ meeting is required to take a decision on an amendment to the memorandum and articles of association pursuant to Article L.225-23 or Article L.225-71.
Any clauses that conflict with the provisions of the preceding sub-paragraphs shall be deemed non-existent. In the case of any power of representation given by a shareholder without naming a proxy, the chairman of the
general meeting shall issue a vote in favour of adopting an draft resolutions submitted or approved by the board of directors or the management, as the case may be, and a vote against adopting any other draft resolutions. To issue any other vote, the shareholder must appoint a proxy who agrees to vote in the manner indicated by his principal.
Article L225-107 (Law No 2001-420 of 15 May 2001 Article 115 (1) Official Gazette of 16 May 2001)
I. Any shareholder may vote by post, using a form the wording of which shall be fixed by an Order approved by the Conseil d'Etat. Any provisions to the contrary contained in the memorandum and articles of association shall be deemed non-existent.
When calculating the quorum, only forms received by the company before the meeting shall be taken into account, on conditions to be laid down by an Order approved by the Conseil d'Etat. Forms not indicating any vote or expressing an abstention shall be considered negative votes.
II. If the memorandum and articles of association so provide, shareholders participating in a meeting by video-conferencing or means of telecommunication that enable them to be identified, the nature and conditions of which shall be determined by an Order approved by the Conseil d'Etat, shall be deemed to be present at the said meeting for the purposes of calculating the quorum and majority.
Article L225-107-1 (Act No. 2001-420 of 15 May 2001 Art. 119 1 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 III Official Journal of 26 June 2004)
The owners of securities referred to in the seventh paragraph of Article L. 228-1 may arrange to be represented by a registered intermediary as provided for in the said article.
Article L225-108 The board of directors or management, as the case may be, must send or make available to the shareholders the
necessary documents to enable them to make decisions based on a knowledge of the facts and arrive at an informed judgment on the management and progress of the company and its business.
The nature of the said documents and the conditions upon which they are sent or made available to shareholders shall be determined by an Order approved by the Conseil d'Etat.
From the date of the delivery of documents specified in the first sub-paragraph, any shareholder shall be entitled to submit written questions, to which the board of directors or the management, as the case may be, shall required to reply in the course of the meeting.
Article L225-109 The chairman, managing directors and directors of a company, and any natural persons or legal persons exercising
the functions of a director or member of the supervisory board, and also permanent representatives of legal persons exercising the said functions, shall be required, upon conditions to be determined by an Order approved by the Conseil d'Etat, to register or deposit any shares belonging to themselves or their non-emancipated minor children that have been issued by the company itself, by its subsidiaries or parent company or by other subsidiaries of its parent company, where the said shares are admitted to trading on a regulated market.
Spouses of the persons mentioned in the preceding sub-paragraph shall (unless judicially separated) be subject to
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COMMERCIAL CODE the same obligation.
Article L225-110 Where shares are subject to a life interest, voting rights attached thereto shall belong to the beneficiary thereof at
routine shareholders’ meetings and to the remainderman at special shareholders’ meetings. Joint owners of undivided shares shall be represented at routine shareholders’ meetings by one of them or by a
single proxy. In the event of disagreement, the proxy shall be appointed by the Court at the request of the joint owner taking the initiative.
Voting rights shall be exercised by the owner in the case of shares pledged by way of security. To that end, the pledgee shall, at the debtor's request, place the shares he holds as security on deposit, on conditions and within time limits to be fixed by an Order approved by the Conseil d'Etat.
The memorandum and articles of association may create exceptions to the rule contained in the first sub-paragraph hereof.
Article L225-111 The company shall not be entitled to voting rights attached to shares it shall itself have subscribed, acquired or
taken as a pledge. Such shares shall not be taken into account when calculating the quorum.
Article L225-113 Any shareholder may take part in special shareholders’ meetings and any shareholder holding shares of the type
referred to in Article L225-99 may take part in special meetings. Any clause to the contrary shall be deemed non-existent.
Article L225-114 An attendance sheet, the wording of which shall be determined by an Order approved by the Conseil d'Etat, shall be
kept at every meeting.
Article L225-115 (Act No. 2001-420 of 15 May 2001 Art. 111 6 Official Journal of 16 May 2001) (Act No. 2003-706 of 1 August 2003 Art. 123 I 3 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 51 VI Official Journal of 26 June 2004)
Any shareholder is entitled, under the conditions and subject to the time limits determined in a Conseil d'Etat decree, to discovery of:
1. The inventory, the annual accounts and the list of directors or members of the executive board and the supervisory board, and, where applicable, the consolidated accounts;
2. The reports of the board of directors or the executive board and the supervisory board, as applicable, and the auditors, which shall be presented to the meeting;
3. Where applicable, the text of, and the objects and reasons for, the proposed resolutions, as well as information concerning candidates for the board of directors or the supervisory board, whichever applies;
4. The total amount, certified as accurate by the auditors, of the remuneration paid to the highest-paid persons, the number of such persons being ten or five depending on whether or not the workforce exceeds two hundred employees;
5. The total amount, certified as accurate by the auditors, of the payments made pursuant to 1 and 4 of Article 238 bis of the General Tax Code, as well as a list of the registered shares under sponsorship and the registered shares under patronage;
6. A list of the agreements relating to normal business entered into under normal terms and conditions, and their objects, drawn up pursuant to Articles L. 225-39 and L. 225-87.
Article L225-116 Before any general meeting is held, every shareholder shall be entitled, subject to conditions and time limits to be
determined by an Order approved by the Conseil d'Etat, to obtain the disclosure of a list of shareholders.
Article L225-117 Every shareholder shall be entitled at any time to obtain the disclosure of the documents referred to in Article
L.225-115 relating to the last three financial years, and the minutes and attendance sheets of meetings held during the said last three years.
Article L225-118 The right to disclosure of documents, provided in Articles L.225-115, L.225-116 and L.225- 117, shall be equally enjoyed by each joint owner in the case of undivided shares, and the remainderman and the
beneficiary in the case of shares subject to a life interest.
Article L225-120 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II Official Gazette of 22 September 2000, in force on 1 January 2002)
I.- In companies whose shares are admitted to trading on a regulated stock market, shareholders whose shares have been registered for at least two years and who hold at least 5% of the voting rights may form associations to represent their interests within the company. In order to exercise the rights to which they are entitled under Articles L225-103, L225-105, L225-230, L225-231, L225-232, L225-233 and L225-252, such associations must have notified the company and the Commission des Operations de Bourse [Securities and Investments Board] of their legal status.
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COMMERCIAL CODE Where, however, the company's capital exceeds 5,000,000 F, the share of voting rights to be represented pursuant
to the preceding paragraph is reduced according to the number of the voting rights relating to the capital, as follows: 1. 4% over 750,000 euros and up to 4,500,000 euros; 2. 3% over 4,500,000 euros and up to 7,500,000 euros; 3. 2% over 7,500,000 euros and up to 15,000,000 euros; 4. 1% over 15,000,000 euros.
Article L225-121 Decisions taken by meetings in breach of Articles L.225-96, L.225-97, L.225-98, the third and fourth sub-paragraphs
of Article L.225-99, the second sub-paragraph of Article L.225-100 and Articles L.225-105 and L.225-114 shall be void. In the event of breach of the provisions of Articles L.225-115 and L.225-116 or their implementing order, the
meeting may be annulled.
Article L225-122 I.- Subject to the provisions of Articles L.225-10, L.225-123, L.225-124, L.225-125 and L.225-126, voting rights
attached to capital or dividend shares shall be in proportion to the share of the capital they represent and each share shall entitle the holder to at least one vote. Any clause to the contrary shall be considered non-existent.
II.- In limited partnerships with shares, whose capital is partly owned by the State, departments, municipalities or public institutions as a matter of public policy, and those whose object is to operate services under licence from the competent Government authorities, outside mainland France, voting rights shall be governed by the memorandum and articles of association in force at 1 April 1967.
Article L225-123 A voting right equivalent to twice that attributed to other shares may be attributed to fully paid shares which can be
proved to have been registered in the name of the same shareholder for at least two years, depending on the proportion of the share capital they represent, by the memorandum and articles of association or an special shareholders’ meeting.
Furthermore, in the event of an increase in capital by incorporation of reserve funds, profits or issue premiums, a double voting right may be conferred from the date of issue on registered
shares allocated to a shareholder free of charge in proportion to any former shares for which he has the benefit of that right.
The voting right provided in the first and second sub-paragraphs above may be reserved to French shareholders and those that are nationals of a Member State of the European Community or a Member State of the European Economic Area.
Article L225-124 Any share converted into a bearer share or changing hands shall lose the right to a double vote attributed pursuant
to Article L.225-123. Nevertheless, a transfer on succession, or on the partition of property jointly owned by spouses, or a gift inter vivos to a spouse or a relative entitled to succeed to the donor's estate shall not cause the right to be lost, nor interrupt the period of time referred to in the said Article.
The merger or division of a company shall have no effect on double voting rights capable of being exercised within the beneficiary company or companies, where the memorandum and articles of association of the latter created it.
Article L225-125 The memorandum and articles of association may limit the number of votes attributed to each shareholder at
meetings, provided that any such limitation shall be imposed on all shares irrespective of class, other than non-voting preferred stock.
Article L225-126 Subject to the provisions of Articles L.225-161 and L.225-174, the memorandum and articles of association may
provide for the creation of preference shares not carrying the right to vote at general shareholders' meetings. They shall be governed by Articles L.228-12 to L.228-20.
Only companies that shall have made a distributable profit as defined by the first sub-paragraph of Article L.232-11 during the last two financial years shall be entitled to create non-voting preferred stock.
SECTION IV Changes to share capital and the body of employee shareholders Articles L225-127 to
L225-217
Subsection 1 Capital increases Articles L225-127 to
L225-149-3
Article L225-127 (Order No. 2004-604 of 24 June 2004 Art. 2 Official Journal of 26 June 2004)
The share capital is increased either by an issue of ordinary shares or preference shares, or by increasing the nominal value of the existing capital securities.
It may also be increased by exercise of the rights attached to transferable securities giving access to the capital, as provided for in Articles L. 225-149 and L. 225-177.
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COMMERCIAL CODE Article L225-128 (Order No. 2004-604 of 24 June 2004 Art. 3 Official Journal of 26 June 2004)
The new capital securities are issued either for their nominal value, or for that value plus a share premium. They are paid up either by a cash contribution, including compensation against encashable and due receivables on
the company, or by a contribution in kind, or by incorporation of reserves, profits or share premiums, or as a result of a merger or demerger.
They may also be paid up following the exercise of a right attached to transferable securities giving access to the capital, including, where applicable, payment of the corresponding sums.
Article L225-129 (Act No. 2001-152 of 19 February 2001 Art. 29 1 Official Journal of 20 February 2001) (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Act No. 2003-706 of 1 August 2003 Art. 132 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 4 Official Journal of 26 June 2004)
Only an extraordinary general meeting is competent to decide an immediate or eventual capital increase, on the basis of a report from the board of directors or the executive board. It may delegate this competence to the board of directors or the executive board in the manner indicated in Article L. 225-129-2.
Without prejudice to the provisions of Articles L. 225-129-2 and L. 225-138, the capital increase must be effected within five years of that decision or delegation being made. This time limit does not apply to capital increases made subsequent to the exercise of a right attached to a transferable security giving access to the capital or subsequent to the exercise of options as envisaged in Article L. 225-177.
Article L225-129-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004)
When the extraordinary general meeting decides to effect a capital increase, it may delegate the power to determine the terms and conditions of the issue of securities to the board of directors or the executive board.
Article L225-129-2 (Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004) (Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I b Official Journal of 31 December 2004)
When the extraordinary general meeting delegates its competence to decide a capital increase to the board of directors or the executive board, it determines the period, which shall not exceed twenty-six months, during which that delegation may be used, and the overall ceiling for that increase.
Such delegation renders any prior delegation having the same object ineffective. The issues referred to in Articles L. 225-135 to L. 225-138-1 and L. 225-177 to L. 225-186, and L. 225-197-1 to L.
225-197-3, and likewise the issues of preference shares referred to in Articles L. 228-11 to L. 228-20, must be the subject of special resolutions.
Within the limits of the delegation given by the general meeting, the board of directors or the executive board has the powers required to determine the conditions of issue, to declare the completion of the resultant capital increases and to make the appropriate amendment to the articles of association.
Article L225-129-3 (inserted by Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004)
Any delegation made by the general meeting is suspended while a takeover bid or exchange offer for the company's securities is in progress, unless it forms part of the company's normal business activities and its implementation is not liable to cause the offer to fail.
Article L225-129-4 (inserted by Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004)
In limited companies whose securities are admitted to trading on a regulated market: a) The board of directors may, within limits which it has previously set, delegate to the general manager or, with his
agreement, to one or more delegated general managers, the power to decide to proceed with the issue, or to postpone it;
b) The executive board may delegate to its chairman or, with his agreement, to one of its members, the power to decide to proceed with the issue, or to postpone it.
The designated persons report to the board of directors or the executive board on the use made of that power in the manner stipulated by the latter.
Article L225-129-5 (inserted by Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004)
When use is made of delegations as provided for in Articles L. 225-129-1 and L. 225-129-2, the board of directors or the executive board draws up a supplementary report for the next ordinary general meeting in the manner determined in a Conseil d'Etat decree.
NB: Order 2004-604 2004-06-24 Art. 64: The provisions of Article L. 225-129-5 of the Commercial Code apply to financial years commenced on or after 1 January 2004.
Article L225-129-6 (Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004)
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COMMERCIAL CODE (Act No. 2004-1343 of 9 December 2004 Art. 78 XXVII Official Journal of 10 December 2004) (Act No. 2005-842 of 26 July 2005 Art. 42 Official Journal of 27 July 2005)
When any capital increase via a cash contribution takes place, unless it results from a prior issue of transferable securities giving access to the capital, an extraordinary general meeting shall rule on a draft resolution to increase the capital as provided for in Article L443-5 of the Labour Code. An extraordinary general meeting shall also rule on such a draft resolution when it delegates its power to increase the capital pursuant to Article L225-129-2.
Every three years, an extraordinary general meeting is convened to rule on a draft resolution to increase the capital as provided for in Article L443-5 of the Labour Code if, in view of the report presented to the general meeting by the board of directors or the executive board pursuant to Article L225-102, the securities held by the staff of the company and of any companies linked to it within the meaning of Article L225-180 represent less than 3% of the capital.
Article L225-130 (Order No. 2004-604 of 24 June 2004 Art. 6 Official Journal of 26 June 2004)
When a capital increase effected by issuing new capital securities or increasing the nominal value of the existing capital securities takes place through incorporation of reserves, profits or share premiums, the general meeting, contrary to the provisions of Article L. 225-96, decides this under the quorum and majority conditions laid down in Article L. 225-98. In which case, it may decide that the rights attached to fractional shares are neither tradable nor assignable and that the corresponding capital securities must be sold. The proceeds of the sale are allocated to the holders of rights within a time limit determined in a Conseil d'Etat decree.
With the exception of the cases envisaged in the previous paragraph, a capital increase effected by increasing the nominal value of the capital securities may only be decided with the unanimous consent of the shareholders.
Article L225-131 (Order No. 2004-604 of 24 June 2004 Art. 51 IV Official Journal of 26 June 2004)
The capital must be fully paid up before any issue of new shares to be paid up in cash takes place. Moreover, a capital increase by way of public offering effected less than two years after the formation of a company
pursuant to Articles L. 225-12 to L. 225-16 must be preceded, as provided for in Articles L. 225-8 to L. 225-10, by a verification of the assets and liabilities, and, where applicable, the specific benefits granted.
Article L225-132 (Order No. 2004-604 of 24 June 2004 Art. 7, Art. 51 V Official Journal of 26 June 2004)
The shares confer a preferential right to subscribe to capital increases. Proportionate to the value of their shares, shareholders have a preferential right to subscribe shares issued for cash
to increase the capital. Throughout the subscription period, that right is transferable when it is detached from shares which are themselves
transferable. When this is not the case, it is assignable in the same way as the shares themselves. Shareholders may individually waive their preferential rights. A decision to convert preference shares entails the waiving of the shareholders' preferential right to subscribe the
shares resulting from the conversion. A decision to issue transferable securities giving access to the capital also entails the waiving of the shareholders'
preferential right to subscribe the capital securities to which the transferable securities issued give entitlement.
Article L225-133 (Order No. 2004-604 of 24 June 2004 Art. 8 Official Journal of 26 June 2004)
If the general meeting or, in the event of delegation as provided for in Article L. 225-129, the board of directors or the executive board, expressly so decides, capital securities which are not irrevocably subscribed are allotted to the shareholders who have subscribed a number of securities greater than that which they could subscribe preferentially, in proportion to the subscription rights they hold and, in any event, within the limit of their requests.
Article L225-134 (Order No. 2004-604 of 24 June 2004 Art. 9 Official Journal of 26 June 2004)
I. - If the irrevocable subscriptions and, where applicable, the free subscriptions, have not absorbed the total capital increase:
1. The amount of the capital increase may be limited to the amount of the subscriptions unless the general meeting decides otherwise. Under no circumstances shall the amount of the capital increase be less than three quarters of the increase decided;
2. Unsubscribed shares may be freely allotted, in whole or in part, unless the meeting decides otherwise; 3. Unsubscribed shares may be offered to the public, in whole or in part, if the meeting has made express provision
for such an eventuality. II. - The board of directors or the executive board may use the rights provided for above, or certain of them, in
whatever order it determines. The capital increase is not effected if, after exercise of those rights, the amount of the subscriptions received does not amount to the total capital increase, or three quarters of that increase in the case envisaged in 1 of I.
III. - However, the board of directors or the executive board may, as a matter of course and in all instances, limit the capital increase to the amount received when the unsubscribed shares represent less than 3% of the capital increase. Any contrary decision is deemed not to have been taken.
Article L225-135
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COMMERCIAL CODE (Order No. 2004-604 of 24 June 2004 Art. 10 Official Journal of 26 June 2004)
A meeting which decides or authorises a capital increase may remove the preferential subscription right for the total capital increase or one or more tranches thereof. It decides this on the basis of a report from the board of directors or the executive board. When it decides to proceed with a capital increase, it also takes account of an auditor's report. In the case of issues made by the board of directors or the executive board pursuant to authorisation given by the general meeting, the auditor draws up a report for the board of directors or the executive board.
For companies whose capital securities are admitted to trading on a regulated market, the meeting may require that the capital increase it decides on or authorises have a subscription priority period in favour of the shareholders of a minimum duration determined in a Conseil d'Etat decree. It may also delegate to the board of directors or the executive board the task of determining whether such a priority period is warranted and, should this be the case, of establishing its duration on the same basis.
A Conseil d'Etat decree determines the particulars of the auditor's reports referred to in the present article.
Article L225-135-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 11 Official Journal of 26 June 2004)
When a capital increase is effected, with or without a preferential subscription right, the meeting may request that the number of securities be increased for a period determined in a Conseil d'Etat decree, proportionate to a fraction of the initial issue determined in that same decree, and at the same price as that initial issue. The limit provided for in 1 of I of Article L. 225-134 is then increased in the same proportion.
Article L225-136 (Order No. 2004-604 of 24 June 2004 Art. 12 Official Journal of 26 June 2004)
An issue of capital securities by way of public offering without a preferential subscription right is subject to the following conditions:
1. For companies whose capital securities are admitted to trading on a regulated market, if the transferable securities to be issued immediately or subsequently shall have equivalent status, the issue price must be determined as stipulated in a Conseil d'Etat decree issued following consultation with the Financial Markets Authority.
However, subject to a limit of 10% of the share capital per annum, the extraordinary general meeting may authorise the board of directors or the executive board to set the issue price on the basis of terms which it determines in the light of a report from the board of directors or the executive board, and a special report from the auditor. When such authorisation is used, the board of directors or the executive board draws up a supplementary report, certified by the auditor, which describes the definitive conditions of the operation and provides information which facilitates assessment of the effective impact on the shareholder's situation.
2. In other cases, the issue price or the conditions for determining that price are determined by the extraordinary general meeting on a report of the board of directors or the executive board and on special report from the auditor.
Article L225-137 Public issues without rights of subscription of new shares not conferring the same rights on their holders as those
conferred by the previous shares shall be subject to the following conditions: 1. The issue must take place within two years of the date of the meeting that authorised it; 2. The issue price or conditions on which the same is fixed shall be determined by an special shareholders’ meeting
on a report by the board of directors or management and a special auditor's report. II.- If the issue shall not have taken place by the date of the next annual general meeting following the decision, an
special shareholders’ meeting must decide, on the basis of the report by the board of directors or management and the special auditor's report, whether to maintain or adjust the issue price or the conditions in accordance with which it is determined. If it fails to do so, the decision of the earlier meeting shall lapse.
Article L225-138 (Act No. 2001-152 of 19 February 2001 Art. 10 III, Art. 17 VII, Art. 29 2 Official Journal of 20 February 2001) (Act No. 2003-706 of 1 August 2003 Art. 124 Official Journal of 2 August 2003) (Act No. 2003-775 of 21 August 2003 Art. 109 III 3 Official Journal of 22 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 13 Official Journal of 26 June 2004)
I. - A general meeting which decides on a capital increase may reserve it for one or more persons designated by name or for categories of persons who meet certain criteria. To that end, it may remove the preferential subscription right. The persons designated by name who benefit from that provision shall not participate in the vote. The quorum and majority required are calculated after deduction of the shares that they hold. The procedure provided for in Article L. 225-147 shall not apply.
When the extraordinary general meeting removes the preferential subscription right in favour of one or more categories of persons who meet the criteria it sets, it may delegate to the board of directors or the executive board the task of drawing up a list of the beneficiaries within that category, or those categories, and the number of securities to be allotted to each of them, subject to the ceilings specified in the first paragraph of Article L. 225-129-2. When such a delegation is used, the board of directors or the executive board draws up a supplementary report for the next ordinary general meeting, certified by the auditor, which sets out the definitive terms of the operation.
II. - The issue price or the formula for calculating it is determined by the extraordinary general meeting on a report of the board of directors or the executive board and a special report from the auditor.
III. - The issue must take place within eighteen months of the general meeting which decided it or which approved the delegation provided for in Article L. 225-129.
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COMMERCIAL CODE Article L225-138-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 13, Art. 14 Official Journal of 26 June 2004)
For application of the first paragraph of Article L. 443-5 of the Labour Code relating to capital increases reserved for members of a company savings plan, when the general meeting has removed the preferential subscription right in favour of employees of the company or of the companies affiliated to it within the meaning of Article L. 225-180, the provisions of I and II of Article L. 225-138 apply and:
1. The subscription price is still determined in the manner described in Article L. 443-5 of the Labour Code; 2. The capital increase is only effected in the amount of the capital securities subscribed by the employees
individually or through an open-end investment company or of the securities issued by unit trusts governed by Article L. 214-40-1 of the Monetary and Financial Code. It does not give rise to the formalities referred to in Articles L. 225-142, L. 225-144 and L. 225-146;
3. (deleted) 4. The time granted to subscribers for paying up their securities shall not exceed three years; 5. Capital securities or transferable securities giving access to the capital may be paid up, at the request of the
company or the subscriber, either by periodic payments, or by equal and regular deductions from the subscriber's salary; 6. The capital securities or transferable securities giving access to the capital thus subscribed which are delivered
prior to expiry of the five-year period referred to in Article L. 443-6 of the Labour Code are not transferable until they are fully paid up;
7. The capital securities or transferable securities giving access to the capital reserved for members of the savings plans referred to in Article L. 443-1 of the Labour Code may, contrary to the provisions of the first paragraph of Article L. 225-131 of the present code, be issued even when the share capital has not been fully paid up.
The fact of the securities referred to in the previous paragraph not having been fully paid up does not prevent the issue of capital securities from being paid up in cash.
Members of the company savings plan referred to in Article L. 443-1 of the Labour Code may cancel or reduce their commitment to subscribe or to hold capital securities or transferable securities giving access to the capital issued by the company in the circumstances and under the terms and conditions laid down in the Conseil d'Etat decrees referred to in Article L. 442-7 of that same code.
Article L225-139 (Order No. 2004-604 of 24 June 2004 Art. 15 Official Journal of 26 June 2004)
A Conseil d'Etat decree determines the elements which must appear in the reports referred to in Articles L. 225-129, L. 225-135, L. 225-136 and L. 225-138, and also in the reports provided for in the event of preference shares or transferable securities giving access to the capital being issued.
Article L225-140 (Order No. 2004-604 of 24 June 2004 Art. 16 Official Journal of 26 June 2004)
When capital securities are subject to a usufruct, the preferential subscription right attached to them shall belong to the bare owner. If the latter sells the subscription rights, the proceeds of the sale or the property he purchases therewith shall be subject to the usufruct. If the bare owner fails to exercise his right, the usufructuary may subscribe new shares or sell the rights in his place. In the latter case, the bare owner may demand re-use of the proceeds of sale. The property thus acquired is subject to the usufruct.
The new shares shall belong to the bare owner for the bare ownership and to the usufructuary for the usufruct. However, where funds are paid out by the bare owner or the usufructuary to pay for or complete a subscription, the new shares shall belong to the bare owner or the usufructuary only up to the value of the subscription rights. Any surplus on the new shares shall be the absolute property of he who paid out the funds.
A Conseil d'Etat decree determines the present article's implementing regulations, the provisions of which shall also apply in the event of securities being allotted at no cost.
The provisions of the present article shall apply in the absence of any agreement between the parties.
Article L225-141 (Order No. 2004-604 of 24 June 2004 Art. 17 Official Journal of 26 June 2004)
The period within which shareholders must exercise their subscription right shall not be less than five trading days after the opening date for subscriptions.
The said period shall in fact end as soon as all irrevocable subscription rights are exercised or as soon as the capital increase is fully subscribed following individual waivers of subscription rights by the non-subscribing shareholders.
Article L225-142 Before the opening date of subscription, the company shall deal with the publication formalities, details of which
shall be fixed by an Order approved by the Conseil d'Etat.
Article L225-143 (Order No. 2004-604 of 24 June 2004 Art. 18 Official Journal of 26 June 2004)
The subscription agreement for capital securities or transferable securities giving access to the capital is based on an application form drawn up as determined in a Conseil d'Etat decree.
An application form is not required, however, from credit institutions and investment service providers who subscribe on behalf of a client, provided that they can produce evidence of their instructions.
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COMMERCIAL CODE Article L225-144
Shares paid in cash must be paid as to at least a quarter of their nominal value and the whole of any issue premium on subscription. Payment of the balance must be made by one or more instalments within five years of the date on which the increase in share capital became unconditional.
The provisions of the first sub-paragraph of Article L.225-5 shall apply, except those relating to the subscribers’ list. A representative of the company may withdraw funds derived from subscriptions paid in cash when the deposit certificate has been issued.
If the increase in capital shall not have taken place within six months of the opening subscription date, the provisions of the second sub-paragraph of Article L.225-11 may be applied.
Article L225-145 (Act No. 2001-1168 of 11 December 2001 Art. 27 II Official Journal of 12 December 2001)
In companies which make public offerings to distribute their shares, an increase in capital is deemed to have taken place when one or more investment service providers authorised to provide the investment service referred to in 6 of Article L321-1 of the Monetary and Financial Code, or persons referred to in Article L532-18 of that code authorised to provide the same service in their country of origin, have irrevocably guaranteed its proper execution. Settlement of the paid-up fraction of the nominal value and the entirety of the issue premium must take place within thirty-five days of the close of the subscription period.
Article L225-146 Subscriptions and payments shall be recorded by a deposit certificate issued on the deposit of funds, on production
of a subscription report. Payment of shares by set-off against liquidated enforceable debts owed by the company shall be recorded by a
notarial or auditor's certificate. Such a certificate shall replace the deposit certificate.
Article L225-147 (Order No. 2004-604 of 24 June 2004 Art. 19 Official Journal of 26 June 2004)
When contributions in kind are made or special privileges are stipulated, one or more valuers of contributions in kind are appointed by a court decision. They are subject to the incompatibilities referred to in Article L. 822-11.
The said valuers shall assess the value of the contributions in kind and the special privileges under their own liability. A Conseil d'Etat decree determines the main headings of their report, the time limit for its submission, and the manner in which it is made available to the shareholders. The provisions of Article L. 225-10 apply to the extraordinary general meeting.
If the meeting approves the valuation of the contributions and the grant of special privileges, it shall declare the capital increase to have been effected.
If the meeting reduces the valuation of the contributions and the grant of special privileges, express approval of the changes is required from the contributors and the beneficiaries, or their duly authorised representatives. Failing this, the capital increase is not proceeded with.
The capital securities issued in respect of a contribution in kind are fully paid up at the time of issue. The extraordinary general meeting of a company whose securities are admitted to trading on a regulated market
may delegate to the board of directors or the executive board, for a maximum period of twenty-six months, the powers required to carry out a capital increase of not more than 10% of its share capital in order to compensate the contributions in kind made to the company in return for capital securities or transferable securities giving access to the capital, when the provisions of Article L. 225-148 are not applicable. The board of directors or the executive board decides on the report of the valuer(s) of contributions in kind referred to in the first and second paragraphs above pursuant to the third or fourth paragraphs above.
Article L225-148 (Order No. 2004-604 of 24 June 2004 Art. 51 VIII Official Journal of 26 June 2004)
The provisions of Article L. 225-147 are not applicable in the event of a company whose shares are admitted to trading on a regulated market effecting a capital increase for the purpose of paying for securities contributed through an exchange offer for the securities of a company whose shares are admitted to trading on a regulated market of a European Economic Area member state or a member state of the Organisation for Economic Cooperation and Development.
The capital increase takes place as provided for in Articles L. 225-129 to L. 225-129-6. However, the auditors may express an opinion on the conditions and consequences of the issue in the prospectus distributed at the time of its implementation and in their report to the first ordinary general meeting held subsequent to the issue.
Article L225-149 (Order No. 2004-604 of 24 June 2004 Art. 20 Official Journal of 26 June 2004)
A capital increase resulting from exercise of the rights attached to transferable securities giving access to the capital is not subject to the formalities referred to in Article L. 225-142, the second paragraph of Article L. 225-144 and Article L. 225-146. When the holder of a transferable security issued pursuant to Article L. 225-149-2 is not entitled to a whole number, a cash payment shall be made in respect of the fractional shares pursuant to a calculation method determined in a Conseil d'Etat decree.
The capital increase is definitively effected simply upon exercise of the rights and, where applicable, payment of the sums due.
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COMMERCIAL CODE At any time during the financial year then current, and at the first meeting held subsequent to its close, at the latest,
the board of directors or the executive board shall record the number and nominal value of the shares, if any, created for the benefit of the holders of rights during the previous financial year and make the necessary amendments to the articles of association relative to the amount of the share capital and the number of securities that represent it.
The chairman of the executive board or the general manager may, if duly empowered by the executive board or the board of directors, proceed with such transactions at any time during the financial year, and within the time limit set in a Conseil d'Etat decree at the latest.
Article L225-149-1 (Act No. 2003-706 of 1 August 2003 Art. 134 IV Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 21 Official Journal of 26 June 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XXVII Official Journal of 10 December 2004)
In the event of new capital securities or new transferable securities giving access to the capital being issued, and likewise in the event of a merger or demerger of the company issuing such securities, the board of directors or the executive board may, during a maximum period determined in a Conseil d'Etat decree, suspend the option to obtain an allotment of capital securities through exercise of the right referred to in Article L. 225-149 and Article L. 225-178.
Except as otherwise provided in the issuance contract, the capital securities obtained after the suspension period through exercise of the rights attached to transferable securities give entitlement to the dividends paid in respect of the financial year during which they were issued.
Article L225-149-2 (inserted by Order No. 2004-604 of 24 June 2004 Art. 22 Official Journal of 26 June 2004)
The rights attached to shares giving access to the capital which have been used or acquired by the issuing company or by the company issuing the new capital securities are cancelled by the issuing company.
Article L225-149-3 (inserted by Order No. 2004-604 of 24 June 2004 Art. 22 Official Journal of 26 June 2004)
Decisions founded on the second paragraph of Article L. 225-129-6 or relating to the supplementary reports referred to in Article L. 225-129-5, the second paragraph of 1 of Article L. 225-136 and the second paragraph of I of Article L. 225-138 may give rise to an order pursuant to the terms and conditions set forth in Articles L. 238-1 and L. 238-6.
Decisions taken in violation of Articles L. 225-129-3 and L. 225-142 may be cancelled. Decisions taken in violation of the provisions of the present subsection other than those referred to in the present
article are null and void.
Subsection 2 Subscription and purchase of shares by employees Articles L225-150 to
L225-197-5
Article L225-150 On a report by the board of directors or the management, as the case may be, and a special auditors' report, an
special shareholders’ meeting may authorise the issue of bonds with one or more subscription warrants. The said warrants shall entitle the holder to subscribe shares to be issued by the company at one or more prices and according to the conditions and within the time limits fixed by the issue agreement. The time limit for the exercise of the right must not be more than three months later than the date of final repayment of the loan.
A company may issue bonds with warrants giving the holder the right to subscribe to shares to be issued by a company that directly or indirectly owns more than half its share capital. In any such case, the bond issue must be authorised by the routine shareholders’ meeting of the subsidiary company issuing the bonds, and the share issue by an special shareholders’ meeting of the company required to issue the shares.
The special shareholders’ meeting shall, in particular, decide the method of calculation of the price or prices at which the right of subscription shall be exercised and the maximum total number of shares that can be subscribed by warrant holders. The total price or prices at which the right of subscription shall be exercised must not be less than the nominal value of the shares subscribed on the presentation of warrants.
Unless otherwise stipulated in the issue agreement, warrants may be transferred or negotiated independently of the bonds.
Article L225-151 Shareholders of the company required to issue the shares shall have a preferential right of subscription of bonds
with warrants. The said preferential right of subscription shall be governed by Articles L.225-132 to L.225-141. The consent of an special shareholders’ meeting to the issue shall imply the waiver by the shareholders of their
preferential right of subscription of the shares to be subscribed on presentation of the said warrants in favour of the warrant holders.
Issues of bonds with warrants must take place within a maximum period of five years of the date of the decision of the special shareholders’ meeting. The said period shall be reduced to two years where the shareholders waive their preferential right of subscription of the bonds with warrants.
Article L225-152 In the event of an increase in capital, merger or division of the company required to issue the shares, the board of
directors or the management may suspend the exercise of the right of subscription for a period not exceeding three
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COMMERCIAL CODE months.
Shares subscribed by warrant holders shall entitle the holder to dividends paid in respect of the financial year during which the said shares were subscribed.
Article L225-153 With effect from the date of the vote by the special shareholders’ meeting of the company required to issue the
shares, and as long as there are valid warrants in existence, the company shall not be permitted to amortise its share capital or vary the distribution of its profits.
Nevertheless, the company may create non-voting preferred stock provided that the rights of the bond holders are preserved as stipulated by Article L.225-154.
In the event of a reduction in capital caused by losses and effected by reducing the nominal total value or number of shares, the rights of warrant holders shall be reduced accordingly, as if the said holders had been shareholders since the date of issue of the bonds with share warrants.
Article L225-154 With effect from the date of the vote by the special shareholders’ meeting of the company required to issue the
shares, and as long as there are valid warrants in existence, the issue of shares to be subscribed against cash payments reserved to shareholders, the incorporation of reserve funds, profits or issue premiums into the share capital, and the distribution of reserve funds in cash or portfolio securities shall be authorised only provided that the rights of any warrant holders exercising their right of subscription are preserved.
To that end, the company must, in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat, allow warrant holders exercising their right of subscription either to subscribe whole shares or obtain new shares free of charge, or to receive cash or securities similar to those distributed in the same quantities or proportions and according to the same conditions, save as regards the enjoyment of possession thereof, as if they had been shareholders at the date of the said issue, incorporation or distribution.
In the event of an issue of bonds with warrants or further convertible or exchangeable bonds, the company shall give notice of the said issue to the holders or bearers of warrants by public notice, in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat, to enable them to opt for conversion within the time limit specified in the said notice. If the period within which the right of subscription may be exercised has not yet commenced, the exercise price to be adopted shall be the first price shown in the issue agreement. The provisions of this sub-paragraph shall apply to any other operation involving a right of subscription reserved to shareholders.
Nevertheless, where the warrants entitle the holder to subscribe shares admitted to trading on a regulated market, the issue agreement may provide, instead of the measures specified in the preceding sub-paragraphs, for the adjustment of the conditions of subscription originally laid down, in order to allow for the effects of the issue, incorporation or distribution, in accordance with conditions and by methods of calculation to be laid down by an Order approved by the Conseil d'Etat, under the supervision of the Commission des Opérations de Bourse [Securities and Investments Board].
Article L225-155 Increases in capital resulting from the exercise of the right of subscription shall not require the formalities specified
in Article L.225-142, the second sub-paragraph of Article L.225-144 and Article L.225-146. They shall be unconditionally effected merely by virtue of the payment of the subscription price accompanied by the subscription report and, if appropriate, the sums rendered payable by the subscription of cash shares under the circumstances referred to in Article L.225-154.
At its first meeting after the end of each financial year, the board of directors or management of the company, as the case may be, shall, if necessary, record the number and total nominal value of the shares subscribed by warrant holders during the year just ended and make the necessary amendments to the memorandum and articles of association relating to the total share capital and the number of shares it comprises. The chairman may, on being delegated by the board of directors or the management to do so, effect these operations in the months immediately following the end of the financial year. The board of directors or the management, or the chairman if delegated, may also, at any time, record the same information for the current year and amend the memorandum and articles of association accordingly.
Where, as a result of one of the operations mentioned in Articles L.225-154 and L.225-156, a holder of warrants presenting their certificates of entitlement to a number of shares including a fractional share, the fraction in question must be paid in cash according to methods of calculation to be fixed by an Order approved by the Conseil d'Etat.
Where the company required to issue shares is absorbed by another company or merges with one or more other companies to form a new company, or de-merges, by transferring its shares to existing or new companies, warrant holders may subscribe shares in the absorbing company or new companies. The number of shares they shall be entitled to subscribe shall be determined by correcting the number of shares to which they were entitled in the company required to issue the shares by the ratio of exchange of the latter company's shares for shares in the absorbing company or the new company or companies, taking the provisions of Article L.225-154 into account if appropriate.
The general meeting of the absorbing company or the new company or companies shall decide, in accordance with the conditions specified in the first paragraph of Article L.225-150, whether to waive the preferential right of subscription mentioned in Article L.225-151.
The absorbing company or the new company or companies shall replace the company issuing the shares for the purposes of Articles L.225-153 to L.225-155.
Article L225-157
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COMMERCIAL CODE Decisions taken in breach of Articles L.225-150 to L.225-156 shall be void.
Article L225-158 Warrant holders may, in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat,
obtain disclosure of the documents listed in paragraphs 1 and 2 of Article L.225-115 for the last three financial years of the company issuing the shares, except its inventory of assets.
Article L225-159 Share warrants purchased by the issuing company and warrants used for share subscriptions shall be cancelled.
Article L225-160 The provisions of Articles L.225-150 to L.225-159 shall apply to the issue of bonds with warrants allocated to
employees by way of a share of the profits derived from the expansion of companies.
Article L225-161 On a report by the board of directors or the management, as the case may be, and a special auditors' report relating
to the proposed conversion basis, an special shareholders’ meeting may authorise the issue of bonds convertible into shares, to which the provisions of Part 5 of Chapter VIII of this Title shall be applicable. Unless it is decided to make an exception in accordance with Article L.225-135, shareholders shall be entitled to subscribe convertible bonds in accordance with the same conditions as those laid down for the subscription of new shares.
The said authority must contain an express waiver by the shareholders, in favour of the bond holders, of their preferential right to subscribe shares issued on the conversion of bonds.
Conversion may take place only with the agreement of the bearers, and in accordance with the conditions and conversion bases laid down by the bond issue agreement. The said agreement shall indicate either that conversion shall take place during one or more specific option periods, or that conversion may take place at any time.
The issue price of bonds convertible into shares must not be less than the nominal value of the shares to be received by the bond holders if they opt for conversion.
With effect from the date of the vote by the meeting and as long as there are any bonds convertible into shares in existence, the company shall be prohibited from amortising its share capital or varying the distribution of dividends. Nevertheless, the company may create non-voting preferred stock provided that the rights of bond holders are preserved, as stipulated by Article L.225-162.
In the event of a capital reduction caused by losses, by reducing either the total nominal value or number of shares, the rights of bond holders opting for the conversion of their securities shall be reduced accordingly, as if the said bond holders had been shareholders with effect from the date of issue of the bonds.
Article L225-162 With effect from the date of the vote by the meeting referred to in Article L.225-161, and as long as there are any
bonds convertible into shares in existence, the incorporation of reserve funds, profits or issue premiums into the share capital, and the distribution of reserve funds in cash or portfolio securities shall be authorised only on condition that the rights of bond holders opting for conversion shall be preserved.
To that end, the company must, in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat, allow bond holders opting for conversion either to subscribe whole shares or obtain new shares free of charge, or to receive cash or securities similar to those distributed in the same quantities or proportions and likewise in accordance with the same conditions, save as regards the enjoyment of possession thereof, as if they had been shareholders at the date of the said issue, incorporation or distribution.
In the event of an issue of bonds with warrants or new convertible or exchangeable bonds, the company shall give notice of the said issue to the holders or bearers of warrants by notice to be published in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat, to enable them, if they wish to participate in the operation, to exercise their option within the time limit specified in the said notice. If the period within which the right of subscription may be exercised has not yet commenced, the exercise price to be adopted shall be the first price shown in the issue agreement. The provisions of this sub-paragraph shall apply to any other operation involving a right of subscription reserved to shareholders, except those arising from the application of the first sub-paragraph of Article L.225-177.
Nevertheless, provided that the company's shares are admitted to trading on a regulated market, the issue agreement may provide, instead of the measures specified in the preceding sub-paragraph for the adjustment of the conditions of subscription originally laid down, in order to allow for the effects of the issue, incorporation or distribution, in accordance with conditions and by methods of calculation to be laid down by an Order approved by the Conseil d'Etat, under the supervision of the Commission des Opérations de Bourse [Securities and Investments Board].
In the case of shares issued to subscribers for cash or new convertible or exchangeable bonds, where a general meeting has removed the preferential right of subscription, the decision must be approved by the routine shareholders’ meeting of bond holders affected thereby.
Article L225-163 In the case of an issue of bonds convertible into shares at any time, conversion may be applied for during a period
commencing no later than either the first repayment date or the fifth anniversary of the start of the issue, and expiring three months after the date on which the bond is required to be repaid. Nevertheless, in the event of an increase in capital or merger, the board of directors or management, as the case may be, may suspend the exercise of the right for a period not exceeding three months.
Shares delivered to bond holders shall entitle the holder to dividends distributed for the year in which conversion
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COMMERCIAL CODE was applied for.
Where, as a result of one or more of the operations referred to in Articles L.225-162 and L.225-164, a bond holder applying for conversion of their shares is entitled to a number of shares that includes a fraction of a share, the said fraction must be paid in cash in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat.
Increases in capital rendered necessary by the conversion of bonds shall not require the formalities specified in Article L.225-142, the second sub-paragraph of Article L.225-144 and Article L.225-146. It shall be unconditionally effected merely by virtue of the application for conversion, except where the second sub-paragraph of Article L.225-143 applies, the subscription report and, if appropriate, the sums rendered payable by the subscription of cash shares in the circumstances referred to in Article L225-162.
At its first meeting after the end of each financial year, the board of directors or management of the company, as the case may be, shall if necessary record the number and total nominal value of the shares issued on conversion during the year just ended and make the necessary amendments to the memorandum and articles of association relating to the total share capital and the number of shares it comprises.
The Chairman may, on being delegated by the board of directors or the management, effect these operations within a month of the end of the financial year. The board of directors or the management, or the Chairman if delegated, may also, at any time, record the same information for the current year and amend the memorandum and articles of association accordingly.
Article L225-164 With effect from the date of issue of the bonds convertible into shares, and as long as such bonds exist, the
absorption of the issuing company by another company or the merger thereof with one or more other companies to form a new company shall be subject to the approval of an special shareholders’ meeting of the bond holders affected. If the meeting shall not have approved the absorption or merger, or if it shall not have been able to take a valid decision for lack of the requisite quorum, the provisions of Article L.228-73 shall apply.
Bonds convertible into shares may be converted into shares in the absorbing or new company, either during the option period or periods provided by the issue agreement, or at any time, as the case may be. The conversion basis shall be determined by correcting the ratio of exchange of shares in the issuing company against shares in the absorbing or new company as specified in the said agreement, taking the provisions of Article L.225-162 into account if appropriate.
On the contribution auditors' report, as provided in Article L.225-147, that of the board of directors or management, as the case may be, and the company auditors' report, as provided in Article L.225-161, the general meeting of the absorbing or new company shall decide whether to approve the merger and the waiver of the preferential right of subscription specified in the second sub-paragraph of Article L.225-161.
The absorbing or new company shall replace the issuing company for the purposes of the third and fifth sub-paragraphs of Article L.225-161, Article L.225-162 and, if applicable, Article L.225-163.
Article L225-165 Decisions taken in breach of Articles L.225-161 to L.225-164 shall be void.
Article L225-166 The provisions of Articles L.225-161 to L.225-165 shall apply to the issue of bonds convertible into shares allocated
to employees by way of a share of the profits derived from the expansion of companies.
Article L225-167 If proceedings for judicial reorganisation on insolvency are commenced in respect of a company issuing convertible
bonds, the time limit for the conversion of the said bonds into shares shall commence on the date on which judgment is given drawing up the rehabilitation plan and the conversion may take place, with the agreement of every bond holder, subject to the conditions laid down in the plan.
Article L225-168 Companies whose shares are admitted to trading on a regulated market may issue bonds exchangeable for shares
in accordance with the conditions laid down by Articles L.225-169 to L.225-176. The provisions of Articles L.228-38 to L.228-90 shall apply to such bonds.
Article L225-169 On a report by the board of directors or management, as the case may be, and a special auditors' report, an special
shareholders’ meeting may authorise the issue of bonds that may be exchanged for shares already issued and held by third parties or for shares created on a simultaneous increase in capital. In the latter case, the shares shall be subscribed either by one or more credit institutions, or by one or more persons who shall have obtained a pledge of security from credit institutions.
The said authority shall imply the waiver by the shareholders of their preferential right of subscription in relation to the increase in capital.
Unless they waive the same in accordance with the conditions specified in Article L.225-135, the shareholders shall have a preferential right of subscription in relation to the exchangeable bonds issued. The said right shall be governed by Articles L.225-132 to L.225-141.
Article L225-170 On the same reports as are mentioned in the first sub-paragraph of Article L.225-169, an special shareholders’
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COMMERCIAL CODE meeting must be called to approve any agreement between the company and persons who undertake to effect the exchange of the bonds after subscribing a corresponding number of shares. The auditors' special report must specifically state the remuneration stipulated for the said persons.
Article L225-171 The issue price of exchangeable bonds must not be less than the nominal value of the shares the bond holders will
receive in the event of exchange. The exchange may not take place without the bond holders' agreement. It shall be effected in accordance with the
conditions and basis laid down by the issue agreement and by the agreement referred to in Article L.225-170. It may be applied for at any time within a period of three months after the date on which the bond is repayable.
Article L225-172 Immediately upon the issue of the bonds, and until the expiration of the option exercise period, the persons who
have undertaken to effect the exchange must exercise all rights of subscription relating to whole numbers of shares and all rights of allocation attached to the shares subscribed. In the event of exchange the new shares so obtained must be offered to the bond holders, who must be responsible for repaying the total amount of the sums paid to subscribe and pay up the said shares or to purchase the necessary supplemental rights to complete the number of rights attached to the old shares, together with interest on the said sums if so stipulated by the agreement referred to in Article L.225-170. In the case of fractional shares, the bond holder shall be entitled to payment in cash of the value of the said fractional shares, as valued at the date of exchange.
Article L225-173 The requisite shares to effect the exchange of bonds must be registered, non-transferable and non-attachable. They
may be transferred only when the exchange can be proved to have taken place. They must also be pledged in favour of the bond holders as security for the due performance of the obligations
assumed by the persons who have undertaken to effect the exchange. The provisions of the two preceding sub-paragraphs shall be applicable to new shares obtained pursuant to Article
L.225-172.
Article L225-174 With effect from the date of the vote by the meeting referred to in Article L.225-169, it shall be prohibited for the
company to amortise its share capital or vary the distribution of dividends until all the bonds issued have been exchanged or become repayable. The company may, however, create non-voting preferred stock.
In the case of distribution by the company of reserves in the form of shares during the same period, shares earmarked for exchange shall be subject to the provisions of the first and second sub-paragraphs of Article L.225-172.
Shares to be delivered to bond holders in the event of exchange must correspond to the number of shares to which they are entitled. Any fractional shares must be paid for in cash, the price being calculated according to the value of the shares at the date of exchange. Dividends and interest becoming due between the date of distribution and the date of exchange shall be payable to the persons who have undertaken to effect the exchange.
In the event of distribution by the company of reserves in cash during the period referred to in the first sub-paragraph above, bond holders shall be entitled on the exchange of their shares to a sum equivalent to that which they would have received if they had been shareholders at the time of distribution.
Article L225-175 Between the issue of bonds exchangeable for shares and the date at which all bonds must have been exchanged or
repaid, the absorption of the issuing company by another company or the merger of the issuing company with one or more companies to form a new company shall be subject to the prior approval of an special shareholders’ meeting of the bond holders affected.
Bonds exchangeable for shares may in any such case be exchanged, within the period stipulated in the second sub-paragraph of Article L.225-171, for shares in the absorbing or new company that have been received by the persons who have undertaken to effect the exchange. The exchange bases shall be fixed by correcting the ratio of exchange fixed by the issue agreement according to the ratio of exchange between shares in the issuing company and shares in the absorbing or new company.
The absorbing or new company shall replace the issuing company for the purposes of Article L.225-174 and the agreement referred to in Article L.225-170.
Article L225-176 Any decisions taken in breach of the provisions of Articles L.225-169, L.225-170, L.225-171, L.225-174 and
L.225-175 shall be void.
Article L225-177 (Act No. 2001-420 of 15 May 2001 Art. 132 I Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
On the basis of a report from the board of directors or the executive board, as applicable, and the auditors' special report, the extraordinary general meeting may authorise the board of directors or the executive board to grant stock options to some or all of the company's staff. The extraordinary general meeting determines the period during which the said authorisation may be used by the board of directors or the executive board, which shall not exceed thirty-eight months. However, authorisations granted before the publication date of Act No. 2001-420 of 15 May 2001 relating to the
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COMMERCIAL CODE new financial regulations shall remain valid until they expire.
The board of directors or the executive board determines the conditions under which the options shall be granted. The said conditions may include a prohibition on the immediate reselling of some or all of the shares, but the period imposed for retaining the shares shall not exceed three years from the date on which the option is exercised.
Options may be granted or exercised even before the share capital has been fully paid up. The subscription price is determined by the board of directors or the executive board, on the day on which the
option is granted, in the manner stipulated by the extraordinary general meeting based on the auditors' report. If the company's shares are not admitted to trading on a regulated market, the subscription price is determined in accordance with the objective methods applicable to the valuation of shares which takes account of the company's net assets position, profitability and business prospects, applying a weighting specific to each case. The said criteria are assessed, if appropriate, on a consolidated basis or, failing that, by taking the financial elements of their significant subsidiaries into account. Failing this, the subscription price is determined by dividing the amount of the revalued net assets by the number of securities in existence calculated on the basis of the most recent balance sheet. A decree determines the method for calculating the subscription price. If the company's shares are admitted to trading on a regulated market, the subscription price cannot be lower than 80% of the average of the prices quoted at the twenty stock-exchange trading days preceding that day, and no option shall be granted less than twenty stock-exchange trading days after detachment from the shares of a coupon giving entitlement to a dividend or a capital increase.
In a company whose securities are admitted to trading on a regulated market, options shall not be granted: 1. During the ten stock-exchange trading days preceding and following the date on which the consolidated
accounts, or failing that the annual accounts, are published; 2. During the period between the date on which the company's management structures have knowledge of
information which, were it to be published, could have a significant impact on the price of the company's securities, and the date ten stock-exchange trading days after that on which the said information is published.
Options to subscribe to securities which are not admitted to trading on a regulated market may only be granted to employees of the company granting them or to those of the companies referred to in 1 of Article L. 225-180.
Article L225-178 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The authorisation given by the extraordinary general meeting entails an express waiver by the shareholders, in favour of the option holders, of their preferential right to subscribe the shares that are issued as and when the options are exercised.
The capital increase resulting from the exercise of those options does not give rise to the formalities referred to in Article L. 225-142, the second paragraph of Article L. 225-144 and Article L. 225-146. It is definitively effected merely upon submission of the option-exercise declaration together with the application form and payment of the appropriate sum in cash or through offsetting against monies owed by the company.
At its first meeting following the close of each financial year, the board of directors or the executive board, as applicable, duly records the number and value of the shares, if any, issued during the financial year as a result of options being exercised, and makes the necessary amendments to the articles of association to reflect the new amount of the share capital and the number of shares that represent it. If duly empowered by the board of directors or the executive board, the chairman may proceed with this during the month which follows the close of the financial year. The board of directors or the executive board, or the chairman if so empowered, may also record the same information, at any time, for the financial year in progress and make the relevant amendments to the articles of association.
Article L225-179 (Act No. 2001-420 of 15 May 2001 Art. 132 II Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The extraordinary general meeting may also authorise the board of directors or the executive board, as applicable, to grant some or all of the company's staff options to purchase shares deriving from a redemption effected by the company itself prior to the opening of the option in the manner described in Articles L. 225-208 or L. 225-209. The extraordinary general meeting determines the period during which that authorisation may be used by the board of directors or the executive board, which shall not exceed thirty-eight months. However, authorisations granted before the publication date of Act No. 2001-420 of 15 May 2001 relating to the new financial regulations shall remain valid until they expire.
In such cases, the provisions of the second and fourth to seventh paragraphs of Article L. 225-177 are applicable. Moreover, the share price on the day on which the option is granted cannot be lower than 80% of the average purchase price of the shares held by the company by virtue of Articles L. 225-208 and L. 225-209.
Options entitling the holder to purchase securities which are not admitted to trading on a regulated market may be granted only to employees of the company granting the option or those of the companies referred to in 1 of Article L. 225-180.
Article L225-180 (Act No. 2001-420 of 15 May 2001 Art. 32 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
I. - Options may be granted, under the terms and conditions set forth in Articles L. 225-177 to L. 225-179 above: 1. To the employees of companies or economic interest groups having at least 10% of their shares or voting rights
directly or indirectly held by the company granting the options;
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COMMERCIAL CODE 2. Or the employees of companies or economic interest groups directly or indirectly holding at least 10% of the
capital or voting rights of the company granting the options; 3. Or the employees of companies or economic interest groups having at least 50% of their shares or voting rights
directly or indirectly held by a company which itself directly or indirectly holds at least 50% of the capital of the company granting the options.
II. - The ordinary general meeting of the company which has direct or indirect majority control of the company granting the options is informed as provided for in Article L. 225-184.
Options may also be granted under the terms and conditions set forth in Articles L. 225-177 to L. 225-179 by a company which is directly or indirectly and solely or jointly controlled by a central body or by credit institutions affiliated thereto within the meaning of Articles L. 511-30 to L. 511-32 of the Monetary and Financial Code, to employees of the said companies and those of entities having more than 50% of their shares held directly or indirectly and solely or jointly by that central body or its affiliated institutions.
Article L225-181 (Order No. 2004-604 of 24 June 2004 Art. 51 IX, X Official Journal of 26 June 2004)
The price established for the subscription or purchase of the shares may not be changed during the option period. However, when the company proceeds with a capital write-off or reduction, a change to the appropriation of profits,
a free allotment of shares, a capitalisation of reserves, profits or share premiums, a distribution of reserves or any issue of capital securities or securities giving entitlement to an allotment of capital securities conferring a subscription right reserved for shareholders, it must take the necessary measures to protect the interests of the option holders as provided for in Article L. 228-99.
Article L225-182 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The total number of options open and not yet exercised shall not constitute entitlement to subscribe a number of shares in excess of a fraction of the share capital determined in a Conseil d'Etat decree.
Options shall not be granted to employees and executives holding more than 10% of the share capital.
Article L225-183 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The extraordinary general meeting determines the period during which the options must be exercised. The rights deriving from the options granted are non-transferable until the option has been exercised. In the event of the option holder's death, his heirs shall have a period of six months starting on the date of his death
in which to exercise the option.
Article L225-184 (Act No. 2001-420 of 15 May 2001 Art. 132 III Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
A special report informs the ordinary general meeting each year of the transactions carried out by virtue of the provisions of Articles L. 225-177 to L. 225-186.
The said report also indicates: - the number, expiry dates and price of the options to subscribe or purchase shares which, during the year and
relative to the duties and functions performed in the company, have been granted to each of those executives by the company and the companies affiliated to it as provided for in Article L. 225-180;
- the number, expiry dates and price of the options to subscribe or purchase shares which have been granted during the year to each of those executives relative to the duties and functions they perform by controlled companies within the meaning of Article L. 233-16;
- the number and price of the shares subscribed or purchased by the company's executives during the financial year through exercise of one or more of the options held on the companies referred to in the previous two paragraphs.
The said report also indicates: - the number, price and expiry dates of the options to subscribe or purchase shares granted during the year by the
company and the companies or groups associated with it as provided for in Article L. 225-180 to each of the ten non-executive employees of the company who were granted the highest number of options;
- the number and price of the shares which have been subscribed or purchased during the year through the exercise of one or more options held on the companies referred to in the previous paragraph by each of the ten non-executive employees of the company who thus purchased or subscribed the highest number of shares.
Article L225-185 (Act No. 2001-420 of 15 May 2001 Art. 132 IV Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
Options giving entitlement to subscribe to shares may be granted for a period of two years, commencing on the date of the company's registration, to natural-person executives who participate with employees in the formation of a company.
Such options may also be granted, for a period of two years with effect from the purchase, to natural-person executives of a company who combine with employees to purchase the majority of the voting rights in order to ensure the company's continued existence.
In the event of options being granted within two years of a company's creation or of the purchase of the majority of a
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COMMERCIAL CODE company's shares by its employees or executives, the maximum indicated in the last paragraph of Article L. 225-182 is increased to one third of the capital.
The chairman of the board of directors, the general manager, the acting general managers, the members of the executive board or the chief executive of a joint-stock company may be granted options by that company which confer entitlement to subscribe or purchase shares as provided for in Articles L. 225-177 to L. 225-184.
They may also be granted options which give entitlement to subscribe or purchase shares of an associated company as provided for in Article L. 225-180, provided that the said company's shares are admitted to trading on a regulated market.
Article L225-186 (Act No. 2001-420 of 15 May 2001 Art. 31 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
Articles L. 225-177 to L. 225-185 are applicable to investment certificates, cooperative investment certificates and members' investment certificates.
Article L225-187-1 (Act No. 2001-152 of 19 February 2001 Art. 29 5 Official Journal of 20 February 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The wording of Articles L. 225-192 to L. 225-194 and Article L. 225-197 which predates the publication of Act No. 2001-152 of 19 February 2001 relating to save-as-you-earn schemes shall remain applicable until a period of five years has elapsed since its publication.
Article L225-197-1 (inserted by Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I a Official Journal of 31 December 2004)
I. - The extraordinary general meeting may, on the basis of a report from the board of directors or the executive board, as applicable, and the auditors' special report, authorise the board of directors or the executive board to make a free allotment of existing or new shares to the company's staff or to certain categories of staff.
The extraordinary general meeting determines the maximum percentage of the share capital which may be allotted as indicated above. The allotment of the shares to the beneficiaries becomes absolute upon expiry of an acquisition period of a minimum duration determined by the extraordinary general meeting which shall not be less than two years. The extraordinary general meeting also determines the minimum period during which the beneficiaries must hold the shares. The said period shall run from the date on which the allotment of shares becomes absolute, but shall never be less than two years.
In a company whose securities are admitted to trading on a regulated market, even when the compulsory holding period has expired, the shares may not be sold:
1. During the period of ten stock-exchange trading days that precede or follow the date on which the consolidated accounts, or failing that the annual accounts, are published;
2. During the period between the date on which the company's management structures have knowledge of information which, were it to be published, could have a significant impact on the price of the company's securities, and the date ten stock-exchange trading days after that on which the said information is published.
The board of directors or, where applicable, the executive board, determines the identity of the beneficiaries of the share allotments referred to in the first paragraph. It also lays down the conditions and, where applicable, the allotment criteria, applicable to the shares.
The extraordinary general meeting determines the period during which the board of directors or the executive board may use the said authorisation. Which period shall not exceed thirty-eight months.
The total number total of shares freely allotted shall not exceed 10% of the share capital. II. - The chairman of the board of directors, the general manager, the acting general managers, the members of the
executive board or the chief executive of a joint-stock company may be allotted shares in the company in the same way as other staff members.
They may also be allotted shares in an associated company as provided for in Article L. 225-197-2, provided that the said company's shares are admitted to trading on a regulated market.
Shares may not be allotted to employees and executives who individually hold more than 10% of the share capital. Moreover, a free allotment of shares shall not result in individual employees and executives holding more than 10% of the share capital.
Article L225-197-2 (inserted by Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I a Official Journal of 31 December 2004)
I. - Shares may be allotted, in the same way as those referred to in Article L. 225-197-1: 1. To the employees of companies or economic interest groups having at least 10% of their shares or voting rights
directly or indirectly held by the company allotting the shares; 2. Or the employees of companies or economic interest groups directly or indirectly holding at least 10% of the
capital or voting rights of the company allotting the shares; 3. Or the employees of companies or economic interest groups having at least 50% of their shares or voting rights
directly or indirectly held by a company which itself directly or indirectly holds at least 50% of the capital of the company allotting the shares.
Shares which are not admitted to trading on a regulated market can only be allotted as provided for above to employees of the company making the allotment or to those referred to in 1.
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COMMERCIAL CODE II. - Shares may also be allotted under the terms and conditions set forth in Article L. 225-197-1 by a company
which is directly or indirectly and solely or jointly controlled by a central body or by credit institutions affiliated thereto within the meaning of and pursuant to Articles L. 511-30 to L. 511-32 of the Monetary and Financial Code, to employees of the said companies and those of entities having more than 50% of their shares held directly or indirectly and solely or jointly by that central body or those credit institutions.
Article L225-197-3 (inserted by Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I a Official Journal of 31 December 2004)
The rights deriving from the free allotment of shares are non-transferable until the end of the acquisition period. In the event of the beneficiary's death, his heirs may request allotment of the shares within six months of the date of
his death.
Article L225-197-4 (inserted by Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I a Official Journal of 31 December 2004)
A special report informs the ordinary general meeting each year of the transactions carried out by virtue of the provisions of Articles L. 225-197-1 to L. 225-197-3.
The said report also indicates: - the number and value of the shares which have been freely allotted to each of those executives by the company
and the companies affiliated to it, as provided for in Article L. 225-197-2, relative to the duties and functions performed in the company during the year;
- the number and value of the shares which have been freely allotted during the year to each of those executives by controlled companies within the meaning of Article L. 233-16 relative to the duties and functions they perform.
The said report also indicates the number and value of the shares which, during the year, have been freely allotted by the company and by the companies or groups associated with it, as provided for in Article L. 225-197-2, to each of the ten non-executive employees of the company who received the highest number of freely allotted shares.
Article L225-197-5 (inserted by Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I a Official Journal of 31 December 2004)
The ordinary general meeting of the company which has direct or indirect majority control of the company making the free allotment of shares is informed as provided for in Article L. 225-197-4.
Subsection 3 Capital write-offs Articles L225-198 to
L225-203
Article L225-198 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
Capital write-offs are effected by virtue of a stipulation in the articles of association or a decision of the extraordinary general meeting by making use of distributable sums within the meaning of Article L. 232-11. Such write-offs may only be effected through equal redemption of every share within a given category and do not entail any capital reduction.
The fully redeemed shares are known as dividend shares.
Article L225-199 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The fully or partially redeemed shares lose entitlement, pro tanto, to the first dividend referred to in Article L. 232-19 and to repayment of the nominal value. They retain all their other rights.
Article L225-200 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
When the capital is divided either into capital shares and fully or partially redeemed shares or into unequally redeemed shares, the general meeting of shareholders may decide, applying the procedure used to amend the articles of association, to convert the fully or partially redeemed shares into capital shares.
To that end, it makes provision for a compulsory deduction to be made from the portion of the company's profits, for one or more financial years, that relates to those shares in respect of the redeemed amount of the shares to be converted, after payment of the first dividend or any cumulative preferred dividend to which the partially redeemed shares may give entitlement.
Article L225-201 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The shareholders may be authorised, in the same circumstances, to pay the company the redeemed amount of their shares and, where applicable, the first dividend or the cumulative preferred dividend for the elapsed portion of the then current financial year and, where appropriate, the previous financial year.
Article L225-202 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The decisions referred to in Articles L. 225-200 and L. 225-201 are subject to ratification by the special meetings of each shareholder category having the same rights.
Article L225-203
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COMMERCIAL CODE (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The board of directors or the executive board, as applicable, makes the necessary amendments to the articles of association, insofar as the said amendments correspond materially to the actual results of the transactions referred to in Articles L. 225-200 and L. 225-201.
Subsection 4 Capital reductions Articles L225-204 to
L225-205
Article L225-204 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
A capital reduction is authorised or decided by the extraordinary general meeting, which may delegate to the board of directors or the executive board, as applicable, all powers required to effect it. Under no circumstances shall it jeopardise equality among the shareholders.
An auditors' report on the planned transaction is sent to the company's shareholders within a time limit determined in a Conseil d'Etat decree. The meeting deliberates on the auditors' report which presents their assessment of the reasons and arrangements for the reduction.
When the board of directors or the executive board, as applicable, is duly empowered to proceed with the reduction by the general meeting, it draws up a report thereon which must be published and makes the appropriate amendment to the articles of association.
Article L225-205 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
When the meeting approves a capital reduction plan which is not motivated by losses, the representative of the general body of bondholders and creditors whose debt predates the date on which the minutes of the meeting were filed at the court registry, may raise an objection to the reduction within a time limit stipulated in a Conseil d'Etat decree.
A court decision may reject the objection or order either that the debts be repaid or that guarantees be provided if the company offers them and they are deemed to be sufficient.
The capital reduction procedure shall not commence during the time limit for raising an objection, nor, where applicable, before a decision on first hearing has been given on any objection raised.
If the judge of original jurisdiction grants the objection, the capital reduction procedure is immediately halted until sufficient guarantees are provided or until the debts are repaid. If he rejects it, the reduction procedure may recommence.
Subsection 5 Subscription, purchase or taking pledge of their own shares by companies Articles L225-206 to
L225-217
Article L225-206 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
I. - The company is prohibited from subscribing its own shares, either directly or through a person acting in their own name but on the company's behalf.
The founders, or, in the case of a capital increase, the members of the board of directors or the executive board, as applicable, are required, as provided for in Article L. 225-251 and the first paragraph of Article L. 225-256, to pay up any shares subscribed by the company in violation of the first paragraph.
When the shares have been subscribed by a person acting in their own name but on the company's behalf, that person is obliged to pay up the shares, jointly and severally with the founders or, as applicable, the members of the board of directors or the executive board. The said person is, moreover, deemed to have subscribed those shares for his own account.
II. - The purchase by a company of its own shares is authorised in the circumstances and pursuant to the terms indicated in Articles L. 225-207 to L. 225-217.
The purchasing of shares by a person acting on behalf of the company is prohibited unless the said person is an investment service provider or a member of a regulated market acting as provided for in I of Article 43 of Act No. 96-597 of 2 July 1996 on the modernisation of financial activities.
Article L225-207 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
A general meeting which has decided a capital reduction not motivated by losses may authorise the board of directors or the executive board, as applicable, to purchase a specified number of shares in order to cancel them.
Article L225-208 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004) (Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I b Official Journal of 31 December 2004)
Companies which allot shares to their employees in the context of a profit-sharing scheme, those which allot their shares as provided for in Articles L. 225-197-1 to L. 225-197-3, and those which grant share options as provided for in Articles L. 225-177 et seq, may repurchase their own shares for such purposes. The shares must be allotted, or the options must be granted, within one year of the repurchase.
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COMMERCIAL CODE Article L225-209 (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Order No. 2004-604 of 24 June 2004 Art. 23, Art. 51 IX Official Journal of 26 June 2004) (Act No. 2004-1484 of 30 December 2004 Art. 83 I b Finance for 2005 Official Journal of 31 December 2004) (Act No. 2005-842 of 26 July 2005 Art. 27 Official Journal of 27 July 2005)
The general meeting of a company whose shares are admitted to trading on a regulated market may authorise the board of directors or the executive board, as applicable, to purchase a number of shares representing up to 10% of the company's capitaL.The general meeting defines the purposes and terms of the transaction, as well as its ceiling. Such authorisation may not be given for a period longer than eighteen months. The works council is informed of the resolution adopted by the general meeting.
A special annual report informs the general meeting of the execution of the share purchase transactions it has authorised and specifies, for each purpose, the number and price of the shares thus acquired, the volume of the shares used and any reallocations thereof to other purposes.
The board of directors may delegate to the general manager or, with his agreement, to one or more assistant general managers, the powers required to execute such transactions. The executive board may delegate to its chairman or, with his agreement, to one or more of its members, the powers required to execute such transactions. The persons thus designated report to board of directors or the executive board on the use made of that power as determined by the said boards.
The acquisition, assignment or transfer of the said shares may be effected by any means. Shares representing up to 10% of the company's capital may be cancelled every twenty-four months. The company reports to the Financial Markets Council each month on the purchases, assignments, transfers and cancellations thus effected. The Financial Markets Council brings this information to the attention of the public.
Companies which enable their employees to participate in the benefits of their expansion by allocating their own shares to them, those which allocate their shares as provided for in Articles L225-197-1 to L225-197-3 and those which plan to grant stock options to their employees may use for such purposes some or all of the shares acquired as provided for above. They may also offer their own shares to them as provided for in II of Article L225-196 and in Articles L443-1 et seq of the Labour Code.
The number of shares the company acquires and retains for possible subsequent use for payment or exchange purposes within the framework of a merger, demerger or contribution cannot exceed 5% of its capitaL.These provisions apply to redemption schedules submitted to general meetings for approval from 1 January 2006 onwards.
In the event of shares purchased being cancelled, the capital reduction is authorised or decided by an extraordinary general meeting, which may delegate full powers to effect such cancellation to the board of directors or the executive board, as applicable. A special report on the planned transaction, drawn up by the auditors, is sent to the company's shareholders within a time limit determined in a Conseil d'Etat decree.
Article L225-210 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The company shall not hold, either directly or through a person acting in their own name but on the company's behalf, more than 10% of the total of its own shares, or more than 10% of any given category. The said shares must be in registered form and be fully paid up when purchased. Failing this, the members of the board of directors or the executive board, as applicable, are required, as stipulated in Article L. 225-251 and the first paragraph of Article L. 225-256, to pay up the shares.
The acquisition of the company's shares shall not have the effect of reducing the share capital to an amount below that of the capital plus the non-distributable reserves.
The company must have reserves, in addition to the statutory reserve, of an amount at least equal to the value of all the shares it holds.
The shares held by the company do not give entitlement to dividends and are stripped of voting rights. In the event of the capital being increased by share subscriptions in cash, the company may not exercise the
preferential subscription right itself. The general meeting may decide not to take account of such shares when determining the preferential subscription rights attached to the other shares. Failing this, the rights attached to the shares held by the company must be either sold on the stock market or distributed among the shareholders in proportion to their individual rights before the close of the subscription period.
Article L225-211 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The company or person responsible for administration of its securities shall keep registers of the purchases and sales made pursuant to Articles L. 225-208 and L. 225-209, as stipulated in a Conseil d'Etat decree.
The board of directors or the executive board, as applicable, must indicate in the report referred to in Article L. 225-100 the number of shares bought and sold during the financial year pursuant to Articles L. 225-208 and L. 225-209, the average prices of the purchases and sales, the trading commission, the number of shares registered in the company's name at the close of the financial year, their value based on the buying price, their nominal value, the reasons for the purchases made and the fraction of the capital that they represent.
Article L225-212 (Act No. 2003-706 of 1 August 2003 Art. 46 I 1, V 1 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
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COMMERCIAL CODE Companies shall declare the transactions that they envisage carrying out pursuant to the provisions of Article L.
225-209 to the Financial Markets Authority, and shall report their acquisitions to it as soon as they are made. The Financial Markets Authority may request them to provide any explanation or proof in this regard which it
considers necessary. If such requests are not complied with, or if it finds that the transactions breach the provisions of Article L. 225-209,
the Financial Markets Authority may take all necessary measures to prevent execution of orders transmitted directly or indirectly by such companies.
NB: Act No. 2003-706 of 1 August 2003 article 46 V 1 and 2: 1. All references to the Stock Exchange Commission and the Disciplinary Board for Financial Management are
replaced with a reference to the Financial Markets Authority; 2. All references to the Stock Exchange Commission's Rules and the General Regulations of the Financial Markets
Council are replaced with a reference to the General Regulations of the Financial Markets Authority.
Article L225-213 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The provisions of Articles L. 225-206 and L. 225-209 do not apply to fully paid-up shares acquired subsequent to a general transfer of assets or following a court decision.
The shares must nevertheless be sold within two years of the date of acquisition if the company holds more than 10% of its capital. Upon expiry of that period, they must be cancelled.
Article L225-214 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
Shares held in violation of Articles L. 225-206 to L. 225-210 must be sold within one year of their subscription or acquisition. Upon expiry of that period, they must be cancelled.
Article L225-215 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The company is prohibited from taking pledge of its own shares, either directly or through a person acting in their own name but on the company's behalf.
Shares taken in pledge by the company must be returned to their owner within one year. They may be returned within two years if the transfer of the pledge to the company results from a general transfer of assets or a court decision. Failing this, the contract of pledge is automatically null and void.
The prohibition referred to in the present article shall not apply to the ordinary transactions of credit institutions.
Article L225-216 (Act No. 2001-152 of 19 February 2001 Art. 29 3 Official Journal of 20 February 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
A company shall not advance funds, grant loans or grant sureties to enable a third party to subscribe or purchase its own shares.
The provisions of the present article do not apply to the ordinary transactions of credit institutions or transactions carried out to enable employees to buy shares in the company, one of its subsidiaries or a company included in a group savings scheme as provided for in Article L. 444-3 of the Labour Code.
Article L225-217 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
Articles L. 225-206 to L. 225-216 are applicable to investment certificates.
SECTION V Supervision of public limited companies Articles L225-218 to
L225-242
Article L225-218 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003) (Law No 2003-706 of 1 August 2003 Article 104 (I) Official Gazette of 2 August 2003)
In each company, the auditing function is performed by one or more auditors.
Article L225-219 I.- No person may act as an auditor unless they is enrolled in an official list to be prepared for that purpose. II.- An Order to be approved by the Conseil d'Etat shall fix the structure of the auditors' profession. It shall in
particular determine: 1. The method by which the list is prepared and revised, which shall be the prerogative of regional registration
boards, and, at appeal, a National Registration Board the composition of which is specified in Article L.225-220; 2. The conditions of registration in the list; 3. The disciplinary system, which shall be the prerogative of regional disciplinary boards, and, at appeal, a National
Disciplinary Authority, as mentioned in Article L.225-221; 4. The conditions upon which auditors shall be grouped into professional associations.
Article L225-220 I.- Every regional registration board must include:
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COMMERCIAL CODE 1. A judge of the Cour d'appel, as chairman; 2. A judge of a Tribunal de grande instance [Tribunal de grande instance] of the jurisdiction of the Cour d'appel, as
deputy chairman; 3. A judge of the Tribunal de grande instance of Local Government Auditors; 4. A member of the Tribunaux de commerce; 5. A professor of law, economics or management; 6. A person qualified in the field of business management; 7. A representative of the Minister of Economy and Finance; 8. A member of the Regional Society of Auditors. II.- Decisions of the Regional Registration Boards may be referred to a National Registration Board on appeal. The
National Board must include: 1. A judge of the Civil and Criminal jurisdiction system, as chairman; 2. A judge of the Court of Auditors; 3. A professor of law, economics or management; 4. A person qualified in the field of business management; 5. A representative of the Minister of Economy and Finance; 6. A member of the Tribunaux de commerce; 7. Two auditors. III.- If a vote is tied between members of the Regional or National Board, the chairman shall have the casting vote. IV.- Members of the Regional Boards and the National Board and their deputies, in equal numbers and chosen from
the same categories, shall be appointed in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat. With regard to the auditors, they shall be appointed on the proposal of their regional societies or their national society respectively.
Article L225-221 The Regional Registration Board shall be given the status of a regional disciplinary board to rule in disciplinary
proceedings taken against an auditor who is a member of a regional society, wherever the acts of which they is accused may have been committed.
The National Registration Board shall be given the status of a regional disciplinary board to rule on appeals against decisions of the regional disciplinary boards.
A judge of the civil and criminal jurisdiction system belonging to the Parquet at local or national level shall act as Procureur de la République on each regional or national disciplinary board. The said judges shall be appointed by the Minister for Justice.
Article L225-222 The functions of an auditor shall be incompatible: 1. With any activity or act of such a nature as to affect their independence; 2. With any paid employment; nevertheless, an auditor may give instruction in the skills of their profession or occupy
a paid post in a firm or company of auditors or accountants; 3. With any commercial activity, whether exercised directly or through an intermediary.
Article L225-223 Within a month of being enrolled in the list referred to in Article L.225-219, every auditor must take an oath in the
Cour d'appel having jurisdiction over their locality, to discharge the duties of their profession honourably and with integrity and to observe the laws and cause them to be observed.
Article L225-224 The following may not be auditors of a public limited company: 1. Founders, contributors in kind, holders of special privileges, directors or members of the management or
supervisory board, as the case may be, of the company or its subsidiaries as defined in Article L.233-1; 2. Relatives of the persons referred to in sub-paragraph 1 by blood or marriage up to and including the fourth
degree of kinship; 3. Directors, members of the management or supervisory board, and, if applicable, spouses of directors or of
members of the management or supervisory board holding one tenth of the company's capital or a company of which the company owns one tenth of the capital;
4. Persons who, directly or indirectly or through an intermediary, receive from those mentioned in sub-paragraph 1 of this Article, or from the company or any company to which sub-paragraph 3 above applies, any salary, wages or remuneration whatsoever in respect of any activity other than that of an auditor; this provision shall not apply either to complementary professional activities carried on abroad or to specific review missions carried out by the auditor on behalf of the company in companies consolidated or intended to be consolidated therewith. Auditors may receive remuneration from the company for temporary missions with limited objectives, carried out in the course of their duties, provided that the said missions are assigned to them by the company at the request of a public authority;
5. Companies or firms of auditors where one of their partners, shareholders or directors is in one of the situations described in sub-paragraph 1, 2, 3 or 4;
6. Spouses of persons who receive any salary, wages or remuneration in respect of a permanent activity other than that of auditor either from the company or its directors or members of its management or supervisory board, or from companies owning one tenth of the company's capital or of which the company owns one tenth of the capital,;
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COMMERCIAL CODE 7. Firms or companies of auditors where the spouse of one of their directors, or of the partner or shareholder acting
as auditor on behalf of the company, is in one of the situations described in sub-paragraph 6.
Article L225-225 Auditors may not be appointed as directors, managing directors or members of the management of the companies
they audit within five years of relinquishing their functions. The same prohibition shall apply to partners, shareholders or directors of a firm or company of auditors.
They shall not exercise their functions within the same period in companies holding 10% of the capital of the company they audit or in a company of which the latter holds 10% of the capital at the date when they relinquish the functions of an auditor.
Article L225-226 Persons who have been directors, managing directors, members of the management, managers or paid employees
of a company may not be appointed as auditors of the said company within five years of relinquishing their posts. They may not be appointed within the same period as auditors in companies holding 10% of the capital of the
company in which they held their posts or in a company of which the latter held 10% of the capital at the date when they relinquish their posts.
The prohibitions referred to in this Article for the persons mentioned in the first sub-paragraph shall apply to firms or companies of auditors of which the said persons are partners, shareholders or directors.
Article L225-227 Decisions taken in the absence of a legally appointed auditor, or on a report by auditors appointed or remaining in
office in breach of the provisions of Articles L.225-219 and L.225-224 shall be void. An action to have such a decision declared void shall be extinguished if the said decisions are confirmed by a general meeting on a report by legally appointed auditors.
Article L225-228 (Law No 2003-706 of 1 August 2003 Article 105 Official Gazette of 2 August 2003)
The auditors are proposed for appointment by the general meeting in a draft resolution from the board of directors or the supervisory board or, in the circumstances defined in Section 3 of the present Chapter, the shareholders. If the company makes use of public issues, the board of directors chooses the auditors which it plans to propose, but the general manager and the assistant general manager do not participate in the voting if they are directors.
If the auditor has verified the contribution and merger operations of the companies which it controls within the meaning of subparagraph II of Article L. 233-16 for the two preceding financial years, the draft resolution referred to in the previous paragraph makes reference to that fact.
Save for the circumstances envisaged in Articles L. 225-7 and L. 225-16, the auditors are appointed by the ordinary general meeting.
One or more deputy auditors, whose task it is to replace the incumbent auditors in the event of refusal, unavailability, resignation or death, are appointed by the ordinary general meeting. The functions of a deputy auditor called upon to replace the incumbent cease upon expiry of the latter's term of office unless the unavailability is of a temporary nature. If this is the case, when the incumbent becomes available again he resumes his duties after the next general meeting called to approve the accounts has taken place.
Companies which are obliged to publish consolidated accounts pursuant to the provisions of the present Title are required to appoint at least two auditors.
The auditors carry out a joint examination of the accounting practices, in accordance with the instructions laid down in a code of professional standards established pursuant to the sixth paragraph of Article L. 821-1. A code of professional standards also determines the principles that govern the distribution of the tasks to be carried out by each auditor in the accomplishment of their mission.
Article L225-229 (Law No 2003-706 of 1 August 2003 Article 107 Official Gazette of 2 August 2003)
The auditors are appointed for six financial years. Their functions expire after the ordinary general meeting called to approve the accounts for the sixth financial year.
The auditor appointed by the meeting to replace another remains in office only until his predecessor's term of office has expired.
If the meeting should fail to elect an auditor, any shareholder may ask the court to appoint one after duly informing the chairman of the board of directors or the chairman of the executive board. The remit thus conferred ceases when one or more auditors have been appointed by the general meeting.
When an auditing firm is taken over by another auditing firm, the acquiring firm shall maintain the remit entrusted to the acquired firm until it expires.
Contrary to the provisions of the first paragraph, however, the controlled firm's first general meeting held subsequent to the acquisition may deliberate on the maintenance of the remit, after hearing the auditor.
Article L225-230 (Law No 2001-420 of 15 May 2001 Article 114 (1) Official Gazette of 16 May 2001)
One or more shareholders representing at least 5% of the share capital, the works council, the ministère public and, in companies issuing offers to the public, the Commission des opérations de bourse [Securities and Investments Board]
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COMMERCIAL CODE may, within time limits and in accordance with conditions to be fixed by an Order approved by the Conseil d'Etat, apply to the Court for an Order for the withdrawal, on reasonable grounds, of one or more auditors appointed by the general meeting.
Such an application may also be made by an association meeting the requirements laid down in Article L.225-120. Where such an application is granted, a new auditor shall be appointed by an order of the Court. they shall remain
in office until the auditor appointed by the general meeting shall take office.
Article L225-231 (Law No 2001-420 of 15 May 2001 Article 114 (3) Official Gazette of 16 May 2001)
An association meeting the requirements laid down in Article L.225-120, or one or more shareholders representing at least 5% of the share capital, either individually or as a group of any kind, may submit written questions to the chairman of the board of directors or the management on one or more of the company's management operations, and also, if appropriate, those of companies it controls for the purposes of Article L.223-3. In the latter case, the application must be evaluated in the light of the group's interests. The reply must be sent to the auditors.
If no reply shall have been received within a month, or if the information contained in the reply is unsatisfactory, the said shareholders may make an ex parte application to a Judge sitting in emergency interim proceedings for an Order appointing one or more experts to submit a report on one or more management transactions.
The ministère public, the works council, and, in companies issuing offers to the public, the Commission des opérations de bourse may likewise make an ex parte application to a Judge sitting in emergency interim proceedings for an Order appointing one or more experts to submit a report on one or more management transactions.
If the application is granted, the Court order shall determine the extent of the experts' instructions and powers. The company may be ordered to pay their fees.
The report shall be sent to the applicant, the ministère public, the works council, the auditors and the board of directors or management, as the case may be, and also, in companies issuing offers to the public, to the Commission des opérations de bourse. The said report must also be annexed to the auditors' report prepared for the next general meeting and must be similarly published.
Article L225-232 (Law No 2001-420 of 15 May 2001 Article 114 (1) Official Gazette of 16 May 2001)
One or more shareholders representing at least 5% of the share capital, or an association meeting the requirements laid down in Article L.225-120, may submit written questions to the chairman of the board of directors or the management twice a year on any matter of such a nature as to threaten the continued operation of the company. The reply must be sent to the auditors.
Article L225-233 (Law No 2001-420 of 15 May 2001 Article 114 (1) Official Gazette of 16 May 2001)
In case of default or inability to act, the auditors may, on an ex parte application by the board of directors, the management, the works council, one or more shareholders representing at least 5% of the share capital or the general meeting, be relieved of their duties by a Court order before the normal date of expiration of their term of office, in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat.
Such an application may also be made by the ministère public, and, in companies issuing offers to the public, by the Commission des opérations de bourse. It may also be made by an association meeting the requirements laid down in Article L.225-120.
Article L225-234 (Law No 2003-706 of 1 August 2003 Article 106 Official Gazette of 2 August 2003)
When it is proposed to the meeting that an auditor's remit should not be renewed upon expiry, the auditor is entitled to address the general meeting if he so requests, without prejudice to the provisions of Article L. 822-14.
Article L225-235 (Act No. 2003-706 of 1 August 2003 Art. 112, Art. 120 Official Journal of 2 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 9 II Official Journal of 27 July 2005) (Order No. 2005-1126 of 8 September 2005 Art. 20 III Official Journal of 9 September 2005)
In a report attached to the report referred to in the second paragraph of Article L225-100, the auditors present their observations on the report referred to in Article L225-37 or Article L225-68, as applicable, concerning the internal auditing procedures relating to the preparation and processing of accounting and financial information.
Article L225-236 The auditors must at all times of the year, together or separately, make all such checks and inspections as they may
consider appropriate and may demand the production in situ of all such documents as they shall consider of assistance in the performance of their duties, and in particular any contracts, agreements, books, accounting documents and minute books.
In order to carry out their inspections, the auditors may, under their own responsibility, obtain the assistance of such experts or assistants as they may choose. They must notify the company of the names of any such experts or assistants, who shall have the same rights of investigation as the auditors.
The said investigations may be carried out either at the company's premises or at those of parent or subsidiary companies as defined in Article L.233-1.
They may also be carried out pursuant to the second sub-paragraph of Article L.223-235 at the premises of all
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COMMERCIAL CODE companies included in the consolidation.
The auditors may also collect all such information as may be of assistance in the performance of their duties at the premises of third parties that have carried out operations on the company's behalf. This right of information shall not, however, extend to the disclosure of any papers, contracts and documents held by third parties, unless sanctioned by a Court order. The rule of professional secrecy may not be invoked against the auditors except by lawyers and other legal officials.
Article L225-237 The auditors must inform the board of directors or management, as the case may be, of: 1. The controls and inspections they have carried out and their various random checks; 2. Any items in the balance sheet and other accounting documents which they consider require amendment,
together with any relevant comments on the evaluation methods used to prepare the said documents; 3. Any irregularities or inaccuracies they may have discovered; 4. The conclusions to be drawn from their aforementioned comments and amendments as regards the results for
the financial year, as compared with those achieved the previous year.
Article L225-238 (Law No 2003-706 of 1 August 2003 Article 108 Official Gazette of 2 August 2003)
The auditors are invited to all meetings of the board of directors or the executive board which examine or close off the annual or interim accounts, and also to all shareholders' meetings.
Article L225-239 Auditors' fees shall be payable by the company. They shall be fixed by methods to be laid down by an Order
approved by the Conseil d'Etat. The Regional Disciplinary Board, and, on appeal, the National Disciplinary Board shall be competent to hear any
dispute relating to their remuneration.
Article L225-240 (Law No 2003-706 of 1 August 2003 Article 112 Official Gazette of 2 August 2003)
The auditors draw the attention of the next general meeting to any irregularities or inaccuracies they discover? while performing their remit.
Furthermore, they report any criminal acts which they become aware of to the Public Prosecutor and incur no liability in connection with such disclosures.
Article L225-241 Auditors shall be liable both to the company and to third parties for the damaging consequences of any negligent or
tortious acts they may commit in the performance of their duties. They shall not, however, be liable for any transmission or disclosure of information effected in the performance of their duties as defined in Articles L.234-1 and L.234-2.
They shall not be liable in civil law for any illegal acts committed by the directors or members of the management, unless, having been aware of the sad acts, they shall have failed to disclose the same in their report to the general meeting.
Article L225-242 Civil law actions against auditors shall be subject to the time limits specified in Article L.225-254.
SECTION VI Conversion of public limited companies Articles L225-243 to
L225-245-1
Article L225-243 Any public limited company may be converted to another legal form of legal person if, at the time of conversion, it
has been in existence for at least two years and if it has drawn up balance sheets for its first two financial years and had them approved by the shareholders.
Article L225-244 The decision to change the form of a public limited company shall be taken on a report by the company's auditors.
The report must certify that the equity capital is at least equal to the amount of the share capital. The conversion shall be subject, if necessary, to the approval of the meetings of bond holders and holders of
dividend or founders' rights. The decision to change the company's form must be published in such manner as shall be determined by an Order
approved by the Conseil d'Etat.
Article L225-245 Conversion into a general partnership shall require the agreement of all the partners. If such agreement is obtained,
the conditions laid down in Articles L.225-243 and the first sub-paragraph of Article L.225-244 shall not be required. Conversion into a limited partnership, with or without shares, shall be decided in accordance with the conditions laid
down for the amendment of the memorandum and articles of association and subject to the agreement of all the partners who agree to be active partners.
Conversion into a limited liability company shall be decided in accordance with the conditions laid down for the
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COMMERCIAL CODE amendment of the memorandum and articles of association for companies incorporated in that legal form.
Article L225-245-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
In the event of a public limited company being converted into a European company, the first paragraph of Article L225-244 is not applicable.
The company draws up a plan to convert the company into a European company. The said plan is filed at the clerk's office of the court having jurisdiction at the place where the company is registered and is published as provided for in a Conseil d'Etat decree.
One or more court-appointed conversion commissioners draw up a report to the converting company's shareholders, under their own responsibility, attesting that the shareholders' equity is at least equivalent to the authorised capitaL.They are subject to the incompatibilities referred to in Article L822-11.
Conversion into a European company is decided pursuant to the provisions of Articles L225-96 and L225-99.
SECTION VII Dissolution of public limited companies Articles L225-246 to
L225-248
Article L225-246 The premature dissolution of a company must be decided by a special shareholders’ meeting.
Article L225-247 The Tribunal de commerce may, on an application by any interested party, order the dissolution of a company, if it
has had less than seven shareholders for more than a year. It may allow a company a maximum period of six months to rectify the situation. It shall not make a dissolution order
if the said rectification takes place on the day judgment is given on the merits.
Article L225-248 If, as a result of losses duly recorded in the accounting documents, a company's equity capital falls below half of its
share capital, the board of directors or management, as the case may be, must call an special shareholders’ meeting within four months of the approval of the accounts revealing the said loss to decide whether the company should be prematurely dissolved.
If it is not decided to dissolve the company, the company must, by no later than the end of the second financial year after that in which the losses were recorded, and subject to the provisions of Article L.224-2, reduce its capital to a sum at least equal to that of any losses not imputed to reserves unless the equity capital shall have been restored to a figure at least equivalent to half the share capital within that time.
In either case, the decision of the general meeting shall be published in such manner as shall be determined by an Order approved by the Conseil d'Etat.
If no general meeting shall be held, or if the meeting shall not have been able to take a valid decision at the final time of asking, any interested party may make an ex parte application to the Court for an order that the company be dissolved. The same rule shall apply if the provisions of the second sub-paragraph above shall not have been observed. In any such case, the Court may grant the company a maximum period of six months to rectify the situation. It shall not make a dissolution order if the said rectification takes place on the day judgment is given on the merits.
The provisions of this Article shall not apply to companies undergoing judicial reorganisation or having the benefit of a recovery plan.
SECTION VIII Civil liability Articles L225-249 to
L225-257
Article L225-249 The founders of a company the incorporation of which is liable be held void, and its directors in office at the time the
said liability is incurred, may be held jointly and severally liable for any loss or damage to its shareholders or to third parties arising from the non-incorporation of the company.
Those of the shareholders whose contributions and privileges have not been examined and approved may similarly be held jointly and severally liable.
Article L225-250 Any action for liability based on the non-incorporation of the company must be brought within the time limits laid
down in Article 235-13.
Article L225-251 (Law No 2001-420 of 15 May 2001, Article 107 (6) and (7) Official Gazette of 16 May 2001)
The directors and managing director shall be individually or jointly and severally liable to the company or third parties either for infringements of the laws or regulations applicable to public limited companies, or for breaches of the memorandum and articles of association, or for tortious or negligent acts of management.
If more than one director, or more than one director and the managing director, have participated in the same acts, the Court shall determine the share to be contributed by each of them to the compensation awarded.
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COMMERCIAL CODE Article L225-252 (Law No 2001-420 of 15 May 2001, Article. 107 (8) Official Gazette of 16 May 2001)
Apart from actions for personal loss or damage, shareholders may either individually or in an association fulfilling the conditions laid down in Article L.225-120, or acting as a group in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat, bring an action for liability on behalf of the company against its directors or managing director. The plaintiffs shall be authorised to sue for compensation for the full amount of the loss or damage suffered by the company, to which damages shall be awarded if necessary.
Article L225-253 (Law No 2001-420 of 15 May 2001, Article 107 (9) Official Gazette of 16 May 2001)
Any clause in the memorandum and articles of association the effect of which would be to make the exercise of any action subject to prior notice or to the consent of the general meeting, or to waive the right to any such action in advance, shall be deemed non-existent.
No decision of the general meeting shall have the effect of extinguishing an action for liability against the directors or managing director for a tortious or negligent act committed in the performance of their duties.
Article L225-254 (Law No 2001-420 of 15 May 2001, Article 107 (10) Official Gazette of 16 May 2001)
Any action for liability against the directors or managing director, either by an individual or individuals or by the company, must be brought within three years of the act or event causing the loss or damage, or, if the same was concealed, the discovery thereof. Nevertheless, where the act is defined as a criminal offence, the said period shall be extended to ten years.
Article L225-255 Where proceedings for judicial reorganisation or compulsory liquidation are brought pursuant to Title II of Book VI
relating to the judicial reorganisation and compulsory liquidation of companies, the persons referred to in the said provisions may be held liable for the debts of the company and shall be subject to prohibition and prohibition, in accordance with the conditions stipulated thereby.
Article L225-256 Where a company is subject to the provisions of Articles L.225-57 to L.225-93, the members of its management
shall be subject to the same liability as directors in the circumstances specified in Articles L.225-249 to L.225-255. Where proceedings for judicial reorganisation or compulsory liquidation are brought pursuant to Title II of Book VI
relating to the judicial reorganisation and compulsory liquidation of companies, the persons referred to in the said provisions may be held liable for the debts of the company and shall be subject to prohibition and prohibition, in accordance with the conditions stipulated thereby.
Article L225-257 Members of the supervisory board shall be liable for negligent or tortious acts committed by them in a personal
capacity in the performance of their duties. They shall incur no liability for acts of management or the result thereof. They may be held liable in civil law for criminal offences committed by members of the management if, having been aware thereof, they did not report the said offences to the general meeting.
The provisions of Articles L.225-253 and L.225-254 shall apply.
SECTION IX Public limited companies with worker participation Articles L225-258 to
L225-270
Article L225-258 It may be stipulated in the memorandum and articles of association of any public limited company that the company
has worker participation. Companies whose memorandum and articles of association do not contain such a stipulation may change their
legal form to that of companies partly owned by their employees, using the procedure laid down in Article L225-96. Companies partly owned by their employees shall be subject to the provisions of this section, irrespective of the
general rules applicable to public limited companies.
Article L225-259 Where the company exercises the power to issue employee shares, that fact must be stated in all deeds and
documents to be delivered to third parties by means of the words"à participation ouvrière"[with worker participation].
Article L225-260 The shares of the company shall consist: 1. Of capital shares or share coupons; 2. Of shares known as"employee shares".
Article L225-261 Employee shares shall be collectively owned by paid personnel (employees and workers), in the form of a workers'
commercial co-operative. The said co-operative must be exclusively formed by all paid employees who have been with the company for at least a year and are aged over eighteen. The loss of a paid job with the company shall result in the
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COMMERCIAL CODE loss by the employee of all their rights in the workers' co-operative, without compensation. The liquidated value of the rights in the company acquired during the previous financial year by the interested party before they left shall be calculated on the basis of the proportion of that period they spent in the company's service, and the provisions of Article 225-269.
Where a company is incorporated from the outset as a public limited company with worker participation, the memorandum and articles of association of the public limited company must provide for the setting aside of the shares allocated to collective ownership by employees until the end of the year. At the end of that period, the shares shall be delivered to the legally constituted co-operative.
Dividends allocated to workers and employees belonging to the workers' co-operative must be distributed between them according to the rules laid down by the memorandum and articles of association of the co-operative and the decisions of its general meetings. Nevertheless, the memorandum and articles of association of the public limited company must provide that, before any distribution of dividends, there shall be deducted from the profits, for the benefit of holders of capital shares, a sum corresponding to that which would be yielded, at such interest rate as they shall fix, by the capital paid.
In no circumstances shall employee shares be individually allocated to employees of the company who are members of the co-operative.
Article L225-262 Employee shares must be registered in the name of the workers' co-operative, and non-transferable throughout the
existence of the public limited company with worker participation.
Article L225-263 Members of the workers' co-operative shall be represented at general meetings of the public limited company by
representatives elected by the said members at a meeting of the co-operative. Representatives so elected must be chosen from among the members. The number of representatives shall be
fixed by the memorandum and articles of association of the public limited company. The number of votes held by the said representatives at each general meeting of the public limited company shall
be fixed according to the number of votes held by the other shareholders present or represented, depending on the proportion of employee shares to capital shares that results from the application of the company's memorandum and articles of association. It shall be determined at the start of each general meeting according to the details in the attendance sheet.
Representatives present shall likewise share the votes attributed to them equally between themselves. Any remainder shall be allocated to the most senior representatives.
The general meeting of the workers' co-operative shall meet every year within a period fixed by the memorandum and articles of association, or, if they contain no such provisions, within four months after the general meeting of the public limited company.
Article L225-264 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Each participant at the labour cooperative's general meeting has one vote. The memorandum and articles of association may nevertheless allocate more than one vote to the participants,
commensurate with their pay, within the limit of a maximum number of votes based on the numerical correlation between an individual's annual pay, established on the basis of the accounts as of the close of the previous financial year, and the lowest annual remuneration paid by the company to employees aged above eighteen years.
The memorandum and articles of association may make provision for the participants to be divided into colleges, each specific to a personnel category, with each college electing its representative(s) and the agreement of each college, with majorities as specified in the memorandum and articles of association, being necessary for amendments to the cooperative's memorandum and articles of association and other decisions indicated in the memorandum and articles of association.
Article L225-265 The general meeting of the workers' co-operative shall take valid decisions only if, at the first time of asking, two
thirds of the members of the co-operative are present or represented at the meeting. The memorandum and articles of association shall fix the requisite quorum for a meeting held at the second time of asking. If the memorandum and articles of association contain no such provisions, the quorum shall not be less than half the members of the co-operative, present or represented.
The general meeting shall take decisions on a simple majority of votes cast. Where a secret ballot is held, blank votes shall not be included in the count.
Nevertheless, for amendments to the memorandum and articles of association and other decisions listed thereby, the quorum shall not be less than half the members of the co-operative. Furthermore, the same decisions shall be taken on a two-thirds majority of votes cast. Where a secret ballot is held, blank votes shall not be included in the count.
Article L225-266 In the event of a legal action, the representatives elected at the last general meeting shall appoint one or more from
among their number to represent the members. If no representatives have yet been elected, or if none of the representatives is a member of the workers' co-operative, an election of special representatives shall be held, in the manner and in accordance with the conditions laid down in the first sub-paragraph of Article L.225-263 and in Articles
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COMMERCIAL CODE L.225-264 and L.225-265.
Article L225-267 Nevertheless, general meetings of public limited companies with worker participation called to decide on
amendments to be made to the memorandum and articles of association or proposals that the company shall continue in existence beyond the term fixed for its duration, or that it be dissolved before the expiration of the said term, shall be validly constituted and able to take valid decisions only provided that they include a number of shareholders representing three quarters of the share capital. The memorandum and articles of association may decide otherwise.
Where a decision of the general meeting includes a change in the rights attached to employee shares, the said decision shall not be final until it has been ratified by a general meeting of the workers' co-operative.
Article L225-268 The board of directors of a public limited company with worker participation must include one or more
representatives of the workers' co-operative. The said representatives shall be elected by the general meeting of shareholders and chosen from among the representatives who represent the co-operative at the said general meeting. Their number shall be fixed according to the ratio of employee shares to capital shares. They shall be appointed for the same term as the other directors and shall similarly be eligible for re-election. Nevertheless, their term of office shall end if they cease to be paid employees of the company and, therefore, members of the co-operative. If the board of directors consists of only three members, it must include at least one member of the co-operative.
Article L225-269 In the event of dissolution, the company's share capital shall not be distributed among the shareholders until the
capital shares have been fully amortised. The proportion representing employee shares shall then be distributed, in accordance with decision taken by a
general meeting of the workers' co-operative called for that purpose, between members and former members with at least ten years' consecutive service with the company, or at least an uninterrupted period of service equivalent to half the duration of the company, who have left the company for one of the following reasons: voluntary retirement or official retirement with pension rights, sickness or disablement involving incapacitation for the post previously occupied, or redundancy caused by abolition of jobs or a reduction in personnel.
Nevertheless, former members who fulfil the conditions set out in the preceding sub-paragraph shall be included in the distribution only as to a share corresponding to their length of service reduced by a tenth of the total thereof for every year since they ceased to be employed by the company.
The dissolution of the public limited company shall entail the dissolution of the workers' co-operative.
Article L225-270 I.- Where a public limited company with worker participation finds itself in the situation referred to in Article
L.225-248, and it is not decided to dissolve it, an special shareholders’ meeting may decide, within the period fixed in the final sub-paragraph of the same Article, to amend the memorandum and articles of association to provide for the loss of the status of a public limited company with worker participation, and consequently the dissolution of the workers' co-operative, notwithstanding the provisions of the second sub-paragraph of Article L.227-267 and any provision to the contrary in the memorandum and articles of association.
Nevertheless, the implementation of any such decision shall be subject to the existence of a collective company agreement with one or more unions or associations, representative of employees for the purposes of Article L.132-2 of the Employment Code, providing for the dissolution of the workers' co-operative. Where there is an existing collective company agreement, covering the same subject-matter and entered into in accordance with the same conditions, dating from before the entry into force of Law No 94-679, of 8 August 1994, introducing miscellaneous economic and financial provisions, the stipulations contained in this sub-paragraph shall be considered to have been complied with.
II.- Where a workers' co-operative is dissolved pursuant to the provisions of sub-paragraph I above, compensation shall be paid to the members and former members mentioned in the second sub-paragraph of Article L.225-269.
The amount of the said compensation, the calculation of which must specifically take the nature and specific scope of the rights attached to employee shares into account, shall be fixed by an special shareholders’ meeting of shareholders of the public limited company after consulting the representatives of the workers' co-operative and in the light of a report to be provided by an independent expert appointed by methods to be laid down by an Order approved by the Conseil d'Etat.
III.- On the decision of an special shareholders’ meeting of shareholders of the public limited company, compensation may take the form of an exclusive allocation of shares to the members and former members mentioned in the second sub-paragraph of Article L.225-269.
The said shares may be created by deduction at source from available premiums and reserve funds. By way of exception to the provisions of Article L.225-206, a public limited company may also acquire its own shares in order to allocate them, within a period of a year from the date of acquisition, to the members and former members mentioned in the second sub-paragraph of Article L.225-269.
Shares so allocated may not be disposed of within a period of three years after the date of dissolution of the workers' co-operative.
Notwithstanding the provisions of the preceding sub-paragraph, an special shareholders’ meeting of shareholders of the public limited company may decide to assign the management of the shares in question to a company investment trust governed by the provisions of Article 21 of Law No 88-1201, of 23 December 1988, relating to collective security investment institutions and creating debt investment trusts, specifically and exclusively constituted for that purpose by no
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COMMERCIAL CODE later than the date of allocation of the shares. In any such case, the proportion of the funds that constitute its assets may not be disposed of within the period mentioned in the preceding sub-paragraph. The rules governing the said funds shall be approved by a collective employees' agreement.
IV.- For the purposes of the provisions of this Article, decisions taken by the general shareholders' meeting of the public limited company shall automatically be binding on every shareholder and every bearer or holder of bonds or other securities giving immediate or future access to its share capital.
V.- The compensation referred to in sub-paragraph II shall be distributed between those entitled thereto, taking into account the length of their service with the company, their length of membership of the workers' co-operative and their pay levels.
Following the dissolution of a workers' co-operative, and within six months of the decision of an extraordinary general shareholders' meeting of the public limited company fixing the amount and form of compensation, the said compensation shall be distributed in accordance with the decisions taken by the general meeting of the workers' co-operative on a proposal by its representatives. Should the said distribution not take place within six months, it shall be implemented by a liquidator appointed by the Presiding Judge of the Tribunal de commerce of the jurisdiction within which the company's registered office is situated.
The provisions of the third sub-paragraph of Article L.225-169 shall apply in the case referred to in the present sub-paragraph V.
VI.-The compensation referred to in sub-paragraph II or, if appropriate, the value of the shares allocated pursuant thereto shall not be counted as income for the purposes of the employment and social security legislation. The said items shall not be used when calculating the basis of calculation for any taxes, charges or deductions affecting wages, salaries or income, subject to the provisions of Article 94A of the General Tax Code.
CHAPTER VI Partnerships limited by shares Articles L226-1 to
L226-14
Article L226-1 Partnerships limited by shares, whose capital is divided into shares, shall be formed by one or more managing
partners, who shall have the capacity of traders and who shall be indefinitely and jointly liable for the partnership’s debts, and limited partners who shall have the capacity of shareholders and who shall support the losses only up to the amount of their contributions. The number of limited partners may not be less than three.
Where they are compatible with the special provisions specified by this chapter, the rules on limited partnerships and public limited companies, with the exception of Articles L.225-17 to L.225-93, shall apply to partnerships limited by shares.
Article L226-2 The initial manager or managers shall be appointed by the articles of association. They shall carry out the formation
formalities with which the founders of public limited companies are charged by Articles L.225-2 to L.225-16. During the existence of the partnership, unless otherwise specified in the articles of association, the manager or
managers shall be appointed by the routine shareholders’ meeting with the agreement of all the managing partners. The manager, whether or not a partner, shall be dismissed in accordance with the conditions specified by the
articles of association. In addition, the manager may be dismissed by the Tribunal de commerce for a legitimate reason, at the request of
any partner or the partnership. Any clause to the contrary shall be deemed to be unwritten.
Article L226-3 The articles of association shall specify, in order to carry out the duties of manager, an age limit which, failing an
express provision, shall be fixed at sixty-five years. Any appointment made in breach of the provisions specified in the above paragraph shall be invalid. When managers reach the age limit, they shall be deemed to automatically resign.
Article L226-4 The routine shareholders’ meeting shall appoint, in accordance with the conditions fixed by the articles of
association, a supervisory board composed of at least three shareholders. In order for its appointment to be valid, managing partners may not be members of the supervisory board.
Shareholders who have the capacity of managing partner may not participate in appointing the members of this board. Unless otherwise specified in the articles of association, the rules on the appointment and term of office of directors
of public limited companies shall apply.
Article L226-5 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The memorandum and articles of association must make provision, in regard to membership of the supervisory board, for an upper age limit which applies either to all the council's members or to a specific percentage among them.
Failing an express provision in the memorandum and articles of association, the number of members of the supervisory board having reached the age of seventy years cannot exceed one third of the members of the supervisory board in office.
Any appointment made in breach of the provisions of the previous paragraph is null and void.
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COMMERCIAL CODE Failing an express provision in the memorandum and articles of association which stipulates a different procedure,
when the age limit for supervisory board membership imposed by the Articles or by the law has been exceeded, the oldest member of the supervisory board is automatically deemed to have resigned.
Article L226-6 The routine shareholders’ meeting shall appoint one or more auditors.
Article L226-7 The manager shall be invested with the widest powers in order to act in all circumstances on behalf of the
partnership. In relations with third parties, the partnership shall be committed even by acts of the manager which do not fall
within the partnership’s object, unless the latter proves that the third party knew that the act exceeded this object or that the third party could not be unaware of this given the circumstances. It is excluded that the publication alone of the articles of association is sufficient to constitute this proof.
The clauses of the articles of association limiting the powers of the manager which result from this article shall not be binding on third parties.
In the event of multiple managers, these shall separately hold the powers specified in this article. The objection made by one manager to the acts of another manager shall be null and void with regard to third parties, unless it is established that they knew about this.
Subject to the provisions of this chapter, the manager shall have the same obligations as the board of directors of a public limited company.
Article L226-8 Any remuneration other than that specified in the articles of association may be allocated to the manager only by
the routine shareholders’ meeting. This may only occur with the agreement of the managing partners given unanimously, unless otherwise specified.
Article L226-9 The supervisory board shall carry out the permanent supervision of the partnership’s management. It shall have, to
this end, the same powers as the auditors. It shall submit to the annual routine shareholders’ meeting a report in which it shall indicate, in particular, the
irregularities and inaccuracies identified in the annual accounts and, where applicable, the consolidated financial statements for the financial year.
It shall receive, at the same time as the auditors, the documents made available to the latter. It may convene the general meeting of shareholders.
Article L226-10 (Law No 2001-420 of 15 May 2001 Article 111 (3) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (6) Official Gazette of 2 August 2003)
The provisions of Articles L. 225-38 to L. 225-43 are applicable to agreements entered into, either directly or through an intermediary, between the company and one of its executives, a member of its supervisory board, one of its shareholders holding a fraction of the voting rights greater than 10% or, in the case of a corporate shareholder, the company which controls it within the meaning of Article L. 233-3. These provisions are likewise applicable to agreements in which such a person is indirectly involved.
They are also applicable to agreements entered into between a company and a firm if one of the company's managers or a member of its supervisory board is the owner, an indefinitely liable partner, a manager, a director or a general manager of that firm or a member of its executive board or supervisory board.
The authorisation referred to in the first paragraph of Article L. 225-38 is given by the supervisory board.
Article L226-11 The amendment of the articles of association shall require, unless otherwise specified, the agreement of all the
managing partners. The amendment of the articles of association resulting from an increase in capital shall be noted by the managers.
Article L226-12 The provisions of Articles L.225-109 and L.225-249 shall apply to the managers and members of the supervisory
board. The provisions of Articles L.225-52, L.225-251 and L.225-255 shall apply to the managers, even where they are not
partners.
Article L226-13 The members of the supervisory board shall not incur any liability due to the acts of the management and the result
thereof. They may be declared civilly liable for the misdemeanours committed by the managers if they were aware of these
and did not reveal them to the general meeting. They shall be liable for personal faults committed in the performance of their mandate.
Article L226-14 The conversion of the limited partnership that issues shares into a public limited company or a limited liability
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COMMERCIAL CODE company shall be decided by the special shareholders’ meeting of shareholders, with the agreement of the majority of the managing partners.
CHAPTER VII Simplified joint-stock companies Articles L227-1 to
L227-20
Article L227-1 (Act No 420 of 15 May 2001, Article 101, Official Gazette of 16 May 2001)
A simplified joint-stock company may be established by one or more persons who shall support its losses only up to the amount of their contributions.
When this company consists of one person only, the latter shall be referred to as the sole proprietor. The sole proprietor shall exercise the powers conferred on the partners when this chapter specifies collective decision-making.
Where they are compatible with the special provisions specified by this chapter, the rules on public limited companies, with the exception of Articles L.225-17 to L.225-126 and L.225-243, shall apply to the simplified joint-stock company. In order to apply these rules, the powers of the board of directors or its chairman shall be exercised by the chairman of the simplified joint-stock company or by those of its directors which the articles of association specify for this purpose.
Article L227-2 The simplified joint-stock company may not make a public offering.
Article L227-3 The decision to convert into a simplified joint-stock company shall be taken unanimously by the partners.
Article L227-4 If one person holds all the shares in a simplified joint-stock company, the provisions of Article 1844-5 of the Civil
Code on winding-up proceedings shall not apply.
Article L227-5 The articles of association shall fix the conditions in accordance with which the company is managed.
Article L227-6 (Law No 2003-706 of 1 August 2003 Article 118 Official Gazette of 2 August 2003)
The company is represented in its dealings with third parties by a chairman appointed as prescribed in the memorandum and articles of association. The chairman is invested with the broadest powers to act on behalf of the company in all circumstances, within the purview of the corporate mission.
In its dealings with third parties, the company is bound even by acts of the chairman which do not come within the purview of the company's corporate mission, unless it can prove that the third party knew that a specific action was extraneous to that mission or, given the circumstances, could not have been ignorant of that fact, and mere publication of the memorandum and articles of association does not suffice to constitute such proof.
The memorandum and articles of association may stipulate the circumstances in which one or more persons other than the chairman, having the title of general manager or assistant general manager, may exercise the powers conferred on the chairman by the present Article.
Provisions in the memorandum and articles of association which limit the chairman's powers cannot be raised against third parties.
Article L227-7 When a legal person is appointed chairman or director of a simplified joint-stock company, the directors of said legal
person shall be subject to the same conditions and obligations and shall incur the same civil and criminal liabilities as if they were chairman or director in their own name, without prejudice to the joint liability of the legal person which they manage.
Article L227-8 The rules establishing the liability of members of the board of directors and management of public limited
companies shall apply to the chairman and directors of the simplified joint-stock company.
Article L227-9 (Act No 420 of 15 May 2001, Article 125, Official Gazette of 16 May 2001)
The articles of association shall determine the decisions which must be taken collectively by the partners in the forms and in accordance with the conditions which they specify.
However, the powers conferred on the extraordinary and routine shareholders’ meetings of public limited companies in terms of the increase, amortisation or reduction of capital, merger, division, dissolution, conversion into another form of company, appointment of auditors, annual accounts and profits shall, in accordance with the conditions specified by the articles of association, be exercised collectively by the partners.
In companies consisting of only one partner, the annual report, annual accounts and, where applicable, consolidated financial statements shall be made up by the chairman. The sole proprietor shall approve the accounts, following a report from the auditor, within six months of the end of the financial year. The sole proprietor may not delegate their powers. Their decisions shall be listed in a register.
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COMMERCIAL CODE Decisions taken in breach of the provisions of this article may be cancelled at the request of any interested party.
Article L227-10 (Law No 2001-420 of 15 May 2001 Article 111 (4) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (6) Official Gazette of 2 August 2003)
The auditor presents a report to the partners on any agreement entered into, either directly or through an intermediary, between the company and its chairman, one of its executives, one of its shareholders holding a fraction of the voting rights greater than 10% or, in the case of a corporate shareholder, the company which controls it within the meaning of Article L. 233-3.
The partners give a decision on that report. Agreements which are not approved nevertheless produce their effects, and the onus is on the person concerned
and, possibly, the chairman and the other members of the management, to bear any consequences which are prejudicial to the company.
Contrary to the provisions of the first paragraph, when the company has but a single partner, only agreements entered into either directly or through an intermediary between the company and its manager are recorded in the decisions register.
Article L227-11 (Law No 2001-420 of 15 May 2001 Article 111 (13) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (4) Official Gazette of 2 August 2003)
When agreements relating to current operations entered into under normal terms and conditions are of no significance to any party, given their objective or their financial implications, they are reported to the auditor. Any partner is entitled to have sight of them.
Article L227-12 The prohibitions specified in Article L.225-43 shall apply, in accordance with the conditions determined by this
article, to the chairman and directors of the company.
Article L227-13 The articles of association of the company may specify the inalienability of the shares for a period not exceeding ten
years.
Article L227-14 The articles of association may subject any assignment of shares to prior approval by the company.
Article L227-15 Any assignment carried out in breach of the clauses of the articles of association shall be invalid.
Article L227-16 In accordance with the conditions which they determine, the articles of association may specify that a partner may
be required to assign the shares held thereby. They may also specify the suspension of the non-financial rights of this partner until the latter has carried out this
assignment.
Article L227-17 The articles of association may specify that partner companies whose control is altered within the meaning of Article
L.233-3 must, on this alteration, inform the simplified joint-stock company of this. The latter may decide, in accordance with the conditions fixed by the articles of association, to suspend the exercise of the non-financial rights of these partners and to exclude the latter.
The provisions of the above paragraph may be applied, in accordance with the same conditions, to partners who have acquired this capacity following a merger, division or dissolution operation.
Article L227-18 If the articles of association do not specify the terms for deciding the share assignment price when the company
implements a clause introduced pursuant to Articles L.227-14, L.227-16 and L.227-17, this price shall be fixed by agreement between the parties or, failing this, in accordance with the conditions specified in Article 1843-4 of the Civil Code.
When the shares are repurchased by the company, the latter shall be obliged to assign them within six months or to cancel them.
Article L227-19 The clauses of the articles of association referred to in Articles L.227-13, L.227-14, L.227-16 and L.227-17 may be
adopted or amended only with the unanimous agreement of the partners.
Article L227-20 Articles L.227-13 to L.227-19 shall not apply to companies consisting of only one partner.
CHAPTER VIII Securities issued by joint-stock companies Articles L228-1 to
L228-106
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COMMERCIAL CODE SECTION I Transferable securities: common provisions Articles L228-1 to
L228-6-3
Article L228-1 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 24 Official Journal of 26 June 2004)
Joint-stock companies issue all transferable securities as indicated in the present Book. The transferable securities issued by joint-stock companies are described in Article L. 211-2 of the Monetary and
Financial Code. The transferable securities issued by joint-stock companies take the form of bearer securities or registered
securities, with the exception of companies in respect of which the law or the articles of association impose the registered form only for some or all of the capital.
Notwithstanding any agreement to the contrary, any holder whose securities form part of an issue comprising both bearer securities and registered securities is entitled to convert his securities to the other form.
However, the conversion of registered securities is not possible in the case of companies in respect of which the law or the articles of association impose the registered form for some or all of the capital.
Such transferable securities, regardless of their form, must be registered in the name of their holder as provided for in II of Article 94 of the 1982 Finance Act (No. 81-1160 of 30 December 1981).
However, if the company's capital securities have been admitted to trading on a regulated market and their holder is not domiciled in France within the meaning of Article 102 of the Civil Code, any intermediary may be registered on behalf of that holder. Such registrations may be made in the form of a joint account or several individual accounts each corresponding to one holder.
When it opens its account with the issuing company or with the authorised account-keeping financial intermediary, the registered intermediary is required to declare its status, in the manner determined by decree, as an intermediary holding securities on behalf of others.
For assignment of transferable securities admitted to trading on a regulated market or transferable securities not admitted to trading on a regulated market but registered with an authorised intermediary participating in a settlement-delivery system referred to in Article L. 330-1 of the Monetary and Financial Code, the transfer of title takes place as provided for in Article L. 431-2 of the said code. In other cases, the transfer of title takes place when the transferable securities are registered in the buyer's account in the manner stipulated in a Conseil d'Etat decree.
Article L228-2 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Act No. 2003-706 of 1 August 2003 Art. 125 1 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 25 Official Journal of 26 June 2004)
I. - For the purpose of identifying the holders of bearer securities, the issuing company's articles of association may authorise it to request the central custodian administering its securities, at any time in return for payment of a fee, to provide it with the name or trading name, nationality, year of birth or incorporation, and address of the holders of securities which, immediately or eventually, confer the right to vote at its own shareholders' meetings, the number of securities held by each of them and any restrictions applicable thereto.
The aforementioned central custodian gathers the said information from the book-keeping institutions affiliated to it, which are required to provide it within a time limit determined in a Conseil d'Etat decree. The central custodian then provides that information to the company within five working days of receiving it.
If the time limit determined by decree is not respected, or if the information provided by the book-keeping institution is incomplete or erroneous, the central custodian may apply to the presiding judge of the Tribunal de grande instance for a summary ruling for performance of the duty to provide information, under pain of a coercive fine.
II. - Having followed the procedure described in I, and in the light of the list provided by the aforementioned central custodian, the issuing company is entitled to request, either through the said central custodian or directly, in the manner and subject to the penalties stipulated in Article L. 228-3-2, that any persons included in the said list whom the company suspects of being registered on behalf of third parties provide the information relating to the holders of securities indicated in I.
When such persons have intermediary status, they are required to disclose the identity of the owners of the securities. The information is provided directly to the book-keeping authorised financial intermediary, who is responsible for communicating it to the issuing company or the aforementioned central custodian, as applicable.
III. - The company shall not pass on the information thus obtained, even free of charge. Any violation of this provision shall incur the penalties referred to in Article 226-13 of the Penal Code.
Article L228-3 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 XI Official Journal of 26 June 2004)
In the case of securities in registered form giving immediate or eventual access to the capital, the registered intermediary referred to in Article L. 228-1 is required, within a time limit determined in a Conseil d'Etat decree, to disclose the identity of the owners of those securities and the number of securities held by each of them whenever so requested by the issuing company or its representative.
The special rights attached to registered shares, and specifically those referred to in Articles L. 225-123 and L.
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COMMERCIAL CODE 232-14, may only be exercised by a registered intermediary as provided for in Article L. 228-1 if the information provided by that intermediary facilitates verification of compliance with the conditions applicable to exercise of the said rights.
Article L228-3-1 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 XI Official Journal of 26 June 2004)
I. - Whenever the issuing company considers that certain holders whose identity has been communicated to it are acting on behalf of third-party owners of the securities, it is entitled to ask the said holders to disclose the identity of the owners of those securities and the number of securities held by each of them, as provided for respectively in the first paragraph of II of Article L. 228-2 for bearer securities and in the first paragraph of Article L. 228-3 for registered securities.
II. - Having done so, and without prejudice to the obligation to report significant equity holdings imposed by Articles L. 233-7, L. 233-12 and L. 233-13, the issuing company may ask any legal entity holding shares in excess of one fortieth of its capital or voting rights to inform it of the identity of the persons who directly or indirectly hold more than one third of that legal entity's share capital or the voting rights exercised at its general meetings.
Article L228-3-2 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 XII Official Journal of 26 June 2004)
An intermediary having fulfilled the obligations stipulated in the seventh and eighth paragraphs of Article L. 228-1 may, pursuant to a general securities management remit, transfer to a meeting a share owner's vote or power as defined in the third paragraph of that same article
Before transferring powers or votes to a general meeting, the registered intermediary referred to in Article L. 228-1 is required, at the request of the issuing company or its representative, to provide a list of any non-resident owners of the shares to which those voting rights are attached and the number of shares held by each of them. The said list is supplied as provided for in Articles L. 228-2 or L. 228-3.
The vote or the power issued by an intermediary who has either not been declared as such pursuant to the eighth paragraph of Article L. 228-1 or the second paragraph of the present article, or has not disclosed the identity of the owners of the securities pursuant to Articles L. 228-2 or L. 228-3, shall not be counted.
Article L228-3-3 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 XIII Official Journal of 26 June 2004)
If the person who is the subject of a request pursuant to Articles L. 228-2 to L. 228-3-1 has failed to provide the information within the time limits stipulated in those articles or has provided incomplete or erroneous information regarding his own status or the owners of the securities or the number of securities held by each of them, the shares or securities giving immediate or eventual access to the capital relative to which the said person is registered are stripped of voting rights for any meeting of shareholders held prior to the date on which the identification information is corrected, and payment of the corresponding dividend is deferred until that date.
Moreover, in the event of the registered person deliberately failing to apply the provisions of Articles L. 228-1 to L. 228-3-1, the court having jurisdiction at the place where the company has its registered office may, at the request of the company or of one or more shareholders holding at least 5% of the capital, order the total or partial suspension of the voting rights attached to the shares to which the order relates for a total period not exceeding five years, and deferral of the corresponding dividend payment for the same period.
Article L228-3-4 (Law No 2001-420 of 15 May 2001 Article 119 (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 46 (V) (1), Article 125 (2) Official Gazette of 2 August 2003)
Any person who participates in any capacity in the management or administration of the central custodian of financial instruments, and likewise any person employed by it, by the issuing company or by the registered intermediary, who, through his professional activities, has knowledge of the information referred to in Articles L. 228-1 to L. 228-3-2 is bound by professional secrecy under the terms and conditions and subject to the penalties provided for in Articles 226-13 and 226-14 of the Penal Code. Professional secrecy cannot be invoked against either the Financial Markets Authority or the judicial authorities.
NB: Law No. 2003-706 of 1 August 2003, Article 46 V 1 and 2: 1. The references to the Stock-Exchange Regulatory Body and the Financial Management Disciplinary Council have
been replaced with the references to the Financial Markets Authority; 2. The references to the regulations of the Stock-Exchange Regulatory Body and the general regulations of the
Derivatives Markets Regulatory Body are replaced by the reference to the general regulations of the Financial Markets Authority.
Article L228-4 (Order No. 2004-604 of 24 June 2004 Art. 26 Official Journal of 26 June 2004)
Under pain of being declared null and void, the issuing of participating shares or founder's shares is prohibited. However, participating shares or founder's shares issued before 1 April 1967 shall continue to be governed by the
laws applicable thereto.
Article L228-5
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COMMERCIAL CODE With regard to the company, the securities shall be indivisible, subject to the application of Articles L.225-110 and
L.225-118.
Article L228-6 Notwithstanding any stipulations to the contrary in the articles of association, companies which have carried out
either exchanges of securities following an operation to merge or divide, reduce the capital, consolidate or divide and compulsorily convert bearer securities into registered securities, or distributions of securities allocated to the reserves or linked to a capital reduction, or distributions or allotments of free shares may, following the decision of the board of directors, management or managers, sell, under the terms fixed by a Conseil d'Etat decree, the securities whose issue has not been requested by their legal successors, provided that they have carried out, at least two years in advance, the publication according to the terms fixed by said decree.
From the date of this sale, the former securities or the former rights to the distributions or allotments shall, as necessary, be cancelled and their holders may thereafter claim only for the distribution in cash of the net proceeds from the sale of the unclaimed securities.
Article L228-6-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 27 Official Journal of 26 June 2004)
In companies whose securities are admitted to trading on a regulated market, an extraordinary general meeting of shareholders which has authorised a merger or demerger may decide that, upon expiry of a period which shall not exceed a limit determined in a Conseil d'Etat decree, and consistent with the date of registration in their account of the whole number of shares allotted, a global sale of the unallotted shares corresponding to the rights attached to fractional shares shall take place under terms and conditions determined by the said decree, with a view to distributing the funds among the parties concerned.
Article L228-6-2 (inserted by Order No. 2004-604 of 24 June 2004 Art. 27 Official Journal of 26 June 2004)
The non-financial rights attached to transferable securities registered in a joint account are exercised by one or other of the joint holders pursuant to terms and conditions laid down in the agreement on opening of the account.
Article L228-6-3 (inserted by Order No. 2004-604 of 24 June 2004 Art. 27 Official Journal of 26 June 2004)
Securities whose holders, despite compliance with the formalities for convening general meetings, are either unknown to the book-keeper or have not responded to notices to attend for over ten years, may be sold pursuant to the procedure referred to in Article L. 228-6. Such sales shall take place upon expiry of a period determined in a Conseil d'Etat decree after fulfilment of the publication requirements stipulated in the said article, provided that the book-keeper has taken all necessary measures during that period to make contact with the holders or their assigns in the manner stipulated in that same decree.
SECTION II Shares Articles L228-7 to
L228-29-10
Article L228-7 (Order No. 2004-604 of 24 June 2004 Art. 28 Official Journal of 26 June 2004)
Shares paid in cash are those whose amount is paid up in cash or by offsetting, those which are issued following capitalisation of reserves, profits or share premiums and those whose payment derives partly from capitalisation of reserves, profits or share premiums and partly from cash payment. The last-mentioned must be fully paid up on subscription.
Without prejudice to the specific rules applicable to shares deriving from a merger or demerger, all other shares are shares issued for a consideration other than cash.
Article L228-8 The face value of shares or subdivided shares may be fixed by the articles of association. This option applies to all
share issues.
Article L228-9 The share paid in cash shall be registered until it is fully paid up.
Article L228-10 (Order No. 2004-604 of 24 June 2004 Art. 29 Official Journal of 26 June 2004)
Shares are not tradable until the company is entered in the register of companies. When a capital increase is effected, the shares are tradable with effect from its completion.
The trading of share promises is prohibited unless it relates to shares yet to be created in respect of which admission to trading on a regulated market has been applied for, or to an increase in the capital of a company whose existing shares are already admitted to trading on a regulated market. In the latter case, trading is valid only if it is carried out subject to the condition precedent of completion of the capital increase. Failing this express indication, the said condition shall be presumed.
Article L228-11
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COMMERCIAL CODE (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
Upon formation of the company or during its existence, preference shares may be created, with or without voting rights, which confer special rights of all kinds, either temporarily or permanently. Such rights are defined in the articles of association pursuant the provisions of Articles L. 225-10 and L. 225-122 to L. 225-125.
The voting rights may be amended for a determined or determinable period. They may also be suspended for a determined or determinable period, or may be removed.
Non-voting preference shares shall not represent more than one half of the share capital, and in companies whose shares are admitted to trading on a regulated market, not more than one quarter of the share capital.
Any issue having the effect of increasing the proportion beyond these limits may be cancelled.
Article L228-12 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
A decision to issue, redeem or convert preference shares can only be taken by an extraordinary general meeting of shareholders on the basis of a special report from the auditors. It may delegate such power as provided for in Articles L. 225-129 to L. 225-129-6.
The terms and conditions of redemption or conversion of preference shares may also be determined in the articles of association.
At any time during the financial year then current, and at the first meeting held subsequent to its close, at the latest, the board of directors or the executive board shall record the number and nominal value of the shares, if any, issued from the conversion of preference shares during the previous financial year and make the necessary amendments to the articles of association relative to the amount of the share capital and the number of securities that represent it.
The chairman of the executive board or the general manager may, if duly empowered by the executive board or the board of directors, proceed with such transactions at any time during the financial year, and within the time limit set in a Conseil d'Etat decree at the latest.
Article L228-13 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XXVII Official Journal of 10 December 2004)
The special rights referred to in Article L. 228-11 may be exercised in the company which directly or indirectly holds more than one half of the capital of the issuing company or in a company in which the issuing company directly or indirectly holds more than one half of the capital.
The issue must then be authorised by the extraordinary general meeting of the company issuing the preference shares and by that of the company in which the rights are exercised.
The auditors of the companies concerned must draw up a special report. NB: These provisions are applicable in Mayotte, New Caledonia and the Wallis and Futuna Islands.
Article L228-14 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
Preference shares may be converted into ordinary shares or preference shares of a different category. When preference shares are converted into shares which bring about a capital reduction not motivated by losses,
creditors whose debt predates the filing at the court registry of the minutes of the general meeting or, in the event of delegation, of the board meeting or executive board meeting, may raise an objection to the conversion within the time limit and under the terms stipulated in a Conseil d'Etat decree.
The capital conversion procedure shall not commence during the time limit for raising an objection, nor, where applicable, before a decision on first hearing has been given on any objection raised.
Article L228-15 (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
The creation of such shares gives rise to application of Articles L. 225-8, L. 225-14, L. 225-147 and L. 225-148 relating to special privileges if the shares are issued in favour of one or more shareholders designated by name. In such cases, the valuer of contributions in kind referred to in the said articles is an auditor who has not carried out an assignment in the company within the past five years and is not then carrying out such an assignment.
The holders of shares which are to be converted into preference shares in the new category shall not, under pain of the meeting's deliberations being declared null and void, participate in the vote on the creation of that category, and the shares they hold shall not be taken into account for calculation of the quorum and the majority, unless all the shares are to be converted into preference shares.
Article L228-16 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
In the event of a change to the capital or a capital write-off, the extraordinary general meeting shall determine the effects that those procedures shall have on the rights of the preference share holders.
The said effects may also be recorded in the articles of association.
Article L228-17 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
In the event of a merger or demerger, the preference shares may be exchanged for shares in the companies benefiting from the transfer of assets which confer equivalent special rights, or in accordance with a specific exchange
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COMMERCIAL CODE parity which takes account of the special rights waived.
In the event of no exchange for shares conferring equivalent special rights taking place, the merger or demerger is subject to the approval of the special meeting referred to in Article L. 225-99.
Article L228-18 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
The dividend paid, where applicable, to the holders of preference shares may be distributed in the form of capital securities under terms and conditions laid down by the extraordinary general meeting or in the articles of association.
Article L228-19 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
The holders of preference shares, together at a special meeting, are empowered to instruct one of the company's auditors to draw up a special report on the company's compliance with the special rights attached to the preference shares. The said report is distributed to those shareholders at a special meeting.
Article L228-20 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
When the preference shares are admitted to trading on a regulated market, they may be redeemed or repaid, at the initiative of the company or the holder, if the market lacks liquidity, as provided for in the articles of association.
Article L228-21 Shares may continue to be traded after the company is dissolved and until the end of the winding-up.
Article L228-22 The cancellation of the company or an issue of shares shall not lead to the nullity of the trading which occurred prior
to the cancellation decision, if the securities are regular in form. However, the purchaser may bring an action to reinforce a guarantee against the seller.
Article L228-23 (Order No. 2004-604 of 24 June 2004 Art. 32 Official Journal of 26 June 2004)
In a company whose capital securities are not admitted to trading on a regulated market, the assignment of capital securities or transferable securities giving access to the capital, whatever the reason therefor, may be made subject to the company's approval by a clause in the articles of association. The said clause is inapplicable in the event of succession, settlement under a marriage contract or assignment to a spouse, an ascendant or a descendant.
A consent clause may only be stipulated if the securities are registered by virtue of the law or the articles of association.
When the articles of association of a company which does not make public offerings reserve shares for the company's employees, a consent clause prohibited by the provisions of the first paragraph above may be stipulated, provided that the object of the said clause is to prevent the said shares from being devolved upon or assigned to persons who are not employees of the company.
Any assignment effected in violation of a consent clause in the articles of association is null and void.
Article L228-24 (Order No. 2004-604 of 24 June 2004 Art. 33 Official Journal of 26 June 2004)
If a consent clause is stipulated, the application for approval indicating the assignee's name, forenames and address and the number of shares or transferable securities giving access to the capital in respect of which assignment is envisaged, and the price offered, is sent to the company. Approval is given either in writing or through the absence of any reply within three months of the application being made.
If the company does not approve the proposed assignee, the board of directors, the executive board or the executives, as applicable, shall, within three months of refusal being notified, arrange for the shares or transferable securities giving access to the capital to be purchased either by a shareholder or a third party, or, with the assignor's consent, by the company in order to reduce the capital. Failing agreement between the parties, the price of the capital securities or transferable securities giving access to the capital is determined as provided for in Article 1843-4 of the Civil Code. The assignor may at any time relinquish assignment of his shares or transferable securities giving access to the capital. Any clause to the contrary in Article 1843-4 of the said code is deemed not to exist.
If, upon expiry of the time limit stipulated in the previous paragraph, the purchase has not been effected, approval is deemed to have been granted. The time limit may nevertheless be extended by a court decision at the company's request.
Article L228-25 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
If, notwithstanding the provisions of Article L. 228-24, trading takes place through the intermediary of an investment service provider, the company must exercise its right of approval provided for in the memorandum and articles of association within thirty trading days.
If the company does not approve the buyer, the board of directors, the executive board or the partners are required, within thirty trading days of the date of notification of the rejection, to arrange the sale of the shares, either to a shareholder or to a third party, or to the company itself to reduce the capital.
The price applied is that ?originally negotiated; however, the sum paid to the non-approved buyer cannot be lower than that which results from applying the quoted market price of the day on which approval was refused or, if there was
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COMMERCIAL CODE no quotation on that day, that of the most recent quotation prior to that rejection.
If the purchase is not completed when the time allotted in the second paragraph above has elapsed, approval is deemed to have been given.
Article L228-26 If the company has given its consent to a share pledge plan in accordance with the conditions specified in the first
paragraph of Article L.228-24, this consent shall include approval of the transferee in the event of the forced sale of the pledged shares according to the provisions of the first paragraph of Article 2078 of the Civil Code, unless the company prefers, after the assignment, to immediately repurchase the shares in order to reduce its capital.
Article L228-27 If the shareholder fails to pay up, at the times fixed by the board of directors, management or managers, as
applicable, the sums remaining to be paid on the amount of the shares subscribed thereby, the company shall send the shareholder formal notice.
At least one month after this formal notice has not produced any effect, the company shall bring legal proceedings, without needing any court authorisation, to sell these shares.
Quoted shares shall be sold on the stock market. Unquoted shares shall be sold at public auctions. The defaulting shareholder shall owe or receive the difference. The terms of application of this paragraph shall be determined by a Conseil d'Etat decree.
Article L228-28 The defaulting shareholder, the successive transferees and the subscribers shall be jointly liable for the unpaid-up
amount of the share. The company may bring an action against them, either before or after the sale, or at the same time, in order to obtain both the sum due and the reimbursement of the expenses incurred.
The person who pays off the company shall have recourse for the whole amount against the successive holders of the share. The final burden of the debt shall be incumbent on the last of these.
Two years after the transfer of a securities account to another account, any subscriber or shareholder who has assigned their title shall cease to be liable for payments not yet requested.
Article L228-29 On the expiration of the period fixed by a Conseil d'Etat decree, the shares for which payments due have not been
made shall cease to confer the right of admission to shareholders’ meetings and the right to vote at these and shall be deducted when calculating the quorum.
The right to dividends and the preferential right to subscribe to increases in capital attached to these shares shall be suspended.
After payment of the sums due, in principal and interest, the shareholder may request the payment of non-prescribed dividends. The shareholder may not bring an action on account of the preferential right to subscribe to an increase in capital after the expiration of the period fixed for exercising this right.
Article L228-29-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
Shares having a nominal value lower than or equal to a value determined in a Conseil d'Etat decree which are not admitted to trading on a regulated market may be combined notwithstanding any contrary provision of the law or in the articles of association. Such combination are decided by general meetings of shareholders deliberating in the manner prescribed for amendments to the articles of association and pursuant to the provisions of Article L. 228-29-2.
Article L228-29-2 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
The share combinations referred to in Article L. 228-29-1 entail the obligation for the shareholders to effect the purchases or assignments of shares necessary to complete them.
The nominal value of the combined shares shall not exceed a value determined in a Conseil d'Etat decree. To facilitate such transactions, the company must obtain a commitment from one or more shareholders, before the
general meeting makes a decision, to provide consideration for both the purchases and the sales pertaining to the fractional shares or for the applications intended to complete the number of securities belonging to each shareholder concerned for a period of two years, at the price set by the meeting.
Article L228-29-3 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
Upon expiry of the time limit set by the decree referred to in Article L. 228-29-7, shares which have not been presented for combination lose their voting rights and their dividend entitlement is suspended.
The decree referred to in the first paragraph may grant a further time limit to the shareholders who made the commitment referred to in the third paragraph of Article L. 228-29-2.
Dividends in respect of which payment has been suspended pursuant to the first paragraph are, in the event of subsequent combination, paid to the owners of the old shares insofar as they are not subject to prescription.
Article L228-29-4 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
When the owners of securities do not have free administration of their assets, the applications to exchange old securities and the purchases or assignments of fractional shares which are necessary to effect the combination are
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COMMERCIAL CODE treated as simple administrative acts unless the new securities are requested in bearer form in exchange for registered securities.
Article L228-29-5 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
The new securities shall have the same characteristics and automatically confer the same rights in rem or liens as the old securities that they replace, without any formality being necessary.
The rights in rem and the pledges are automatically noted on the new securities allotted to replace the old securities thus encumbered.
Article L228-29-6 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
If the company should fail to comply with Articles L. 228-29-1 or L. 228-29-2 or the rules relating to the taking of decisions by general meetings or the publication formalities determined by the decree referred to in Article L. 228-29-7, combination remains optional for the shareholders. The provisions of Article L. 228-29-3 cannot be applied to shareholders.
If the shareholder(s) who made the commitment referred to in Article L. 228-29-2 fail(s) to comply with it, the combinations may be cancelled. In such cases, the purchases and sales of fractional shares may be cancelled at the request of the shareholders who proceeded therewith or their assigns, with the exception of any defaulting shareholders, and without prejudice to any damages where appropriate.
Article L228-29-7 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
A Conseil d'Etat decree determines the implementing provisions for Articles L. 228-29-1 to L. 228-29-6, including matters not addressed in Article L. 228-29-1 relating to the taking of decisions by general meetings of shareholders and the publication formalities associated with such decisions.
Subsection 1: General provisions
Article L228-29-8 (inserted by Order No. 2004-604 of 24 June 2004 Art. 35 Official Journal of 26 June 2004)
No new securities may be issued pursuant to the articles of the present section save for any which might be issued pursuant to decisions of general meetings taken prior to the entry into force of Order No. 2004-604 of 24 June 2004 reforming the legislation applicable to transferable securities issued by commercial companies and the extension to the Overseas Departments and Territories of provisions modifying the commercial legislation.
Article L228-29-9 (inserted by Order No. 2004-604 of 24 June 2004 Art. 35 Official Journal of 26 June 2004)
Failing application of Article L. 225-138, the holders of securities governed by the present section have a preferential subscription right on the preference shares referred to in Article L. 228-11 when they confer rights equivalent to those of the securities they hold.
Failing application of Article L. 225-138, the holders of securities governed by the present section have a preferential right to subscribe the transferable securities referred to in Article L. 228-91 when they give rise to an allotment of securities conferring rights equivalent to those of the securities they hold.
Article L228-29-10 (inserted by Order No. 2004-604 of 24 June 2004 Art. 35 Official Journal of 26 June 2004)
Non-voting preference shares and existing investment certificates are taken into account for calculation of the quotas referred to in Article L. 228-11.
Application of the provisions of the previous paragraph shall not impede maintenance of the rights of the holders of existing securities, however.
SECTION III Investment certificates Articles L228-30 to
L228-35-1
Article L228-30 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I Official Journal of 26 June 2004)
The extraordinary general meeting of a joint-stock company or, in companies which do not have such meetings, the structure which performs the same function, may decide, on the basis of a report from the board of directors or the executive board, as applicable, and that of the auditors, to create, in a proportion which shall not exceed one quarter of the share capital, investment certificates and voting-rights certificates respectively representing the financial rights and other rights attached to the shares issued when a capital increase or a split of the existing shares takes place.
When a capital increase is effected, shareholders and holders of investment certificates, if any, benefit from a preferential right to subscribe to the investment certificates issued through the procedure applied to capital increases. The holders of investment certificates waive the preferential right at a special meeting convened and held pursuant to the rules of the extraordinary general meeting of shareholders. The voting-rights certificates are distributed among the shareholders and the holders of voting-rights certificates, if any, in proportion to their rights.
When a share split is effected, the offer to create investment certificates is made to all the shareholders at the same
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COMMERCIAL CODE time in proportion to their capital holdings. Upon expiry of a time limit set by the extraordinary general meeting, any unallotted creation capacity is distributed among the shareholders who have requested the benefit of such an additional distribution in proportion to their share of the capital and, in every case, consistent with their requests. Any balance remaining after the said distribution, is distributed by the board of directors or the executive board, as applicable.
The voting-rights certificate must be in registered form. The investment certificate is tradable. Its nominal value is equal to that of the shares. When the shares are divided,
the investment certificates are also divided. The voting-rights certificate may only be assigned if it is accompanied by an investment certificate. However, it may
also be assigned to the holder of the investment certificate. The assignment automatically entails reconstitution of the share in either case. The share is also automatically reconstituted when held by the holder of an investment certificate and a voting-rights certificate. The said holder must declare this to the company within fifteen days, failing which the share is stripped of its voting right until the situation is regularised and for one month thereafter.
A certificate shall not be issued for a fraction of a voting right. The general meeting determines the arrangements for issuing certificates for the rights attached to fractional shares.
In the event of a merger or demerger, the investment certificates and voting-rights certificates of a company which no longer exists may be exchanged for the shares of companies benefiting from the transfer of assets.
Article L228-31 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I Official Journal of 26 June 2004)
The extraordinary general meeting of a company whose shares are admitted to trading on a regulated market and whose existing investment certificates represent 1% of the share capital at most may decide, on the basis of a report from the board of directors, to reconstitute the existing certificates as shares and those that confer special privileges as shares conferring the same advantages on their holders.
The extraordinary general meeting referred to in the previous paragraph deliberates in the manner prescribed for the approval of special privileges by Article L. 225-147 after a meeting of the holders of voting-rights certificates, convened and held pursuant to the rules for special meetings of shareholders, has approved the plan by a majority of 95% of the holders present or represented. The assignment is then made to the company, contrary to the sixth paragraph of Article L. 228-30, at the price set by the extraordinary general meeting referred to in the first paragraph of the present article.
The price referred to in the previous paragraph is determined pursuant to the terms and conditions set forth in 2 of Article 283-1-1 of Act No. 66-537 of 24 July 1966 relating to commercial companies.
The amount of compensation due to the unidentified holders is duly recorded. The reconstitution is effected through the assignment of the corresponding voting-rights certificates to the holders of
investment certificates, at no cost. To that end, the company may ask the holders of certificates to produce identification as indicated in Article L.
228-2, even if the articles of association make no express provision therefor.
Article L228-32 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I Official Journal of 26 June 2004)
The holders of investment certificates may have sight of the company's documents in the same way as the shareholders.
Article L228-33 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I, II Official Journal of 26 June 2004)
When a free distribution of shares takes place, new non-voting preference shares must be created with the same rights as the investment certificates and allotted to the owners of the old certificates free of charge in proportion to the number of new shares allotted for the old shares, unless some or all of the holders waive the benefit thereof.
Article L228-34 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I, III Official Journal of 26 June 2004)
In the event of a capital increase in cash, with the exception of an increase reserved for the employees as provided for in Article L. 225-138-1, new non-voting preference shares shall be issued with the same rights as the investment certificates, the number thereof being calculated to ensure that the proportion of ordinary shares to investment certificates which existed prior to the increase is maintained after the increase, taking account of the said preference shares and assuming that the increase will be effected in full.
The owners of the investment certificates shall have a preferential irrevocable subscription right on the new preference shares proportionate to the number of securities that they own. At a special meeting convened and held pursuant to the rules for extraordinary general meetings of shareholders, the owners of the investment certificates may waive the said right. Unsubscribed preference shares are allotted by the board of directors or the executive board. The capital increase effected shall be founded on the fraction thereof which corresponds to the issue of shares. However, contrary to the provisions of the first paragraph above, when the owners of certificates have waived their preferential subscription right, new preference shares shall not be issued.
Article L228-35 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I, IV Official Journal of 26 June 2004)
If convertible loan stock is issued, the holders of investment certificates shall have a preferential right to subscribe to them irrevocably proportionate to the number of securities that they hold. Their special meeting, convened and held
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COMMERCIAL CODE pursuant to the rules for extraordinary general meetings of shareholders, may waive that right.
The said stock may only be converted into non-voting preference shares having the same rights as the investment certificates.
Article L228-35-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 I, Art. 35 I, Art. 37 Official Journal of 26 June 2004)
Upon formation of the company or during its existence, preference shares may be created which confer advantages over all other shares, without prejudice to the provisions of Articles L. 225-122 to L. 225-125.
As an exception to Article L. 225-99, the articles of association or the issuance contract may state that a decision to convert preference shares into ordinary shares taken at an extraordinary general meeting shall not be binding on the holders of such shares.
SECTION IIIbis Non-voting preference shares Articles L228-35-2 to
L228-35-11
Article L228-35-2 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 II, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
Non-voting preference shares may even be created as provided for in Articles L. 228-35-3 to L. 228-35-11 without prejudice to the provisions of Articles L. 225-122 to L. 225-126.
Article L228-35-3 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
Non-voting preference shares may be created through a capital increase or through conversion of ordinary shares already issued. They may be converted into ordinary shares.
Non-voting preference shares shall not represent more than one quarter of the total share capital. Their nominal value is equal to that of the ordinary shares or, where applicable, the ordinary shares of one of the categories previously issued by the company.
The holders of non-voting preference shares benefit from the rights enjoyed by the other shareholders, with the exception of the right to participate in and vote at general meetings of the company's shareholders by reason of those shares.
If non-voting preference shares are created through conversion of ordinary shares already issued, or if non-voting preference shares are converted into ordinary shares, the extraordinary general meeting determines the maximum number of shares to be converted and the terms and conditions of conversion on the basis of a special auditors' report. Its decision is not final until it is approved at the special meetings referred to in Articles L. 228-35-6 and L. 228-103.
The conversion offer is made to all the shareholders at the same time in proportion to their shareholding, with the exception of the persons referred to in Article L. 228-35-8. The extraordinary general meeting determines the period during which the shareholders may accept the conversion offer.
As an exception to Article L. 225-99, the articles of association or the issuance contract may state that a decision to convert non-voting preference shares into ordinary shares taken at an extraordinary general meeting shall not be binding on the holders of such shares.
Article L228-35-4 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
Non-voting preference shares confer entitlement to a preferred dividend deducted from the distributable profits for the financial year before any other allotment is made. If it appears that the preferred dividend cannot be fully paid on account of there being insufficient distributable profits, it shall be distributed pro tanto between the holders of non-voting preference shares. The right to payment of the preferred dividend which has not been fully paid on account of there being insufficient distributable profits is carried forward to the next financial year and, if necessary, the following two financial years or, if the articles of association so provide, subsequent financial years. The said right is exercised primarily in relation to payment of the preferred dividend due for the financial year.
The preferred dividend shall not be lower than either the first dividend referred to in Article L. 232-16 or an amount equal to 7.5% of the amount of the paid-up capital that the non-voting preference shares represent. Such shares shall not give entitlement to the first dividend.
After deduction of the preferred dividend and, if the articles of association so provide, the first dividend, or a dividend of 5% for the benefit of all ordinary shares calculated as provided for in Article L. 232-16, non-voting preference shares have the same rights as ordinary shares proportionate to their nominal value.
If the ordinary shares are divided into categories that give different entitlement to the first dividend, the amount of the first dividend referred to in the second paragraph of the present article applies to the highest first dividend.
Article L228-35-5 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35, Art. 38 Official Journal of 26 June 2004)
When the preferred dividends due in respect of three financial years have not been fully paid, the holders of the corresponding shares acquire a voting right equal to that of the other shareholders in proportion to the portion of the capital that those shares represent.
The voting right referred to in the previous paragraph shall remain in force until the end of the financial year in which the preferred dividend is fully paid, including the dividend due in respect of previous financial years.
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COMMERCIAL CODE Article L228-35-6 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
The holders of non-voting preference shares come together at special meetings as provided for in a Conseil d'Etat decree.
Any shareholder owning non-voting preference shares may participate in special meetings. Any clause to the contrary is deemed not to exist.
A special meeting of the holders of preferred dividend shares without voting rights may express an opinion before any decision is taken at the general meeting. It then rules on a majority of the votes cast by the shareholders present or represented. If a ballot is held, blank ballot papers are not counted. The result is communicated to the company. It is brought to the notice of the general meeting and entered in the minutes.
If the articles of association so provide, the special meeting may designate one or more representatives to represent the holders of preferred dividend shares without voting rights at general meetings of shareholders and, where appropriate, to express their opinion before any vote is taken. The said opinion is entered in the minutes of the general meeting.
Without prejudice to Article L. 228-35-7, any decision which affects the rights of the holders of non-voting preference shares does not become final until it is approved by the special meeting referred to in the first paragraph of the present article under the quorum and majority conditions referred to in Article L. 225-99.
If an objection is raised to the designation of representatives to represent the holders of preferred dividend shares without voting rights at general meetings of shareholders, the presiding judge, ruling on a summary basis, may designate a representative to act in that capacity at the request of any shareholder.
Article L228-35-7 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
If a capital increase is effected through cash contributions, the holders of non-voting preference shares have the same preferential subscription right as the ordinary shareholders. Having obtained the opinion of the special meeting referred to in Article L. 228-35-6, however, the extraordinary general meeting may decide to endow them with a preferential right to subscribe, in the same way, to new non-voting preference shares having the same rights as the non-voting preferred dividend shares which shall be issued in the same proportion.
The free allotment of new shares following a capital increase through incorporation of reserves, profits or share premiums applies to the holders of non-voting preference shares. Having obtained the opinion of the special meeting referred to in Article L. 228-35-6, however, the extraordinary general meeting may decide that the holders of non-voting preference shares shall receive new non-voting preference shares having the same rights as the non-voting preferred dividend shares which shall be issued in the same proportion, instead of ordinary shares.
Any increase in the nominal value of the existing shares following a capital increase through incorporation of reserves, profits or share premiums applies to non-voting preference shares. The preferred dividend referred to in Article L. 228-35-4 is then calculated, with effect from completion of the capital increase, on the new nominal value plus the share premium, if any, paid on subscription of the old shares.
Article L228-35-8 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
The chairman and the members of the board of directors, the general managers, the members of the executive board and of the supervisory board of a public limited company, or the executives of a partnership limited by shares and their spouse from whom they are not judicially separated and their children not declared of full age and capacity, shall not hold non-voting preference shares issued by that company in any form whatsoever.
Article L228-35-9 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35, Art. 38 Official Journal of 26 June 2004)
A company which has issued non-voting preference shares is prohibited from writing off its capital. When a capital reduction not motivated by losses is carried out, non-voting preference shares are bought before the
ordinary shares, as provided for in the last two paragraphs of Article L. 228-35-10, and cancelled. However, these provisions do not apply to capital reductions effected as provided for in Article L. 225-209. In such
cases, the provisions of Article L. 225-99 are not applicable if the shares were bought on a regulated market. Non-voting preference shares have the same rights as other shares, proportionate to their nominal value, on the
reserves distributed during the life of the company.
Article L228-35-10 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
The articles of association may give the company the right to demand the redemption of all of its own non-voting preference shares or certain categories thereof, with each category being determined by its date of issue. The redemption of a category of non-voting preference shares must comprise all the shares in that category. The redemption is decided by the general meeting in the manner indicated in Article L. 225-204. The provisions of Article L. 225-205 are applicable. The redeemed shares are cancelled pursuant to Article L. 225-207 and the capital is automatically reduced.
The redemption of non-voting preference shares may only be demanded by the company if a specific stipulation to that effect was inserted in the articles of association before the said shares were issued.
The value of non-voting preference shares is determined on the redemption date by mutual agreement between the company and a special meeting of the selling shareholders held under the quorum and majority conditions referred to in Article L. 225-99. In the event of disagreement, Article 1843-4 of the Civil Code is applied.
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COMMERCIAL CODE Redemption of non-voting preference shares can only take place if the preferred dividend due in respect of previous
financial years and the financial year then current has been fully paid.
Article L228-35-11 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
Non-voting preference shares are not taken into account when the percentage referred to in Article L. 233-1 or Article L. 233-2 is determined.
SECTION IV Participating securities Articles L228-36 to
L228-37
Article L228-36 (Act No 624 of 17 July 2001, Article 36 VI, Official Gazette of 18 July 2001)
Joint-stock companies belonging to the public sector and cooperative associations established in the form of public limited companies or limited liability companies may issue participating securities. These securities shall be redeemable only in the event of the company’s winding-up or, on its initiative, on the expiration of a period which may not be less than seven years and in accordance with the conditions specified in the issue agreement.
Their remuneration shall involve a fixed part and a variable part calculated by reference to elements relating to the activity or results of the company and based on the face value of the security. A Conseil d'Etat decree shall fix the conditions in accordance with which the basis of the variable part of the remuneration shall be capped.
Participating securities may be traded. In order to apply Article 26 of Act No 741 of 13 July 1978 on the orientation of savings towards the financing of
undertakings, participating capital loans shall be repaid only after full payment of all the other preferential or unsecured creditors to the exclusion of owners of participating securities.
Article L228-37 The issue and redemption of participating securities shall be authorised in accordance with the conditions specified
by the fifth paragraph of Article L.225-100 and Articles L.228-40 to L.228-44. Holders of participating securities from the same issue shall be grouped ipso jure for the defence of their common
interests in a body which shall have a civil personality. They shall be subject to the provisions of Articles L.228-47 to L.228-71, L.228-73 and L.228-76 to L.228-90.
In addition, the body shall meet at least once a year to hear the report of the company directors on the situation and activity of the company during the last financial year and the report of the auditors on the accounts for the financial year and on the elements serving to determine the remuneration of the participating securities.
The representatives of the body shall attend the shareholders’ meetings. They shall be consulted on all issues put down on the agenda, except for those involving the appointment or dismissal of members of the company bodies. They may intervene at any time during the meeting.
Holders of participating securities may receive company documents in accordance with the same conditions as shareholders.
In public undertakings without a general meeting, the board of directors shall exercise the powers conferred on the routine shareholders’ meeting for the issue of participating securities. The fourth paragraph of this article shall not apply.
SECTION V Bonds Articles L228-38 to
L228-90
Article L228-38 As stated in Article 284 of Act No 357 of 24 July 1966 on commercial companies: “Art. 284.- Bonds are negotiable securities which, within the same issue, confer the same rights of claim for the
same face value.”
Article L228-39 (Act No 420 of 15 May 2001, Article 102, Official Gazette of 16 May 2001)
The issue of bonds by a joint-stock company which has not established two balance sheets duly approved by the shareholders must be preceded by a verification of the assets and liabilities in accordance with the conditions specified in Articles L.225-8 and L.225-10.
The issue of bonds shall be prohibited for companies whose capital is not fully paid up except where the unpaid-up shares have been reserved for employees, pursuant to Article L.225-187 or Article L.443-5 of the Labour Code, and except where this is carried out with a view to allocating to employees bonds issued in respect of the participation of the latter in the fruits of the company’s expansion.
Article L228-40 (Order No. 2004-604 of 24 June 2004 Art. 39 Official Journal of 26 June 2004)
The board of directors, the executive board and the chief executive(s) are empowered to decide or authorise the issue of bonds unless the articles of association reserve such power for the general meeting, and if the general meeting does not decide to exercise it itself.
The board of directors may delegate to one or more of its members, to the general manager or, with the latter's
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COMMERCIAL CODE agreement, to one or more acting general managers or, in credit institutions, to any person of its choice, the powers required to implement the issue of bonds within one year and to determine the particulars thereof.
The executive board may delegate to its chairman and, with his agreement, to one or more of its members or, in credit institutions, to any person of its choice, the powers required to implement the issue of bonds within that same time limit and to determine the particulars thereof.
The persons thus designated report to the board of directors or the executive board in the manner determined by those structures.
Article L228-41 The general meeting of shareholders may delegate to the board of directors, management or managers, as
applicable, the powers needed to issue bonds on one or more occasions, within a period of five years, and to determine the terms of this.
The board of directors or management, as applicable, may delegate to its chairman or to any person of its choice who is a member of the board of directors or management the powers which it has received pursuant to the above paragraph. The chairman or delegate shall report to the board of directors or management in accordance with the conditions specified by the latter.
Article L228-42 The provisions of Articles L.228-40 and L.228-41 shall not apply to companies whose main object is to issue bonds
needed to finance the loans which they grant.
Article L228-43 If an offer is made to the public, the company shall comply, before opening the subscription, with the formalities for
publishing the issue conditions according to the terms fixed by a Conseil d'Etat decree.
Article L228-44 The company may not use its own bonds as security.
Article L228-45 Where the issuing company has continued to pay the proceeds of bonds redeemable by drawings, it may not pay
these sums again when these bonds are presented for redemption. Any clause to the contrary shall be deemed to be unwritten.
Article L228-46 The holders of bonds from the same issue shall be grouped ipso jure for the defence of their common interests in a
body which shall have a civil personality. However, in the event of successive issues of bonds, the company may, when a clause in each issue agreement
specifies this, group bondholders with identical rights into a single body.
Article L228-47 The body shall be represented by one or more representatives elected by the general meeting of bondholders.
Their number may not under any circumstances exceed three. In the event of an issue through a public offering, the representatives may be appointed in the issue agreement.
Article L228-48 The mandate of representative of the body may be entrusted only to persons of French nationality or to nationals of
a Member State of the European Communities, domiciled in French territory, and to the associations and companies with their registered office therein.
Article L228-49 The following may not be chosen as representatives of the body: 1° The debtor company; 2° Companies holding at least one-tenth of the capital of the debtor company or in which the latter holds at least
one-tenth of the capital; 3° Companies acting as guarantor for all or part of the commitments of the debtor company; 4° Managers, directors, members of the management and supervisory board, managing directors, auditors or
employees of the companies referred to in 1° and 3°, and their ancestors, descendants and spouses; 5° Persons to whom the exercise of the profession of banker is prohibited or who are deprived of the right to run,
administer or manage any type of company.
Article L228-50 In an emergency, the representatives of the body may be appointed by a court decision at the request of any
interested party.
Article L228-51 When they are not appointed in the issue agreement, representatives of the body of bondholders with regard to a
loan for which the company has made a public offering shall be appointed within one year of the opening of the subscription and at the latest one month before the first specified debt payment.
This appointment shall be made by the general meeting or, failing this, by a court decision at the request of any interested party.
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COMMERCIAL CODE Article L228-52
The representatives of the body may be relieved of their duties by the general meeting of bondholders.
Article L228-53 The representatives of the body shall, except where restricted as decided by the general meeting of bondholders,
have the power to carry out on behalf of the body all the management acts for the defence of the common interests of the bondholders.
Article L228-54 The representatives of the body, duly authorised by the general meeting of bondholders, shall alone have the
capacity to bring, on behalf of the latter, actions for nullity of the company or acts and decisions subsequent to its formation and also all actions intended to defend the common interests of the bondholders, and particularly to request the measure specified in Article L.237-14.
Court actions directed against all the bondholders in the same body may be brought only against the representative of this body.
Any action brought contrary to the provisions of this article shall be declared automatically inadmissible.
Article L228-55 The representatives of the body may not be involved in the management of the company business. They shall have
access to the general meetings of shareholders, but without a right to vote. They shall be entitled to receive the documents provided to the shareholders in accordance with the same
conditions as the latter.
Article L228-56 (Law No 2003-706 of 1 August 2003 Article 134 (VI) Official Gazette of 2 August 2003)
The remuneration of the representatives of the general body as determined by the general meeting or by the issue agreement, is paid by the debtor company.
If this remuneration is not determined, or if the amount thereof is contested by the company, it is fixed by a decision of the court.
Without prejudice to any action for damages against the executives or the representative of the general body, any decision which grants remuneration to the latter in breach of the provisions of the present Article is null and void.
Article L228-57 The general meeting of bondholders in the same body may meet at any time.
Article L228-58 The general meeting of bondholders shall be convened by the board of directors, management or managers, by the
representatives of the body or by the liquidators during the winding-up period. One or more bondholders, together holding at least one-thirtieth of the securities of a body, may submit to the company and to the representative of the body a request for the meeting to be convened.
If the general meeting has not been convened within the period fixed by a Conseil d'Etat decree, the originators of the request may entrust one of them to bring legal proceedings for the appointment of a representative who shall convene the meeting.
Article L228-59 The general meetings of bondholders shall be convened in accordance with the same formal and deadline
conditions as the shareholders’ meetings. In addition, the notices of the meetings shall contain special information which shall be determined by a Conseil d'Etat decree.
Any meeting unduly convened may be cancelled. However, the action to cancel this shall not be admissible when all the bondholders in the body in question are present or represented.
Article L228-60 (Order No. 2004-604 of 24 June 2004 Art. 41 I Official Journal of 26 June 2004)
The agenda of a meeting is determined by the person convening it. However, one or more bondholders are entitled, as provided for in the second paragraph of Article L. 228-58, to
require that draft resolutions be placed on the agenda. Such resolutions are placed on the agenda and put to the vote by the chairman of the meeting.
The meeting shall not deliberate on an item which is not placed on the agenda. The agenda for the meeting may be amended on a second convening.
Article L228-60-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 41 II Official Journal of 26 June 2004)
An attendance sheet is kept for each meeting. The decisions taken at each meeting are recorded in minutes signed by the members of the committee which are
entered in a special register kept at the registered office. The elements that must be included in the attendance sheet and the minutes are determined in a Conseil d'Etat
decree.
Article L228-61 (Order No. 2004-604 of 24 June 2004 Art. 42 Official Journal of 26 June 2004)
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COMMERCIAL CODE If there are several bodies of bondholders, they shall not in any circumstances hold a joint meeting. All bondholders are entitled to participate in the meeting or to be represented at it by the representative of their
choice. Any bondholder may vote by correspondence using a form as prescribed in a Conseil d'Etat decree. Any contrary
provision in the articles of association is deemed not to exist. When the quorum is calculated, only voting forms received by the company before the date of the meeting in the
manner and within the time limits determined in a Conseil d'Etat decree are counted. Forms which do not indicate a voting intention or which express an abstention are treated as negative votes.
If the articles of association so provide, bondholders who participate in the meeting via videoconferencing or via a telecommunications medium which permits their identification are deemed to be present for calculation of the quorum and the majority. The nature of the acceptable technical media and the implementing regulations for this provision are determined in a Conseil d'Etat decree.
The holders of redeemed bonds which were not repaid on account of the failure of the debtor company or a dispute relating to the conditions of repayment may participate in the meeting.
A company which holds at least 10% of the debtor company's capital shall not vote with the bonds it holds at the meeting.
Article L228-62 Managers, directors, members of the management and supervisory board, managing directors, auditors or
employees of the debtor company or companies acting as guarantor for all or part of the commitments of said company, and their ancestors, descendants and spouses, may not represent bondholders at general meetings.
Article L228-63 The representation of a bondholder may not be entrusted to persons to whom the exercise of the profession of
banker is prohibited or who are deprived of the right to run, administer or manage any type of company.
Article L228-64 The meeting shall be chaired by a representative of the body. In the absence of these representatives or in the
event of disagreement between them, the meeting shall appoint a person to fulfil the duties of chairman. If the meeting is convened by a legal agent, the meeting shall be chaired by the latter.
In the absence of the body representatives appointed in accordance with the conditions specified in Articles L.228-50 and L.228-51, the first meeting shall be opened under the provisional chairmanship of the holder holding or the representative representing the highest number of bonds.
Article L228-65 (Order No. 2004-604 of 24 June 2004 Art. 43 Official Journal of 26 June 2004) (Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
I. - The general meeting deliberates on all measures intended to protect the bondholders and ensure execution of the loan agreement, and on any proposal seeking to amend the contract, including:
1 Any proposal relating to a change in the company's corporate purpose or status; 2 Any proposal for a settlement or a transaction concerning disputed rights or rights in respect of which court
decisions have been handed down; 3 Proposals to merge or demerge the company in the cases referred to in Articles L236-13 and L236-18; 4 Any proposal relating to the issuing of bonds conferring a preferential right in relation to the debt of the general
body of bondholders; 5 Any proposal relating to total or partial abandonment of the guarantees conferred on the bondholders,
rescheduling of the due date for payment of interest or changes to the terms governing redemption or the interest rate; 6 Any plan to relocate a European company's registered office to another Member State. II. - The general meeting deliberates under the quorum conditions indicated in the second paragraph of Article
L225-98. It rules on a majority of two thirds of the votes held by the bondholders present or represented.
Article L228-66 The voting right in general meetings of bondholders shall belong to the bare owner.
Article L228-67 The voting right attached to the bonds must be proportional to the portion of the loan amount which they represent.
Each bond shall confer the right to at least one vote.
Article L228-68 (Order No. 2004-604 of 24 June 2004 Art. 51 XIV Official Journal of 26 June 2004)
Meetings shall neither increase the bondholders' charges nor establish inequitable treatment of bondholders within a single body.
They cannot decide to convert bonds into shares, without prejudice to the provisions of Article L. 228-106. Any contrary provision is deemed not to exist.
Article L228-69 All bondholders shall be entitled to receive, in accordance with the conditions and deadlines determined by a
Conseil d'Etat decree, the text of resolutions to be proposed and of reports to be submitted to the general meeting. They shall at all times have the same right with regard to the minutes and attendance sheets of the general
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COMMERCIAL CODE meetings of the body to which they belong.
Article L228-70 Bondholders shall not be allowed individually to exercise control over the operations of the company or to request
notification of company documents.
Article L228-71 The debtor company shall support the expenses of convening and holding the general meetings and of publishing
their decisions, together with the expenses resulting from the procedure specified in Article L.288-50. The other management expenditure decided by the general meetings of the body may be deducted from the interest paid to the bondholders and its amount may be fixed by a court decision.
The deductions specified in the above paragraph may not exceed one-tenth of the annual interest.
Article L228-72 Failing approval by the general meeting of the proposals referred to in 1° and 4° of I of Article L.228-65, the board of
directors, management or managers of the debtor company may carry on regardless by offering to redeem the bonds within the period fixed by a Conseil d'Etat decree.
The decision of the board of directors, management or managers to carry on regardless shall be published in accordance with the conditions fixed by a Conseil d'Etat decree which shall also determine the period during which the redemption must be requested.
Article L228-73 (Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
If a general meeting of the bondholders of the company acquired or hived off has not approved a proposal referred to in 3 and 6 of I of Article L228-65 or was unable to validly deliberate on account of the required quorum not being achieved, the board of directors, the executive board or the executives of the debtor company may carry on regardless. The decision is published as provided for in a Conseil d'Etat decree.
The bondholders then retain their status in the acquiring company or the companies receiving the contributions resulting from the demerger, as applicable.
The general meeting of bondholders may nevertheless empower the representatives of the general body of bondholders to lodge an objection to the transaction under the terms, and with the effects, stipulated in Article L236-14.
Article L228-74 Bonds repurchased by the issuing company and bonds drawn and redeemed shall be cancelled and may not be put
back into circulation.
Article L228-75 In the absence of special provisions in the issue agreement, the company may not impose the early redemption of
bonds on bondholders.
Article L228-76 In the event of early dissolution of the company, not caused by a merger or division, the general meeting of
bondholders may request the redemption of the bonds and the company may impose this.
Article L228-77 In the event of an issue of bonds accompanied by special securities, the latter shall be established by the company
before the issue, on behalf of the body of bondholders. Acceptance shall result from the sole fact of the bonds being subscribed. It shall be retroactive to the date of registration for securities subject to registration and to the date of their establishment for other securities.
Article L228-78 The guarantees specified in Article L.228-77 shall be given by the chairman of the board of directors, the
representative of the management or the manager, following authorisation from the company body authorised to this end by the articles of association.
Article L228-79 The securities shall be established in a special instrument. The publication formalities for these securities shall be
completed before any subscription, on behalf of the body of bondholders being established. Within six months of the subscription being opened, the result of this shall be recorded in a notarised document by
the company’s representative. The terms of the registration and renewal of the registration of securities shall be determined by a Conseil d'Etat
decree. The representatives of the body shall monitor, under their responsibility, the observation of the provisions on the
renewal of the registration.
Article L228-80 The cancellation of registrations shall occur in accordance with the conditions determined by a Conseil d'Etat
decree.
Article L228-81 The guarantees established after the issue of the bonds shall be given by the chairman of the board of directors, the
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COMMERCIAL CODE representative of the management or the manager, following authorisation from the company body authorised to this end by the articles of association. They shall be accepted by the representative of the body.
Article L228-82 The issue of bonds whose redemption is guaranteed by a capitalisation company is prohibited.
Article L228-83 In the event of an administrative order or winding-up proceedings of the company, the representatives of the body of
bondholders shall be authorised to act on the latter’s behalf.
Article L228-84 (Order No. 2005-845 of 26 July 2005 Art. 165 III Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
On behalf of all the bondholders in the general body, the representatives of the general body declare the principal amount of the bonds remaining in circulation plus, for information, any matured but unpaid interest coupons, a detailed statement of which is drawn up by the court-appointed administrator, as liabilities in the company's court-ordered receivership or reorganisation proceedings. They are not required to present their principals' certificates in support of that declaration.
Article L228-85 (Order No. 2005-845 of 26 July 2005 Art. 165 III Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Failing such a declaration by the representatives of the general body, a court decision, made at the request of the court-appointed liquidator, appoints a representative to represent the general body in the court-ordered receivership or liquidation proceedings and to declare the debt.
Article L228-86 (Order No. 2005-845 of 26 July 2005 Art. 165 III Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The representatives of the general body are consulted by the court-appointed administrator concerning the terms of settlement for the bonds proposed pursuant to Article L621-59. They give their consent as stipulated by the ordinary general meeting of bondholders convened for that purpose.
Article L228-87 The expenses incurred in representing the bondholders during the procedure for the administrative order of the
company shall be incumbent on the latter and shall be regarded as legal administrative expenses.
Article L228-88 The administrative order or winding-up proceedings of the company shall not end the operation and role of the
general meeting of bondholders.
Article L228-89 In the event of closure due to insufficient assets, the representative of the body or the appointed legal agent shall
recover the exercise of the rights of the bondholders.
Article L228-90 Unless otherwise specified in the issue agreement, the provisions of Articles L.228-46 to L.228-69, L.228-71,
L.228-72, L.228-76 to L.228-81 and L.288-83 to L.228-89 shall not apply to companies whose loans are subject to special legal rules nor to loans guaranteed by the State, departments, municipalities or public establishments nor to loans issued abroad by French companies.
SECTION VI Other securities conferring the right to the allotment of shares representing a
portion of the capital Articles L228-91 to L228-106
Subsection 1 General provisions Articles L228-91 to
L228-97
Article L228-91 (Order No. 2004-604 of 24 June 2004 Art. 44, Art. 45 Official Journal of 26 June 2004)
Joint-stock companies may issue transferable securities giving access to the capital or giving entitlement to an allotment of debt instruments.
The shareholders of a company issuing transferable securities giving access to the capital have a preferential right to subscribe those transferable securities in proportion to the value of their shares.
The said right is governed by the provisions applicable to the preferential subscription right attached to capital securities pursuant to Articles L. 225-132 and L. 225-135 to L. 225-140.
The issuance contract may stipulate that such transferable securities and the capital securities or debt instruments to which they give entitlement shall not be assigned and traded together. In such cases, if the security originally issued is a capital security, it does not fall within a given category within the meaning of Article L. 225-99.
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COMMERCIAL CODE Capital securities shall not be converted or transformed into transferable securities representing debts. Any clause
to the contrary is deemed not to exist. Transferable securities issued pursuant to the present article shall not be deemed to constitute a promise of share
within the meaning of the second paragraph of Article L. 228-10.
Article L228-92 (Order No. 2004-604 of 24 June 2004 Art. 44, Art. 46 Official Journal of 26 June 2004)
Issues of transferable securities giving access to the capital or giving entitlement to an allotment of debt instruments governed by Article L. 228-91 are authorised by the extraordinary general meeting of shareholders pursuant to Articles L. 225-129 to L. 225-129-6. The said meeting rules on the basis of a report from the board of directors or the executive board and the auditor's special report.
Article L228-93 (Order No. 2004-604 of 24 June 2004 Art. 44, Art. 47 Official Journal of 26 June 2004)
A joint-stock company may issue transferable securities giving access to the capital of the company which directly or indirectly holds more than half of its capital or a company whose capital it directly or indirectly holds more than one half of.
Under pain of being declared null and void, the issue must be authorised by the company's extraordinary general meeting called to issue those transferable securities and by that of the company in which the rights are exercised, in the manner indicated in Article L. 228-92.
Article L228-95 (Act No. 2003-706 of 1 August 2003 Art. 134 VII Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 44, Art. 48 Official Journal of 26 June 2004)
Decisions taken in violation of the second and third paragraphs of Article L. 228-91 are null and void.
Article L228-97 (Act No. 2003-706 of 1 August 2003 Art. 61 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 44 Official Journal of 26 June 2004)
When transferable securities representing debts on the issuing company are issued, including those giving entitlement to subscribe or purchase a transferable security, it may be stipulated that such transferable securities shall not be repaid until the other creditors have been paid off, excluding or including holders of equity loans and participating securities, notwithstanding the provisions of Article L. 228-36 of the present code and those of Articles L. 313-13 et seq of the Monetary and Financial Code.
An order of priority for payments may also be stipulated for such categories of transferable securities.
Subsection 2 Provisions relating to transferable securities giving access to the capital Articles L228-98 to
L228-106
Article L228-98 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
With effect from the date of issue of transferable securities giving access to the capital, the company which is to allot the securities shall not change its legal form or its object unless it is authorised to do so by the issuance contract or as provided for in Article L. 228-103.
Moreover, it may neither change the rules for allocating its profits nor write off its capital unless it is authorised to do so by the issuance contract or as provided for in Article L. 228-103, and subject to its taking the necessary steps to maintain the rights of the holders of the transferable securities giving access to the capital in the manner described in Article L. 228-99.
Subject to those same restrictions, however, it may create preference shares. In the event of its capital being reduced, on account of losses, through a reduction in the nominal value or the
number of the securities comprising the capital, the rights of the holders of the transferable securities giving access to the capital are consequently reduced, as if they had exercised them before the date on which the reduction of capital became definitive.
Article L228-99 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
The company which is to allot the capital securities or the transferable securities giving access to the capital must take the necessary steps to protect the interests of the holders of the rights created if it decides to proceed, regardless of their form, with the issue of new capital securities with a preferential subscription right reserved for its shareholders, to distribute reserves, in cash or in kind, and share premiums, or to change the allocation of its profits through the creation of preference shares.
To that end, it shall: 1. Permit the holders of those rights to exercise them, if the period stipulated for the issuance contract has not yet
commenced, to enable them to participate immediately in the operations referred to in the first paragraph or to benefit therefrom;
2. Or take provisions which will allow them, should they exercise their rights subsequently, to irrevocably subscribe the new transferable securities issued, or to obtain a free allotment thereof, or to receive cash or goods similar to those
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COMMERCIAL CODE which would have been distributed to them, in the same quantities or proportions and under the same conditions, save for possession, had they been shareholders when those operations took place;
3. Or change the conditions of subscription, the bases of conversion, or the terms and conditions of exchange or allotment initially laid down, in order to take account of the impact of the operations referred to in the first paragraph.
Unless otherwise stipulated in the issuance contract, the company may simultaneously take the measures indicated 1 and 2. It may, in all instances, replace them with the change authorised in 3. The said change is stipulated in the issuance contract when the capital securities are not admitted to trading on a regulated market.
The present article's implementing regulations are determined in a Conseil d'Etat decree.
Article L228-100 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
The provisions of Articles L. 228-98 and L. 228-99 are applicable for as long as rights attached to any transferable securities element referred to in these articles remain in existence.
Article L228-101 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
If the company which issued the capital securities is taken over by another company or merges with one or more other companies to form a new company, or effects a demerger, the holders of transferable securities giving access to the capital shall exercise their rights in the company, or companies, benefiting from the contributions. Article L. 228-65 shall not apply, unless otherwise stipulated in the issuance contract.
The number of capital securities they may claim in the acquiring companies or new companies is determined by adjusting the number of securities which the issuance contract proposes to issue or allot in proportion to the number of shares to be created by the company, or companies, benefiting from the contributions. The valuer of contributions in kind gives an opinion on the number of securities thus determined.
Approval of the merger or demerger plan by the shareholders of the company, or companies, benefiting from the contributions or the new company, or companies, entails relinquishment by the shareholders and, where applicable, by the holders of those companies' investment certificates, of the preferential subscription right referred to in Article L. 228-35 or the second paragraph of Article L. 228-91, for the benefit of the holders of transferable securities giving deferred access to the capital.
The company, or companies, benefiting from the contributions or the new company, or companies, are automatically substituted for the issuing company in its obligations towards the holders of the said transferable securities.
Article L228-102 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
In the absence of special stipulations in the issuance contract, and save for early dissolution which is not the result of a merger or demerger, the company shall not impose redemption or repayment on the holders of transferable securities giving access to its capital.
Article L228-103 (Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XXVII Official Journal of 10 December 2004)
The holders of transferable securities giving deferred access to the capital after detachment, where applicable, of the rights to the original security pursuant to the present section are automatically grouped together, to protect their common interests, within a body which has legal personality and is subject to provisions identical to those of Articles L. 228-47 to L. 228-64, L. 228-66 and L. 228-90 applicable to bonds. Where applicable, a separate body is formed for each category of securities conferring the same rights.
The general meetings of the holders of such transferable securities are called upon to authorise any amendment to the issuance contract and to decide on any matter relating to the subscription or allotment conditions of capital securities determined at the time of issue.
Each transferable security giving access to the capital gives entitlement to a vote. The quorum and majority conditions are as determined in the second and third paragraphs of Article L. 225-96.
The costs of meetings and, more generally, all costs associated with the functioning of the different bodies are borne by the company called upon to issue or allot new transferable securities representing its share capital.
When the transferable securities issued pursuant to the present section are bonds intended to be converted into or repaid with capital securities or exchanged for capital securities, the provisions of the second, third and fourth paragraphs of the present article are applicable to the body created pursuant to Article L. 228-46.
NB: These provisions are applicable in Mayotte, New Caledonia and the Wallis and Futuna Islands.
Article L228-104 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
Deliberations entered into, or stipulations made, in violation of Articles L. 228-98 to L. 228-101 and L. 228-103 are null and void.
Article L228-105 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
As determined in a Conseil d'Etat decree, the holders of transferable securities giving access to the capital have, in relation to the company issuing the securities they are entitled to receive, a right to discovery of the documents that that
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COMMERCIAL CODE company sends, or makes available to, its shareholders or holders of investment certificates.
When the right to an allotment of a portion of the share capital is incorporated in or attached to bonds, the right of discovery is exercised by the representatives of the body of bondholders, pursuant to Article L. 228-55.
After detachment of the rights to the original security, the right of discovery is exercised by the representatives of the body constituted pursuant to Article L. 228-103.
In all cases, the representatives of the different bodies have access to the general meeting of shareholders, but without entitlement to speak and vote. They may not interfere, in any way, in the management of the company's business.
Article L228-106 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
When judicial receivership proceedings are initiated against a company which has issued transferable securities giving access to its capital as provided for in Article L. 228-91, the time limit stipulated for exercising the right to an allotment of a portion of the share capital runs from the judgement sanctioning the reorganisation plan, at each holder's discretion, and as indicated in that plan.
CHAPTER IX European Companies Articles L229-1 to
L229-15
Article L229-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
European companies registered in the trade and companies register in France have legal personality with effect from their registration.
A European company is governed by the provisions of (EC) Council Regulation No. 2157/2001 of 8 October 2001 relating to the status of a European company, those of the present chapter and those applicable to public companies which are not contrary thereto.
A European company is subject to the provisions of Article L210-3. The registered office location indicated in a European company's memorandum and articles of association cannot be dissociated from its principal administrative establishment.
Article L229-2 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
Any European company properly registered in the trade and companies register may transfer its registered office to another Member State. It draws up a transfer plan. The said plan is filed at the clerk's office of the court having jurisdiction at the place where the company is registered and is published as provided for in a Conseil d'Etat decree.
Transfer of the registered office is decided by an extraordinary general meeting as provided for in Article L225-96 and is subject to ratification by the special meetings of shareholders referred to in Articles L225-99 and L228-35-6.
In the event of a transaction being objected to, the shareholders may request redemption of their shares as provided for in a Conseil d'Etat decree.
The plan to transfer the registered office is submitted to the special meetings of investment-certificate holders ruling on the basis of the rules for general meetings of shareholders unless the company acquires those securities through a simple request and such acquisition has been agreed by their special meeting. The acquisition offer is subject to publicity as determined in a Conseil d'Etat decree. Any investment-certificate holder who has not assigned his securities within a time limit determined in a Conseil d'Etat decree retains that status without prejudice to those investment certificates and voting rights being exchanged for shares.
The transfer plan is submitted to a meeting of the company's bondholders unless redemption of the securities upon request is offered to the said bondholders. The offer of redemption is subject to publicity as determined in a Conseil d'Etat decree. Any bondholder who has not requested redemption within a time limit determined in a Conseil d'Etat decree retains his status in the company under the terms laid down in the transfer plan.
Non-bondholder creditors of a company transferring its registered office whose debt predates the transfer of the registered office may object to the transfer within a time limit determined in a Conseil d'Etat decree. A court decision rejects the objection or orders either the repayment of the debts or the provision of guarantees if the company transferring its registered office offers any and if they are judged to be sufficient. Failing such settlement of the debts or provision of the guarantees ordered, the transfer of the registered office is ineffective against those creditors. An objection lodged by a creditor does not have the effect of halting the transfers in progress. The provisions of the present paragraph shall not impede application of the agreements authorising the creditor to demand immediate repayment of his debt in the event of the registered office being transferred.
A notary issues a certificate conclusively attesting to compliance with the formalities which must be completed prior to the transfer.
Article L229-3 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
I. - Verification of the legality of the merger is carried out, for the part of the procedure relating to each company being merged, by the registrar of the court having jurisdiction at the place where the company is registered pursuant to Article L236-6.
Verification of the legality of the merger is carried out, for the part of the procedure relating to the completion of the
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COMMERCIAL CODE merger and the formation of a European company, by a notary.
To this end, each company being merged presents to the notary the certificate referred to in Article 25 of the aforementioned (EC) Council Regulation No. 2157/2001 of 8 October 2001 within six months of its issuance, along with a copy of the merger plan approved by the company.
The notary verifies in particular that the companies which are merging have approved a merger plan under the same terms and that the terms and conditions relating to the workers' involvement were determined pursuant to Articles L439-25 to L439-45 of the Labour Code.
The notary also verifies that the formation of a European company through a merger meets the conditions imposed by French law.
II. - Voidance of the proceedings of a meeting which decided a merger operation pursuant to the law applicable to a public limited company, or failure to verify legality, constitute grounds for dissolution of a European company.
When it is possible to remedy an irregularity likely to entail dissolution, the tribunal before which an action for dissolution of a European company created by merger is brought grants time to permit regularisation of the situation.
Actions for dissolution of a European company lapse six months after the date of the last entry in the trade and companies register made necessary by the operation.
When the dissolution of a European company is pronounced, it is liquidated pursuant to the provisions of its memorandum and articles of association and Chapter VII of Part III of the present Book.
When a court ruling ordering the dissolution of a European company on grounds envisaged in the sixth paragraph of the present article has become definitive, the said ruling is published as determined in a Conseil d'Etat decree.
Article L229-4 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The authority empowered to lodge an objection against the transfer of the registered office of a European company registered in France pursuant to the provisions of 14 of Article 8 and Article 19 of the aforementioned (EC) Council Regulation No. 2157/2001 of 8 October 2001 which would result in a change of applicable law, and likewise the formation of a European company through a merger involving a company governed by French law, is the public prosecutor.
Article L229-5 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The companies promoting the creation of a European holding company draw up a common plan to create a European company.
The said plan is filed at the clerk's office of the court having jurisdiction at the place where the said companies are registered and is published as provided for in a Conseil d'Etat decree.
One or more court-appointed European holding company formation commissioners draw up a report to the shareholders of each company, under their own responsibility, the content of which is stipulated in a Conseil d'Etat decree.
By agreement between the companies promoting the operation, the commissioner(s) may draw up a written report for the shareholders of all the companies.
The provisions of the third and fourth paragraphs of Article L236-9 and Articles L236-13 and L236-14 are applicable if a European holding company is formed.
Article L229-6 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
As an exception to the second sentence of Article L225-1, a European company may form a European company in which it is the sole shareholder. It is subject to the provisions applicable to a European company and those relating to a limited liability company held by a sole proprietor set forth in Articles L223-5 and L223-31.
In such cases, the sole shareholder exercises the powers vested in the general meeting. In the case of a European company under sole proprietorship, Articles L225-25, L225-26, L225-72 and L225-73 do
not apply to that company's directors or the members of its supervisory board.
Article L229-7 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The management and administration of a European company are governed by the provisions of Section 2 of Chapter V of the present Part, with the exception of the first paragraph of Articles L225-37 and L225-82 and the fourth paragraph of Article L225-64.
As an exception to Article L225-62, however, if a seat becomes vacant on the executive board, the supervisory board may appoint one of its members to exercise the functions of an executive board member for a maximum period determined in a Conseil d'Etat decree. During the said period, that member's functions on the supervisory board are suspended.
The provisions of the first paragraph of Article L225-17, the second paragraph of Article L225-22, Article L225-69 and the second paragraph of Article L225-79 shall not impede participation of the workers as defined in Article L439-25 of the Labour Code.
Each member of the supervisory board may request from the chairman of the executive board the documents which he considers necessary for the accomplishment of his mission.
A European company is managed by an executive board composed of seven members at most. The memorandum and articles of association must contain rules similar to those set forth in Articles L225-38 to
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COMMERCIAL CODE L225-42 and L225-86 to L225-90. In the case of a company referred to in Article L229-6, however, an entry in the record of proceedings constitutes approval of the agreement.
Article L229-8 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The general meetings of a European company are subject to the rules laid down in section 3 of Chapter V of the present Part insofar as they are compatible with the aforementioned (EC) Council Regulation No. 2157/2001 of 8 October 2001.
Article L229-9 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
If the principal administrative establishment of a European company is no longer in France, any interested party may ask the court to regularise the situation by transferring the registered office or re-establishing the principal administrative establishment at the site of the registered office in France, under pain of a coercive fine if necessary.
The court shall impose a time limit for such regularisation. Failing regularisation upon expiry of the time limit, the court shall pronounce the liquidation of the company as
provided for in Articles L237-1 to L237-31. Such decisions are sent to the public prosecutor by the court registry. The judge's decision indicates that the
judgement emanated from the court registry. In the event of it being noted that the principal administrative establishment of a European company registered in
another Member State has been transferred to France in contravention of Article 7 of the aforementioned (EC) Council Regulation No. 2157/2001 of 8 October 2001, the public prosecutor of the Tribunal de grande instance having jurisdiction at the place where the principal administrative establishment is located shall immediately inform the Member State in which its registered office is located.
In the event of it being noted that the principal administrative establishment of a European company registered in France has been transferred to another Member State in contravention of Article 7 of the aforementioned (EC) Council Regulation No. 2157/2001 of 8 October 2001, the authorities of that Member State shall immediately inform the public prosecutor of the Tribunal de grande instance having jurisdiction at the place where the company is registered.
Article L229-10 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
Any European company may convert itself into a limited company if it has been registered for more than two years at the time of such conversion and its balance sheet for the first two accounting periods has been approved.
The company draws up a plan to convert itself into a limited company. The said plan is filed at the clerk's office of the court having jurisdiction at the place where the company's registered office is located and is published as provided for in a Conseil d'Etat decree.
One or more court-appointed conversion commissioners draw up a report to the converting company's shareholders under their own responsibility attesting that the shareholders' equity is at least equivalent to the authorised capitaL.They are subject to the incompatibilities referred to in Article L822-11.
Conversion into a limited company is decided as provided for in Articles L225-96 and L225-99.
Article L229-11 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The memorandum and articles of association of a European company which does not make public offerings may make any transfer of shares subject to restrictions on free negotiability but such restrictions shall not have the effect of rendering the shares inalienable for more than ten years.
Any assignment made in violation of such conditions in the memorandum and articles of association is null and void. Such voidance is binding on the assignee or his assigns. It may be regularised by a unanimous decision of the shareholders who are not parties to the contract or to the share-transfer transaction.
Article L229-12 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
Under the terms and conditions of the memorandum and articles of association of a European company which does not make public offerings, a shareholder may be required to assign his shares. Likewise, that same shareholder's non-pecuniary rights may be suspended until such time as he effects the said assignment.
Article L229-13 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The memorandum and articles of association of a European company which does not make public offerings may require a corporate shareholder whose control within the meaning of Article L233-16 changes to inform the European company thereof as soon as the change takes place. The latter may decide, under the terms of the memorandum and articles of association, to suspend exercise of that shareholder's non-pecuniary rights and exclude it.
The provisions of the first paragraph may apply in the same way to a legal entity which becomes a shareholder following a merger, demerger or dissolution.
Article L229-14 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
If the memorandum and articles of association do not specify a method for evaluating the transfer price of the
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COMMERCIAL CODE shares when a European company implements a clause adopted pursuant to Articles L229-11 to L229-13, the price is determined by agreement between the parties or, failing this, is determined as provided for in Article 1843-4 of the Civil Code.
When the shares are bought by a European company, it is required to transfer them within six months or cancel them.
Article L229-15 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
Clauses stipulated pursuant to Articles L229-11 to L229-14 may be adopted or amended only by a unanimous vote of the shareholders.
TITLE III Provisions common to various commercial companies Articles L231-1 to
L238-3-1
CHAPTER I Variable capital Articles L231-1 to
L231-8
Article L231-1 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The memorandum and articles of association of companies other than public limited companies, and of any cooperative, may stipulate that the share capital may be increased through successive payments made by the partners or the admission of new partners, and may be reduced by the total or partial withdrawal of the contributions made.
Companies whose memorandum and articles of association contain the above stipulation are subject to the provisions of the present Chapter regardless of the general rules specific to their status.
Article L231-2 If the company has used the option granted by Article L.231-1, this circumstance shall be indicated, in all the
instruments and documents originating from the company and intended for third parties, by the addition of the words “à capital variable” (with variable capital).
Article L231-3 Instruments recording increases or reductions of the share capital made under the terms of Article L.231-1 or
withdrawals of members, other than managers or directors, which have taken place in accordance with Article L.231-6 shall not be subject to the filing and publication formalities.
Article L231-4 The shares or share coupons shall be registered, even after they are fully paid up. They may be traded only after the definitive formation of the company. Trading may take place only by means of transfer to the company registers and the articles of association may
confer, either on the board of directors or on the general meeting, the right to object to the transfer.
Article L231-5 (Act No 420 of 15 May 2001, Article 124 II, Official Gazette of 16 May 2001)
The articles of association shall determine a sum below which the capital may not be reduced by the acquisitions of contributions authorised by Article L.231-1.
This sum may not be less than one-tenth of the share capital stipulated in the articles of association or, for companies other than cooperatives, less than the minimum amount of capital required for the form of the company in question by the acts governing this.
Cooperative associations shall be definitively formed after the payment of this amount of one-tenth.
Article L231-6 Each member may withdraw from the company when this seems appropriate thereto unless agreements stipulate to
the contrary and except where the first paragraph of Article L.231-5 applies. It may be stipulated that the general meeting is entitled to decide, by the majority fixed for amending the articles of
association, that one or more of the members shall cease to belong to the company. The member who ceases to belong to the company, either due to their own choice or following a decision by the
general meeting, shall remain bound, for five years, towards the members and third parties, by all the obligations existing at the time of their withdrawal.
Article L231-7 The company, whatever its form, shall be validly represented in court by its directors.
Article L231-8 The company shall not be dissolved by the death or withdrawal of a member, by a winding-up judgment, by a
measure prohibiting the exercise of a commercial profession, by a prohibition measure ordered with regard to one of the members or by the insolvency of a member. It shall continue ipso jure between the other members.
CHAPTER II
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COMMERCIAL CODE Financial statements Articles L232-1 to
L232-23
SECTION I Accounting documents Articles L232-1 to
L232-6
Article L232-1 I.- At the end of each financial year, the board of directors, management or managers shall prepare the inventory
and annual accounts in accordance with the provisions of Section 2 of Chapter III of Title II of Book I and shall prepare a written annual report. They shall attach to the balance sheet:
1° A list of the sureties and guarantees given by the company. This provision shall not apply to companies operating a credit institution or an insurance company;
2° A list of the securities granted thereby. II.- The annual report shall set out the situation of the company during the previous financial year, its forecast
development, the important events which have occurred between the end date of the financial year and the date when this report is prepared and its activities in terms of research and development.
III.- The documents indicated in this article shall, if applicable, be provided to the auditors in accordance with the conditions determined by a Conseil d'Etat decree.
Article L232-2 In commercial companies meeting one of the criteria defined by a Conseil d'Etat decree and drawn from the number
of employees or the turnover, possibly taking into account the nature of the activity, the board of directors, management or managers shall be required to prepare a statement of the liquid and current assets, excluding operating assets, and the current liabilities, a projected profit and loss account and a financing table at the same time as the annual balance sheet and a projected financing plan.
The Conseil d'Etat decree indicated above shall specify the frequency, deadlines and terms of preparation of these documents.
In order to determine the number of employees, those employees of companies, whatever their form, in which the company directly or indirectly holds over half of the capital shall be regarded as employees of the company.
Article L232-3 In public limited companies, the documents referred to in Article L.232-2 shall be analysed in written reports on the
development of the company, prepared by the board of directors or management. The documents and reports shall be notified simultaneously to the supervisory board, auditor and works council.
If the provisions of Article L.232-2 and the above paragraph are not observed, or if the information given in the reports referred to in the above paragraph requires observations therefrom, the auditor shall indicate these in a report to the board of directors or management, as applicable. The auditor’s report shall be notified simultaneously to the works council. This report shall be brought to the attention of the next general meeting.
Article L232-4 In companies other than public limited companies, the reports specified in Article L.232-3 shall be prepared by the
managers who shall submit them to the auditor, works council and, if applicable, supervisory board when this is established in these companies.
If the provisions of Article L.232-2 and the above paragraph are not observed, or if the information given in the reports referred to in the above paragraph requires observations therefrom, the auditor shall indicate these in a report to the manager or in the annual report. The auditor may request that the report is sent to the members or that it is brought to the attention of the meeting of members. This report shall be notified to the works council.
Article L232-5 Companies which prepare consolidated financial statements in accordance with Articles L.233-18 to L.233-26 may,
in accordance with the conditions specified in Article L.123-17 and as an exception to Article L.123-18, enter the shares of the companies which they exclusively control, within the meaning of Article L.233-16, into the assets side of the balance sheet according to the portion of equity capital, determined in line with the consolidation rules, which these shares represent. This valuation method, if chosen, shall apply to all the shares meeting the above conditions. This choice shall be indicated in the annex.
The contra of the annual variation in the total portion of equity capital representing these shares shall not constitute an item in the results. It shall be entered separately as an equity capital item. It shall not be distributable and may not be used to offset losses. However, if the total difference becomes negative, it shall be entered in the profit and loss account.
If a company uses the method specified in the above paragraphs, the companies which it controls shall apply the same method when they themselves control other companies in accordance with the same conditions.
A Conseil d'Etat decree shall fix the terms for applying this article.
Article L232-6 When, in accordance with the conditions defined in Article L.123-17, amendments are made to the presentation of
the annual accounts and the valuation methods used, these shall also be indicated in the annual report and, if
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COMMERCIAL CODE applicable, in the auditors’ report.
SECTION II Documents specific to companies making a public offering Articles L232-7 to
L232-8
Article L232-7 Companies whose shares are accepted for trading in a regulated market shall be required to annex to their annual
accounts an inventory of the securities held in the portfolio at the end of the financial year. They shall also annex a table relating to the distribution and allocation of the distributable sums which shall be
proposed to the general meeting. These companies, with the exception of investment companies with variable capital, shall also be required to
establish and publish, at the latest within four months of the first half of the financial year, a report commenting on the information in figures relating to the turnover and results of the company during the last half-year and describing its activity during this period, its projected development during the financial year and the important events which occurred during the first half-year. The text which must be included in the half-year report and the terms of its publication shall be fixed by a Conseil d'Etat decree. The auditors shall verify the truthfulness of the information contained in the half-year report.
Article L232-8 (Order No 916 of 19 September 2000, Article 4 and Annex II, Official Gazette of 22 September 2000 in force on 1 January 2002)
When half of their capital belongs to one or more companies whose shares are accepted for trading in a regulated market, the companies whose shares are not accepted for this and those which do not have the form of joint-stock companies shall be required, if their balance sheet exceeds 3 000 000 euro or if the inventory value or the stock-market value of their portfolio exceeds 300 000 euro, to annex to their annual accounts an inventory of the securities held in the portfolio at the end of the financial year.
SECTION III Depreciation and provisions Article L232-9
Article L232-9 Subject to the provisions of the second paragraph of Article L.232-15, the expenses of forming the company shall
be depreciated before any distribution of profits and, at the latest, within five years. The expenses of increasing the capital shall be depreciated at the latest by the end of the fifth financial year
following that in which these expenses were incurred. These expenses may be charged to the amount of the premiums relating to this increase.
However, companies whose exclusive object is construction and the management of rented buildings mainly for residential use or property leasing and property companies for trade and industry may depreciate the expenses of forming the company and the expenses of increasing the capital in accordance with the same conditions as their property. Companies approved for financing telecommunications may depreciate the formation expenses and increase in capital expenses in accordance with the same conditions as their property and equipment.
SECTION IV Profits Articles L232-10 to
L232-20
Article L232-10 With any decision to the contrary being invalid, in limited liability companies and joint-stock companies a deduction
of at least one-twentieth, allocated to the formation of a reserve fund referred to as the “legal reserve”, shall be made from the profits for the financial year less, if applicable, the previous losses.
This deduction shall cease to be compulsory when the reserve reaches one-tenth of the share capital.
Article L232-11 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The distributable profit consists of the profit for the period, less the losses brought forward, plus the sums carried forward pursuant to the law or the memorandum and articles of association, plus the profit brought forward.
The general meeting may, moreover, decide to distribute sums taken from the reserves available to it. In which case, the decision expressly indicates the reserve headings from which they are taken. The dividends are nevertheless taken primarily from the distributable profit for the period.
Unless a capital reduction is taking place, no distribution can be made to the shareholders when the share capital is, or would thereby become, lower than the amount of the capital plus the reserves which the law or the memorandum and articles of association require in order for distribution to take place.
The revaluation differential is not distributable. It may be wholly or partly incorporated into the capital.
Article L232-12 After the annual accounts are approved and the existence of distributable sums is recorded, the general meeting
shall determine the part allocated to the members in the form of dividends.
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COMMERCIAL CODE However, when a balance sheet established during or at the end of the financial year and certified by an auditor
shows that the company, since the end of the previous financial year, after allowing for the necessary depreciation and reserves, having deducted, if applicable, the previous losses and the sums to be entered in reserve pursuant to the law or articles of association and taking into account the profits carried forward, has made a profit, interim dividends may be distributed before the approval of the accounts for the financial year. The amount of these interim dividends may not exceed the amount of the profit defined in this paragraph. They shall be distributed in accordance with the conditions and terms fixed by a Conseil d'Etat decree.
Any dividend distributed in breach of the rules indicated above shall be a sham dividend.
Article L232-13 The terms for paying the dividends voted by the general meeting shall be fixed thereby or, failing this, by the board
of directors, management or managers, as applicable. However, the payment of dividends must occur within a maximum period of nine months after the end of the
financial year. The extension of this period may be agreed by a court decision.
Article L232-14 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The memorandum and articles of association may allot an increase in dividends, with a ceiling of 10%, to any shareholder who can show a registered contribution of at least two years' duration at the year-end which was still current on the date of payment of the dividends. The rate thereof is determined by the extraordinary general meeting. In companies whose shares are quoted on a regulated stock market, the number of shares eligible for this increase in dividends for a single shareholder cannot exceed 0.5% of the company's capital. The same increase may be allotted, under the same terms and conditions, in the event of free shares being distributed.
This increase cannot be allotted before the close of the second financial year following the amendment to the memorandum and articles of association.
Article L232-15 It is prohibited to stipulate fixed or interim interest to the benefit of members. Any clause to the contrary shall be
deemed to be unwritten. The provisions of the above paragraph shall not apply when the State has granted the guarantee of a minimum
dividend to the shares.
Article L232-16 The articles of association may specify the allocation, by way of an initial dividend, of interest calculated on the
paid-up and non-redeemed amount of the shares. Unless otherwise specified in the articles of association, the reserves shall not be taken into account when calculating the initial dividend.
Article L232-17 The company may not request from shareholders any repayment of dividends, except when the following two
conditions are met: 1° If the distribution has been carried out in breach of the provisions of Articles L.232-11, L.232-12 and L.232-15; 2° If the company establishes that the recipients knew about the irregular nature of this distribution at the time of this
or could not have been unaware of this given the circumstances.
Article L232-18 In joint-stock companies, the articles of association may specify that the meeting ruling on the accounts for the
financial year shall have the option of granting to each shareholder, for all or part of the dividend distributed or the interim dividends, a choice between the payment of the dividend or interim dividends in cash or in shares.
When there are different categories of shares, the general meeting ruling on the accounts for the financial year shall have the option of deciding that the subscribed shares shall be of the same category as the shares having conferred the right to the dividend or interim dividends.
The offer to pay the dividend or interim dividends in shares must be made simultaneously to all shareholders.
Article L232-19 The issue price of shares issued in accordance with the conditions specified in Article L.232-18 may not be less
than the face value. In companies in which the shares are accepted for trading in a regulated market, the issue price may not be less
than 90% of the average price quoted in the twenty trading sessions prior to the day of the distribution decision, less the net amount of the dividend or interim dividends.
In other companies, the issue price shall be fixed, at the choice of the company, either by dividing the amount of the net assets calculated according to the most recent balance sheet by the number of existing shares or according to the opinion of an expert appointed by the courts at the request of the board of directors or management, as applicable. The application of the rules determining the issue price shall be verified by the auditor who shall submit a special report to the general meeting referred to in Article L.232-18.
When the amount of the dividends or interim dividends to which the shareholder is entitled does not correspond to a round number of shares, the latter may receive the number of shares immediately below plus a balancing cash adjustment or, if the general meeting has requested this, the number of shares immediately above by paying the difference in cash.
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COMMERCIAL CODE Article L232-20
The request for payment of the dividend in shares, accompanied, if applicable, by the payment specified in the second paragraph of Article L.232-19, must be made within a period fixed by the general meeting but which may not be more than three months from the date of said general meeting. The increase in capital shall be carried out due solely to this request and, if applicable, to this payment and shall not give rise to the formalities specified in Article L.225-142, in the second paragraph of Article L.255-144 and in Article L.255-146.
However, in the event of an increase in capital, the board of directors or the management, as applicable, may suspend the exercise of the right to obtain the payment of the dividend in shares for a period which may not exceed three months.
During its first meeting following the expiration of the period fixed by the general meeting pursuant to the first paragraph of this article, the board of directors or, as applicable, the management shall record the number of shares issued pursuant to this article and shall make the necessary amendments to the clauses of the articles of association relating to the amount of the share capital and the number of shares representing this. The chairman may, with authority from the board of directors or management, carry out these operations in the month following the expiration of the period fixed by the general meeting.
SECTION V Publication of accounts Articles L232-21 to
L232-23
Article L232-21 I.- General partnerships in which all the indefinitely liable partners are limited liability companies or joint-stock
companies shall be required to file, in duplicate, with the court registry, in order to be annexed to the commercial and companies register, in the month following approval of the annual accounts by the routine meeting of partners:
1° The annual accounts, annual report and, if applicable, consolidated financial statements, group annual report and auditors’ reports on the annual accounts and consolidated financial statements, possibly supplemented by the latter’s observations on the amendments made by the meeting which have been submitted thereto;
2° The result allocation proposal submitted to the meeting and the allocation resolution voted on or the allocation decision made.
II.- In the event of refusal of approval or acceptance, a copy of the deliberations of the meeting shall be filed within the same period.
III.- The obligations defined above shall also be imposed on general partnerships in which all the indefinitely liable partners are general partnerships or limited partnerships in which all the indefinitely liable partners are limited liability companies or joint-stock companies.
IV.- In order to apply this article, companies governed by foreign law with a comparable legal form shall be regarded as limited liability companies or joint-stock companies.
Article L232-22 I.- All limited liability companies shall be required to file, in duplicate, with the court registry, in order to be annexed
to the commercial and companies register, in the month following approval of the annual accounts by the routine meeting of partners or by the sole proprietor:
1° The annual accounts, annual report and, if applicable, consolidated financial statements, group annual report and auditors’ reports on the annual accounts and consolidated financial statements, possibly supplemented by the latter’s observations on the amendments made by the meeting or sole proprietor to the annual accounts which have been submitted thereto;
2° The result allocation proposal submitted to the meeting or to the sole proprietor and the allocation resolution voted on or the allocation decision made.
II.- In the event of refusal of approval or acceptance, a copy of the deliberations of the meeting or of the decision of the sole proprietor shall be filed within the same period.
Article L232-23 I.- All joint-stock companies shall be required to file, in duplicate, with the court registry, in order to be annexed to
the commercial and companies register, in the month following approval of the annual accounts by the general meeting of shareholders:
1° The annual accounts, annual report and auditors’ report on the annual accounts, possibly supplemented by the latter’s observations on the amendments made by the meeting to the annual accounts which have been submitted thereto and, if applicable, the consolidated financial statements, group annual report, auditors’ report on the consolidated financial statements and report of the supervisory board;
2° The result allocation proposal submitted to the meeting and the allocation resolution voted on. II.- In the event of refusal of approval of the annual accounts, a copy of the deliberations of the meeting shall be filed
within the same period.
CHAPTER III Subsidiaries, shares and controlled companies Articles L233-1 to
L233-31
SECTION I
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COMMERCIAL CODE Definitions Articles L233-1 to
L233-5
Article L233-1 When a company owns more than half of the capital of another company, the second company shall be regarded, in
order to apply this chapter, as a subsidiary of the first company.
Article L233-2 When a company owns, in another company, a percentage of the capital of between 10 and 50%, the first company
shall be regarded, in order to apply this chapter, as having a holding in the second company.
Article L233-3 (Act No. 2001-420 of 15 May 2001 Art. 120 I Official Journal of 16 May 2001) (Act No. 2001-1168 of 11 December 2001 Art. 28 I Official Journal of 12 December 2001) (Act No. 2005-842 of 26 July 2005 Art. 33 I Official Journal of 27 July 2005)
I. - For the purposes of sections 2 and 4 of the present chapter, a company is deemed to control another company: 1 When it directly or indirectly holds a fraction of the capital that gives it a majority of the voting rights at that
company's general meetings; 2 When it alone holds a majority of the voting rights in that company by virtue of an agreement entered into with
other partners or shareholders and this is not contrary to the company's interests; 3 When it effectively determines the decisions taken at that company's general meetings through the voting rights it
holds; 4 When it is a partner in, or shareholder of, that company and has the power to appoint or dismiss the majority of
the members of that company's administrative, management or supervisory structures. II. - It is presumed to exercise such control when it directly or indirectly holds a fraction of the voting rights above
40% and no other partner or shareholder directly or indirectly holds a fraction larger than its own. III. - For the purposes of the same sections of the present chapter, two or more companies acting jointly are
deemed to jointly control another company when they effectively determine the decisions taken at its general meetings.
Article L233-4 Any capital held, even where this is less than 10%, by a controlled company shall be regarded as being indirectly
held by the company controlling the latter.
Article L233-5 The procureur de la République and the Stock Exchange Committee for companies making a public offering shall
be authorised to bring legal proceedings in order to ensure that the existence of control over one or more companies is recorded.
SECTION II Notifications and information Articles L233-6 to
L233-15
Article L233-6 When a company has acquired, during a financial year, a holding in a company whose registered office is in the
territory of the French Republic, representing over one-twentieth, one-tenth, one-fifth, one-third or half of the capital of this company, or has obtained control of such a company, this shall be indicated in the report presented to the members on the operations for the financial year and, if applicable, in the auditors’ report.
The board of directors, management or manager of a company shall record, in their report, the activity and results of the whole company, the subsidiaries of the company and the companies which it controls by sector of activity. When this company prepares and publishes consolidated financial statements, the report indicated above may be included in the group annual report indicated in Article L.233-26.
Article L233-7 (Act No. 2001-420 of 15 May 2001 Art. 119 3 Official Journal of 16 May 2001) (Act No. 2003-706 of 1 August 2003 Art. 46 I 2, Art. 125 3 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 51 XV Official Journal of 26 June 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XXVII Official Journal of 10 December 2004) (Act No. 2005-842 of 26 July 2005 Art. 33 II Official Journal of 27 July 2005)
I. - When the shares of a company having its registered office in France are admitted to trading on a regulated market or a financial instruments market which permits trading in shares which may be entered in the books of an authorised intermediary as provided for in Article L211-4 of the Monetary and Financial Code, any natural person or legal entity, acting alone or jointly, who comes into possession of a number of shares representing more than one twentieth, one tenth, three twentieths, one fifth, one quarter, one third, one half, two thirds, eighteen twentieths or nineteen twentieths of the capital or voting rights shall inform the company of the total number of shares or voting rights it holds within a time limit determined in a Conseil d'Etat decree commencing on the day on which the equity participation threshold was exceeded.
The information specified in the previous paragraph is also reported, within the same time limit, if the equity participation or voting rights fall below the thresholds indicated in that paragraph.
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COMMERCIAL CODE Persons required to provide the information indicated in the first paragraph shall indicate the number of securities
they hold which give deferred access to the capital, as well as the voting rights attached thereto. II. - Persons required to provide the information indicated in I shall also inform the Financial Markets Authority,
within a time limit and under terms and conditions determined in its general regulations, as soon as the participation threshold is exceeded, when the company's shares are admitted to trading on a regulated market or a financial instruments market other than a regulated market, at the request of the person managing that financial instruments market. This information is published as determined in the General Regulations of the Financial Markets Authority.
The general regulations also specify the method for calculating participation thresholds. III. - The company's memorandum and articles of association may impose an additional reporting obligation relating
to the holding of fractions of the capital or voting rights below the one twentieth referred to in I. The obligation relates to the holding of each such fraction, which cannot be below 0.5% of the capital or voting rights.
IV. - The reporting obligations stipulated in I, II and III do not apply to: 1 Shares acquired solely for the purposes of clearing, settling or delivering financial instruments within the
framework of the regular short-term settlement cycle described in the General Regulations of the Financial Markets Authority;
2 Shares held by book-keeping custodians in connection with their book-keeping and custodial activities; 3 Shares held in the trading portfolio of an investment service provider within the meaning of (EC) Council Directive
93/6, of 15 March 1993 concerning the adequacy of the funds of credit investment companies, provided that such shares do not represent a percentage of the capital or voting rights of their issuer above a threshold set in the General Regulations of the Financial Markets Authority and that the voting rights attached to those securities are not exercised or otherwise used to participate in the issuer's management;
4 Shares lodged with members of the European System of Central Banks or lodged by them in the performance of their duties as monetary authorities, as determined in the General Regulations of the Financial Markets Authority.
V. - The reporting obligations stipulated in I, II and III do not apply: 1 To a market maker when the threshold of one twentieth of the capital or voting rights is exceeded in connection
with market making, provided that he does not participate in the issuer's management within the meaning of the General Regulations of the Financial Markets Authority;
2 When the person referred to in I is controlled, within the meaning of Article L233-3, by an entity subject to the obligation laid down in I to III for the securities held by that person or if that entity is itself controlled, within the meaning of Article L233-3, by an entity subject to the obligation laid down in I to III for those same shares.
VI. - In the event of the reporting obligation referred to in III not being complied with, the company's memorandum and articles of association may provide for the provisions of the first two paragraphs of Article L233-14 to apply only if requested by one or more shareholders holding a fraction of the issuing company's capital or voting rights at least equal to the smallest capital holding which must be declared, and subject to this being duly recorded in the minutes of the general meeting. This fraction shall nevertheless not exceed 5%.
VII. - When the company's shares are admitted to trading on a regulated market, the person required to provide the information indicated in I shall also declare the objectives to be pursued during the next twelve months whenever the thresholds of one tenth or one fifth of the capital or voting rights are exceeded. The said declaration shall indicate whether the buyer is acting alone or jointly, whether it envisages making further acquisitions, whether it is seeking to acquire a controlling interest in the company, directorships for itself or for one or more other persons, or seats on the executive board or the Supervisory Board. It is sent to the company whose shares have been acquired and to the Financial Markets Authority within ten trading days. The said information is published as determined in the General Regulations of the Financial Markets Authority. If the stated objectives change, and this can occur only in the event of major changes in the environment, situation or shareholder base of the persons concerned, a new declaration, published in the same way, shall be made and sent to the company and the Financial Markets Authority.
Article L233-8 (Act No. 2003-706 of 1 August 2003 Art. 46 I Official Journal of 2 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 33 III Official Journal of 27 July 2005)
I. - Within fifteen days at most of an ordinary general meeting, all joint-stock companies must inform their shareholders of the total number of voting rights existing on that date. If, between two ordinary General Meetings, the number of voting rights varies by a percentage determined by order of the Minister for the Economy in relation to the number previously declared, the company must inform its shareholders on becoming aware thereof.
II. - Under terms and conditions determined in the General Regulations of the Financial Markets Authority, companies having shares which are admitted to trading on a regulated market publish the total number of voting rights and the number of shares that make up the company's capital each month if they have varied in relation to those previously published. Such companies are deemed to have fulfilled the obligation referred to in I.
Article L233-9 (Act No. 2005-842 of 26 July 2005 Art. 33 IV Official Journal of 27 July 2005)
I. - The following are treated as shares or voting rights owned by the person required to provide the information referred to in I of Article L233-7:
1 Shares or voting rights owned by other persons on behalf of that person; 2 Shares or voting rights owned by companies which control that person within the meaning of Article L233-3; 3 Shares or voting rights owned by a third party with whom that person acts jointly; 4 Shares or voting rights which that person or a person referred to in 1 to 3 above is entitled to acquire on its own
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COMMERCIAL CODE initiative by virtue of an agreement;
5 Shares in respect of which that person is the usufructuary; 6 Shares or voting rights owned by a third party with whom that person has entered into a temporary transfer
agreement covering those shares or voting rights; 7 Shares lodged with that person, provided that it may exercise the voting rights attached to them as it chooses in
the absence of specific instructions from the shareholders; 8 Voting rights which that person may freely exercise by virtue of a power of attorney in the absence of specific
instructions from the shareholders concerned. II. The following are not treated as shares or voting rights owned by the person required to provide the information
referred to in I of Article L233-7: 1 Securities held by undertakings for collective investment in transferable securities managed by a portfolio
management company controlled by that person within the meaning of Article L233-3, barring any exception provided for in the General Regulations of the Financial Markets Authority;
2 Securities held in a portfolio managed by an investment service provider controlled by that person within the meaning of Article L233-3, in the context of a portfolio management service provided to third parties as envisaged in the General Regulations of the Financial Markets Authority, barring any exception provided for in those same general regulations.
Article L233-10 (Law No 2001-420 of 15 May 2001 Article 121 Official Gazette of 16 May 2001) (Law No 2001-1168 of 11 December 2001 Article 28 (II) Official Gazette of 12 December 2001) (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
I. - Persons who have entered into an agreement with a view to buying or selling voting rights or with a view to exercising voting rights to implement a policy in relation to a company are deemed to be acting in concert.
II. - Such an agreement is presumed to exist: 1. Between a company, the chairman of its board of directors and its general managers or the members of its
executive board or its partners; 2. Between a company and the companies it controls within the meaning of Article L. 233-3; 3. Between companies controlled by the same person or persons; 4. Between the partners in a simplified joint-stock company in relation to the companies it controls. III. - Persons acting in concert are jointly and severally bound by the obligations imposed on them by the laws and
regulations.
Article L233-11 (Law No 2001-420 of 15 May 2001 Article 1 Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 46 (I) (4) Official Gazette of 2 August 2003)
Any clause in an agreement which allows preferential terms and conditions to be applied to the sale and purchase of shares which are quoted on a regulated stock market and which amount to at least 0.5% of the capital or voting rights of the company which issued those shares must be submitted within five trading days of the signing of the agreement or of the addendum containing the clause concerned to the company and to the Financial Markets Authority. Failing such submission, the effects of that clause are suspended, and the parties are released from their undertakings while any public offer of sale is in progress.
The company and the Financial Markets Authority must also be informed of the date on which the clause lapses. Clauses in agreements entered into before the date of publication of Law No. 2001-420 of 15 May 2001 relating to
the new financial regulations which had not been sent to the Financial Markets Authority by that date must be sent to it in the same way, within six months, and subject to the effects indicated in the first paragraph.
The information referred to in the preceding paragraphs is published as prescribed in the general regulations of the Financial Markets Authority.
Article L233-12 When a company is directly or indirectly controlled by a joint-stock company, it shall notify the latter and each of the
companies participating in this control of the amount of the shares which it has directly or indirectly in their respective capital and the variations in this amount.
The notifications shall be made within one month of either the date when the assumption of control became apparent to the company with regard to the shares which it held before this date or the date of the transaction for the subsequent acquisitions or disposals.
Article L233-13 (Act No. 2005-842 of 26 July 2005 Art. 33 VI Official Journal of 27 July 2005)
Based on the information received pursuant to Articles L233-7 and L233-12, the report presented to the shareholders on the business during the accounting period indicates the identity of any natural person or legal entity directly or indirectly holding more than one twentieth, one tenth, three twentieths, one fifth, one quarter, one third, one half, two thirds or nineteen twentieths of the authorised capital or voting rights at General Meetings. It also indicates any changes during the accounting period, as well as the names of the controlled companies and the portion of the company's capital held by them. Where applicable, this information is noted in the auditors' report.
Article L233-14
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COMMERCIAL CODE (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Act No. 2003-706 of 1 August 2003 Art. 46 I 5, V 1, 2 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 51 XV bis Official Journal of 26 June 2004) (Act No. 2005-842 of 26 July 2005 Art. 33 VII Official Journal of 27 July 2005)
If they have not been properly declared as stipulated in I and II of Article L233-7, shares in excess of the fraction which should have been declared, when they are admitted to trading on a regulated market or a financial instruments market which permits trading in shares which may be entered in the books of an authorised intermediary as provided for in Article L211-4 of the Monetary and Financial Code, are stripped of the voting right for any shareholders' meeting held within two years of the date of effective notification.
In the same circumstances, the voting rights attached to those shares which have not been properly declared cannot be exercised or delegated by the defaulting shareholder.
A shareholder who has not made the declaration referred to in VII of Article L233-7 is stripped of the voting rights attached to the securities exceeding the fraction of one tenth or one fifth referred to in that same paragraph for any shareholders' meeting held within two years of the date of effective notification.
The commercial court having jurisdiction at the place where the company has its registered office may, having sought the opinion of the public prosecutor, and at the request of the company's chairman, a shareholder or the Financial Markets Authority, order a total or partial suspension of voting rights, for a period not exceeding five years, against any shareholder who has not made the declarations referred to in Article L233-7 or who failed to respect the content of the declaration referred to in VII of that same article during the twelve-month period following its publication as stipulated in the General Regulations of the Financial Markets Authority.
Article L233-15 The board of directors, management or manager of any company with subsidiaries or shares shall annex to the
company’s balance sheet a table showing the situation of these subsidiaries or shares.
SECTION III Consolidated financial statements Articles L233-16 to
L233-28
Article L233-16 (Law No 2003-706 of 1 August 2003 Article 133 Official Gazette of 2 August 2003)
I. - Each year, the board of directors, the executive board or the chief executive(s) of commercial companies, as applicable, draw up and publish consolidated accounts and a group management report in respect of any companies which they control, either solely or jointly, or over which they exert a significant influence as defined hereunder.
II. - Sole control of a company exists: 1. When a majority of its voting rights are held by another company; 2. When a majority of the members of its administrative structures are designated by another company for two
successive financial years. The consolidating company is deemed to have effected such designations if, during that financial year, it held a fraction of the voting rights greater than 40%, and if no other partner or shareholder directly or indirectly held a fraction greater than its own;
3. When a dominant interest is exerted over the company by virtue of a contract or the terms and conditions of its memorandum and articles of association, when the applicable law allows this (1).
III. - Joint control exists when control of a company operated jointly by a limited number of partners or shareholders is shared and decisions are made on the basis of agreement between them.
IV. - Significant influence over a company's management and its financial policy is deemed to exist when another company directly or indirectly holds a fraction of its voting rights equal to at least one fifth.
NB (1): Law 2003-721 Article 133 II: The provisions of this paragraph apply with effect from the first financial year commencing after publication of Law No. 2003-76 of 1 August 2003 in the Official Gazette.
Article L233-17 As an exception to the provisions of Article L.233-16, the companies indicated in said article, with the exception of
those issuing securities accepted for trading in a regulated market or negotiable debt securities, shall be exempt, in accordance with the conditions fixed by a Conseil d'Etat decree, from the obligation to prepare and publish consolidated financial statements and a group annual report:
1° When they are themselves under the control of an undertaking which includes them in its consolidated and published accounts. In this case, however, the exemption shall be subject to the condition that one or more shareholders or members of the controlled undertaking representing at least one-tenth of its share capital do not object to this;
2° Or when the whole formed by a company and the undertakings which it controls does not exceed, for two successive financial years, based on the last made-up annual accounts, a size determined by reference to two of the three criteria indicated in Article L.123-16.
Article L233-18 (Order No. 2004-1382 of 20 December 2004 Art. 2 Official Journal of 22 December 2004)
The accounts of companies subject to the exclusive control of the consolidating company are consolidated via global integration.
The accounts of companies controlled by the consolidating company jointly with other shareholders or members are
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COMMERCIAL CODE consolidated via proportional integration.
The accounts of companies over which the consolidating company exercises considerable influence are consolidated via equity accounting.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L233-19 I.- Subject to this being justified in the annex prepared by the consolidating company, a subsidiary or holding shall
be left out of the consolidation when severe and lasting restrictions significantly call into question the control or influence exercised by the consolidating company over the subsidiary or holding or the possibilities for funds transfers by the subsidiary or holding.
II.- Subject to the same condition, a subsidiary or holding may be left out of the consolidation when: 1° The shares of this subsidiary or holding are held only with a view to their subsequent assignment; 2° The subsidiary or holding represents, alone or with others, only a negligible interest in relation to the aim defined
in Article L.233-21; 3° The information needed to prepare the consolidated financial statements cannot be obtained without excessive
cost or within the periods compatible with those fixed pursuant to the provisions of Article L.233-27.
Article L233-20 The consolidated financial statements shall include the consolidated balance sheet and profit and loss account and
an annex: they shall form an inseparable whole. To this end, undertakings included in the consolidation shall be required to provide the consolidating company with
the information needed to prepare the consolidated financial statements. The consolidated financial statements shall be prepared and published according to the terms fixed by a Conseil
d'Etat decree adopted following an opinion from the National Accounting Board. This decree shall determine in particular the classification of the elements of the balance sheet and profit and loss account and the information to be included in the annex.
Article L233-21 The consolidated financial statements must be honest and truthful and ensure a faire representation of the assets,
financial situation and results of the whole formed of the undertakings included in the consolidation. If applicable, the provisions specified in the first and second paragraphs of Article L.123-14 shall apply.
Article L233-22 Subject to the provisions of Article L.233-23, consolidated financial statements shall be prepared according to the
accounting principles and valuation rules of this code, taking into account the essential adjustments resulting from the characteristics specific to consolidated financial statements in relation to annual accounts.
The assets and liabilities elements and the expenditure and income elements included in the consolidated financial statements shall be valued according to similar methods, except where the necessary reworkings would lead to disproportionately high expenses and would have a negligible effect on the consolidated assets, financial situation and results.
Article L233-23 Subject to this being justified in the annex, the consolidating company may use, in accordance with the conditions
specified in Article L.123-17, valuation rules fixed by a regulation of the Committee on Accounting Rules, and intended: 1° To take account of price variations or replacement values; 2° To value the wasting assets by taking into account that the first item out is the last item in; 3° To allow rules not complying with those fixed by Articles L.123-18 to L.123-21 to be taken into account.
Article L233-24 (Order No. 2004-1382 of 20 December 2004 Art. 1 Official Journal of 22 December 2004)
When they apply the international accounting standards adopted by a regulation of the European Commission, commercial companies which draw up and publish consolidated accounts within the meaning of Article L. 233-16 are exempted from complying with the accounting rules laid down in Articles L. 233-18 to L. 233-23 when drawing up and publishing their consolidated accounts.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L233-25 Subject to this being justified in the annex, consolidated financial statements may be prepared at a different date
from that of the annual accounts of the consolidating company. If the end date of the financial year of an undertaking included within the consolidation is more than three months
before the end date of the consolidation financial year, the consolidated financial statements shall be prepared on the basis of interim accounts checked by an auditor or, if there is no auditor, by a professional responsible for supervising the accounts.
Article L233-26 The group annual report shall set out the situation of the whole formed by the undertakings included within the
consolidation, its anticipated development, the important events which occurred between the end date of the
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COMMERCIAL CODE consolidation financial year and the date when the consolidated financial statements were prepared and its research and development activities. This report may be included in the annual report indicated in Article L.232-1.
Article L233-27 A Conseil d'Etat decree shall fix the conditions in accordance with which the consolidated financial statements and
the group annual report shall be provided to the auditors.
Article L233-28 Legal persons having the capacity of trader and which publish consolidated financial statements, although not being
required to do so due to their legal form or the size of the whole group, shall comply with the provisions of Articles L.233-16 and L.233-18 to L.233-27. In this case, when their annual accounts are certified in accordance with the conditions specified in the first paragraph of Article L.225-235, their consolidated financial statements shall be certified in accordance with the conditions of the second paragraph of this article.
SECTION IV Reciprocal shares Articles L233-29 to
L233-31
Article L233-29 A joint-stock company may not own shares in another company if the latter holds a percentage of its capital higher
than 10%. Failing agreement between the companies involved in order to regularise the situation, the company holding the
smallest percentage of the capital of the other company shall dispose of its investment. If the reciprocal investments are the same size, each company shall reduce its investment so that this does not exceed 10% of the capital of the other.
When a company is required to dispose of shares in another company, the disposal shall be carried out within the period fixed by a Conseil d'Etat decree. The company may not exercise the voting rights attached to these shares.
Article L233-30 If a company other than a joint-stock company has among its members a joint-stock company holding a percentage
of its capital higher than 10%, it may not hold shares issued by the latter. If it comes into possession of these, it must dispose of these within the period fixed by a Conseil d'Etat decree and it
may not, as a result of these, exercise the voting rights. If a company other than a joint-stock company has among its members a joint-stock company holding a percentage
of its capital equal to or less than 10%, it may hold only a percentage equal to or less than 10% of the shares issued by the latter.
If it comes into possession of a higher percentage, it must dispose of the excess within the period fixed by a Conseil d'Etat decree and it may not, as a result of this excess, exercise the voting rights.
Article L233-31 When shares or voting rights in a company are owned by one or more companies in which it directly or indirectly
holds control, the voting rights attached to these shares or these voting rights may not be exercised at the company’s general meeting. They shall not be taken into account when calculating the quorum.
CHAPTER IV Warning procedure Articles L234-1 to
L234-4
Article L234-1 (Act No. 2005-845 of 26 July 2005 Art. 162 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
If, in the performance of his duties, the auditor of a public limited company notes costs likely to compromise the continuity of the business, he shall inform the chairman of the board of directors or the executive board chairman thereof as prescribed in a Conseil d'Etat decree.
If no reply is received within fifteen days or if the reply received does not provide complete assurance of such continuity, the auditor shall request the chairman of the board of directors or the executive board chairman, in a letter copied to the presiding judge of the commercial court, to have the board of directors or the supervisory board deliberate the facts noted. The auditor shall be invited to that meeting. The minutes of the board of directors' meeting or supervisory board meeting shall be sent to the presiding judge of the commercial court and to the works council or, failing this, to the workers' representatives.
If these provisions are not complied with or if the auditor finds that, despite the decisions taken, the continuity of the business remains compromised, a general meeting shall be convened under conditions, and within a time limit, determined in a Conseil d'Etat decree. The auditor shall draw up a special report which is presented to that meeting. The said report is sent to the works council or, failing this, to the workers' representatives.
If, after the general meeting, the auditor finds that the decisions taken do not ensure the continuity of the business, he shall inform the presiding judge of the commercial court of his actions and send him his results.
Article L234-2 (Act No. 2005-845 of 26 July 2005 Art. 162 III Official Journal of 27 July 2005 effective 1 January 2006 without prejudice
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COMMERCIAL CODE to Art. 190)
In companies other than limited companies, the auditor asks the manager, in the manner prescribed in a Conseil d'Etat decree, to explain the facts referred to in the first paragraph of Article L234-1. The manager is required to reply to him within fifteen days. The reply is sent to the works council or, failing this, to the workers' representatives and, if there is one, to the supervisory board. The auditor informs the presiding judge of the commercial court thereof.
If these provisions are not complied with or if the auditor finds that, despite the decisions taken, the continuity of the business remains compromised, he shall draw up a special report and request the manager, in a letter copied to the presiding judge of the commercial court, to have a general meeting convened subject to the conditions and time limit determined in a Conseil d'Etat decree to deliberate the relevant facts.
If, after the general meeting, the auditor finds that the decisions taken do not ensure the continuity of the business, he shall inform the presiding judge of the commercial court of his actions and send him his results.
Article L234-3 The works council or, failing this, the workers' representatives, exercise the remits described in Articles L422-4 and
L432-5 of the Labour Code in commercial companies. The chairman of the board of directors, the executive board chairman or the executives, as applicable, send(s) the
auditors the questions formulated by the works council or the workers' representatives, the reports sent to the board of directors or the supervisory board, as applicable, and the replies from those structures, pursuant to Articles L422-4 and L432-5 of the Labour Code.
Article L234-4 (inserted by Act No. 2005-845 of 26 July 2005 Art. 162 IV Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The provisions of the present chapter do not apply when a conciliation or continuity procedure has been initiated by the executives pursuant to the provisions of Parts I and II of Book VI.
CHAPTER V Nullities Articles L235-1 to
L235-14
Article L235-1 The nullity of a company or an instrument amending the articles of association may result only from an express
provision in this book or from the acts governing the nullity of contracts. With regard to limited liability companies and joint-stock companies, the nullity of the company may not result either from a defect in consent or from prohibition, unless this affects all the founding partners. The nullity of the company may also not result from clauses prohibited by Article 1844-1 of the Civil Code.
The nullity of acts or deliberations other than those specified in the above paragraph may result only from the breach of a mandatory provision in this book or in the acts governing contracts.
Article L235-2 In general and limited partnerships, the fulfilment of the publication formalities shall be required in order for the
partnership, act or deliberations, as applicable, to be valid. However, the partners and the partnership may not rely on, with regard to third parties, this reason for nullity. Nevertheless, the court shall have the option of not pronouncing the nullity incurred if no fraud is identified.
Article L235-2-1 (inserted by Law No. 2003-706 of 1 August 2003 Article 134 (III) Official Gazette of 2 August 2003)
Decisions made in breach of the provisions that govern the voting rights attached to the shares are null and void.
Article L235-3 The action for nullity shall be extinguished when the reason for the nullity ceases to exist on the day when the court
rules on the merits at first instance, except where this nullity is based on the unlawfulness of the purpose of the company.
Article L235-4 The Tribunal de commerce hearing an action for nullity may, even automatically, fix a period for allowing the nullities
to be cured. The court may not pronounce the nullity less than two months after the date of the writ of summons. If, in order to cure a nullity, a meeting must be convened or the members must be consulted, and if the normal
convening of this meeting or the sending to the members of the text of the draft decisions accompanied by the documents which must be notified thereto is justified, the court shall grant, in a judgment, the time needed for the members to take a decision.
Article L235-5 If, on the expiration of the period specified in Article L.235-4, no decision has been taken, the court shall rule at the
request of the first to act.
Article L235-6 In the event of the nullity of a company or of acts and deliberations subsequent to its formation, based on a defect in
consent or the prohibition of a member, and when the situation may be regularised, any person having an interest in this
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COMMERCIAL CODE may send formal notice to the person able to carry this out either to regularise the situation or to bring an action for nullity within six months, otherwise this will be out of time. This formal notice shall be reported to the company.
The company or a member may submit to the court hearing the case, within the period specified in the above paragraph, any measure likely to rule out the interest of the plaintiff, particularly by repurchasing the latter’s rights in the company. In this case, the court may either pronounce the nullity or make the proposed measures compulsory, if these have been previously adopted by the company in accordance with the conditions specified for amendments to the articles of association. The vote of the member whose rights it is being requested to repurchase shall have no effect on the company’s decision.
In the event of a dispute, the value of the rights in the company to be reimbursed to the partner shall be determined in accordance with the provisions of Article 1843-4 of the Civil Code. Any clause to the contrary shall be deemed to be unwritten.
Article L235-7 When the nullity of acts and deliberations subsequent to the formation of the company is based on the breach of the
publication rules, any person having an interest in regularising the act may send the company formal notice to do so, within the period fixed by a Conseil d'Etat decree. Failing regularisation of the act within this period, any interested party may request the appointment, by a court decision, of a representative entrusted with fulfilling this formality.
Article L235-8 The nullity of a merger or division operation may result only from the nullity of the deliberations of one of the
meetings which decided on the operation or from the failure to file the conformity declaration referred to in the third paragraph of Article L.236-6.
When it is possible to remedy the irregularity likely to lead to nullity, the court hearing the action for nullity of a merger or division shall grant the interested companies a period to regularise the situation.
Article L235-9 (Order No. 2004-604 of 24 June 2004 Art. 51 XVI Official Journal of 26 June 2004)
Actions for nullity of the company or acts and deliberations subsequent to its formation shall lapse three years after the date on which the nullity is incurred, without prejudice to the debarment referred to in Article L. 235-6.
However, action for nullity of a merger or demerger of companies lapses six months after the date of the last entry in the register of companies made necessary by the operation.
An action for nullity founded on Article L. 225-149-3 lapses three months after the date of the general meeting following the decision to increase the capital.
Article L235-10 When the nullity of the company is pronounced, it shall be wound up in accordance with the provisions of the
articles of association and Chapter VII of this title.
Article L235-11 When a court decision pronouncing the nullity of a merger or division becomes final, this decision shall be published
in accordance with the terms fixed by a Conseil d'Etat decree. This decision shall have no effect on the obligations arising to the benefit or detriment of the companies to which the
assets are transferred between the date when the merger or division takes effect and that of the publication of the decision pronouncing the nullity.
In the event of a merger, the companies having participated in the operation shall be jointly and severally liable for complying with the obligations indicated in the above paragraph which are incumbent on the acquiring company. The same shall apply, in the event of a division, to the divided company in respect of the obligations of the companies to which the assets are transferred. Each of the companies to which the assets are transferred shall be responsible for the obligations incumbent thereon and arising between the date when the division takes effect and that of the publication of the decision pronouncing the nullity.
Article L235-12 Neither the company nor the members may rely on a nullity with regard to third parties acting in good faith.
However, the nullity resulting from prohibition or a defect in consent shall be binding even on third parties in respect of the person disqualified and their legal agents or the member whose consent has not been obtained due to error, fraud or duress.
Article L235-13 The action for damages based on the cancellation of the company or acts and deliberations subsequent to its
formation shall be prescribed three years after the date when the cancellation decision becomes final. The disappearance of the reason for the nullity shall not prevent the action for damages being brought which is
intended to compensate for the loss caused by the defect with which the company, act or deliberation was vitiated. This action shall be prescribed three years after the date when the nullity was cured.
Article L235-14 (inserted by Order No. 2004-274 of 25 March 2004 Art. 20 II Official Journal of 27 March 2004)
The fact of the chairman of the management and administration structures or the presiding chairman of those structures failing to record the deliberations of those structures in minutes shall cause the deliberations of the said structures to be declared null and void.
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COMMERCIAL CODE An action may be brought by any director, member of the executive board or member of the supervisory board. The action for nullity may be exercised until such time as the minutes of the second meeting of the board of
directors, the executive board or the supervisory board following the meeting whose deliberations are likely to be cancelled are approved.
It is subject to Articles L. 235-4 and L. 235-5.
CHAPTER VI Merger and division Articles L236-1 to
L236-24
SECTION I General provisions Articles L236-1 to
L236-7
Article L236-1 One or more companies may, by means of a merger, transfer their assets to an existing company or to a new
company which they shall form. One company may also, by means of a division, transfer its assets to several existing companies or to several new
companies. These options shall be open to companies being wound up provided that the distribution of their assets among the
members has not been started. The members of companies transferring their assets in the context of the operations indicated in the above three
paragraphs shall receive shares in the receiving company or companies and, possibly, a balancing cash adjustment whose amount may not exceed 10% of the face value of the shares allotted.
Article L236-2 The operations referred to in Article L.236-1 may be carried out between companies of different forms. They shall be decided, by each of the companies involved, in accordance with the conditions required for amending
their articles of association. If the operation involves the creation of new companies, each of these shall be formed according to the rules
specific to the form of company adopted. When the operations involve the participation of public limited companies and limited liability companies, the
provisions of Articles L.236-10, L.236-11, L.236-14, L.236-20 and L.236-21 shall apply.
Article L236-3 I.- The merger or division shall lead to the dissolution without winding-up of the companies which are disappearing
and the universal transfer of their assets to the receiving companies, in their current state on the date when the operation is finally carried out. It shall at the same time lead to the acquisition, by the members of the disappearing companies, of the capacity of members in the receiving companies, in accordance with the conditions determined by the merger or division agreement.
II.- However, shares in the receiving company shall not be exchanged for shares in the disappearing companies when these shares are held:
1° Either by the receiving company or by a person acting in their own name but on behalf of this company; 2° Or by the disappearing company or by a person acting in their own name but on behalf of this company.
Article L236-4 The merger or division shall take effect: 1° If one or more new companies are created, on the date of registration, in the commercial and companies register,
of the new company or the last of these; 2° In other cases, on the date of the last general meeting having approved the operation except where the
agreement specifies that the operation shall take effect on another date, which must not be after the end date of the current financial year of the receiving company or companies nor before the end date of the last closed financial year of the company or companies transferring their assets.
Article L236-5 As an exception to the provisions of the second paragraph of Article L.236-2, if the planned operation has the effect
of increasing the commitments of members or shareholders in one or more companies in question, it may be decided only unanimously by these members or shareholders.
Article L236-6 All the companies participating in one of the operations indicated in Article L.236-1 shall prepare a merger or
division plan. This plan shall be filed with the registry of the Tribunal de commerce in whose jurisdiction the registered offices of
these companies are situated and shall be published in accordance with the terms fixed by a Conseil d'Etat decree. In order for the operation to be valid, the companies participating in one of the operations indicated in the first and
second paragraphs of Article L.236-1 shall be required to file with the registry a declaration in which they shall record all the acts carried out in order to proceed with this operation and by which they shall confirm that the operation has been carried out in accordance with the acts and regulations. The clerk, under his responsibility, shall ensure the conformity
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COMMERCIAL CODE of the declaration with the provisions of this article.
Article L236-7 The provisions of this chapter on bondholders shall apply to holders of participating securities.
SECTION II Provisions specific to public limited companies Articles L236-8 to
L236-22
Article L236-8 The operations referred to in Article L.236-1 and carried out solely between public limited companies shall be
subject to the provisions of this section.
Article L236-9 Mergers shall be decided by the special shareholders’ meeting of each of the companies participating in the
operation. Mergers shall be subject, if applicable, in each of the companies participating in the operation, to ratification by the
special shareholders’ meetings indicated in Articles L.225-99 and L.228-15. The merger plan shall be submitted to the special meetings of holders of investment certificates ruling according to
the rules of the general meeting of shareholders, unless the acquiring company purchases these securities, at the request of these holders, in accordance with the publication conditions whose terms shall be fixed by a Conseil d'Etat decree and unless this purchase has been accepted by their special meeting. Any holders of investment certificates who have not assigned their securities within the period fixed by a Conseil d'Etat decree shall remain a holder in the acquiring company in accordance with the conditions fixed by the merger agreement, subject to the provisions of the last paragraph of Article L.228-30.
The board of directors or management of each of the companies participating in the operation shall prepare a written report which shall be provided to the shareholders.
Article L236-10 I.- One or more auditors of the merger, appointed by a court decision, shall prepare under their responsibility a
written report on the terms of the merger. They may obtain all relevant documents from each company and shall make all the necessary checks. They shall be subject, with regard to the participating companies, to the incompatibilities specified in Article L.225-224.
II.- The auditors of the merger shall check that the relative values assigned to the shares of the companies participating in the operation are relevant and that the exchange ratio is fair.
III.- The report or reports of the auditors of the merger shall be provided to the shareholders. They must: 1° Indicate the method or methods followed for determining the exchange ratio proposed; 2° Indicate whether this or these methods are appropriate in the case in question and indicate the values to which
each of these methods leads. An opinion shall be given on the relative importance given to these methods in determining the value used;
3° Indicate in addition the particular valuation difficulties, if any. IV.- In addition, the auditors of the merger shall assess, under their responsibility, the value of the contributions in
kind and the special advantages and shall prepare, for this purpose, the report specified in Article L.225.147.
Article L236-11 When, following the filing with the registry of the Tribunal de commerce of the merger plan and until the operation is
carried out, the acquiring company permanently holds all the shares representing the whole capital of the acquired companies, the merger shall not have to be approved by the special shareholders’ meeting of the acquired companies and the reports indicated in the last paragraph of Article L.236-9 and in Article L.236-10 shall not have to be prepared. The special shareholders’ meeting of the acquiring company shall rule, with regard to the report of an auditor on the contributions, in accordance with the provisions of Article L.225-147.
Article L236-12 When the merger is carried out by creating a new company, this may be formed without any contributions other than
those from the companies which are merging. In all cases, the draft articles of association of the new company shall be approved by the special shareholders’
meeting of each of the disappearing companies. The operation shall not have to be approved by the general meeting of the new company.
Article L236-13 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The merger plan is submitted to the bondholders' meetings of the companies taken over, unless the said bondholders are offered on-demand redemption of their securities. The offer of redemption is subject to publication, the arrangements for which are determined in a Conseil d'Etat decree.
When on-demand redemption is offered, the acquiring company becomes the debtor in respect of the acquired company's bondholders.
Any bondholder who has requested redemption within the time limit set in a Conseil d'Etat decree shall retain his status in the acquiring company under the terms set out in the merger agreement.
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COMMERCIAL CODE Article L236-14
The acquiring company shall be indebted to the non-bondholder creditors of the acquired company in place of the latter, without this replacement leading to novation in their respect.
The non-bondholder creditors of the companies participating in the merger operation and whose claim is prior to the publication of the merger plan may object to this within the period fixed by a Conseil d'Etat decree. A court decision shall reject the objection or order either the repayment of the claims or the formation of guarantees if the acquiring company offers this and if these are deemed sufficient.
Failing repayment of the claims or formation of the guarantees ordered, the merger shall not be binding on this creditor.
The objection made by a creditor shall not have the effect of preventing the merger operations from continuing. The provisions of this article shall not prevent the application of the agreements authorising the creditor to demand
the immediate repayment of their claim in the event of the merger of the debtor company with another company.
Article L236-15 (Order No. 2004-604 of 24 June 2004 Art. 51 XVII Official Journal of 26 June 2004)
A merger plan is not submitted to the acquiring company's bondholders' meetings. However, the general meeting of bondholders may empower the body's representatives to raise an objection to the merger in the circumstances and with the effects indicated in the second paragraph et seq of Article L. 236-14.
Article L236-16 Articles L.236-9 and L.236-10 shall apply to divisions.
Article L236-17 When the division must be carried out by making contributions to new public limited companies, each of the new
companies may be formed without any contribution other than that from the divided company. In this case, and if the shares of each of the new companies are allotted to the shareholders of the divided company
in proportion to their rights to the capital of this company, the report indicated in Article L.236-10 shall not have to be prepared.
In all cases, the draft articles of association of the new companies shall be approved by the special shareholders’ meeting of the divided company. The operation shall not have to be approved by the general meeting of each of the new companies.
Article L236-18 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The demerger plan is submitted to the demerged company's bondholders' meetings pursuant to the provisions of 3 of Article L. 228-65, unless the bondholders are offered on-demand redemption of their bonds. The offer of redemption is subject to publication, the arrangements for which are determined in a Conseil d'Etat decree.
When on-demand redemption is offered, the companies benefiting from the contributions become the jointly and severally liable debtors of the bondholders who request redemption.
Article L236-19 The division plan shall not be submitted to the meetings of bondholders of the companies to which the assets are
transferred. However, the routine meeting of bondholders may authorise the representatives of the body to object to the division, in accordance with the conditions and with the effects specified in the second and subsequent paragraphs of Article L.236-14.
Article L236-20 The companies receiving the contributions resulting from the division shall become jointly indebted to the
bondholders and the non-bondholder creditors of the divided company in place of the latter, without this replacement leading to novation in their respect.
Article L236-21 As an exception to the provisions of Article L.236-20, it may be stipulated that the receiving companies as a result of
the division shall be bound only with regard to the part of the liabilities of the divided company subject to the respective charge and without any joint and several liability between them.
In this case, the non-bondholder creditors of the participating companies may object to the division in accordance with the conditions and with the effects specified in the second and subsequent paragraphs of Article L.236-14.
Article L236-22 The company contributing part of its assets to another company and the company receiving this contribution may
decide, by mutual agreement, to submit the operation to the provisions of Articles L.236-16 to L.236-21.
SECTION III Provisions specific to limited liability companies Articles L236-23 to
L236-24
Article L236-23 The provisions of Articles L.236-10, L.236-11, L.236-14, L.236-20 and L.236-21 shall apply to mergers or divisions
of limited liability companies to the benefit of companies of the same form.
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COMMERCIAL CODE When mergers are carried out by making contributions to a new limited liability company, this may be formed
without any contributions other than those from the merging companies. When divisions are carried out by making contributions to new limited liability companies, these may be formed
without any contribution other than that of the divided company. In this case, and if the shares in each of the new companies are allotted to the members of the divided company in proportion to their rights to the capital of this company, the report indicated in Article L.236-10 shall not have to be prepared.
In the cases specified in the above two paragraphs, the members of the disappearing companies may act ipso jure in the capacity of founders of the new companies and in accordance with the provisions governing limited liability companies.
Article L236-24 The company contributing part of its assets to another company and the company receiving this contribution may
decide, by mutual agreement, to submit the operation to the provisions applicable in the event of division by making contributions to existing limited liability companies.
CHAPTER VII Winding-up Articles L237-1 to
L237-30
SECTION I General provisions Articles L237-1 to
L237-13
Article L237-1 Subject to the provisions of this chapter, the winding-up of companies shall be governed by the provisions contained
in their articles of association.
Article L237-2 The company shall start being wound up from the moment of its dissolution for any reason whatsoever, except in
the case specified in the third paragraph of Article 1844-5 of the Civil Code. Its business name shall be followed by the words “société en liquidation” (company being wound up).
The legal personality of the company shall continue, for the purposes of the winding-up, until the company is closed. The dissolution of a company shall produce its effects with regard to third parties only from the date when this is
published in the commercial and companies register.
Article L237-3 The instrument appointing the liquidator shall be published by the latter, in accordance with the conditions and
within the periods fixed by a Conseil d'Etat decree which shall also determine the documents to be filed in the annex to the commercial and companies register.
Article L237-4 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Persons who have been prohibited from acting as a managing director, director, general manager, member of the executive board or member of the supervisory board of a company, or who have been deprived of the right to perform such functions cannot be appointed as liquidators.
Article L237-5 The dissolution of the company shall not lead ipso jure to the termination of the leases for the buildings used for its
company activity, including the dwelling places attached to these buildings. If the lease is assigned and the guarantee obligation can no longer be ensured under the terms of this lease, any
guarantee offered by the transferee or a third party, which is deemed sufficient, may replace this by a court decision.
Article L237-6 Without the unanimous consent of the members, the assignment of all or part of the assets of the company being
wound up to a person having had, in this company, the capacity of general or limited partner, manager, director, managing director, member of the supervisory board, member of the management, auditor or comptroller may not occur without the authorisation of the Tribunal de commerce, with the liquidator and, if any, the auditor or comptroller having been duly heard.
Article L237-7 The assignment of all or part of the assets of the company being wound up to the liquidator or its employees or their
spouses, ancestors or descendants shall be prohibited.
Article L237-8 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
A total transfer of the company's assets or the contribution of the assets to another company, by way of a merger, is authorised:
1. In general partnerships, with the unanimous approval of the partners; 2. In limited partnerships, with the unanimous approval of the financing partners and with the majority approval of
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COMMERCIAL CODE the sleeping partners in terms of both number and capital;
3. In public limited companies, with the majority required to amend the memorandum and articles of association; 4. In joint-stock companies, on the basis of the quorum and majority conditions laid down for extraordinary general
meetings, and, likewise, in public limited partnerships, with the unanimous approval of the financing partners.
Article L237-9 The members, including the holders of non-voting preferred stock, shall be convened at the end of the winding-up in
order to rule on the final accounts, the discharge of the liquidator’s management and the release of the latter from his mandate and to record the end of the winding-up.
Failing this, any member may bring legal proceedings to appoint a representative entrusted with convening this meeting.
Article L237-10 If the meeting specified in Article L.237-9 cannot deliberate or refuses to approve the liquidator’s accounts, these
shall be ruled on, by a court decision, at the request of the liquidator or any interested party.
Article L237-11 The end of winding-up notice shall be published according to the terms fixed by a Conseil d'Etat decree.
Article L237-12 The liquidator shall be responsible, with regard to both the company and third parties, for the harmful consequences
of the errors committed thereby in fulfilling his duties. The action for damages against the liquidators shall be prescribed in accordance with the conditions specified in
Article L.225-254.
Article L237-13 All actions against the members not in favour of the winding-up or their surviving spouses, heirs or successors shall
be prescribed after five years from the publication of the company’s dissolution in the commercial and companies register.
SECTION II Provisions applicable following a court decision Articles L237-14 to
L237-30
Article L237-14 (Act No 2001-420 of 15 May 2001, Article 114(2), Official Gazette of 16 May 2001)
I.- Unless otherwise specified in the articles of association or expressly agreed between the parties, the dissolved company shall be wound up in accordance with the provisions of this section, without prejudice to the application of the first section of this chapter.
II.- In addition, it may be ordered by a court decision that this winding-up shall be carried out in accordance with the same conditions at the request of:
1° The majority of the partners, in general partnerships; 2° Partners or members representing at least 5% of the capital in limited partnerships, limited liability companies
and joint-stock companies; 3° Creditors of the company. III.- In this case, the provisions of the articles of association which are contrary to those of this chapter shall be
deemed to be unwritten.
Article L237-15 The powers of the board of directors, management or managers shall end on the date of the court decision adopted
pursuant to Article L.237-14 or the dissolution of the company if this is later.
Article L237-16 The dissolution of the company shall not end the duties of the supervisory board and auditors.
Article L237-17 In the absence of auditors, and even in companies which are not required to appoint these, one or more
comptrollers may be appointed by the members in accordance with the conditions specified in I of Article L.237-27. Failing this, they may be appointed, by a court decision, at the request of the liquidator or any interested party.
The instrument appointing the comptrollers shall fix their powers, obligations and remuneration and also the term of their duties. They shall be subject to the same liability as the auditors.
Article L237-18 I.- One or more liquidators shall be appointed by the members if the dissolution results from the company’s term
being reached according to the articles of association or if this is decided by the members. II.- The liquidator shall be appointed: 1° In general partnerships, unanimously by the partners; 2° In limited partnerships, unanimously by the managing partners and by the majority in capital of the limited
partners; 3° In limited liability companies, by the majority in capital of the members;
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COMMERCIAL CODE 4° In public limited companies, in accordance with the quorum and majority conditions specified for routine
shareholders’ meetings; 5° In partnerships limited by shares, in accordance with the quorum and majority conditions specified for routine
shareholders’ meetings, with this majority having to include all the managing partners; 6° In simplified joint-stock companies, unanimously by the members, unless otherwise specified.
Article L237-19 If the members could not appoint a liquidator, the latter shall be appointed by a court decision at the request of any
interested party, in accordance with the conditions determined by a Conseil d'Etat decree.
Article L237-20 If the dissolution of the company is ordered by a court decision, this decision shall appoint one or more liquidators.
Article L237-21 The duration of the liquidator’s mandate may not exceed three years. However, this mandate may be renewed by
the members or the president of the Tribunal de commerce, according to whether the liquidator was appointed by the members or by a court decision.
If the meeting of members cannot be validly held, the mandate shall be renewed by a court decision, at the request of the liquidator.
When requesting the renewal of his mandate, the liquidator shall indicate the reasons why the winding-up could not be ended, the measures he plans to take and the periods required to complete the winding-up.
Article L237-22 Liquidators shall be dismissed and replaced according to the forms specified for their appointment.
Article L237-23 Within six months of their appointment, liquidators shall convene the meeting of members to which they shall report
on the situation of the company’s assets and liabilities, the progress of the winding-up operations and the period needed to complete these. The period within which the liquidators shall make their reports may be increased to twelve months, at their request, by a court decision.
Failing this, the meeting shall be convened either by the controlling body, if any, or by a representative appointed, by a court decision, at the request of any interested party.
If the meeting cannot be held or if no decision can be taken, the liquidator shall bring legal proceedings in order to obtain the authorisations needed to end the winding-up.
Article L237-24 Liquidators shall represent the company. They shall be invested with the widest powers in order to sell the assets,
even by private agreement. The restrictions on these powers, resulting from the articles of association or the appointment instrument, shall not be binding on third parties.
Liquidators shall be authorised to pay the creditors and distribute the available balance. They may continue current business or take on new business for the purposes of the winding-up only if this has
been authorised either by the members or by a court decision if they were appointed by the same means.
Article L237-25 Within three months of the end of each financial year, liquidators shall prepare the annual accounts, with regard to
the inventory which they have made of the various elements of the assets and liabilities existing on this date, and a written report in which they shall record the winding-up operations during the last financial year.
Unless an exemption is granted by a court decision, liquidators shall convene, according to the terms specified by the articles of association, at least once a year and within six months of the end of the financial year, the meeting of members which shall rule on the annual accounts, give the necessary authorisations and possibly renew the mandate of the comptrollers, auditors or members of the supervisory board.
If the meeting has not been held, the report specified in the first paragraph above shall be filed with the registry of the Tribunal de commerce and notified to any interested party.
Article L237-26 During the winding-up period, the members may obtain company documents in accordance with the same
conditions as before.
Article L237-27 I.- The decisions specified in the second paragraph of Article L.237-25 shall be taken: 1° By the majority of partners or members in capital in general partnerships, limited partnerships and limited liability
companies; 2° In accordance with the quorum and majority conditions of routine meetings in joint-stock companies; 3° Unless otherwise specified, unanimously by the members in simplified joint-stock companies. II.- If the required majority cannot be achieved, these decisions shall be ruled on, by a court decision, at the request
of the liquidator or any interested party. III.- When the deliberations lead to amendments to the articles of association, these shall occur in accordance with
the conditions specified for this purpose for each form of company. IV.- The members in favour of the winding-up may take part in the vote.
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COMMERCIAL CODE Article L237-28
If the company continues to be operated, the liquidator shall be required to convene the meeting of members, in accordance with the conditions specified in Article L.237-25. Failing this, any interested party may request the convening of the meeting either by the auditors, supervisory board or controlling body or by a representative appointed by a court decision.
Article L237-29 Unless otherwise specified in the articles of association, equity capital remaining after the redemption of the face
value of the company’s shares shall be shared between the members in the same proportions to their participation in the share capital.
Article L237-31 Subject to the rights of creditors, the liquidator shall decide whether the funds which have become available during
the winding-up should be distributed. After sending formal notice to the liquidator without receiving any response, any interested party may bring legal
proceedings to obtain a ruling on the appropriateness of a distribution during the winding-up. The decision to distribute the funds shall be published according to the terms fixed by a Conseil d'Etat decree.
Article L237-30 Non-voting preferred stock shall be redeemed before ordinary shares. The same shall apply for preference dividends which have not been fully paid. Non-voting preferred stock shall, in proportion to their face value, have the same rights as the other shares to the
winding-up profit. Any clause contrary to the provisions of this article shall be deemed to be unwritten.
CHAPTER VIII Orders to perform Articles L238-1 to
L238-3-1
Article L238-1 (Act No. 2001-420 of 15 May 2001 Art. 122 1 Official Journal of 16 May 2001) (Order No. 2004-274 of 25 March 2004 Art. 21 II Official Journal of 27 March 2004) (Order No. 2004-604 of 24 June 2004 Art. 51 XVIII Official Journal of 26 June 2004)
When interested parties cannot obtain production, discovery or transmission of the documents referred to in Articles L. 221-7, L. 223-26, L. 225-115, L. 225-116, L. 225-117, L. 225-118, L. 225-129, L. 225-129-5, L. 225-129-6, L. 225-135, L. 225-136, L. 225-138, L. 225-177, L. 225-184, L. 228-69, L. 237-3 and L. 237-26, they may ask the presiding judge, ruling on a summary basis, to either order the liquidator or the directors, executives and executives to produce them, under pain of a coercive fine, or to designate a representative responsible for producing them.
The same action is available to any interested party unable to obtain from the liquidator, the directors, the management or the executives a form of proxy compliant with the directives of a Conseil d'Etat decree or the information pertaining to the holding of meetings stipulated in the said decree.
If the request is upheld, the coercive fine and the procedural costs are borne by the directors, managers, executives or liquidator in question.
Article L238-2 (inserted by Law No. 2003-706 of 1 August 2003 Article 134 (V) Official Gazette of 2 August 2003)
Any interested party may ask the presiding judge, ruling on a summary basis, to direct the liquidator, under pain of a coercive fine, to meet the obligations referred to in Articles L. 237-21 and L. 237-25.
Article L238-3 (Act No. 2003-721 of 1 August 2003 Art. 9 3 Official Journal of 5 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
The public prosecutor and any interested party may ask the presiding judge, ruling on a summary basis, to order the legal representative of a limited liability company, a public limited company, a simplified joint-stock company, a European company or a partnership limited by shares, under pain of a coercive fine, to show on all deeds and other documents emanating from the company the registered company name, immediately preceded or followed by the words "limited liability company" or the initials "SARL", "public limited company" or the initials "SA", "simplified joint-stock company" or the initials "SAS", "European company" or the initials "SE", or "partnership limited by shares", legibly written, and the authorised capital.
Article L238-4 (inserted by Order No. 2004-274 of 25 March 2004 Art. 20 III Official Journal of 27 March 2004)
Any interested party may ask the presiding judge, ruling on a summary basis, to order the chairman of the management and administration structures, under pain of a coercive fine, to transcribe the minutes of the said meetings in a special register kept at the registered office.
Article L238-5 (inserted by Order No. 2004-274 of 25 March 2004 Art. 22 III Official Journal of 27 March 2004)
Any interested party may ask the presiding judge, ruling on a summary basis, to order the chairman of the general
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COMMERCIAL CODE meeting of shareholders or bondholders, under pain of a coercive fine, to transcribe the minutes of the said meetings in a special register kept at the registered office.
Article L238-6 (inserted by Order No. 2004-604 of 24 June 2004 Art. 50 I Official Journal of 26 June 2004)
If the special meeting of preferred dividend shareholders is not consulted as provided for in Articles L. 228-35-6, L. 228-35-7 and L. 228-35-10, the presiding judge, ruling on a summary basis, may, at the request of any shareholder, order the management or the chairman of the board of directors or the executive board, under pain of a coercive fine, to convene such a meeting or designate a representative responsible for convening such a meeting.
The same action is available to any shareholder or any holder of transferable securities giving access to the capital when the general meeting or special meeting to which he belongs is not consulted as provided for in Article L. 225-99, the second paragraph of Article L. 225-129-6 and Article L. 228-16 or L. 228-103.
Article L238-3-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
Any interested party may ask the presiding judge, ruling on a summary basis, to order companies using the acronym "SE" in their registered company name in violation of the provisions of Article 11 of (EC) Council Regulation No. 2157/2001 of 8 October 2001, relating to the status of a European company (SE), to amend that registered company name, under pain of a coercive fine.
TITLE IV Penal provisions Articles L241-1 to
L248-1
CHAPTER I Offences involving limited liability companies Articles L241-1 to
L241-9
Article L241-1 (Order No. 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-721 of 1 August 2003 Article 9 (1) Official Gazette of 5 August 2003)
The omission from the memorandum and articles of association of a public limited company of the declaration relating to the distribution of the capital shares among all the partners, the paid-up status of the shares or the depositing of the funds carries a penalty of two years' imprisonment and a fine of 9,000 euros.
The provisions of the present Article are applicable in the event of the capital being increased.
Article L241-2 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-274 of 25 March 2004 Art. 19 Official Journal of 27 March 2004)
The fact of managers issuing transferable securities of any kind, directly or through an intermediary, on behalf of the company, with the exception of bonds issued as determined by Article L. 223-11, shall be punished by a fine of 9,000 euros.
Article L241-3 The following shall be punished by a prison sentence of five years and a fine of 375,000 euros: 1° If any person fraudulently assigns to a contribution in kind a valuation higher than its real value; 2° If managers distribute sham dividends between the members in the absence of an inventory or using fraudulent
inventories; 3° If managers present to the members, even in the absence of any distribution of dividends, annual accounts not
providing, for each financial year, a fair representation of the results of the operations for the financial year, financial situation and assets on the expiration of this period, in order to hide the company’s true situation;
4° If managers use the company’s property or credit, in bad faith, in a way which they know is contrary to the interests of the company, for personal purposes or to encourage another company or undertaking in which they are directly or indirectly involved;
5° If managers use the powers which they possess or the votes which they have in this capacity, in bad faith, in a way which they know is contrary to the interests of the company, for personal purposes or to encourage another company or undertaking in which they are directly or indirectly involved.
Article L241-4 (Act No 2001-420 of 15 May 2001, Article 122(2), Official Gazette of 16 May 2001)
The following shall be punished by a fine of 9,000 euros: 1° If managers do not, for each financial year, prepare the inventory, annual accounts and an annual report; 2° and 3° (deleted).
Article L241-5 If managers do not hold the meeting of members within six months of the end of the financial year or, in the event of
an extension, within the period fixed by a court decision or do not submit for approval by said meeting or the sole proprietor the documents specified in 1° of Article L.241-4, this shall be punished by a prison sentence of six months and
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COMMERCIAL CODE a fine of 9,000 euros.
Article L241-6 If managers, when the equity capital of the company, due to losses identified in the accounting documents,
becomes less than half the share capital: 1° Do not, in the four months following approval of the accounts having revealed these losses, consult the members
in order to decide whether the company should be dissolved early; 2° Do not file with the Tribunal de commerce registry, enter in the commercial and companies register and publish in
a legal notices newspaper the decision adopted by the members, this shall be punished by a prison sentence of six months and a fine of 4,500 euros.
Article L241-9 (Law No 2003-721 of 1 August 2003 Article 9 (5) Official Gazette of 5 August 2003)
The provisions of Articles L. 241-2 to L. 241-6 are applicable to any person who, either directly or indirectly, has in reality managed a public limited company on behalf of, or in the place of, its legal manager.
CHAPTER II Offences involving public limited companies Articles L242-1 to
L242-31
SECTION I Offences relating to formation Articles L242-1 to
L242-5
Article L242-1 If the founders, chairman, directors or managing directors of a public limited company issue shares or subdivided
shares either before the registration of said company in the commercial and companies register or at any time if the registration has been obtained fraudulently or also when the formalities for the formation of this company have not been duly fulfilled, this shall be punished by a fine of 9,000 euros.
A prison sentence of one year may also be ordered if the shares or subdivided shares are issued without the shares paid in cash having been paid up, on their subscription, by at least one-quarter or without the initial shares having been fully paid up prior to the registration of the company in the commercial and companies register.
If the persons referred to in the first paragraph do not maintain the shares paid in cash in the registered form until they are fully paid up, this shall be punished by the penalties specified in the above paragraph.
The penalties specified in this article may be doubled when this involves public limited companies making a public offering.
Article L242-2 (Act No 2001-420 of 15 May 2001, Article 122(2), Official Gazette of 16 May 2001)
The following shall be punished by a prison sentence of five years and a fine of 9,000 euros: 1°, 2° and 3° (deleted); 4° If any person fraudulently assigns to a contribution in kind a valuation higher than its real value.
Article L242-3 (Act No 2001-420 of 15 May 2001, Article 122(2), Official Gazette of 16 May 2001)
If the founders, chairman of the board of directors, directors or managing directors of a public limited company, and the holders of shares, trade:
1° Shares paid in cash which did not remain in the registered form until they were fully paid up; 2° Shares paid in cash for which the payment of one-quarter has not been made; 3° (deleted), this shall be punished by a prison sentence of one year and a fine of 9,000 euros.
Article L242-4 (Order No. 2004-604 of 24 June 2004 Art. 50 II Official Journal of 26 June 2004)
The penalties imposed by Article L. 242-3 also apply to whoever has established or published the value of the shares or promises of shares referred to in the said article.
Article L242-5 The acceptance or continuation of the duties of an auditor of contributions, notwithstanding the legal prohibitions
and incompatibilities, shall be punished by a prison sentence of six months and a fine of 9,000 euros.
SECTION II Offences relating to management and administration Articles L242-6 to
L242-8
Article L242-6 The following shall be punished by a prison sentence of five years and a fine of 375,000 euros: 1° If the chairman, directors or managing directors of a public limited company distribute sham dividends between
the shareholders in the absence of an inventory or using fraudulent inventories;
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COMMERCIAL CODE 2° If the chairman, directors or managing directors of a public limited company publish or present to the
shareholders, even in the absence of any distribution of dividends, annual accounts not providing, for each financial year, a fair representation of the results of the operations for the financial year, financial situation and assets on the expiration of this period, in order to hide the company’s true situation;
3° If the chairman, directors or managing directors of a public limited company use the company’s property or credit, in bad faith, in a way which they know is contrary to the interests of the company, for personal purposes or to encourage another company or undertaking in which they are directly or indirectly involved;
4° If the chairman, directors or managing directors of a public limited company use the powers which they possess or the votes which they have in this capacity, in bad faith, in a way which they know is contrary to the interests of the company, for personal purposes or to encourage another company or undertaking in which they are directly or indirectly involved.
Article L242-8 If the chairman, directors or managing directors of a public limited company do not, for each financial year, prepare
the inventory, annual accounts and an annual report, this shall be punished by a fine of 9,000 euros.
SECTION III Offences relating to shareholders’ meetings Articles L242-9 to
L242-16
Article L242-9 (Order No. 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003) (Law No 2003-706 of 1 August 2003 Article 134 (I) Official Gazette of 2 August 2003)
The following offences carry a penalty of two years' imprisonment and a fine of 9,000 euros: 1. The fact of preventing a shareholder from participating in a shareholders' meeting; 2. Subparagraph cancelled; 3. The fact of securing agreement, a guarantee or a promise of advantages for voting in a certain way or for not
voting, and also the acts of agreeing, guaranteeing or promising such advantages.
Article L242-10 If the chairman or directors of a public limited company do not hold the routine shareholders’ meeting within six
months of the end of the financial year or, in the event of an extension, within the period fixed by a court decision or do not submit for approval by said meeting the annual accounts and annual report specified in Article L.232-1, this shall be punished by a prison sentence of six months and a fine of 9,000 euros.
Article L242-15 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Act No. 2003-706 of 1 August 2003 Art. 134 I Official Journal of 2 August 2003) (Order No. 2004-274 of 25 March 2004 Art. 22 I Official Journal of 27 March 2004)
The fact of the chairman or the directors of a public limited company committing the following offences shall incur a fine of 3,750 euros:
1. Paragraph abrogated. 2. Failure to append to the attendance sheet the proxies given to each representative; 3. Failure to record the decisions of any meeting of shareholders in minutes signed by the members of the
committee which indicate the date and venue of the meeting, the means used to convene it, the agenda, the composition of the committee, the number of shares represented in the voting and the quorum achieved, the documents and reports submitted to the meeting, a summary of the proceedings, the text of the resolutions put to the vote and the results of the voting.
Article L242-16 If the chairman of the meeting and the members of the meeting’s committee do not comply, during shareholders’
meetings, with the provisions governing the voting rights attached to shares, this shall be punished by the penalties specified in Article L.242-15.
SECTION IV Offences relating to changes in the share capital Articles L242-17 to
L242-24
Subsection 1 Increase in capital Articles L242-17 to
L242-21
Article L242-17 I.- If the chairman, directors or managing directors of a public limited company issue, during an increase in capital,
shares or subdivided shares: 1° Either before the depositary’s certificate has been prepared or the guarantee agreement specified in Article
L.225-145 has been signed;
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COMMERCIAL CODE 2° Or also when the formalities prior to the increase in capital have not been duly fulfilled, this shall be punished by a fine of 9,000 euros. II.- A prison sentence of one year may also be ordered if the shares or subdivided shares are issued without the
previously subscribed capital of the company having been fully paid up or without the new initial shares having been fully paid up prior to the amending entry in the commercial and companies register or also without the new shares paid in cash having been paid up, on their subscription, by at least one-quarter of their face value and, if applicable, the whole of the premium.
III.- If the same persons do not maintain the shares paid in cash in the registered form until they are fully paid up, this shall be punished by the fines and prison sentences specified in I and III.
IV.- The penalties specified in this article may be doubled when this involves public limited companies making a public offering.
V.- The provisions of this article shall not apply to shares which have been duly issued by converting bonds convertible at any time or by using subscription warrants nor to shares issued in accordance with the conditions specified in Articles L.232-18 to L.232-20.
Article L242-20 If the chairman, directors or auditors of a public limited company give or confirm incorrect information in the reports
presented to the general meeting called to decide on the withdrawal of the preferential subscription right of shareholders, this shall be punished by a prison sentence of two years and a fine of 18,000 euros.
Article L242-21 The provisions of Articles L.242-2 to L.242-5 on the formation of public limited companies shall apply in the event of
an increase in capital.
Subsection 2 Reduction of capital Articles L242-23 to
L242-24
Article L242-23 If the chairman or directors of a public limited company reduce the share capital: 1° Without respecting the equality of shareholders; 2° Without ensuring the publication of the capital reduction decision in the commercial and companies register and
in a newspaper authorised to receive legal notices, this shall be punished by a fine of 9,000 euros.
Article L242-24 If the chairman, directors or managing directors of a public limited company subscribe, purchase, use as security,
keep or sell, in the name of the company, shares issued by the latter in breach of the provisions of Articles L.225-206 to L.225-215, this shall be punished by the penalty specified in Article L.242-23.
If the chairman, directors or managing directors use shares bought by the company, pursuant to Article L.225-208, for purposes other than those specified in said article, this shall be punished by the same penalty.
If the chairman, directors or managing directors of a public limited company carry out, in the name of the company, the operations prohibited by the first paragraph of Article L.225-216, this shall be punished by the same penalty.
SECTION VI Offences relating to dissolution Article L242-29
Article L242-29 (Order No. 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-706 of 1 August 2003 Article 134 (I) Official Gazette of 2 August 2003)
A fine of 3,750 euros is imposed on the chairman or the directors of a public limited company if they fail to: 1. Subparagraph cancelled; 2. Append to the attendance sheet details of the powers given to each representative; 3. Consign the decisions of any meeting of shareholders in minutes signed by the members of the panel which are
kept in a special book at the registered office and which indicate the time and place of the meeting, the manner in which it was convened, the agenda, the composition of the panel, the number of shares in respect of which votes were cast and the quorum achieved, the documents and reports submitted to the meeting, a summary of the proceedings, the texts of the resolutions put to the vote and the results of the voting.
SECTION VII Offences relating to public limited companies with a management and a Article L242-30
supervisory board
Article L242-30 (Law No 2003-721 of 1 August 2003 Article 9 (6) Official Gazette of 5 August 2003)
The penalties provided for in Articles L. 242-6 to L. 242-29 for the chairmen, general managers and directors of limited companies are applicable, in keeping with their respective remits, to members of the executive board and members of the supervisory board of the limited companies governed by the provisions of Articles L. 255-57 to L.
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COMMERCIAL CODE 225-93.
The provisions of Article L. 246-2 are also applicable to limited companies governed by Articles L. 255-57 to L. 225-93.
SECTION VIII Offences relating to public limited companies with worker participation Article L242-31
Article L242-31 If the chairman, directors or managing directors of a public limited company with worker participation, using the
option to issue employee’s shares, do not mention this circumstance by the addition of the words “à participation ouvrière” (with worker participation) to all instruments or documents originating from the company and intended for third parties, this shall be punished by a fine of 3,750 euros.
CHAPTER III Offences involving partnerships limited by shares Article L243-1
Article L243-1 Articles L.242-1 to L.242-29 shall apply to partnerships limited by shares. The penalties specified with regard to the chairmen, directors or managing directors of public limited companies
shall apply, in respect of their powers, to the managers of partnerships limited by shares.
CHAPTER IV Offences involving simplified joint-stock companies Articles L244-1 to
L244-4
Article L244-1 Articles L.242-1 to L.242-6, L.242-8 and L.242-17 to L.242-29 shall apply to simplified joint-stock companies. The penalties specified with regard to the chairmen, directors or managing directors of public limited companies
shall apply to the chairmen and directors of simplified joint-stock companies. Articles L.242-20, L.242-26 and L.242-27 shall apply to the auditors of simplified joint-stock companies.
Article L244-2 (Law No 2001-420 of 15 May 2001 Article 128 Official Gazette of 16 May 2001) (Order No. 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-721 of 1 August 2003 Article 9 (4) Official Gazette of 5 August 2003)
Failure, on the part of an executive of a simplified joint-stock company, to consult the partners in the manner prescribed in the memorandum and articles of association in the event of an increase, write-off or reduction of capital, a merger, a demerger, a dissolution or a conversion to a different corporate status carries a penalty of six months' imprisonment and a fine of 7,500 euros.
Article L244-3 If the directors of a simplified joint-stock company make a public offering, this shall be punished by a fine of 18,000
euros.
Article L244-4 The provisions of Articles L.244-1, L.244-2 and L.244-3 shall apply to any person who, directly or through an
intermediary, has actually managed a simplified joint-stock company under the guise or in place of the chairman and directors of this company.
CHAPTER IV bis Offences relating to European companies Article L244-5
Article L244-5 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
Articles L242-1 to L242-30 apply to European companies. The penalties imposed on the chairman, the directors, the general managers, the executive board members or the
supervisory board members of limited companies are applicable to the chairman, directors, general managers, executive board members or supervisory board members of European companies.
Article L242-20 applies to the auditors of European companies.
CHAPTER V Offences relating to securities issued by joint-stock companies Articles L245-3 to
L245-17
SECTION I Offences relating to shares Articles L245-3 to
L245-5
Article L245-3 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002)
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COMMERCIAL CODE (Order No. 2004-604 of 24 June 2004 Art. 50 III Official Journal of 26 June 2004)
The chairman and the directors, the managers, and the members of the executive board and the supervisory board of a public limited company, and the executives of a partnership limited by shares, shall incur a term of six months' imprisonment and a fine of 6,000 euros in the following circumstances:
1. If the company writes off its capital when all of the non-voting preference shares have not been fully redeemed and cancelled;
2. If the company, in the event of a capital reduction not motivated by losses being carried out pursuant to the terms and conditions indicated in Article L. 225-207, does not redeem the non-voting preference shares before the ordinary shares in order to cancel them.
Article L245-4 If the chairman and directors, managing directors and members of the management and supervisory board of a
public limited company or the managers of a limited partnership that issues shares hold, directly or indirectly in accordance with the conditions specified in Article L.228-17, non-voting preferred stock in the company or partnership which they manage, this shall be punished by the penalties specified in Article L.245-3.
Article L245-5 If the liquidator of a company or partnership does not comply with the provisions of Article L.237-30, this shall be
punished by a prison sentence of six months and a fine of 6,000 euros.
SECTION III Offences relating to bonds Articles L245-9 to
L310-1
Article L245-9 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-274 of 25 March 2004 Art. 23 Official Journal of 27 March 2004)
The fact of the chairman, the directors, the general managers or the executives of a joint-stock company issuing tradable bonds on behalf of that company which, within a single issue, do not confer the same creditor's rights for the same par value, shall incur a fine of 9,000 euros.
Article L245-10 If the chairman, directors, managing directors or managers of a joint-stock company issue, on behalf of this
company, premium bonds without authorisation, this shall be punished by a prison sentence of six months and a fine of 6,000 euros.
Article L245-11 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-604 of 24 June 2004 Art. 50 IV Official Journal of 26 June 2004)
Whoever commits the following offences shall be punished by two years' imprisonment and a fine of 9,000 euros: 1. Preventing a bondholder from participating in a general meeting of bondholders; 2. Being given, guaranteed or promised special privileges for voting in a certain way or for not participating in the
vote, and likewise the fact of granting, guaranteeing or promising such special privileges.
Article L245-12 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-604 of 24 June 2004 Art. 50 V Official Journal of 26 June 2004)
Commission of the following offences shall incur a fine of 6,000 euros: 1. On the part of the chairman, the directors, the general managers, the executives, the auditors, the members of
the supervisory board or the employees of the debtor company or of the company guaranteeing some or all of the debtor company's commitments, or of their ascendants, descendants or spouses: representing bondholders at their general meeting or agreeing to act as the representatives of the body of bondholders;
2. On the part of the chairman, the directors, the general managers or the executives of companies holding at least 10% of the capital of the debtor companies: taking part in the general meeting of bondholders by reason of the bonds held by those companies.
Article L245-13 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-274 of 25 March 2004 Art. 22 II Official Journal of 27 March 2004)
The fact, on the part of the chairman of the general meeting of bondholders, of failing to record the decisions of any general meeting of bondholders in minutes which indicate the date and venue of the meeting, the means used to convene it, the agenda, the composition of the committee, the number of bondholders participating in the voting and the quorum achieved, the documents and reports submitted to the meeting, a summary of the proceedings, the text of the resolutions put to the vote and the results of the voting shall incur a fine of 4,500 euros.
Article L245-14 If: 1° The chairman, directors or managers of a joint-stock company offer or pay to representatives of the body of
bondholders a remuneration higher than that which has been allocated thereto by the meeting or by a court decision;
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COMMERCIAL CODE 2° Any representative of the body of bondholders accepts a remuneration higher than that which has been allocated
thereto by the meeting or by a court decision, without prejudice to the company being refunded the sum paid, this shall be punished by a fine of 18,000 euros.
Article L245-15 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Act No. 2003-706 of 1 August 2003 Art. 134 IX Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 50 VI Official Journal of 26 June 2004)
The offences referred to in Articles L. 245-9, and Articles L. 245-12 and L. 245-13 are punished by five years' imprisonment and a fine of 18,000 euros when they are committed fraudulently in order to deprive some or all of the bondholders of certain rights attached to their debt instrument.
Article L310-1 (Order No. 2004-274 of 25 March 2004 Art. 26, Art. 29 Official Journal of 27 March 2004)
Sales accompanied or preceded by advertising and presented as being intended, through price reductions, to achieve rapid disposal of some or all of the goods held by a commercial establishment following a decision, regardless of the reason therefor, to cease, seasonally suspend, or change its business activity, or to substantially alter its mode of exploitation, are deemed to be clearance sales.
Clearance sales must be declared in advance to the relevant administrative authority having jurisdiction over the location of the clearance sale. The declaration thus made shall state the reason for and duration of the clearance sale, which shall not exceed two months. It shall be accompanied by an inventory of the goods to be disposed of. If the event giving rise to the clearance sale has not taken place within six months, at the latest, of the declaration being made, the declarant is required to inform the relevant administrative authority thereof.
The offering for sale of goods other than those indicated in the inventory in respect of which the prior declaration was made is prohibited for the duration of the clearance sale.
SECTION IV Common provisions Articles L245-16 to
L245-17
Article L245-16 The provisions of this chapter referring to the chairmen, directors, managing directors and managers of joint-stock
companies shall apply to anyone who, directly or through an intermediary, has run, administered or managed these companies under the guise or in place of their legal agents.
Article L245-17 The penalties specified by Articles L.245-1 to L.245-15 in respect of the chairmen, managing directors and directors
of public limited companies shall apply, according to their respective powers, to the members of the management and to the members of the supervisory board of the public limited companies governed by the provisions of Articles L.225-57 to L.225-93.
The provisions of Article L.245-16 shall also apply to the public limited companies governed by Articles L.225-57 to L.225-93.
SECTION V Offences relating to public limited companies with a management and a
supervisory board
CHAPTER VI Offences common to various forms of joint-stock company Article L246-2
Article L246-2 (Act No. 2003-721 of 1 August 2003 Art. 9 7 Official Journal of 5 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
The provisions of Articles L242-1 to L242-29, L243-1 and L244-5 applicable to the chairman, the directors or the general managers of limited companies or European companies and the managers of partnerships limited by shares are also applicable to any person who, directly or through an intermediary, has effectively managed, administered or run such a company through or on behalf of its legal representatives.
CHAPTER VII Offences common to various forms of commercial company Articles L247-1 to
L247-10
SECTION I Offences relating to subsidiaries, shares and controlled companies Articles L247-1 to
L247-3
Article L247-1 I.- If the chairman, directors, managing directors or managers of any company:
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COMMERCIAL CODE 1° Do not indicate, in the annual report presented to the members on the operations for the financial year, the
acquisition of a holding in a company whose registered office is in the territory of the French Republic, representing over one-twentieth, one-tenth, one-fifth, one-third, half or two-thirds of the capital or voting rights at the general meetings of this company, or the acquisition of control of such a company;
2° Do not, in the same report, record the activity and results of the whole company, the subsidiaries of the company and the companies which it controls by sector of activity;
3° Do not annex, to the company’s balance sheet, the table specified in Article L.233-15, including the information intended to reveal the situation of said subsidiaries and shares,
this shall be punished by a prison sentence of two years and a fine of 9,000 euros. II.- If the members of the management or board of directors or the managers of the companies referred to in Article
L.233-16, subject to the exceptions specified in Article L.233-17, do not prepare and present the consolidated financial statements to the shareholders or members, within the periods specified by law, this shall be punished by a fine of 9,000 euros. The court may also order the publication of the judgment, at the expense of the offender, in one or more newspapers.
III.- If the auditor does not indicate in his report the information referred to in 1° of I of this article, this shall be punished by the penalties indicated in I.
Article L247-2 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Act No. 2003-706 of 1 August 2003 Art. 46 V Official Journal of 2 August 2003)
I. - A chairman, director, executive board member, executive or general manager of a legal entity, or any natural person, who fails to comply with the reporting obligations for which the company is responsible pursuant to Article L233-7 on account of the equity interests it holds, shall incur a fine of 18,000 euros.
II. - The same penalty shall apply to a chairman, director, executive board member, executive or general manager of a company who fails to give the notifications which that company is required to give pursuant to Article L233-12 on account of the equity interests it holds in the joint-stock company which controls it.
III. - The same penalty shall apply to a chairman, director, executive board member, executive or general manager of a company who, in the report presented to the shareholders on the business during the accounting period, fails to indicate the identity of persons who hold significant equity interests in the company or any changes during the accounting period, as well as the names of the controlled companies and the portion of the company's capital held by them, as determined in Article L233-13.
IV. - The fact of the auditor failing to include in his report the references referred to in III shall incur the same penalty.
V. - For companies which make public offerings, proceedings are instituted after the opinion of the Financial Markets Authority has been sought.
Article L247-3 If the chairmen, directors, members of the management, managing directors or managers of companies contravene
the provisions of Articles L.233-29 to L.233-31, this shall be punished by a fine of 18,000 euros. For companies making a public offering, proceedings for breach of the provisions of Article L.233-31 shall be
brought after the opinion of the Stock Exchange Committee has been requested.
SECTION II Offences relating to publication Article L247-4
Article L247-4 If any person does not fulfil the obligations resulting from Article L.225-109 within the period and according to the
terms fixed by a Conseil d'Etat decree, this shall be punished by a fine of 9,000 euros.
SECTION III Offences relating to winding-up Articles L247-5 to
L247-8
Article L247-5 If anyone contravenes the prohibition on fulfilling the duties of liquidator, this shall be punished by a prison sentence
of two years and fine of 9,000 euros. Anyone sentenced pursuant to the above paragraph may no longer be employed, in any respect, by the company in
which they fulfilled the prohibited duties. In the event of a breach of this prohibition, the sentenced person and their employer, if the latter knew of this, shall be punished by the penalties specified in said paragraph.
Article L247-6 If the liquidator of a company: 1° Does not publish, within one month of his appointment, in a legal notices newspaper in the department where the
registered office is situated, the instrument appointing the latter as liquidator and does not file with the commercial and companies register the decisions ordering the dissolution;
2° Does not convene the members, at the end of the winding-up, to rule on the final accounts, the discharge of his management and the release of the latter from his mandate, and to record the end of the winding-up, or does not, in the
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COMMERCIAL CODE case specified in Article L.237-10, file the accounts with the court registry or request the approval of these by the courts,
this shall be punished by a prison sentence of six months and a fine of 9,000 euros.
Article L247-7 (Law No 2001-420 of 15 May 2001 Article 122 (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 134 (I) Official Gazette of 2 August 2003)
The following omissions on the part of a liquidator called upon to liquidate a company pursuant to the provisions of Articles L. 237-14 to L. 237-31 give rise to application of the penalties provided for in Article L. 247-6:
1. Failure to submit a report, within six months of being appointed, on the assets and liabilities situation and the ongoing liquidation operations, and failure to apply for the authorisations required to complete them;
2. Failure to draw up annual accounts for inventorying purposes and likewise a written report giving details of the liquidation operations carried out in the previous financial year within three months of the close of each financial year;
3. (deleted); 4. and 5. Paragraphs cancelled; 6. Failure to deposit the sums allocated for distribution among the partners and the creditors in an account opened
with a lending institution in the name of the company in liquidation within fifteen days of the decision to effect a distribution, or failure to deposit with the Caisse des dépots et consignations any sums allocated to creditors or to partners which they have not claimed.
Article L247-8 If a liquidator, in bad faith: 1° Uses the property or credit of the company being wound up in a way which he knows is contrary to the interests
of this company, for personal purposes or to encourage another company or undertaking in which he is directly or indirectly involved;
2° Assigns all or part of the assets of the company being wound up contrary to the provisions of Articles L.237-6 and L.237-7,
this shall be punished by a prison sentence of five years and a fine of 9,000 euros.
SECTION IV Offences relating to public limited companies with a management and a Article L247-9
supervisory board
Article L247-9 The penalties specified by Articles L.247-1 to L.247-4 in respect of the chairmen, managing directors and directors
of public limited companies shall apply, according to their respective powers, to the members of the management and to the members of the supervisory board of the public limited companies governed by the provisions of Articles L.225-57 to L.225-93.
SECTION V Offences relating to companies with variable capital Article L247-10
Article L247-10 If the chairman, manager or, in general, the director of a company using the option specified in Article L.231-1 does
not mention this circumstance by adding the words “à capital variable “ (with variable capital) to all instruments and documents originating from the company and intended for third parties, this shall be punished by a fine of 3,750 euros.
CHAPTER VIII Provisions relating to the deputy managing directors of public limited companies Article L248-1
Article L248-1 (Act No. 2001-420 of 15 May 2001 Art. 107 5 Official Journal of 16 May 2001) (Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
The provisions of the present Part applicable to the general managers of limited companies or European companies are applicable, commensurate with their remits, to chief executive officers.
TITLE V Economic interest groupings Articles L251-1 to
L252-13
CHAPTER I Economic interest grouping governed by French law Articles L251-1 to
L251-23
Article L251-1 Two or more natural or legal persons may between them form an economic interest grouping for a fixed term. The aim of the grouping shall be to facilitate or develop the economic activity of its members and to improve or
increase the results of this activity. The aim is not to make profits for the grouping. The activity of the grouping must be linked to the economic activity of its members and may not be additional to this.
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COMMERCIAL CODE Article L251-2
Persons practising a profession subject to rules established by acts or regulations or whose title is protected may form an economic interest grouping or participate in this.
Article L251-3 The economic interest grouping may be formed without any capital. The rights of its members may not be represented by negotiable securities. Any clause to the contrary shall be
deemed to be unwritten.
Article L251-4 The economic interest grouping shall enjoy legal personality and full capacity from the date of its registration in the
commercial and companies register, without this registration leading to a presumption of commerciality of the grouping. The economic interest grouping whose aim is commercial may usually and principally carry out all commercial instruments on its own behalf. It may hold a commercial lease.
Persons who have acted in the name of an economic interest grouping being formed, before it has begun to enjoy legal personality, shall be bound, jointly, severally and indefinitely, by the acts thus carried out, unless the grouping, after having been duly formed and registered, assumes the commitments made. These commitments shall then be deemed to have been made from the start by the grouping.
Article L251-5 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The nullity of the economic interest group and of its actions and deliberations can only result from a violation of the imperative provisions of the present Chapter, or from one of the causes of nullity of contracts in general.
An action for voidance of contract lapses if the cause of nullity has ceased to exist on the day on which the court rules on the merits in the first instance, unless that nullity is founded on the unlawfulness of the group's object.
Articles 1844-12 to 1844-17 of the Civil Code are applicable to economic interest groups.
Article L251-6 Members of the grouping shall be liable for the debts of the latter in respect of their own assets. However, a new
member may, if the agreement allows this, be exonerated from the debts arising prior to their entry into the grouping. The exoneration decision must be published. Members shall be jointly and severally liable, unless otherwise agreed with the third party to the agreement.
Creditors of the grouping may bring proceedings against a member for the payment of debts only after having sent formal notice to the grouping by extra-judicial means without this producing any effect.
Article L251-7 The economic interest grouping may issue bonds, in accordance with the general conditions of issue of these
securities by companies, if it is itself composed exclusively of companies meeting the conditions specified by this book for the issue of bonds.
The economic interest grouping may also issue bonds, in accordance with the general conditions of issue of these securities specified by Act No 698 of 11 July 1985 authorising the issue of securities by certain associations, if it is itself composed exclusively of associations meeting the conditions specified by this Act for the issue of bonds.
Article L251-8 I.- The economic interest grouping agreement shall determine the organisation of the grouping, subject to the
provisions of this chapter. It shall be prepared in writing and published according to the terms fixed by a Conseil d'Etat decree.
II.- The agreement shall contain the following information in particular: 1° The name of the grouping; 2° The surnames, company names or business names, legal form, address of the domicile or registered office and,
if applicable, identification number of each of the members of the grouping, and, where applicable, the town where the registry is situated with which it is registered or the town where the chamber of trade is situated with which it is registered;
3° The term for which the grouping is formed; 4° The object of the grouping; 5° The address of the grouping’s registered office. III.- All amendments to the agreement shall be prepared and published in accordance with the same conditions as
the agreement itself. These shall be binding on third parties only from the date of this publication.
Article L251-9 The grouping, during its existence, may accept new members in accordance with the conditions fixed by the
formation agreement. Any member of the grouping may withdraw in accordance with the conditions specified by the agreement, provided
that they have fulfilled their obligations.
Article L251-10 The meeting of members of the grouping shall be authorised to take all decisions, including on early dissolution or
extension, in accordance with the conditions determined by the agreement. This agreement may specify that all decisions, or some of these, shall be taken in accordance with the quorum and majority conditions which it establishes.
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COMMERCIAL CODE If the agreement is silent on this, decisions shall be taken unanimously.
The agreement may also assign to each member a number of votes different from that assigned to the other members. Failing this, each member shall have one vote.
The meeting must meet at the request of at least one-quarter of the members of the grouping.
Article L251-11 The grouping shall be administered by one or more persons. A legal person may be appointed as administrator of
the grouping provided that this person appoints a permanent representative who shall be subject to the same civil and criminal liabilities as if they were administrator in their own name. The administrator or administrators of the grouping, and the permanent representative of the legal person appointed as administrator, shall be individually or jointly and severally liable, as applicable, towards the grouping or third parties, for breaches of the acts and regulations applying to groupings, for the violation of the grouping rules and for their management errors. If several administrators have cooperated in the same acts, the court shall determine the contribution of each one to the compensation for the damage. Subject to this reservation, the grouping agreement or, failing this, the meeting of members shall freely organise the
administration of the grouping and shall appoint the administrators whose competence, powers and conditions of dismissal it shall determine.
In relations with third parties, an administrator shall commit the grouping by any act falling within its object. Any limitation of powers shall not be binding on third parties.
Article L251-12 The supervision of the management, which must be entrusted to natural persons, and the supervision of the
accounts shall occur in accordance with the conditions specified by the grouping’s formation agreement. However, when a grouping issues bonds in accordance with the conditions specified by Article L.251-7, the
supervision of the management shall be carried out by one or more natural persons appointed by the meeting. The term of their duties and their powers shall be determined in the agreement.
The supervision of the accounts in the groupings referred to in the above paragraph and in groupings which have one hundred employees or more at the end of a financial year must be carried out by one or more auditors chosen from the list referred to in Article L.225-219 and appointed by the meeting for a term of six financial years. The provisions of this code on the incompatibilities, powers, duties, obligations, liability, withdrawal, dismissal and remuneration of the auditor of public limited companies and the penalties specified by Article L.242-27 shall apply to the auditors of economic interest groupings, subject to the rules specific thereto.
In the cases specified by the above two paragraphs, the provisions of Articles L.242-25, L.242-26, L.242-28 and L.245-8 to L.245-17 shall apply to the managers of the grouping and to the natural persons managing member companies or who are permanent representatives of the legal persons managing these companies.
Article L251-13 In groupings meeting one of the criteria defined in Article L.232-2, the administrators shall be required to prepare a
statement of the liquid and current assets, excluding operating assets, and of the current liabilities, a projected profit and loss account and a financing table at the same time as the annual balance sheet and a projected financing plan.
A Conseil d'Etat decree shall specify the frequency, deadlines and terms for preparing these documents.
Article L251-14 The documents referred to in Article L.251-13 shall be analysed in written reports on the development of the
grouping prepared by the administrators. The documents and reports shall be notified to the auditor and to the works council.
If the provisions of Article L.251-13 and the above paragraph are not observed, or if the information given in the reports referred to in the above paragraph requires observations therefrom, the auditor shall indicate this in a report to the administrators or in the annual report. The auditor may request that this report is sent to the members of the grouping or that it is brought to the attention of the meeting of members. This report shall be notified to the works council.
Article L251-15 When the auditors identify, while carrying out their work, facts likely to compromise the continued operation of the
grouping, they shall inform the administrators of these, in accordance with the conditions fixed by a Conseil d'Etat decree. The administrators shall be required to reply to the auditors within fifteen days. The reply shall be notified to the works council. The auditors shall inform the president of the court of this.
If these provisions are not observed, or if it is noted that, despite the decisions taken, the continued operation of the grouping remains compromised, the auditors shall prepare a special report and shall ask the administrators, in writing, to ensure that the next general meeting deliberates the facts identified. This report shall be notified to the works council.
If, at the end of the general meeting, the auditors note that the decisions taken do not allow the continued operation of the grouping to be ensured, they shall inform the president of the court of the steps taken and the results of these.
Article L251-16 The works council or, failing this, the employees’ representatives shall exercise, in economic interest groupings, the
powers specified by Articles L.422-4 and L.432-5 of the Labour Code. The administrators shall inform the auditor of requests for explanations made by the works council or the
employees’ representatives, the reports sent thereto and the replies made pursuant to Articles L.422-4 and L.432-5 of the Labour Code.
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COMMERCIAL CODE Article L251-17
The instruments and documents originating from the grouping and intended for third parties, particularly letters, invoices, notices and various publications, must legibly indicate the name of the grouping followed by the words: “groupement d’intérêt économique” (economic interest grouping) or the abbreviation: “GIE”.
Any breach of the provisions of the above paragraph shall be punished by a fine of 3,750 euros.
Article L251-18 Any company or association whose object corresponds to the definition of the economic interest grouping may be
converted into such a grouping without giving rise to the dissolution or creation of a new legal person. An economic interest grouping may be converted into a general partnership without giving rise to the dissolution or
creation of a new legal person.
Article L251-19 The economic interest grouping shall be dissolved: 1° When the term is reached; 2° When its object is achieved or terminated; 3° When its members decide this in accordance with the conditions specified by Article L.251-10; 4° By a court decision, for due reasons; 5° By the death of a natural person or by the dissolution of a legal person, where these are members of the
grouping, unless otherwise stipulated in the agreement.
Article L251-20 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
If one of the members is disqualified by law, declared bankrupt or prohibited from running, managing, administering or controlling a commercial business, regardless of its type, or a non-commercial private-law corporation, the group is dissolved, unless its continuation is provided for in the contract or the other members so decide unanimously.
Article L251-21 The dissolution of the economic interest grouping shall lead to its winding-up. The personality of the grouping shall
continue for the purposes of the winding-up.
Article L251-22 The winding-up shall occur in accordance with the provisions of the agreement. Failing this, a liquidator shall be
appointed by the meeting of members of the grouping or, if the meeting could not make this appointment, by a court decision.
After paying the debts, the surplus of assets shall be distributed between the members in accordance with the conditions specified by the agreement. Failing this, the distribution shall be made in equal parts.
Article L251-23 (Order No. 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The designation"economic interest group"and the acronym"EIG"can only be used by groups which are subject to the provisions of the present Chapter. The illicit use of that designation or that acronym or any expression likely to cause confusion in relation thereto carries a penalty of two years' imprisonment and a fine of 6,000 euros.
The court may also order publication of the judgment, at the convicted person's expense, in a maximum of three periodicals, and posting thereof under the conditions laid down in Article L. 131-35 of the Penal Code.
CHAPTER II European economic interest grouping Articles L252-1 to
L252-13
Article L252-1 European economic interest groupings registered in France in the commercial and companies register shall enjoy
legal personality from their registration.
Article L252-2 European economic interest groupings shall be civil or commercial in nature, depending on their object.
Registration shall not lead to a presumption of commerciality of a grouping.
Article L252-3 The rights of members of the grouping may not be represented by negotiable securities.
Article L252-4 The collegial decisions of the European economic interest grouping shall be taken by the meeting of members of
the grouping. However, the rules may stipulate that these decisions, or some of them, may be taken in the form of a consultation by exchange of letters.
Article L252-5 The manager or managers of a European economic interest grouping shall be individually or jointly and severally
liable, as applicable, towards the grouping or third parties for breaches of the acts or regulations applying to the
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COMMERCIAL CODE grouping, for the violation of the grouping rules and for their management errors. If several managers have cooperated in the same acts, the court shall determine the contribution of each one to the compensation for the damage.
Article L252-6 A legal person may be appointed as manager of a European economic interest grouping. On its appointment, it
shall be required to appoint a permanent representative who shall be subject to the same civil and criminal liabilities as if they were manager in their own name, without prejudice to the joint and several liability of the legal person which they represent.
Article L252-7 The provisions of the previous chapter applying to economic interest groupings governed by French law on financial
liabilities, supervision of the accounts and winding-up shall apply to European economic interest groupings.
Article L252-8 Any company or association and any economic interest grouping may be converted into a European economic
interest grouping without giving rise to the dissolution or creation of a new legal person. A European economic interest grouping may be converted into an economic interest grouping governed by French
law or a general partnership without giving rise to the dissolution or creation of a new legal person.
Article L252-9 The nullity of the European economic interest grouping and of the acts or deliberations of this may result only from
the breach of the essential provisions of Council Regulation (EEC) No 2137/85 of 25 July 1985 or the provisions of this chapter or from one of the reasons for nullity of agreements in general.
The action for nullity shall be extinguished when the reason for the nullity ceases to exist on the day when the court rules on the merits at first instance, except where this nullity is based on the illegality of the object of the grouping.
Articles 1844-12 and 1844-17 of the Civil Code shall apply.
Article L252-10 European economic interest groupings may not make a public offering. If this occurs, the agreements made or
securities issued shall be declared invalid. If the manager or managers of a European economic interest grouping or the permanent representative of a legal
person managing a European economic interest grouping make a public offering, this shall be punished by a prison sentence of two years and a fine of 300,000 euros.
Article L252-11 The use in relations with third parties of any instruments, letters, notes and similar documents not containing the
text specified by Article 25 of Council Regulation (EEC) No 2137/85 of 25 July 1985 shall be punished by the penalties specified by Article L.251-17.
Article L252-12 The name “groupement européen d’intérêt économique” (European economic interest grouping) and the
abbreviation “GEIE” may be used only by groupings subject to the provisions of Council Regulation (EEC) No 2137/85 of 25 July 1985. The illegal use of this name, this abbreviation or any expression likely to lead to confusion with these shall be punished by the penalties specified by Article L.251-23.
Article L252-13 Articles L.242-26 and L.242-27 shall apply to the auditors of European economic interest groupings. Articles
L.242-25 and L.242-28 shall apply to the directors of the grouping and to the natural persons running member companies or who are permanent representatives of the legal persons running these companies.
BOOK III Certain types of sale and exclusivity clauses Articles L310-1 to
L330-3 TITLE I Closing-down sales, warehouse sales, clearance sales and sales in factory shops Articles L310-1 to
L310-7
Article L310-1 Closing-down sales are defined as sales accompanied or preceded by publicity and advertised as being aimed at,
through price reductions, the accelerated disposal of all or part of the goods in a commercial establishment following a decision, whatever the reason for this, of cessation, seasonal suspension or change of activity, or substantial alteration of the operating conditions.
Closing-down sales shall be subject to authorisation on the basis of a detailed inventory of the goods to be cleared produced by the applicant who may be required to prove the origin of the goods by means of invoices. Authorisation shall be granted by the prefect in whose jurisdiction the location of the closing-down sale is situated, for a period which may not exceed two months and subject to the recipient of the authorisation proving, within six months of this, that the event giving rise to the application for authorisation has actually occurred.
For the period of the closing-down sale, it shall be prohibited to offer for sale goods other than those appearing in
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COMMERCIAL CODE the inventory on the basis of which the authorisation was granted.
Article L310-3 (Order No. 2004-274 of 25 March 2004 Art. 29 Official Journal of 27 March 2004)
I. - General sales involve the selling of goods accompanied or preceded by advertising and are presented as being intended, through price reductions, to achieve rapid disposal of goods held in stock.
Such sales can only take place during two periods in each calendar year for a maximum duration of six weeks, the dates of which are determined in each Department by the relevant administrative authority pursuant to conditions laid down in the decree referred to in Article L. 310-7, and may only involve goods offered for sale and paid for at least one month prior to the commencement date of the sale period in question.
II. - In any advertising, company name, corporate name or trade name, use of the word"sale(s)"or derivatives thereof is prohibited for designation of any activity, corporate name, trade name, company name or feature which does not relate to a general sale as defined in I above.
Article L310-4 A factory warehouse or shop name may be used only by producers selling, directly to the public, part of their
production not disposed of through mass channels or which has been returned. These direct sales shall involve solely the production from the previous marketing season, thus justifying its sale at a reduced price.
Article L310-5 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-274 of 25 March 2004 Art. 28 Official Journal of 27 March 2004)
Those who commit the following offences shall incur a fine of 15,000 euros: 1. The fact of holding a clearance sale without the prior declaration referred to in Article L. 310-1 or in violation of
the conditions laid down in that article; 2. The fact of holding a sale on temporary premises without the authorisation stipulated in Article L. 310-2 or in
violation of that authorisation; 3. The fact of holding sales outside the periods indicated in I of Article L. 310-3 or involving goods held for less than
one month on the commencement date of the sale period in question; 4. The fact of using the word"sale(s)"or derivatives thereof if such use does not relate to a sale as defined in I of
Article L. 310-3; 5. The fact of using the designation"factory shop"or"factory depot"in violation of the provisions of Article L. 310-4; 6. The fact of organising a commercial event without making the declaration referred to in Article L. 740-2 or failing
to comply with the conditions applicable to the event declared. Natural persons shall also incur the additional penalty of posting on the court notice-board, or publication, of the
decision pronounced, as provided for in Article 131-35 of the Penal Code.
Article L310-6 Legal persons may be declared criminally liable, in accordance with the conditions specified by Article 121-2 of the
Penal Code, for the offences defined in Article L.310-5. The penalties incurred by legal persons shall be: 1° The fine according to the terms specified by Article 131-38 of the Penal Code; 2° The posting on a notice-board or circulation of the decision ordered in accordance with the conditions specified
by 9° of Article 131-39 of the Penal Code.
Article L310-7 The terms for applying the provisions of this title shall be fixed by a Conseil d'Etat decree, particularly the sectors in
which price reduction advertisements intended for consumers, whatever the medium of these, cannot be expressed as a percentage or by indicating the price previously applied, and the duration or conditions of this ban.
TITLE II Sales by public auction Articles L321-4 to
L320-2
Article L320-1 No-one may use public auctions as the normal method for carrying out their trade.
Article L320-2 Sales established by the law or carried out by the courts and sales following death, winding-up proceedings or
cessation of trading, or in all other necessary cases which shall be assessed by the Tribunal de commerce, shall be exempt from the ban specified by Article L.320-1.
Sales by public auction of edible goods and low-value objects known in the trade as small dry goods shall also be exempt.
CHAPTER I Voluntary sales of chattels by public auction Articles L321-4 to
L321-38
SECTION I
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COMMERCIAL CODE General provisions Articles L321-4 to
L321-3
Article L321-1 Voluntary sales of chattels by public auction may involve only second-hand goods or new goods originating directly
from the seller’s production if the latter is neither a trader nor a craftsperson. These goods shall be sold separately or in lots.
This chapter defines chattels as property which is movable by nature. Goods which, at any stage of their production or distribution, have entered the possession of a person for their own
use, through any act for money consideration or free of charge, shall be regarded as second-hand.
Article L321-2 Voluntary sales of chattels by public auction shall, except in the cases specified by Article L.321-36, be organised
and conducted by the commercial companies governed by Book II and whose activity is regulated by the provisions of this chapter.
These sales may also be organised and conducted, by way of a secondary activity, by notaries and court huissiers. This activity shall be carried out in the context of their office and according to the rules applying thereto. They may be appointed as agent only by the owner of the goods.
Article L321-3 The act of offering an item of property, by acting as the owner’s agent, in public computerised auctions in order to
sell this to the highest bidder shall constitute a sale by public auction within the meaning of this chapter. Brokerage operations in computerised auctions, characterised by the absence of a sale by auction and intervention
by a third party in the conclusion of the sale of an item of property between the parties, shall not constitute a sale by public auction.
Brokerage operations in computerised auctions involving cultural property shall also be subject to the provisions of this chapter, except for Articles L.321-7 and L.321-16.
Subsection 1 Companies involved in voluntary sales of chattels by public auction Articles L321-4 to
L321-17
Article L321-4 The object of companies involved in voluntary sales of chattels by public auction shall be limited to the valuation of
chattels and to the organisation and conducting of voluntary sales of chattels by public auction in accordance with the conditions fixed by this chapter.
Companies involved in voluntary sales of chattels by public auction shall act as agents for the owner of the property. They shall not be authorised to purchase or sell, directly or indirectly and on their own behalf, chattels offered for sale
by public auction. This ban shall also apply to the directors, members and employees of the company. Exceptionally, the latter may, however, sell, through the company, property belonging thereto provided that this is specified by the publicity.
Article L321-5 Companies involved in voluntary sales of chattels by public auction may carry out their activity only after having
obtained the approval of the Authority for Voluntary Sales of Chattels by Public Auction established by Article L.321-18. They must present sufficient guarantees with regard to their organisation, their technical and financial resources, the
honourability and experience of their directors and the arrangements for ensuring the security of transactions with regard to their clients.
Article L321-6 Companies involved in voluntary sales of chattels by public auction must, whatever their form, appoint an auditor
and a deputy auditor. They must provide proof of: 1° The existence, at a credit institution, of an account intended exclusively to receive the funds held on behalf of
others; 2° An insurance covering their professional liability; 3° An insurance or surety guaranteeing the representation of the funds mentioned in 1°.
Article L321-7 Companies involved in voluntary sales of chattels by public auction shall give the Authority for Voluntary Sales of
Chattels by Public Auction any necessary clarification on the premises where the chattels offered for sale will normally be exhibited and where the operations for sales by public auction will usually take place. When the exhibition or sale takes place in another location, or by computer, the company shall inform the Authority of this in advance.
Article L321-8 Companies involved in voluntary sales of chattels by public auction shall contain, among their directors, members or
employees, at least one person with the qualification required to conduct a sale or holding a certificate, diploma or authorisation recognised as equivalent in this respect, in accordance with the conditions defined by a Conseil d'Etat
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Article L321-9 The persons referred to in Article L.321-8 shall alone be authorised to conduct the sale, designate the highest
bidder as the successful bidder or declare the item not sold and prepare the official record of this sale. The official record shall be completed at the latest one clear day after the end of the sale. It shall indicate the name
and address of the new owner declared by the successful bidder, the identity of the seller, the description of the item and its publicly recorded price.
Within fifteen days of the sale, the seller may, through the company, sell by private treaty the items declared as not sold at the end of the auction. This transaction shall not be preceded by any exhibition or publicity. It may not occur at a price lower than the last bid made before the item was withdrawn from sale or, in the absence of bids, at a price lower than the reserve price. The highest bidder, if known, shall be previously informed of this. This transaction shall be recorded in an instrument annexed to the official record of the sale.
Article L321-10 Companies involved in voluntary sales of chattels by public auction shall keep a register on a day-to-day basis,
pursuant to Articles 321-7 and 321-8 of the Penal Code, and also an index in which they shall enter their official records.
Article L321-11 Each voluntary sale of chattels by public auction shall give rise to publicity in any appropriate form. The reserve price is the minimum price agreed with the seller below which the item may not be sold. If the item has
been valued, this price may not be fixed at an amount higher than the lowest valuation appearing in the publicity or announced publicly by the person conducting the sale and indicated in the official record.
Article L321-12 Companies involved in voluntary sales of chattels by public auction may guarantee to the seller a minimum sale
price for the item offered for sale, which shall be paid if the item is sold. If the item has been valued, this price may not be fixed at an amount higher than the valuation indicated in Article L.321-11.
This option shall be open only to companies which have concluded, with an insurance company or credit institution, a contract under the terms of which this company or institution undertakes, in the event of the company’s failure, to refund the difference between the guaranteed amount and the sale price if the amount of the guaranteed price is not achieved during the sale by auction.
Article L321-13 Companies involved in voluntary sales of chattels by public auction may give the seller an advance on the sale price
of the item offered for sale.
Article L321-14 Companies involved in voluntary sales of chattels by public auction shall be liable, with regard to the seller and
purchaser, for the representation of the price and the delivery of the items which they have sold. Any clause which aims to avoid or limit their liability shall be deemed to be unwritten.
The item sold may be delivered to the purchaser only when the company has received the price for this or when any guarantee has been given thereto with regard to the payment of the price by the purchaser.
If the successful bidder fails to pay, after being sent formal notice without this producing any response, the item shall be resold at the seller’s request due to the sham bid of the defaulting bidder. If the seller does not request this within one month of the sale by auction, the sale shall be cancelled ipso jure, without prejudice to the damages due by the defaulting bidder.
The funds held on behalf of the seller shall be paid thereto at the latest two months after the sale.
Article L321-15 I.- Where one or more voluntary sales of chattels by public auction are conducted: 1° If the company organising the sale does not have the approval specified by Article L.321-5 either because it does
not hold this or because its approval has been suspended or temporarily or permanently withdrawn; 2° Or if the national of a Member State of the European Communities or of a Member State of the European
Economic Area organising the sale has not made the declaration specified by Article L.321-34; 3° Or if the person conducting the sale does not meet the conditions specified by Article L.321-8 or is subject to a
temporary or permanent ban on conducting these sales, this shall be punished by a prison sentence of two years and a fine of 375,000 euros. II.- Natural persons guilty of one of the offences against the provisions specified by this article shall also incur the
following additional penalties: 1° A ban, for a maximum period of five years, on carrying out a public office or the professional or social activity in
the exercise or on the occasion of the exercise of which the offence was committed; 2° The posting on a notice-board or circulation of the sentence ordered in accordance with the conditions specified
by Article 131-35 of the Penal Code; 3° The confiscation of the sums or items unduly received by the offender, with the exception of items which may be
returned. III.- Legal persons may be declared criminally liable, in accordance with the conditions specified by Article 121-2 of
the Penal Code, for the offences defined in this article. The penalties incurred by legal persons shall be:
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COMMERCIAL CODE 1° The fine according to the terms specified by Article 131-38 of the Penal Code; 2° For a maximum period of five years, the penalties indicated in 1°, 2°, 3°, 4°, 8° and 9° of Article 131-39 of the
Penal Code. The ban indicated in 2° of the same article shall involve the activity in the exercise or on the occasion of the exercise of which the offence was committed.
Article L321-16 The provisions of Article L.720-5 shall not apply to the premises used by the companies indicated in Article L.321-2.
Article L321-17 (Act No. 2004-130 of 11 February 2004 Art. 57 Official Journal of 12 February 2004)
Companies conducting voluntary sales of movables by public auction, and public or ministerial officials authorised to conduct judicial and voluntary sales, and likewise experts who carry out valuations of assets, assume liability when movables are sold by public auction, pursuant to the rules applicable to such sales.
Clauses which seek to avoid or limit their liability are prohibited and deemed not to exist. Vicarious liability actions initiated in relation to valuations and voluntary and judicial sales of movables by public
auction lapse ten years after the date of the adjudication or valuation.
Subsection 2 Authority for Voluntary Sales of Chattels by Public Auction Articles L321-18 to
L321-23
Article L321-18 An Authority for Voluntary Sales of Chattels by Public Auction shall be established which shall enjoy legal
personality. The Authority for Voluntary Sales of Chattels by Public Auction shall be responsible: 1° For approving the companies involved in voluntary sales of chattels by public auction and the experts referred to
in Section 3; 2° For registering the declarations of nationals of the States referred to in Section 2; 3° For penalising, in accordance with the conditions specified by Article L.321-22, breaches of the acts, regulations
and professional obligations applying to companies involved in voluntary sales of chattels by public auction, to approved experts and to nationals of a Member State of the European Communities or a Member State of the European Economic Area occasionally carrying out the activity of voluntary sales of chattels by public auction in France.
The decision of the Authority for Voluntary Sales of Chattels by Public Auction refusing or withdrawing the approval of a company or expert or the registration of the declaration of a national of a State referred to in Section 2 must be reasoned.
Article L321-19 The Authority for Voluntary Sales of Chattels by Public Auction and the National Board of Court Valuers and
Auctioneers of Chattels shall jointly organise the professional training with a view to obtaining the qualification required to conduct sales.
Article L321-20 The Authority for Voluntary Sales of Chattels by Public Auction shall inform the National Board, the boards of court
valuers and auctioneers of chattels and the departmental boards of court huissiers and notaries of the acts committed in their jurisdiction which have been brought to its attention and which may infringe the regulations on voluntary sales of chattels by public auction.
The departmental boards of court huissiers and notaries, the National Board and the boards of court valuers and auctioneers of chattels shall provide the same information to the Authority for Voluntary Sales of Chattels by Public Auction.
Article L321-21 The Authority for Voluntary Sales of Chattels by Public Auction shall consist of eleven members appointed for four
years by the Minister for Justice, as follows: 1° Six qualified persons; 2° Five representatives of the professionals, including one expert. Members of the Authority may only be reappointed once. The chairman shall be elected by the members of the Authority from amongst them. Deputies shall be appointed in equal number and in the same forms. A member of the Attorney-General’s department shall be appointed to carry out the duties of government
commissioner to the Authority for Voluntary Sales of Chattels by Public Auction. The Authority shall be financed by the payment of professional contributions by the companies involved in voluntary
sales of chattels by public auction and by the approved experts. The amount of these contributions shall be fixed by the Authority according to the activity of those required to pay.
Article L321-22 Any breach of the acts, regulations or professional obligations applying to companies involved in voluntary sales of
chattels by public auction, to approved experts and to persons authorised to conduct sales pursuant to the first paragraph of Article L.321-9 may give rise to a disciplinary penalty. The period of prescription shall be three years from
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COMMERCIAL CODE the breach.
The Authority shall rule by reasoned decisions. No penalty may be ordered without the complaints having been notified to the legal agent of the company, to the expert or to the person authorised to conduct sales, without the latter having been able to inspect the file and without the latter having been duly heard or called.
The penalties applicable to companies involved in voluntary sales of chattels by public auction, to approved experts and to persons authorised to conduct sales, taking into account the gravity of the alleged acts, shall be: caution, reprimand, ban on temporarily carrying out all or part of the activity for a period which may not exceed three years and withdrawal of the company’s or expert’s approval or a permanent ban on conducting sales.
In an emergency and as a precautionary measure, the chairman of the Authority may order the temporary suspension of the exercise of all or part of the activity of a company involved in voluntary sales of chattels by public auction, of an approved expert or of a person authorised to conduct sales, for a period which may not exceed one month, unless an extension is granted by the Authority for a period which may not exceed three months. The chairman shall immediately inform the Authority of this.
Article L321-23 The decisions of the Authority for Voluntary Sales of Chattels by Public Auction and its chairman shall be open to
appeal before the Paris Cour d'appel. The appeal may be brought before the first president of said court ruling on urgent applications.
SECTION II Free provision of services in the activity of voluntary sales of chattels by public
auction by nationals of the Member States of the European Communities and of the Member States of the European Econo
Articles L321-24 to L321-28
Article L321-24 Nationals of a Member State of the European Communities or of a Member State of the European Economic Area
who permanently carry out the activity of voluntary sales of chattels by public auction in one of these States other than France may occasionally carry out this professional activity in France. This activity may be carried out only after a declaration has been made to the Authority for Voluntary Sales of Chattels by Public Auction. The declaration shall be made at least three months before the date of the first sale held in France. The Authority shall be informed of subsequent sales at least one month before they are held. It may object, in a reasoned decision, to the holding of one of these sales.
Article L321-25 Persons permanently carrying out the activity of voluntary sales of chattels by public auction in their country of origin
may use, in France, their qualification expressed in the or one of the languages of the State in which they are established, accompanied by a translation into French and, if appropriate, the name of the professional organisation to which they belong.
Article L321-26 In order to be able to occasionally carry out the activity of voluntary sales of chattels by public auction, the national
of another Member State of the European Communities or of a Member State of the European Economic Area must prove, to the Authority for Voluntary Sales of Chattels by Public Auction, that they hold one of the diplomas, certificates or authorisations specified by Article L.321-8 or, in the event of a legal person, that this has, among its directors, members or employees, a person meeting this condition.
They must also provide proof to the Authority of the existence of an establishment in their country of origin and of professional and personal character guarantees.
Article L321-27 Nationals of a Member State of the European Communities or of a Member State of the European Economic Area
shall be required to respect the rules governing the activity of voluntary sales of chattels by public auction specified by this chapter without prejudice to the obligations not contrary thereto which are incumbent on them in the State in which they are established.
Article L321-28 In the event of a breach of the provisions of this chapter, nationals of the Member States of the European
Communities and of the Member States of the European Economic Area shall be subject to the provisions of Article L.321-22. However, the penalties of the temporary ban on carrying out the activity and of the withdrawal of approval shall be replaced by the penalties of the temporary or permanent ban on carrying out in France the activity of voluntary sales of chattels by public auction.
In the event of penalties, the Authority for Voluntary Sales of Chattels by Public Auction shall inform the competent authority in the State of origin of these.
SECTION III Experts approved by the Authority for Voluntary Sales of Chattels by Public Articles L321-29 to
Auction L321-35-1
Article L321-29
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COMMERCIAL CODE The experts who may be used by the companies involved in voluntary sales of chattels by public auction, court
huissiers, notaries and court valuers and auctioneers of chattels may be approved by the Authority for Voluntary Sales of Chattels by Public Auction.
The Authority shall establish a list of the approved experts in each speciality.
Article L321-30 All approved experts must be entered in one of the specialities whose nomenclature is established by the Authority
for Voluntary Sales of Chattels by Public Auction. No-one may be entered in more than two specialities, unless these involve specialities connected to previous
specialities which may not number more than two.
Article L321-31 (Act No. 2004-130 of 11 February 2004 Art. 58 1 Official Journal of 12 February 2004)
Any expert, registered or otherwise, is required to take out an insurance policy to cover his professional liability. He is jointly and severally liable with the organiser of the sale in respect of his own activities.
Article L321-32 Persons entered in the list specified by Article L.321-29 may indicate their capacity only using the term “expert
approved by the Authority for Voluntary Sales of Chattels by Public Auction”. This term must be accompanied by the indication of their speciality or specialities.
Article L321-33 If any person not appearing in the list specified by Article L.321-39 uses the term indicated in this article, or a term
which is similar in nature and likely to cause an error on the part of the public, this shall be punished by the penalties specified by Article 433-17 of the Penal Code.
Article L321-34 The Authority for Voluntary Sales of Chattels by Public Auction may order the withdrawal of approval of an expert in
the event of court-ordered prohibition, serious professional misconduct or sentencing for acts contrary to honour, probity or good morals.
Article L321-35 (Act No. 2004-130 of 11 February 2004 Art. 58 2 and 3 Official Journal of 12 February 2004)
An expert, registered or otherwise, shall not value or offer for sale an item belonging to him, nor directly or indirectly acquire an item for his own account, in the sales by public auction in which he is involved.
By way of exception, however, an expert may sell an item belonging to him through a person referred to in Article L. 321-2, subject to that fact being stated in the publicity.
Article L321-35-1 (inserted by Act No. 2004-130 of 11 February 2004 Art. 58 4 Official Journal of 12 February 2004)
When he deals with an unregistered expert, the organiser of the sale shall ensure that the said expert complies with the obligations stipulated in the first paragraph of Article L. 321-31 and Article L. 321-35.
SECTION IV Sundry provisions Articles L321-36 to
L321-38
Article L321-36 Sales by public auction of chattels belonging to the State and defined in Article L.68 of the State Property Code and
all sales of chattels carried out in the State property form in accordance with the conditions specified by Article L.69 of the same code shall continue to be carried out according to the terms specified by these articles. However, as an exception to the provisions of Articles L.68, L.69 and L.70 of the same code, these sales may be carried out with publicity and competition, on behalf of the State, by companies involved in voluntary sales of chattels by public auction in accordance with the conditions specified by this chapter.
Sales of chattels by public auction coming under the Customs Code shall be carried out according to the terms specified by the same code. However, as an exception to the provisions of the Customs Code, these sales may also be carried out with publicity and competition, on behalf of the State, by companies involved in voluntary sales of chattels by public auction in accordance with the conditions specified by this chapter.
Article L321-37 The civil courts alone shall be competent to hear legal proceedings relating to sale activities in which a company
involved in voluntary sales of chattels by public auction, established in accordance with this chapter, is a party. Any clause to the contrary shall be deemed to be unwritten. However, members may agree, in the articles of association, to submit to arbitrators disputes which may occur between them or between companies involved in voluntary sales due to their activity.
Article L321-38 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
A Conseil d'Etat decree determines the conditions of implementation of the present Chapter, which include the guarantee scheme provided for in Article L. 321-6, the arrangements for informing the council for voluntary sales of
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COMMERCIAL CODE movables at public auctions when the exhibition or the sale does not take place in the premises referred to in the first sentence of Article L. 321-7, the indications that must appear in the publication referred to in Article L. 321-11, the terms and conditions applicable to the organisation and operations of the council for sales at public auctions and the council's conditions for the approval of experts.
CHAPTER II Other sales by auction Articles L322-1 to
L322-16
Article L322-1 Public and retail sales of goods which take place following a death or by court order shall be conducted according to
the specified forms and by the professional officers employed for the forced sale of chattels in accordance with Article 53 of Act No 650 of 9 July 1991 on the reform of civil execution procedures and with Article 945 of the Code of Civil Procedure.
Article L322-2 Sales of goods following a winding-up proceedings shall be conducted in accordance with Article L.622-18 et seq. The debtor’s chattels may be sold at auction only by court valuers and auctioneers of chattels, notaries or huissiers,
in accordance with the acts and regulations determining the powers of these various officers.
Article L322-3 Public sales and sales by auction following a cessation of trading, or in the other cases of necessity specified by
Article L.320-2, may take place only where they have been previously authorised by the Tribunal de commerce, at the request of the trading owner to which a detailed list of the goods shall be attached.
The court shall record, in its judgment, the act giving rise to the sale. It shall indicate the location in the district where the sale shall be conducted. It may even order that the sale shall occur only in lots whose size it shall fix.
It shall decide who, from among the brokers, court valuers and auctioneers of chattels or other public officers, shall be responsible for receiving the bids.
The authorisation due to a reason of necessity may be granted only to the sedentary trader who has had their actual domicile in the district where the sale must be conducted for at least one year.
Notices affixed to the door of the place where the sale is to be conducted shall set out the judgment authorising this.
Article L322-4 Public sales by auction of wholesale goods shall be conducted by sworn commodities brokers in the cases, in
accordance with the conditions and according to the forms fixed by a Conseil d'Etat decree.
Article L322-5 Any breach of the provisions of Articles L.320-1, L.320-2 and L.322-1 to L.322-7 shall be punished by the
confiscation of the goods placed on sale and also a fine of 3,750 euros which shall be ordered jointly and severally against both the seller and the public officer assisting the latter, without prejudice to damages, if any.
Any person whose agent is intended to evade the ban specified by Article L.320-1 shall be regarded as an accomplice and shall be subject to the same penalties.
Article L322-6 If sellers or public officers include in sales held by court order, following attachment, death, court-ordered
winding-up, cessation of trading or in the other cases of necessity specified by Article L.320-2, new goods not forming part of the business or chattels placed on sale, this shall be punished by the penalties specified by Article L.322-5.
Article L322-7 In places where there are no commercial brokers, the court valuers and auctioneers of chattels, notaries and
huissiers shall conduct the above sales, according to the rights which are respectively assigned thereto by the acts and regulations.
They shall, for these sales, be subject to the forms, conditions and tariffs imposed on brokers.
Article L322-8 (Order No. 2004-279 of 25 March 2004 Art. 3 I Official Journal of 27 March 2004)
Sworn brokers may conduct voluntary wholesale auctions of goods without the commercial court's permission. Permission is nevertheless required for goods such as motor vehicles, arms, munitions and their accessories, objets d'art, collector's items, antiques and other second-hand goods, a list of which is drawn up by order of the Minister of Justice and the Trade Minister.
NB: Order 2004-279 of 25 March 2004 Arts. 8 and 9: The provisions of Article L322-8 of the Commercial Code are applicable in New Caledonia and the Wallis and Futuna Islands.
Article L322-9 Brokers established in a town where a Tribunal de commerce is situated shall be authorised to conduct the sales
governed by this chapter in all localities falling within the jurisdiction of this court in which there are no brokers. They shall comply with the provisions specified by Articles 871 and 873 of the General Tax Code.
Article L322-10 The brokerage fee for sales covered by Articles L.322-8 to L.322-13 shall be fixed, for each locality, by the Minister
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COMMERCIAL CODE for Agriculture, Trade or Public Works, following an opinion from the chamber of trade and industry and the Tribunal de commerce. Under no circumstances may this exceed the fee established for sales by private treaty for the same sorts of goods.
Article L322-11 Disputes relating to sales conducted pursuant to Article L.322-8 shall be brought before the Tribunal de commerce.
Article L322-12 The sales specified by Article L.322-8 shall be held in premises specially authorised for this purpose, following an
opinion from the chamber of trade and industry and the Tribunal de commerce.
Article L322-13 A Conseil d'Etat decree shall determine the measures needed to apply Articles L.322-11 and L.322-12, in particular
the forms and conditions of the authorisations specified by Article L.322-12.
Article L322-14 The tribunaux de commerce may, following a death or cessation of trading, and in all other cases of necessity
whose assessment is submitted thereto, authorise the sale by wholesale auction of goods of any kind and any origin. The authorisation shall be given on request. A detailed list of the goods to be sold shall be attached to the request. The court shall record, in its judgment, the act giving rise to the sale.
Article L322-15 Sales authorised pursuant to the above article, and all those which are authorised or ordered by the consular court
in the various cases specified by this code, shall be carried out by brokers. However, the court, or the judge authorising or ordering the sale, shall remain responsible for appointing, in order to
proceed with this, another type of public officer. In this case, the public officer, whoever this is, shall be subject to the provisions governing brokers with regard to forms, tariffs and liability.
Article L322-16 The provisions of Articles L.322-11 to L.322-13 shall apply to the sales referred to in Articles L.322-14 and L.322-15.
TITLE III Exclusivity clauses Articles L330-1 to
L330-3
Article L330-1 The period of validity of any exclusivity clause by which the purchaser, transferee or lessee of chattels undertakes
with regard to the seller, assignor or lessor not to use similar or additional items originating from another supplier shall be limited to a maximum of ten years.
Article L330-2 When the contract containing the exclusivity clause indicated in Article L.330-1 is followed subsequently, between
the same parties, by other similar undertakings involving the same type of goods, the exclusivity clauses contained in these new agreements shall end on the same date as that appearing in the initial contract.
Article L330-3 Any person who provides to another person a corporate name, trademark or trade name, by requiring therefrom an
exclusivity or quasi-exclusivity undertaking in order to carry out their activity, shall be required, prior to the signature of any contract concluded in the common interest of both parties, to provide the other party with a document giving truthful information allowing the latter to commit to this contract with full knowledge of the facts.
This document, whose content shall be fixed by decree, shall specify in particular the age and experience of the undertaking, the state and prospects for development of the market concerned, the size of the network of operators, the term and conditions of renewal, cancellation and assignment of the contract and the scope of the exclusive rights.
When the payment of a sum is required prior to the signature of the contract indicated above, particularly to obtain the reservation of an area, the benefits provided in return for this sum shall be specified in writing together with the reciprocal obligations of the parties in the event of renunciation.
The document specified by the first paragraph and the draft contract shall be notified at least twenty days before the signature of the contract or, where applicable, before the payment of the sum indicated in the above paragraph.
BOOK IV Pricing freedom and competition Articles L410-1 to
L470-8 TITLE I General provisions Articles L410-1 to
L410-2
Article L410-1 The rules defined in this book shall apply to all production, distribution and service activities, including those which
are carried out by public persons, in particular in the context of public service delegation agreements.
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COMMERCIAL CODE Article L410-2
Except in cases where the law specifies otherwise, the prices of goods, products and services falling, prior to 1 January 1987, under Order No 1483 of 30 June 1945 shall be determined by the free play of competition.
However, in sectors or areas where price competition is limited by either monopoly situations or long-lasting supply problems, or by acts or regulations, a Conseil d'Etat decree may regulate the prices after the Council on Competition has been consulted.
The provisions of the first two paragraphs shall not prevent the government from ordering against excessive price increases or reductions, through a Conseil d'Etat decree, temporary measures motivated by a crisis situation, exceptional circumstances, a public disaster or a clearly abnormal situation in the market in a given sector. The decree shall be adopted following consultation of the National Consumer Council. It shall specify its period of validity which may not exceed six months.
TITLE II Anti-competitive practices Articles L420-1 to
L420-7
Article L420-1 (Act No 2001-420 of 15 May 2001, Article 52, Official Gazette of 16 May 2001)
Common actions, agreements, express or tacit undertakings or coalitions, particularly when they are intended to: 1° Limit access to the market or the free exercise of competition by other undertakings; 2° Prevent price fixing by the free play of the market, by artificially encouraging the increase or reduction of prices; 3° Limit or control production, opportunities, investments or technical progress; 4° Share out the markets or sources of supply, shall be prohibited, even through the direct or indirect intermediation of a company in the group established outside
France, when they have the aim or may have the effect of preventing, restricting or distorting the free play of competition in a market.
Article L420-3 Any undertaking, agreement or contractual clause referring to a practice prohibited by Articles L.420-1 and L.420-2
shall be invalid.
Article L420-4 (Act No 2001-420 of 15 May 2001, Article 48, Official Gazette of 16 May 2001)
The following practices are not subject to the provisions of Articles L.420-1 and L.420-2: 1° Those which result from the implementation of an act or regulation adopted in application thereof; 2° Those whose perpetrators can prove that they have the effect of ensuring economic progress, including by
creating or maintaining jobs, and that they reserve for users a fair share in the resulting profit, without giving the undertakings involved the opportunity to eliminate competition for a substantial part of the products in question. Those practices which may consist of organising, for agricultural products or products of agricultural origin, under the same brand or trade name, the production volumes and quality and the commercial policy, including by agreeing a common transfer price, may impose restrictions on competition only insofar as these are essential to achieve this aim of progress.
II.- Certain categories of agreement or certain agreements, in particular when they are intended to improve the management of small or medium-sized undertakings, may be recognised as meeting these conditions by a decree adopted following a favourable opinion from the Council on Competition.
Article L420-6 (Act No 2001-420 of 15 May 2001, Article 67, Official Gazette of 16 May 2001)
If any natural person fraudulently takes a personal and decisive part in the conception, organisation or implementation of the practices referred to in Articles L.420-1 and L.420-2, this shall be punished by a prison sentence of four years and a fine of 75,000 euros.
The court may order that its decision is published in full or in summary in the newspapers which it designates, at the expense of the offender.
Acts interrupting the period of prescription before the Council on Competition pursuant to Article L.462-7 shall also interrupt the period of prescription of the public action.
Article L420-7 (Act No. 2001-420 of 15 May 2001 Art. 82 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 1 Official Journal of 5 November 2004)
Without prejudice to Articles L. 420-6, L. 462-8, L. 463-1 to L. 463-4, L. 463-6, L. 463-7 and L. 464-1 to L. 464-8, disputes relating to application of the rules laid down in Articles L. 420-1 to L. 420-5 and Articles 81 and 82 of the Founding Treaty of the European Community, and those in which the said provisions are invoked, are referred, as applicable, and without prejudice to the rules relating to division of jurisdiction between the different types of court, to the tribunaux de grande instance or the commercial courts, whose province and scope of jurisdiction are determined in a Conseil d'Etat decree. The said decree also determines the province and scope of jurisdiction of the court(s) of appeal which are competent to take cognisance of decisions pronounced by those jurisdictions.
TITLE III
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COMMERCIAL CODE Economic concentration Articles L430-1 to
L430-10
Article L430-1 (Act No 2001-420 of 15 May 2001, Article 86, Official Gazette of 16 May 2001)
I.- A concentration shall be deemed to arise where: 1° two or more previously independent undertakings merge; 2° one or more persons already holding control of at least one undertaking or when one or more undertakings
acquire control of all or part of one or more other undertakings, directly or indirectly, whether by the acquisition of a holding in the capital or by purchasing assets, a contract or any other means.
II.- The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity shall constitute a concentration within the meaning of this article.
III.- For the purposes of applying this title, control shall be constituted by rights, contracts or any other means which, either or separately or in combination and having regard to the considerations of fact or law involved, confer all the possibility of exercising decisive influence on an undertaking, in particular by:
- ownership or the right to use all or part of the assets of an undertaking; - rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an
undertaking.
Article L430-2 (Act No 2001-420 of 15 May 2001 Article 87 Official Gazette of 16 May 2001) (Act No 2003-660 of 21 July 2003 Article 59 Official Gazette of 22 July 2003) (Ordinance No 2004-274 of 25 March 2004 Article 25 Official Gazette of 27 March 2004)
Any merger operation within the meaning of Article L 430-1 is subject to the provisions of Articles L. 430-3 et seq. of the present Title when the following three conditions are met:
- the combined aggregate worldwide turnover exclusive of tax of all of the companies or of all of the natural persons or legal entities involved in the merger is greater than 150 million euros;
- the combined aggregate turnover exclusive of tax achieved in France by at least two of the companies or groups of natural persons or legal entities concerned is greater than 50 million euros;
- the operation does not come within the scope of Council Regulation No. 4064/89 (EEC) of 21 December 1989 relating to control of concentrations between undertakings.
However, a concentration which comes within the scope of the aforementioned regulation and which has been referred, totally or partially, to the national legislation, is subject, within the limits of that referral, to the provisions of the present Article.
In the overseas departments, when a concentration within the meaning of Article 430-1 has the effect of taking either the selling space, as defined in Article L. 720-4, above the threshold set in that same Article, or the market share, expressed as turnover, of the companies subject to the provisions of that same Article, above 25%, the minister may, within three months of the operation being effectively concluded, make it subject to the procedure provided for in Articles L. 430-3 et seq. The provisions of Article L. 430-4 are not applicable to such operations, however.
Article L430-3 (Act No 2001-420 of 15 May 2001, Article 88, Official Gazette of 16 May 2001) (Act No 2004-1343 of 9 December 2004, Article 83, Official Gazette of 10 December 2004)
The concentrationshall be notified must be notified to the minister of the Economy prior to its completion. This notification shall be made when the party(ies) concerned can demonstrate a good faith intention to conclude an agreement, and particularly when they have signed an intended agreement, a letter of intent or, in the case of a public bid, when they have publicly announced an intention to make such a bid. Referral by the Commission of the European Communities shall be valid as notification.
The notification shall be submitted by the natural or legal persons acquiring control of all or part of an undertaking or, in the event of a merger or creation of a common undertaking, byall the parties concerned which must therefore make the notification jointly. The contents of the notification file shall be determined by decree.
Upon receipt of the notification of an operation or upon a global or partial referral of a Community-wideoperation, a communiqué shall be published by the Minister of the Economy in accordance with the procedures determined by decree.
On receipt of the notification file, the minister shall send a copy of this to the Council on Competition.
Article L430-4 (Act No 2001-420 of 15 May 2001, Article 89, Official Gazette of 16 May 2001)
A concentration operation cannot be carried through until after the agreement of the Minister of the Economy and, where applicable, of the minister responsible for the economic sector concerned.
In the event of a duly justified special need, the notifying parties may ask the Minister of the Economy for an derogation allowing them to carry through all or part of the concentration without waiting for the decision referred to in the first paragraph and without prejudice to that decision.
Article L430-5 (Act No 2001-420 of 15 May 2001, Article 90, Official Gazette of 16 May 2001)
I.- The Minister of the Economy shall decide on the concentration within five weeks from the date of reception of the
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II.- The parties to the concentration may commit themselves to taking measures aimed in particular at remedying, if applicable, the anti-competitive effects of the concentration either on the occasion of the notification or at any time before the expiration of the five-week period from the date of receipt of the complete notification, as long as the decision set forth by I has not beendelivered.
If the Minister receive commitments more than two weeks after the complete notification of the concentration, the period indicated in I shall expire three weeks after the date of receipt of these undertakings by the Minister of the Economy.
III.- The Minister of the Economy may: - either find, in a reasoned decision, that the concentration notified thereto does not fall within the scope defined by
Articles L.430-1 and L.430-2; - or authorise the concentration, possibly by subordinating this authorisation, in a reasoned decision, to the actual
implementation of the commitments made by the parties. However, if the Minister considers that the concentration is likely to adversely affect competition and that the
commitments made are not sufficient to remedy this, he shall refer the matter to the Council on Competition for an opinion.
IV.- If the Minister does not take any of the three decisions specified by III within the period indicated in I, possibly extended pursuant to II, the concentration shall be deemed to have been authorised.
Article L430-7 (Act No 2001-420 of 15 May 2001, Article 92, Official Gazette of 16 May 2001)
I.- When the Council on Competition has been referred to, the concentration shall be decided on within four weeks from the submission of the Council's opinion to the Minister of the Economy.
II.- After having read the Council on Competition's opinion, the parties may propose undertakings likely to remedy the anti-competitive effects of the concentration before the end of a four-week period from the date of submission of the opinion to the minister, unless the concentration has already been decided on as specified by I.
If the undertakings are sent to the minister more than one week after the date of submission of the opinion to the minister, the period referred to in I shall expire three weeks after the date of receipt of these undertakings by the minister.
III.- The Minister of the Economy and, if applicable, the minister responsible for the economic sector concerned may, in a reasoned decision:
- either prohibit the concentration and order the parties, if applicable, to adopt any measures likely to re-establish sufficient competition;
- or authorise the concentration by ordering the parties to adopt any measures likely to ensure sufficient competition or obliging them to observe requirements likely to ensure a sufficient contribution to economic and social progress to compensate for the adverse effects on competition.
The orders and requirements specified by the above two paragraphs shall be imposed whatever the contractual clauses which may be concluded by the parties.
The draft decision shall be sent to the interested parties which shall have a period for presenting their observations. IV.- If the Minister of the Economy and the minister responsible for the economic sector concerned do not intend to
take either of the two decisions specified by III, the Minister of the Economy shall authorise the concentration in a reasoned decision. The authorisation may be subordinated to the actual implementation of the undertakings made by the notifying parties.
V.- If none of the three decisions specified by III and IV has been taken within the period indicated in I, possibly extended pursuant to II, the concentration shall be deemed to have been authorised.
Article L430-8 (Act No 2001-420 of 15 May 2001, Article 92, Official Gazette of 16 May 2001)
I.- If a concentration has been carried out without being notified, the Minister of the Economy may impose, on the persons on whom the responsibility for notification is incumbent, a financial penalty whose maximum amount shall be, for legal persons, 5% of their pre-tax turnover made in France during the last closed financial year, plus, if applicable, the turnover which the acquired party made in France during the same period, and, for natural persons, 1.5 million euro.
In addition, the Minister shall enjoin the parties, subject to a penalty, to notify the concentration, otherwise the situation must restored as it prevailed prior to the concentration. The Minister may also refer to the Council on Competition without waiting for the notification. The procedure specified by Articles L.430-5 to L.430-7 shall then apply.
II.- If a notified concentration not benefiting from the exemption specified by the second paragraph of Article L.430-4 has been carried out before the decision specified by the first paragraph of the same article has been given, the Minister of the Economy may impose on the notifying persons a financial penalty which may not exceed the amount defined in I.
III.- In the event of an omission or incorrect declaration in a notification, the Minister of the Economy may impose on the notifying persons a financial penalty which may not exceed the amount defined in I.
This penalty may be accompanied by the withdrawal of the decision authorising the concentration. Unless the situation is returned to the state prevailing prior to the concentration, the parties shall then be required to notify the concentration again, within one month from the withdrawal of the decision, otherwise they will incur the penalties specified by I.
IV.- If it is considered that the parties have not fulfilled an order, requirement or commitment within the fixed periods, the Minister of the Economy may refer to the Council on Competition for an opinion.
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COMMERCIAL CODE If the Council on Competition's opinion indicates non-fulfilment, the Minister of the Economy and, if applicable, the
minister responsible for the economic sector concerned may: 1° Withdraw the decision authorising the concentration. Unless the situation is returned to the state prevailing prior
to the concentration, the parties shall be required to notify the concentration again, within one month from the withdrawal of the decision, otherwise they will incur the penalties specified by I;
2° Enjoin the parties on whom the unfulfilled obligation was incumbent, subject to a penalty, to fulfil, within a period which they shall fix, the orders, requirements or commitments.
In addition, the Minister of the Economy may impose on the persons on whom the unfulfilled obligation was incumbent a financial penalty which may not exceed the amount defined in I.
Article L430-9 (Act No 2001-420 of 15 May 2001, Article 91, Official Gazette of 16 May 2001)
The Council on Competition may, in the event of the abuse of a dominant position or a state of economic dependence, ask the Minister of the Economy toenjoin, by a reasoned order, jointly with the minister responsible for the sector, the undertaking or group of undertakings in question to amend, supplement or cancel, within a specified period, all agreements and all acts by which the concentration of economic power allowing the abuse has been carried out, even if these acts have been subject to the procedure specified by this title.
Article L430-10 (Act No 2001-420 of 15 May 2001, Article 93, Official Gazette of 16 May 2001)
I.- The decisions adopted pursuant to Articles L.430-5 to L.430-8 shall be made public, if applicable accompanied by the Council on Competition's opinion, according to the terms defined by decree.
II.- When the Minister of the Economy questions third parties on the subject of the concentration, its effects and the commitments proposed by the parties and makes public his decision in accordance with the conditions specified by I, he shall take account of the legitimate interest of the notifying parties or the persons cited that their business secrets are not disclosed.
TITLE IV Transparency, restrictive competitive practices and other prohibited practices Articles L441-1 to
L443-1
PRELIMINARY CHAPTER General provisions
CHAPTER I Transparency Articles L441-1 to
L441-5
Article L441-1 (Act No. 2001-1168 of 11 December 2001 Art. 13 IV 1 Official Journal of 12 December 2001)
The rules relating to the conditions of sale to the consumer are determined in Article L113-3 of the Consumer Code reproduced hereunder:
"Art. L113-3. - Any seller of products or any service provider shall, by means of marking, labelling, posters or any other suitable means, inform the consumer of the prices, limitations, if any, contractual liability and special conditions of sale pursuant to the conditions laid down in orders of the Finance Minister issued after consultation with the National Consumer Council.
This provision applies to all the activities referred to in the last paragraph of Article L113-2. The rules relating to the obligation for credit institutions and the organisations referred to in Article L518-1 of the
Monetary and Financial Code to provide information are determined in I and II of Article L312-1-1 of that same code."
Article L441-2 (Act No. 2001-420 of 15 May 2001 Art. 49 Official Journal of 16 May 2001) (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Act No. 2005-157 of 23 February 2005 Art. 32 Official Journal of 24 February 2005)
Any advertising meant for the consumer displayed on any medium or visible from outside the place of sale which mentions a price reduction or a promotional price on perishable foodstuffs must indicate the nature and origin of the product(s) offered and the period during which the advertiser's offer shall remain valid. The reference to the origin shall be written in characters of the size used to indicate the price.
When such promotional campaigns are likely, on account of their scale or their frequency, to disrupt the markets, an interdepartmental order or, failing this, a prefectorial order, shall determine their frequency and duration for the products concerned.
The price of a fresh fruit or vegetable covered by a transfer price agreement between the supplier and its customer may be advertised away from the place of sale for a maximum period of seventy-two hours immediately preceding the day on which it is first applied and for a period not exceeding five days thereafter.
In all other cases, any price of a fresh fruit or vegetable advertised away from the place of sale, regardless of its origin, must be covered by an interdepartmental order for a renewable term of one year entered into under the provisions of Article L632-1 of the Rural Code. The said agreement shall specify the periods during which such
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The said agreement may be extended under the provisions of Articles L632-3 and L632-4 of that same code. The provisions of the three preceding paragraphs do not apply to fresh fruits and vegetables of species not
produced in Metropolitan France. Any violation of the provisions of the above paragraphs incurs a fine of 15,000 euros. Cessation of advertising which does not comply with the provisions of the present article may be ordered as
provided for in Article L121-3 of the Consumer Code.
Article L441-2-1 (Act No. 2005-157 of 23 February 2005 Art. 33 Official Journal of 24 February 2005) (Act No. 2006-11 of 5 January 2006 Art. 53 III Official Journal of 6 January 2006)
For agricultural produce which is perishable or derived from short production cycles, live animals, carcasses and fishing and fish farming products indicated on a list compiled by decree, a distributor or service provider may only have the benefit of discounts, reductions and rebates or be remunerated for commercial cooperation services if these are provided for in a written contract relating to the sale of such products by the supplier.
The said contract shall contain clauses relating to commitments regarding volumes, the method of price calculation based on volumes and the quality of the products and services concerned, and price setting.
When a standard contract for the activities referred to in the first paragraph is included in an interdepartmental order adopted by the recognised inter-branch organisation for the product concerned and extended pursuant to the provisions of Articles L632-3 and L632-4 of the Rural Code, the contract referred to in the first paragraph must conform to that standard contract. The said standard contract shall, inter alia, include standard clauses relating to the commitments, the method of price calculation referred to in the second paragraph, the delivery schedules, the term of the contract and the floor price principle, the content of the said standard clauses is decided through commercial negotiations between the contracting parties.
Any violation of the provisions of the present article incurs a fine of 15,000 euros.
Article L441-3 (Act No 2001-420 of 15 May 2001, Article 53 I, Official Gazette of 16 May 2001)
All purchases of products or all provisions of services for a professional activity must be covered by an invoice. The seller shall be required to raise the invoice when the sale is made or when the service is provided. The
purchaser must demand this. The invoice must be prepared in duplicate. The seller and purchaser shall each keep one original.
The invoice must indicate the names of the parties and their addresses, the date of the sale or service provision, the quantity, precise description and the unit price excluding VAT of the products sold and services provided and also any price reduction applying on the date of the sale or provision of services and directly linked to this sale or service provision, excluding discounts not specified on the invoice.
The invoice shall also indicate the date when payment must be made. It shall specify the discount conditions applying in the event of payment on a date prior to that resulting from the application of the general conditions of sale and the rate of the penalties due from the day after the payment date entered on the invoice. Payment shall be deemed to be made on the date when the funds are made available, by the client, to the beneficiary or the latter’s subrogate.
Article L441-4 Any breach of the provisions of Article L.441-3 shall be punished by a fine of 75,000 euros. The fine may be increased to 50% of the amount invoiced or that which should have been invoiced.
Article L441-5 Legal persons may be declared criminally liable in accordance with the conditions specified by Article 121-2 of the
Penal Code for the breach specified by Article L.441-4. The penalties incurred by legal persons shall be: 1° The fine according to the terms specified by Article 131-38 of the Penal Code; 2° The penalty of exclusion from the public markets for a maximum period of five years, pursuant to 5° of Article
131-39 of the same code.
CHAPTER II Competitive restrictive practices Articles L442-1 to
L442-10
Article L442-1 (Law No 2001-1168 of 11 December 2001 Article 13 IV (2) Official Gazette of 12 December 2001) (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The rules relating to sales or services with premiums, refusals to sell a product or to provide a service, and supplies effected in batches or imposed quantities are set out in Articles L. 121-35 and L. 122-1 of the Consumer Code reproduced below:
"Article L. 121-35. - Any sale or proposed sale of products or goods and any provision or proposed provision of a service made to consumers which gives entitlement, free of charge, immediately or eventually, to a premium consisting of products, goods or services, is prohibited unless they are identical to those provided.
This provision does not apply to petty items or services of low value or to samples. For the lending institutions and other institutions referred to in Article L. 518-1 of the Monetary and Financial Code,
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COMMERCIAL CODE the rules relating to sales with premiums are set out in subparagraph 2 (I) of Article L. 312-1-2 of that same code."
"Article L. 122-1. - Refusing to sell a product or to provide a service to a consumer without a valid reason, or making the sale of a product conditional upon the purchase of an imposed quantity or the concomitant purchase of another product or a service, or making the provision of a service conditional upon the provision of another service or the purchase of a product is prohibited.
For the lending institutions and other institutions referred to in Article L. 518-1 of the Monetary and Financial Code, the rules relating to conditional sales are set out in subparagraph 1 (I) of Article L. 312-1-2 of that same code."
Article L442-3 Legal persons may be declared criminally liable, in accordance with the conditions specified by Article 121-2 of the
Penal Code, for the offence specified by Article L.442-2. The penalties incurred by legal persons shall be: 1° The fine according to the terms specified by Article 131-38 of the Penal Code; 2° The penalty referred to in 9° of Article 131-39 of the same code. The cessation of the advertising may be ordered in accordance with the conditions specified by Article L.121-3 of
the Consumer Code.
Article L442-4 I.- The provisions of Article L.442-2 shall not apply: 1° To voluntary or forced sales caused by the cessation or change of commercial activity: a) To products whose sale has a marked seasonal nature, during the final period of the sale season and in the
interval between two sale seasons; b) To products which no longer respond to the general demand due to the development of fashion or the
emergence of technical improvements; c) To products, with identical characteristics, whose restocking has occurred at a lower price, with the actual
purchase price then being replaced by the price resulting from the new purchase invoice; d) To food products marketed in a shop with a sale area of less than 300 square metres and to non-food products
marketed in a shop with a sale area of less than 1 000 square metres, whose resale price is aligned with the price legally applied to the same products by another trader in the same area of activity;
2° Provided that the reduced price offer is not advertised in any way outside the place of sale, to perishable products from the moment when they are threatened by rapid deterioration.
II.- The exceptions specified by I shall not prevent the application of 2 of Article L.625-5 and 1 of Article L.626-2.
Article L442-5 If any person imposes, directly or indirectly, a minimum on the resale price of a product or good, on the price of a
service provision or on a trading margin, this shall be punished by a fine of 15,000 euros.
Article L442-7 No associations or cooperatives of undertakings or administrations may normally offer products for sale, sell these
or provide services if these activities are not specified by their articles of association.
Article L442-8 It is prohibited for any person to offer products for sale or to propose services by using, in accordance with irregular
conditions, the public property of the State, local authorities and their public establishments. Breaches of the ban specified by the above paragraph shall be investigated and recorded in accordance with the
conditions defined by Articles L.450-1 to L.450-3 and L.450-8. Agents may deposit, in the places which they determine and for a period which may not exceed one month, the
products offered for sale and the goods having allowed the sale of the products or the offer of services. The deposit shall give rise to the immediate establishment of an official record. This shall include an inventory of
the goods and commodities deposited and an indication of their value. It shall be notified within five days of its completion to the procureur de la République and to the interested party.
The court may order the confiscation of the products offered for sale and the goods having allowed the sale of the products or the offer of services. The court may order the perpetrator to pay to the Treasury a sum corresponding to the value of the products deposited, in cases where an attachment has not been carried out.
Article L442-9 (inserted by Act No. 2005-157 of 23 February 2005 Art. 34 I Official Journal of 24 February 2005)
The fact of any producer, trader, manufacturer or person recorded in the trade register applying or causing application of excessively low initial prices for products included in a list referred to in Article L441-2-1 of the present code during an economic crisis as defined in Article L611-4 of the Rural Code shall render the person responsible liable and compel him to make good the damage thus caused.
III and IV of Article L442-6 are applicable to the action covered by the present article.
Article L442-10 (inserted by Act No. 2005-882 of 2 August 2005 Art. 51 Official Journal of 3 August 2005)
I. - A contract through which a supplier makes a price commitment to a producer, trader, manufacturer or person recorded in the trade register via an on-line reverse auction is void if any of the following rules have not been respected:
1 Prior to the auction, the buyer or the person organising the auction on behalf of the buyer shall, in a transparent
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COMMERCIAL CODE and non-discriminatory fashion, inform all the approved prospective bidders of the determining factors of the products or services it wishes to acquire, its terms and conditions of purchase, its detailed selection criteria and the rules under which the auction shall take place;
2 Upon expiry of the auction period, the identity of the successful bidder shall be revealed to any other bidder who so requests. In the event of the presenter of the successful bid failing to perform, no party shall be required to take over the contract at the lowest price or the lowest bid.
II. - The buyer or the person organising the auction on behalf of the buyer shall create a record of the tendering process and retain it for one year. It shall be produced if any inquiry is conducted pursuant to Part V of the present Book.
III. - On-line reverse auctions organised by the buyer or its representative are prohibited for the agricultural products referred to in the first paragraph of Article L441-2-1 and for current consumption food products derived from the primary processing of such products.
IV. - Failure to respect the provisions of I to III shall render the person responsible liable and compel him to make good the damage thus caused. The provisions of III and IV of Article L442-6 are applicable to the transactions referred to in I to III of the present article.
CHAPTER III Other prohibited practices Article L443-1
Article L443-1 Subject to a fine of 75,000 euros, the payment time fixed by any producer, retailer or service provider may not
exceed: 1° Thirty days after the end of the ten-day period from delivery for purchases of perishable food products and frozen
or deep-frozen meat, deep-frozen fish, convenience foods and preserves made from perishable food products, with the exception of purchases of seasonal products made in the context of the “cultivation contracts” referred to in Articles L.326-1 to L.326-3 of the Rural Code;
2° Twenty days after the day of delivery for purchases of live cattle intended for consumption and fresh meat by-products;
3° Thirty days after the end of the month of delivery for purchases of alcoholic drinks subject to the consumer tax specified by Article 403 of the General Tax Code;
4° Failing multi-industry agreements concluded pursuant to Book VI of the Rural Code and made compulsory by regulation for all operators throughout mainland France with regard to payment times, seventy-five days after the day of delivery for purchases of alcoholic drinks subject to the transportation duties specified by Article 438 of the same code.
TITLE V Investigative powers Articles L450-1 to
L450-8
Article L450-1 (Act No. 2001-420 of 15 May 2001 Art. 81 I Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 2 Official Journal of 5 November 2004)
Officials duly authorised by the Minister for Economic Affairs may carry out the necessary inquiries pursuant to the provisions of the present Book.
The Competition Council's rapporteurs have the same powers in regard to cases referred to that Council. When investigations are carried out for or on behalf of a competition authority of another member state pursuant to
1 of Article 22 of Council Regulation No. 1/2003 relating to the implementation of the competition rules laid down in articles 81 and 82 of the Founding Treaty of the European Community, the Minister for Economic Affairs may authorise agents of that competition authority to assist the authorised officials referred to in the first paragraph or the rapporteurs referred to in the second paragraph with their investigations. The particulars of such assistance are determined in a Conseil d'Etat decree.
Category A officials of the Ministry of Economic Affairs who are specially authorised for such purposes by the Minister of Justice on a recommendation from the Minister for Economic Affairs may receive letters rogatory from investigating judges.
The authorised officials referred to in the present article may exercise the investigative powers conferred on them by the present article and the following articles throughout the national territory.
Article L450-2 The inquiries shall give rise to the establishment of official records and, if applicable, reports. The official records shall be sent to the competent authority. A duplicate of these shall be left with the interested
parties. These shall be authentic unless otherwise proven.
Article L450-3 (Act No 2001-420 of 15 May 2001, Article 76, Official Gazette of 16 May 2001)
The inquirers may access all premises, land or means of transport for professional use, request the notification of books, invoices and all other professional documents and obtain or take copies of these by any means and on all media and collect information and proof by means of summons or in situ.
They may ask the authority to which they are answerable to appoint an expert to conduct any necessary expert assessment involving all the parties.
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COMMERCIAL CODE Article L450-4 (Act No. 2001-420 of 15 May 2001 Art. 77 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 3 Official Journal of 5 November 2004)
The investigating officials may conduct inspections at any premises and seize documents and any information medium only in the context of investigations requested by the European Commission, the Minister for Economic Affairs or the Competition Council's general rapporteur on the basis of a proposal from the rapporteur or judicial authorisation given by the freedoms and custody judge of the Tribunal de grande instance in whose jurisdiction the premises to be inspected are situated. They may also, in the same circumstances, place any commercial premises, documents and information media under seal for the duration of the inspection of those premises. When such premises come within the jurisdiction of several courts and simultaneous action must be taken in each of them, a single order may be issued by the presiding judge of one (1) of the courts.
The judge shall verify that the application for authorisation submitted to him is well-founded; the said application must contain all the elements of information held by the applicant which would justify an inspection. When the inspection is intended to enable the commission of violations of the provisions of Book IV of the present code to be established, the application for authorisation may contain only the evidence which gives grounds for suspecting the existence of the practices in respect of which proof is sought in that specific instance.
The inspection and seizure take place under the authority and control of the judge who authorised them. He shall designate one or more law enforcement officers to be present to provide assistance when such measures are enforced by effecting any necessary requisitions and to keep him informed of their progress. If they take place outside the jurisdiction of his own Tribunal de grande instance, he shall issue letters rogatory delegating such control to the presiding judge (1) of the Tribunal de grande instance in whose jurisdiction the inspection is carried out.
The judge may visit the premises during the inspection, and may decide to suspend or terminate it at any time. The order is served verbally and in situ at the time of the inspection on the occupant of the premises or his
representative, who is handed a true copy thereof against acknowledgement of receipt or a signature in the margin of the official record. In the absence of the occupant of the premises or his representative, the order is served by recorded-delivery registered mail after the inspection. Service is deemed to have been effected on the date shown on the confirmation of receipt.
The order referred to in the first paragraph of the present article shall be open to appeal on points of law only under the rules laid down by the Code of Criminal Procedure. Such appeals do not have suspensive effect.
The inspection, which shall not commence before 6.00 a.m. or after 9.00 p.m., is carried out in the presence of the occupant of the premises or his representative. If this proves impossible, the law enforcement officer shall enlist the services of two witnesses who are not under his authority, or that of the administration of the Directorate General for Competition, Consumer Affairs and the Prevention of Fraud, or that of the Competition Council.
Only the investigating officials, the occupant of the premises or his representative, as well as the law enforcement officer and, where applicable, the agents and other persons appointed by the European Commission, may take judicial notice of the documents and other items before their seizure.
The taking of inventories and placing of seals are carried out pursuant to Article 56 of the Code of Criminal Procedure.
The originals of the official record and the inventory are sent to the judge who ordered the inspection. The documents and other items seized are returned to the occupant of the premises within six months of the date
on which the Competition Council's decision becomes definitive. The occupant of the premises is given formal notice, by recorded-delivery registered mail, to come and collect them within two months. Upon expiry of that period, and failing any steps on his part, the documents and other items are returned to him at his own expense.
The inspection or seizure procedures may be the subject of an appeal to the judge who authorised them, lodged within two months of service of the relevant order for the persons occupying the premises where the said procedures took place, and, for other persons brought into the proceedings subsequently on account of items seized during those procedures, of the date on which they became aware of the existence of the said procedures and not later than the date of notification of the claims referred to in Article L. 463-2. The judge rules on such appeals through an order which shall be open to appeal on points of law only under the rules laid down by the Code of Criminal Procedure. Such appeals do not have suspensive effect.
(1) NB: Article 49 X 1 and 2 of Act No. 2000-516 of 15 June 2000, effective from 16 June 2002, amended Article 48 of Order No. 86-1243 of 1 December 1986 by substituting the words"freedoms and custody judge"for the words"presiding judge". The said Article 48 was repealed and codified by Order No. 2000-912 of 18 September 2000, thus becoming Article L. 450-4 of the Commercial Code.
Article L450-5 (Act No 2001-420 of 15 May 2001, Article 78, Official Gazette of 16 May 2001)
The general rapporteur of the Council on Competition shall be immediately informed of the start and end of the investigations referred to in Article L.450-4 when these have been carried out on the initiative of the Minister for Economic Affairs and when they relate to acts likely to come under Articles L.420-1 and L.420-2.
The general rapporteur may propose to the Council that it assumes jurisdiction of its own motion.
Article L450-6 (Act No 2001-420 of 15 May 2001, Article 80, Official Gazette of 16 May 2001)
The general rapporteur shall appoint, for the examination of each matter, one or more rapporteurs. At the general rapporteur’s request, the authority to which the agents referred to in Article L.450-1 are answerable shall appoint the
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COMMERCIAL CODE inquirers and have any inquiry which the rapporteur considers appropriate conducted immediately. The latter shall define the directions of the inquiry and shall be kept informed of its progress.
A decree shall specify the conditions in accordance with which, at the reasoned request of the chairman of the Council on Competition, the authority to which the agents referred to in Article L.450-1 are answerable shall provide, for a specified period, to the general rapporteur of the Council on Competition, the inquirers to conduct certain inquiries, in accordance with the directions defined by the rapporteurs.
Article L450-7 The inquirers may, without professional secrecy being raised against them, access any document or information
held by the services and establishments of the State and other public authorities.
Article L450-8 If anyone objects, in any way whatsoever, to the fulfilment of the duties with which the agents appointed by Article
L.450-1 and the rapporteurs of the Council on Competition are entrusted pursuant to this book, this shall be punished by a prison sentence of six months and fine of 7,500 euros.
TITLE VI Council on Competition Articles L461-1 to
L464-8
CHAPTER I Organisation Articles L461-1 to
L461-3
Article L461-1 I.- The Council on Competition shall consist of seventeen members appointed for a term of six years by a decree
adopted following the report of the Minister for Economic Affairs. II.- It shall be composed of: 1° Eight members or former members of the Conseil d'Etat, Cour de Cassation, Auditor-General’s department or
other administrative or ordinary courts; 2° Four persons chosen due to their competence in economic affairs or in competition and consumer affairs; 3° Five persons carrying out or having carried out their activities in the sectors of production, distribution, craftwork,
services or the professions. III.- The chairman and three vice-chairmen shall be appointed, with regard to three of them, from among the
members or former members of the Conseil d'Etat, Cour de Cassation or Auditor-General’s department, and with regard to one of them, from the categories of persons indicated in 2° and 3° of II.
IV.- The four persons specified by 2° of II shall be chosen from a list of eight names submitted by the eight members specified by 1° of II.
V.- Members of the Council on Competition may be reappointed.
Article L461-2 The chairman and vice-chairmen shall fulfil their duties on a full-time basis. They shall be subject to the
incompatibility rules specified for public positions. Any member of the Council who has not participated, without a valid reason, in three consecutive sessions or who
has not fulfilled the obligations specified by the two paragraphs below shall be declared by the minister to have automatically resigned. All members of the Council must inform the chairman of the interests which they hold or have just acquired and of the duties which they fulfil in an economic activity.
No Council member may participate in a matter in which they have an interest or in which they represent or have represented one of the interested parties.
The government commissioner to the Council shall be appointed by the Minister for Economic Affairs.
Article L461-3 (Act No. 2001-420 of 15 May 2001 Art. 65 Official Journal of 16 May 2001) (Amending Finance Act for 2001 No. 2001-1276 of 28 December 2001 Art. 85 Official Journal of 29 December 2001)
The council may meet in a plenary session, in sections, or as a permanent commission. The permanent commission is composed of the chairman and the three vice-chairmen.
In the event of a tied vote, the chairman of the meeting shall have a casting vote. The general rapporteur, the assistant general rapporteur(s) and the permanent rapporteurs are appointed by order
of the Finance Minister on a proposal from the chairman. The other rapporteurs are appointed by the chairman. The general rapporteur may delegate some or all of the duties conferred on him by Book IV of the present code to
one or more assistant general rapporteurs. The operating credits allocated to the Competition Council are charged to the budget of the Finance Minister. The
provisions of the Act of 10 August 1922 relating to the organisation of expenditure control do not apply to management thereof.
The chairman is the certifying officer for the council's income and expenditure.
CHAPTER II
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COMMERCIAL CODE Powers Articles L462-1 to
L462-9
Article L462-1 The Council on Competition may be consulted by the parliamentary committees with regard to bills and any issues
relating to competition. It shall give its opinion on any competition issue at the request of the government. It may also give its opinion on
the same issues at the request of the territorial authorities, professional associations and trade unions, approved consumer organisations, chambers of agriculture, chambers of trade or chambers of trade and industry, with regard to the interests for which these are responsible.
Article L462-2 The Council must be consulted by the government on any draft regulation establishing a new system having the
direct effect of: 1° Subjecting the practice of a profession or the access to a market to quantitative restrictions; 2° Establishing exclusive rights in certain areas; 3° Imposing uniform practices in terms of prices or conditions of sale.
Article L462-3 (Order No. 2004-1173 of 4 November 2004 Art. 4 Official Journal of 5 November 2004)
The courts may consult the council regarding the anti-competitive practices described in Articles L. 420-1, L. 420-2 and L. 420-5 hereof and Articles 81 and 82 of the Founding Treaty of the European Community when they are raised in the cases referred to them. It may issue an opinion only after a procedure in which all parties were heard is concluded. If it already has information gathered during an earlier procedure, however, it may issue its opinion without implementing the procedure envisaged in the present text.
The prescription period is suspended, where applicable, when the council is consulted. The council's opinion may be published after the dismissal or judgement.
Article L462-4 The Council may be consulted by the Minister for Economic Affairs on any concentration project or any
concentration likely to adversely affect competition in accordance with the conditions specified by Title III above.
Article L462-5 The Council on Competition may be referred to by the Minister for Economic Affairs on any practice mentioned in
Articles L.420-1, L.420-2 and L.420-5. It may assume jurisdiction of its own motion or be referred to by undertakings or, for any matter relating to the interests for which they are responsible, by the bodies indicated in the second paragraph of Article L.462-1.
Article L462-6 (Order No. 2004-1173 of 4 November 2004 Art. 5 Official Journal of 5 November 2004)
The Competition Council considers whether the practices referred to it come within the scope of Articles L. 420-1, L. 420-2 or L. 420-5 or may be justified by virtue of Article L. 420-4. It imposes sanctions and orders where appropriate.
When it considers that the facts warrant application of Article L. 420-6, it refers the case to the public prosecutor. Such referrals suspend the prescription of criminal prosecutions.
The prescription is also suspended when the facts raised in the referral are the subject of an action seeking their investigation, establishment or punishment instituted by the European Commission or by a competition authority of another European Community member state.
Article L462-7 (Order No. 2004-1173 of 4 November 2004 Art. 6 Official Journal of 5 November 2004)
Facts dating back more than five years may not be referred to the council if no attempt has been made to investigate, establish or punish them.
Article L462-8 (Act No. 2001-420 of 15 May 2001 Art. 74 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 7 Official Journal of 5 November 2004)
In a reasoned decision, the Competition Council may declare the referral inadmissible for want of a legal interest or quality to act on the part of the referrer, or if the facts are prescribed within the meaning of Article L. 462-7, or if it considers that the facts invoked are beyond its scope.
It may also reject the referral via a reasoned decision when it considers that the facts invoked are not supported by sufficiently probative elements.
It may also reject the referral by the same means if it is informed that another national competition authority of a European Community member state or the European Commission has dealt with the same facts under the provisions laid down in articles 81 and 82 of the Founding Treaty of the European Community.
It may also reject the referral by the same means or suspend the procedure if it is informed that another national competition authority of a European Community member state is dealing with the same facts under the provisions laid down in articles 81 and 82 of the Founding Treaty of the European Community. When such information is received by the rapporteur at the preparatory stage, the general rapporteur may suspend the referral.
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COMMERCIAL CODE In the same circumstances, the Competition Council may also decide to close a case it had routinely taken up. Withdrawals by the parties or removals from the courts at the behest of the European Commission are duly
recorded in a decision of the chairman of the Competition Council or a vice-chairman designated by him.
Article L462-9 (Act No. 2001-420 of 15 May 2001 Art. 83 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 8 Official Journal of 5 November 2004)
I. - The Competition Council may, with regard to matters within its jurisdiction, and after giving the Minister for Economic Affairs prior notice thereof, send information or documents it holds, or which it gathers at their request, to the Commission of the European Communities or to the authorities of other States which exercise similar powers, subject to reciprocity, and provided that the competent foreign authority is subject to professional secrecy as rigorous as that required in France.
The Competition Council may, applying the conditions, procedures and sanctions specified for the performance of its duties, conduct, or ask the Minister for Economic Affairs to conduct, investigations at the request of foreign authorities which exercise similar powers, subject to reciprocity.
The professional secrecy obligation shall not impede communication by the competition authorities of the information or documents they hold, or which they gather at their request, to the Commission of the European Communities and the authorities of other States which exercise similar powers and are bound by the same professional secrecy obligations.
Assistance requested by a foreign authority exercising similar powers which involves investigations or the transmission of information held or gathered by the Competition Council is refused if acceding to the request would be likely to jeopardise French sovereignty, security or public order, or if criminal proceedings have already been instituted in France on the basis of the same facts and against the same persons, or if those persons have already been penalised by a final decision for the same facts.
The competition authorities, with regard to matters within their respective jurisdictions, may use information or documents sent to them under the same conditions by the Commission of the European Communities or the authorities of other member states which exercise similar powers.
For implementation of the present article, the council may enter into agreements which organise its relations with foreign authorities exercising similar powers. The said agreements are approved by the council as determined in Article L. 463-7. They are published in the Official Journal.
II. - In implementing the competition rules laid down in articles 81 and 82 of the Founding Treaty of the European Community, the competition authorities apply the provisions of Council Regulation No. 1/2003 relating to the implementation of the competition rules laid down in articles 81 and 82 of the Founding Treaty of the European Community, with the exception of the provisions of the first five paragraphs of I of the present article.
To implement the provisions of 4 of Article 11 of the said regulation, the Competition Council shall send the European Commission a summary of the case and a document setting out the solution envisaged, which may be a notification of claims or the report referred to in Article L. 463-2. It may make those same documents available to the competition authorities of the European Community member states.
CHAPTER III Procedure Articles L463-1 to
L463-8
Article L463-1 (Order No. 2004-1173 of 4 November 2004 Art. 9 I Official Journal of 5 November 2004)
All the parties are fully heard at the preparatory stage and in the proceedings before the Competition Council, without prejudice to the provisions of Article L. 463-4.
Article L463-2 (Act No. 2001-420 of 15 May 2001 Art. 68 I and II Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 9 II Official Journal of 5 November 2004)
Without prejudice to the measures referred to in Article L. 464-1, the general rapporteur sends the claims to the parties concerned and to the government representative, who may consult the file, without prejudice to the provisions of Article L. 463-4, and present their observations within two months.
The report is then sent to the parties, to the government representative and to the ministers concerned. It is accompanied by the documents which the rapporteur is relying on and the observations, if any, made by the parties concerned.
The parties have a period of two months in which to submit their observations in reply, which may be consulted by the persons referred to in the previous paragraph during the fifteen days preceding the sitting.
When exceptional circumstances so warrant, the chairman of the council may, through an unappealable decision, grant the parties a further period of one month to prepare their case and submit their observations.
Article L463-3 (Act No 2001-420 of 15 May 2001, Article 69, Official Gazette of 16 May 2001)
The chairman of the Council on Competition or a vice-chairman delegated thereby may, after notification of the complaints to the interested parties, decide that the matter shall be decided by the Council without the prior preparation of a report. This decision shall be notified to the parties.
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COMMERCIAL CODE Article L463-4 (Act No. 2001-420 of 15 May 2001 Art. 70 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 9 III Official Journal of 5 November 2004)
Save for cases in which discovery or consultation of such documents is necessary for the proceedings or for exercise of the rights of the party or parties involved, the chairman of the Competition Council, or a vice-chairman delegated by him, may refuse discovery or consultation of documents or certain elements contained in them which affect business secrecy. Either the documents concerned are removed from the file, or certain references therein are struck out.
In cases in which discovery or consultation of such documents, despite business secrecy being affected, is necessary for the proceedings or for exercise of the rights of one or more of the parties, they are placed in a confidential appendix to the file and disclosed only to the government representative and to the party or parties involved who need the documents or elements in order to exercise their rights.
A Conseil d'Etat decree lays down the present article's implementing regulations, as necessary.
Article L463-5 The courts investigating and hearing the case may notify to the Council on Competition, at its request, the inquiry
reports or official records having a direct link with the facts referred to the Council.
Article L463-6 The disclosure by one of the parties of information regarding another party or a third party, which it could only have
known as a result of the notifications or consultations which have occurred, shall be punished by the penalties specified by Article 226-13 of the Penal Code.
Article L463-7 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The meetings of the Council for Competition are not public. Only the parties and the Government Commissioner can attend them. The parties may ask to be heard by the Council and can arrange to be represented or assisted.
The Council for Competition may hear any person whose evidence it considers to be material to its enquiry. The general reporter, or the assistant general reporter(s) and the Government Commissioner may present their
observations. The general reporter, or the assistant general reporter(s) and the reporter attend the private sitting, but are entitled
to speak and vote only when the council is ruling on practices referred to it pursuant to Article L. 462-5.
Article L463-8 (inserted by Act No 2001-420 of 15 May 2001, Article 71, Official Gazette of 16 May 2001)
The general rapporteur may decide to call experts in the event of a request made at any time in the preparatory stages by the rapporteur or a party. This decision shall not be open to any appeal.
The tasks and time given to the expert shall be specified by the decision appointing the latter. The expert assessment operations shall involve all the parties.
The financing of the expert assessment shall be the responsibility of the party requesting this or the Council where this is ordered at the request of the rapporteur. However, the Council may, in its decision on the merits, allocate the final charge to the party or parties penalised, in the proportions which it determines.
CHAPTER IV Decisions and appeals Articles L464-1 to
L464-8
Article L464-1 (Act No 2001-420 of 15 May 2001, Article 72, Official Gazette of 16 May 2001)
The Council on Competition may, at the request of the Minister for Economic Affairs, the persons indicated in the last paragraph of Article L.462-1 or the undertakings, and after having heard the parties in question and the government commissioner, adopt the precautionary measures which are requested thereof or which seem necessary thereto.
These measures may be applied only if the reported practice seriously and immediately undermines the general economy, the economy of the sector concerned, the interest of consumers or the complainant undertaking.
They may include the suspension of the practice concerned and an order to the parties to return the situation to the prior state. They must be strictly linked to what is necessary to tackle the emergency.
The precautionary measures shall be published in the Official Gazette on Competition, Consumer Affairs and the Prevention of Fraud.
Article L464-2 (Act No. 2001-420 of 15 May 2001 Art. 73 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 10 Official Journal of 5 November 2004)
I. - The Competition Council may order the companies or bodies concerned to cease their non-competitive practices within a specified period or may impose special conditions. It may also accept commitments from them to discontinue the non-competitive practices.
It may impose a financial penalty applicable either immediately or in the event of non-compliance with the conditions imposed or the commitments accepted.
The financial penalties are proportionate to the seriousness of the charges brought, to the scale of the damage
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COMMERCIAL CODE caused to the economy, to the financial situation of the body or company penalised or to the group to which the latter belongs, and to the likelihood of any repetition of practices prohibited by the present Part. They are individually determined for each company or body penalised, with reasons given for each penalty.
If the offender is not a company, the maximum amount of the penalty is 3 million euros. The maximum amount of the penalty for a company is 10% of the highest worldwide turnover, net of tax, achieved in one of the financial years ended after the financial year preceding that in which the practices were implemented. If the accounts of the company concerned have been consolidated or combined by virtue of the texts applicable to its legal form, the turnover taken into account is that shown in the consolidated or combined accounts of the consolidating or combining company.
The Competition Council may order that its decision, or an abstract thereof, be posted on the court notice-board in the manner which it stipulates. It may also order that the decision, or the abstract thereof, be inserted in the report on the activities for the financial year drawn up by the company's executives, board of directors or executive board. The costs are borne by the party concerned.
II. - The Competition Council may impose coercive fines on the parties concerned of not more than 5% of the average daily turnover, per day of delay, with effect from the date it determines, to compel them to:
a) Comply with a decision which enjoined them to cease the non-competitive practices or imposed special conditions, or to implement a decision making a commitment compulsory by virtue of I;
b) Implement the measures imposed pursuant to Article L. 464-1. The turnover taken into account is calculated on the basis of the company's accounts for the last financial year
ended as of the date of the decision. The amount of the coercive fine is definitively set by the Competition Council. III. - When a body or a company does not contest the truth of the allegations made against it and undertakes to alter
its conduct in the future, the general rapporteur may recommend that the Competition Council, which hears the parties and the government representative without a report being drawn up in advance, impose the financial penalty referred to in I and take into account the fact that no challenge was raised. In such cases, the maximum amount of the penalty incurred is reduced by half.
IV. - A total or partial exemption from financial penalties may be granted to a company or a body which, along with others, has implemented a practice prohibited by the provisions of Article L. 420-1, if it has helped to establish the existence of the prohibited practice and to identify its perpetrators by providing information which the council or the administration did not have access to beforehand. To that end, subsequent to the initiative taken by that company or body, the Competition Council, at the request of the general rapporteur or the Minister for Economic Affairs, adopts a plea for leniency which stipulates the conditions the envisaged exemption is subject to after the government representative and the company or body concerned have submitted their observations; the decision is conveyed to the company or the body and the minister, and is not published. When a decision is taken pursuant to I of the present article, the council may, if the conditions stipulated in the plea for leniency have been complied with, grant an exemption from the financial penalties proportionate to the contribution made to proving the existence of the offence.
Article L464-3 (Order No. 2004-1173 of 4 November 2004 Art. 11 Official Journal of 5 November 2004)
If the measures, orders or commitments referred to in Articles L. 464-1 and L. 464-2 are not complied with, the council may impose a financial penalty within the limits set in Article L. 464-2.
Article L464-4 (Order No. 2004-1173 of 4 November 2004 Art. 12 Official Journal of 5 November 2004)
The financial penalties and coercive fines are recovered as State debts separate from taxes and state property.
Article L464-5 (Act No 2001-420 of 15 May 2001, Article 69, Official Gazette of 16 May 2001)
The Council, when it rules according to the simplified procedure specified by Article L.463-3, may order the measures specified by I of Article L.464-2. However, the financial penalty may not exceed 750 000 euro for each of the perpetrators of prohibited practices.
Article L464-6 (Act No. 2001-420 of 15 May 2001 Art. 75 Official Journal of 16 May 2001) (Order No. 2004-274 of 25 March 2004 Art. 24 I Official Journal of 27 March 2004)
When no practice likely to jeopardise competition on the market is established, the Competition Council may, after the initiator of the referral and the government representative have been given access to the file and have made their observations, decide that there are no grounds for continuing the proceedings. Such decisions are explained.
Article L464-6-1 (inserted by Order No. 2004-274 of 25 March 2004 Art. 24 II Official Journal of 27 March 2004)
The Competition Council may also decide, as provided for in Article L. 464-6, that there are no grounds for continuing the proceedings when the practices referred to in Article L. 420-1 do not relate to contracts entered into pursuant to the Public Procurement Code and the cumulative market share of the companies or bodies which are parties to the challenged agreement or practice does not exceed either:
a) 10% of one of the markets affected by the agreement or practice when it relates to an agreement or practice between companies or bodies which are existing or potential competitors on one of the markets concerned;
b) or 15% of one of the markets affected by the agreement or practice when it relates to an agreement or practice between companies or bodies which are not existing or potential competitors on one of the markets concerned.
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COMMERCIAL CODE Article L464-6-2 (inserted by Order No. 2004-274 of 25 March 2004 Art. 24 II Official Journal of 27 March 2004)
However, the provisions of Article L. 464-6-1 do not apply to agreements and practices which contain any of the following blatant anti-competitive restrictions:
a) Restrictions which, directly or indirectly, individually or together with other factors over which the parties may have influence, are intended to fix selling prices, limit production or sales, or divide up markets or customers;
b) Restrictions on unsolicited sales to end users made by a distributor outside its contractual territory; c) Restrictions on sales by the members of a selective distribution network operating as retailers on the market,
regardless of the possibility of forbidding a member of the distribution network from working from an unauthorised place of business;
d) Restrictions applied to cross-deliveries between distributors within a selective distribution network, including those between distributors operating at different commercial phases.
Article L464-7 The Council’s decision adopted pursuant to Article L.464-1 may be open to an application to set this aside or alter
this by the parties in question and the government commissioner before the Paris Cour d'appel at most ten days after its notification. The Court shall rule within one month of the appeal.
The appeal shall not be suspensive. However, the first president of the Paris Cour d'appel may order that the enforcement of the precautionary measures be deferred if these are likely to lead to manifestly excessive consequences or if new facts of exceptional gravity have emerged subsequent to their notification.
Article L464-8 (Act No. 2001-1168 of 11 December 2001 Art. 33 IV Official Journal of 12 December 2001) (Order No. 2004-274 of 25 March 2004 Art. 24 III Official Journal of 27 March 2004) (Order No. 2004-1173 of 4 November 2004 Art. 13 Official Journal of 5 November 2004) (Act No. 2004-1343 of 9 December 2004 Art. 83 II Official Journal of 10 December 2004)
The decisions of the Competition Council referred to in Articles L. 462-8, L. 464-2, L. 464-3, L. 464-5, L. 464-6 and L. 464-6-1 are notified to the parties involved and to the Minister for Economic Affairs, who then have a period of one month in which to make an application for cancellation or reversal to the Paris Court of Appeal.
The decisions are published in the Official Gazette for Competition, Consumer Affairs and the Prevention of Fraud. The Minister for Economic Affairs oversees their implementation. The decisions may provide for limited publication to take account of the parties' legitimate interest in not having their business secrets divulged.
The appeal does not have suspensive effect. However, the presiding judge of the Paris Court of Appeal may order that enforcement of the decision be deferred if it is likely to have manifestly excessive consequences or if exceptionally serious new facts have emerged since its notification.
Any appeal on points of law lodged against the court order must be brought within one month of the said notification.
The Minister for Economic Affairs may, in all cases, enter an appeal on points of law against an order of the Paris Court of Appeal.
TITLE VII Sundry provisions Articles L470-1 to
L470-8
Article L470-1 The court may order legal persons jointly and severally to pay the fines ordered against their directors pursuant to
the provisions of this book and the texts adopted in application thereof.
Article L470-2 In the event of sentencing under Articles L.441-3, L.441-4, L.441-5, L.442-2, L.442-3, L.442-5 and L.443-1, the court
may order that its decision be posted on a notice-board or circulated in accordance with the conditions specified by Article 131-10 of the Penal Code.
Article L470-3 When a person having been sentenced less than two years previously for one of the offences defined by Articles
L.441-2, L.441-3, L.441-4, L.441-5, L.441-6, L.442-2, L.442-3, L.442-4, L.442-5 and L.443-1 commits the same offence, the maximum fine incurred shall be doubled.
Article L470-4 When a legal person having been sentenced less than two years previously for one of the offences defined by
Articles L.441-3, L.441-4, L.441-5, L.441-6, L.442-2, L.442-3 and L.442-4 commits the same offence, the maximum rate of the fine incurred shall be equal to ten times that applicable to natural persons for this offence.
Article L470-5 In order to apply the provisions of this book, the Minister for Economic Affairs or his representative may, before the
civil or criminal jurisdictions, file pleadings and develop these orally in the hearing. The minister may also produce the inquiry reports and official records.
Article L470-6
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COMMERCIAL CODE (Act No. 2001-420 of 15 May 2001 Art. 84 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 14 Official Journal of 5 November 2004) (Act No. 2004-1343 of 9 December 2004 Art. 83 II Official Journal of 10 December 2004)
For application of Articles 81 to 83 of the Founding Treaty of the European Community, the Minister for Economic Affairs and the officials he has designated or empowered pursuant to the provisions of the present Book, on the one hand, and the Competition Council, on the other, have the powers conferred on them respectively by the articles of the present Book and by EC Council Regulation No. 139/2004, of 20 January 2004, relating to the control of mergers between companies, and EC Council Regulation No. 1/2003, of 16 December 2002, relating to implementation of the competition rules laid down in articles 81 and 82 of the Founding Treaty of the European Community. The rules of procedure referred to in those texts are applicable thereto.
For application of Articles 87 and 88 of the Founding Treaty of the European Community, the Minister for Economic Affairs and the officials he has designated or empowered pursuant to the provisions of Article L. 450-1 have the powers conferred on them by Part V of Book IV.
Article L470-7 Professional associations may bring actions before the civil or Tribunal de commerce with regard to facts directly or
indirectly harming the collective interest of the profession or sector which they represent or fair competition.
Article L470-8 A Conseil d'Etat decree shall determine the terms for applying this book.
BOOK V Commercial paper and guarantees Articles L511-1 to
L526-4 TITLE I Commercial paper Articles L511-1 to
L512-8
CHAPTER I Bill of exchange Articles L511-1 to
L511-81
SECTION I Creation and form of the bill of exchange Articles L511-1 to
L511-6
Article L511-1 I.- The bill of exchange shall contain: 1° The term “bill of exchange” inserted in the actual text of the bill and expressed in the language used for wording
this bill; 2° The unconditional order to pay a certain sum; 3° The name of the person who must pay, referred to as the drawee; 4° The indication of its expiration; 5° The indication of the place where payment must be made; 6° The name of the person to whom or to the order of whom payment must be made; 7° The indication of the date when and the place where the bill was created; 8° The signature of the person issuing the bill, referred to as the drawer. This signature shall be added either by
hand or using any non-written method. II.- Bills from which one of the items indicated in I is missing shall not be valid as bills of exchange, except in the
cases specified by III to V of this article. III.- Bills of exchange whose expiration is not indicated shall be regarded as payable on sight. IV.- Unless specifically indicated, the place stated beside the name of the drawee shall be deemed to be the place
of payment and, at the same time, the place of domicile of the drawee. V.- Bills of exchange not indicating the place of their creation shall be regarded as having been signed in the place
indicated beside the drawer’s name.
Article L511-2 Bills of exchange may be made out to the order of the drawer. They may be drawn on the drawer. They may be drawn on behalf of a third party. They may be payable at the domicile of a third party, either in the locality where the drawee has its domicile or in
another locality.
Article L511-3 In a bill of exchange payable on sight or after sight, it may be stipulated by the drawer that the sum shall produce
interest. In any other bill of exchange, this stipulation shall be deemed to be unwritten.
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COMMERCIAL CODE The interest rate must be indicated in the bill. If this is not indicated, the clause shall be deemed to be unwritten. The interest shall run from the date of the bill of exchange unless another date is indicated.
Article L511-4 The bill of exchange whose amount is written in both words and figures shall be valid, in the event of a difference
between these, for the sum written in words. The bill of exchange whose amount is written several times, either in words or in figures, shall be valid, in the event
of a difference between these, only for the lowest sum.
Article L511-5 Bills of exchange signed by minors shall be invalid in their respect, except for the respective rights of the parties, in
accordance with Article 1312 of the Civil Code. If the bill of exchange bears the signatures of persons who are not capable of binding themselves by a bill of
exchange, false signatures or signatures of imaginary persons or signatures which, for any other reason, cannot be binding on the persons who have signed the bill of exchange, or in whose name this has been signed, the obligations of the other signatories shall not be any less valid.
Anyone putting their signature to a bill of exchange as the representative of a person for whom they do not have the power to act shall be bound themselves with regard to the bill and, if they have paid, to the same rights which the alleged principal would have had. The same shall apply to representatives who have exceeded their powers.
Article L511-6 The drawer shall act as guarantor for the acceptance and payment. The drawer may be exonerated from the acceptance guarantee. Any clause by which the drawer is exonerated
from the payment guarantee shall be deemed to be unwritten.
SECTION II Consideration Article L511-7
Article L511-7 Consideration must be provided by the drawer or by the person on whose behalf the bill of exchange shall be
drawn, without the drawer on behalf of another person ceasing to be personally bound towards the endorsers and the bearer only.
Consideration exists if, on the expiration of the bill of exchange, that for which this is supplied is payable to the drawer, or to the person on whose behalf the bill is drawn, in a sum at least equal to the amount of the bill of exchange.
Ownership of the consideration shall be automatically transferred to the successive holders of the bill of exchange. Acceptance shall presume consideration. It shall provide proof of this with regard to endorsers. Whether or not there is acceptance, the drawer alone shall be required to prove, in the event of refusal, that those
on whom the bill was drawn had consideration on the expiration. Otherwise, the drawer shall be required to guarantee this, even if the protest has been made after the fixed periods.
SECTION III Endorsement Articles L511-8 to
L511-14
Article L511-8 Any bill of exchange, even where not expressly drawn to order, shall be transferable by means of endorsement. When the drawer has inserted in the bill of exchange the words “not to order” or an equivalent expression, the bill
shall be transferable only in the form and with the effects of an ordinary assignment. The endorsement may be carried out to the benefit of the drawee, whether or not this is the acceptor, the drawer or
any other obligor. These persons may endorse the bill again. The endorsement must be unconditional. Any condition to which it is subject shall be deemed to be unwritten. Partial endorsement shall be invalid. Endorsement “to the bearer” shall be valid as a blank endorsement. The endorsement must be entered on the bill of exchange or on a sheet attached thereto and referred to as an
extension. It must be signed by the endorser. The signature of the latter shall be added either by hand or using any other non-written method.
The endorsement does not have to name the beneficiary and may consist of a blank endorsement formed of the simple signature of the endorser. In the latter case, the endorsement, in order to be valid, shall be entered on the back of the bill of exchange or on the extension.
Article L511-9 I.- The endorsement shall transfer all the rights resulting from the bill of exchange. II.- If the endorsement is blank, the bearer may: 1° Fill in the blank, either with his name or the name of another person; 2° Endorse the bill again either blank or to another person; 3° Hand over the bill to a third party without filling in the blank and without endorsing it.
Article L511-10
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COMMERCIAL CODE The endorser shall, unless otherwise specified, act as guarantor for the acceptance and payment. The endorser may prohibit another endorsement. In this case, the endorser shall not be bound by the guarantee
towards the persons to whom the bill is subsequently endorsed.
Article L511-11 The holder of a bill of exchange shall be regarded as the legitimate bearer if they can prove their right by an
uninterrupted series of endorsements, even if the last endorsement is blank. Deleted endorsements shall be deemed to be unwritten in this respect. When a blank endorsement is followed by another endorsement, the signatory of the latter shall be deemed to have acquired the bill by the blank endorsement.
If a person has been dispossessed of a bill of exchange by any event whatsoever, the bearer proving their right in the manner indicated in the above paragraph shall be required to relinquish the bill only if they have acquired this in bad faith or if, in acquiring this, they have committed a serious offence.
Article L511-12 Persons against whom actions are brought with regard to bills of exchange may not raise against the bearer the
exceptions based on their personal relationships with the drawer or with the previous bearers, unless the bearer, in acquiring the bill, has acted knowingly to the detriment of the debtor.
Article L511-13 When the endorsement contains the words “bill for collection” or “for collection” or any other text implying a simple
order, the bearer may exercise all the rights deriving from the bill of exchange, but may endorse this only for collection. The obligors may, in this case, invoke against the bearer only the exceptions which would be binding on the
endorser. The order contained in an endorsement “for collection” shall not end with the death of the principal or the
occurrence of their incapacity. When an endorsement contains the words “pledged security” or any other text implying a charge, the bearer may
exercise all the rights deriving from the bill of exchange, but an endorsement made thereby shall be valid only as an endorsement “for collection”.
The obligors may not invoke against the bearer the exceptions based on their personal relationships with the endorser unless the bearer, on receiving the bill, has acted knowingly to the detriment of the debtor.
Article L511-14 Endorsement after the expiration shall produce the same effects as an endorsement before the expiration.
However, endorsement subsequent to the protest for lack of payment, or made after the expiration of the period fixed for making the protest, shall produce only the effects of an ordinary assignment.
Unless otherwise proven, the undated endorsement shall be deemed to have been made before the expiration of the period fixed for making the protest.
It is forbidden to backdate orders. If this occurs, these will be regarded as forgeries.
SECTION IV Acceptance Articles L511-15 to
L511-20
Article L511-15 Bills of exchange may, until their expiration, be presented for acceptance by the drawee, at the place of their
domicile, by the bearer or even by a simple holder. In any bill of exchange, the drawer may stipulate that this must be presented for acceptance, with or without fixing a
deadline for this. The drawer may prohibit presentation for acceptance in the bill unless this involves a bill of exchange payable at a
third party’s domicile or a bill payable in a locality other than that of the domicile of the drawee or a bill drawn after sight. The drawer may also stipulate that presentation for acceptance may not occur before an indicated date. Any endorser may stipulate that the bill must be presented for acceptance, with or without fixing a deadline for this,
unless it has been declared not acceptable by the drawer. After sight bills of exchange must be presented for acceptance within one year of their term. The drawer may reduce the latter period or stipulate a longer period. These periods may be reduced by the endorsers. When the bill of exchange is created pursuant to an agreement for supplies of goods, concluded between traders,
and when the drawer has fulfilled its obligations resulting from the contract, the drawee may not refuse to give their acceptance on the expiration of a period complying with normal commercial practice in terms of recognition of goods.
The refusal of acceptance shall lead ipso jure to the expiration of the term at the expense of the drawee.
Article L511-16 The drawee may request that a second presentation is made thereto on the day after the first. The interested
parties shall not be allowed to claim that this request is only permitted if it is indicated in the protest. The bearer shall not be required to relinquish, to the drawee, the bill presented for acceptance.
Article L511-17 The acceptance shall be written on the bill of exchange. It shall be expressed by the word “accepted” or any other
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COMMERCIAL CODE equivalent word and shall be signed by the drawee. The simple signature of the drawee added to the reverse of the bill shall be valid for acceptance.
When the bill is payable after sight or when it must be presented for acceptance within a specified period pursuant to a special stipulation, the acceptance must be dated on the day when this was given, unless the bearer requires only that it is dated on the day of presentation. In the absence of this date, the bearer, in order to protect its rights of recourse against the endorsers and drawer, shall have this omission noted by a protest made in due time.
The acceptance shall be unconditional, but the drawee may restrict this to part of the sum. Any other change made by the acceptance to the indications of the bill of exchange shall be equivalent to a refusal
of acceptance. However, the acceptor shall be bound under the terms of its acceptance.
Article L511-18 When the drawer has indicated in the bill of exchange a place of payment other than that of the domicile of the
drawee, without designating a third party at whose domicile the payment must be made, the drawee may indicate this on acceptance. Failing this indication, the acceptor shall be deemed to be obliged to pay itself at the place of payment.
If the bill is payable at the domicile of the drawee, the latter may, in the acceptance, indicate an address in the same place where the payment must be made.
Article L511-19 As a result of the acceptance, the drawee is obliged to pay the bill of exchange on expiration. Failing payment, the bearer, even if this is the drawer, shall have against the acceptor a direct action resulting from
the bill of exchange for anything which may be demanded pursuant to Articles L.511-45 and L.511-46.
Article L511-20 If the drawee, having marked the bill of exchange with its acceptance, deletes this before the return of the bill, the
acceptance shall be deemed to have been refused. Unless otherwise proven, the deletion shall be deemed to have been made before the return of the bill.
However, if the drawee indicated its acceptance in writing to the bearer or to any signatory, the former shall be bound towards these within the terms of its acceptance.
SECTION V Guarantee Article L511-21
Article L511-21 Payment of a bill of exchange may be secured as to all or part of the amount thereof by a guarantee. The said guarantee shall be provided by a third party or by the signatory to the bill. The guarantee shall be provided either on the bill of exchange or attached to it, or by a separate act indicating the
place at which the guarantee is given. It shall be expressed by the words"valid as guarantee"or any equivalent formula, and must be signed by the
guarantor. It shall be deemed to have come into existence simply on signature by the guarantor on the reverse side of the bill
of exchange, except where the signature is that of the drawee or the drawer. The guarantee must indicate the person on whose behalf it is given. In the absence of any such indication, it shall
be deemed to be for the benefit of the drawer. The guarantor shall be bound according to the terms of the guarantee given. The guarantee shall be valid even though the obligation guaranteed may be void for any reason other than a formal
defect. On paying the bill of exchange, the guarantor shall acquire the rights against the beneficiary of the guarantee arising
from the bill of exchange and any persons bound by obligations to the said beneficiary by virtue of the bill of exchange.
SECTION VI Expiration Articles L511-22 to
L511-25
Article L511-22 I. A bill of exchange may be drawn: 1. At sight; 2. A certain length of time after presentation; 3. A certain length of time after its date; 4. On a fixed date. II.- Bills of exchange with other expiration dates or successive expiration dates shall be void.
Article L511-23 Bills of exchange shall be payable on presentation. They must be presented for payment within a year of the date
thereof. The drawer may reduce the said period or stipulate a longer one. The said periods may be reduced by endorsers.
The drawer may stipulate that a bill of exchange payable at sight must not be presented for payment before the end of a specified period. In any such case, the period during which the bill may be presented shall begin on the expiration of the said period.
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COMMERCIAL CODE Article L511-24
The expiration date of a bill of exchange payable a certain length of time after presentation shall be determined either by the date of acceptance or by the date of protest.
In the absence of any protest, an undated acceptance shall be deemed for the acceptor's purposes to have been given on the final day of the period specified for presentation for acceptance.
A bill of exchange drawn one or more months after the date of the bill or of presentation shall mature on the corresponding day of the month on which payment is due. In the absence of a corresponding date, such a bill shall mature on the last day of the said month.
Where a bill of exchange is drawn one or more months and a half after the date of the bill or of presentation, the full months shall be counted first.
If the expiration date is fixed at the beginning, in the middle or at the end of the month, the said terms shall be understood to mean the 1st, 15th or last day of the month.
The expressions"eight days"or"fifteen days"shall mean eight or fifteen actual days rather than one or two weeks. The expression"half a month"shall indicate a period of fifteen days.
Article L511-25 Where a bill of exchange is payable on a fixed date at a place where the calendar is different from that of the place
of issue, the expiration date shall be considered fixed according to the calendar of the place of payment. Where a bill of exchange drawn between two places with different calendars is payable a certain length of time after
the date thereof, the date of issue shall be put back to the corresponding date in the calendar of the place of payment and its expiration date shall be fixed accordingly.
Periods for the presentation of bills of exchange shall be calculated according to the rules indicated in the preceding sub-paragraph.
These rules shall not apply where a clause in a bill of exchange, or simply the wording of the document, indicates that the parties intended to adopt different rules.
SECTION VII Payment Articles L511-26 to
L511-37
Article L511-26 The bearer of a bill of exchange payable on a fixed date or a certain length of time after presentation or the date
thereof must present the bill either on the day on which it is payable, or on one of the next two working days thereafter. Presentation of a bill of exchange to a clearing house shall be equivalent to presentation for payment.
Article L511-27 On paying a bill of exchange, the drawee may demand that it be delivered endorsed with an acknowledgement of
receipt by the bearer. The bearer may not refuse a part payment. In the event of part payment, the drawee may demand that a note of the part payment be endorsed on the bill and
that an acknowledgement of receipt thereof be given. Acknowledgements of receipt of payments on account of a bill of exchange shall be given by the drawer and the
endorser. The bearer must protest the bill of exchange for the balance outstanding.
Article L511-28 The bearer of a bill of exchange shall not be obliged to receive payment before the expiration date. Drawers who pay before the expiration date shall do so at their own risk. Drawers who pay on the expiration date shall be validly discharged, unless there is any dishonesty or serious fraud
on their part. They must satisfy themselves that the successive endorsements are legally valid, but need not check the endorsers' signatures.
Article L511-29 Where a bill of exchange is stipulated to be payable in a currency not valid in the place of payment, the amount due
may be paid in the currency of the country, according to its value on the expiration date. If the debtor is late in making payment, the bearer may opt to demand payment of the amount due under the bill of exchange in the currency of the country according to the rate of exchange either on the expiration date or on the date of payment.
The value of a foreign currency shall be determined according to the usual practice in the place of payment. The drawer may, however, stipulate that the sum payable be calculated according to a rate specified in the bill.
The rules herein specified shall not apply where the drawer shall have stipulated that payment must be made in a certain currency indicated by a clause specifying cash payment in a foreign currency.
Where the amount payable under the bill of exchange is indicated in a currency of the same denomination, but a different value, in the country if issue and the country of payment, it shall be presumed to refer to the country of payment.
Article L511-30 If a bill of exchange is not presented for payment on its expiration date, or on one of the next two working days
thereafter, any debtor shall be entitled to deposit the amount of the bill with the Consignments office at the risk and cost
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COMMERCIAL CODE of the bearer.
Article 511-31 No objection to payment shall be admissible save in the event of loss of the bill of exchange or of an administrative
order or liquidation of the bearer.
Article 511-32 In case of loss of an unaccepted bill of exchange, the owner may pursue payment on any subsequent bill.
Article L511-33 If the lost bill of exchange has an acceptance endorsed on it, payment may be pursued on any subsequent bill only
by virtue of a court order and subject to the provision of security.
Article L511-34 If a person who loses a bill of exchange, whether or not accepted, is unable to re-present any subsequent bill,
payment of the lost bill may be demanded and obtained by means of a court order, subject to the production of accounting evidence of ownership and the provision of security.
Article L511-35 In the event of refusal to pay on a demand submitted in accordance with the two preceding Articles, the owner of
the lost bill of exchange shall retain all the relevant rights by means of a deed of protestation. The said deed must be executed on the day after the expiration date of the lost bill of exchange. The notices required under Article L.511-42 must be given to the drawer and endorsers within the time limits fixed by the said Article.
Article L511-36 In order to obtain the subsequent bill, the owner of the bill of exchange must apply to the immediate endorser, who
must act as the owner's agent vis-à-vis the next endorser back, and so on from each endorser to the one before, back to the drawer of the bill. The owner of the lost bill of exchange must bear the expenses.
Article L511-37 The pledge of security referred to in Articles L511-33 and L511-34 shall be extinguished after three years unless
any claims shall have been made or legal proceedings commenced within that period.
SECTION VIII Recourse due to non-acceptance and non-payment Articles L511-38 to
L511-51
Article L511-38 I.- Bearers may exercise the remedies to which they are entitled against the endorsers, the drawer and other parties
under obligation: 1. On the expiration date of the bill, if payment shall not have taken place; 2. Even before the expiration date: a) In the event of total or partial refusal of acceptance; b) In the event of an administrative order of the drawee, whether or not the bill is accepted, or of insolvency of the
drawee even if not recognised by a Court decision, or of an unsuccessful attempt to attach the drawee's assets; c) In the event of an administrative order of the drawer of a non-acceptable bill. II. - Nevertheless, sureties against whom a right of action is exercised in the circumstances described in paragraph
1 b) and c) may within three days of the date of commencing the said action apply to the Presiding Judge of the Tribunal de commerce of the district in which they are resident for time to pay. If the said application is held to be justified, the Judge shall make an order fixing the time when the sureties shall be required to pay the commercial paper in question, but any periods so granted shall not extend beyond the date fixed for payment. No objection or appeal may be made against such an order.
Article L511-39 Refusal to accept or pay must be recorded by a deed known as a non-acceptance protest or a non-payment protest. A non-acceptance protest must be issued within the time limits fixed for presentation for acceptance. Where,
however, in the circumstances described in Article L.511-16 (1), the bill is presented for the first time on the final day of the said period, the protest may be issued on the following day.
A non-payment protest relating to a bill of exchange payable on a fixed date or a certain length of time after the date or presentation thereof must be registered on one of the two working days following the date on which the bill of exchange is payable. In the case of bills of exchange payable at sight, the protest must be drawn in accordance with the conditions indicated in the preceding sub-paragraph relating to non-acceptance protests.
A non-acceptance protest shall dispense with the need for presentation for payment or a non-payment protest. Should the drawee, whether or not accepting the bill, have suspended payments, or in the event of an unsuccessful
attempt to attach the drawee's assets, the bearer shall be entitled to exercise the relevant rights only after presentation of the bill to the drawee for payment and the registration of a protest.
In the event of an administrative order or liquidation of the drawee, whether or not accepting the bill, and likewise in the event of an administrative order or liquidation of the drawer of a non-acceptable bill, the production of a declaratory judgment shall suffice to enable the bearer to exercise the appropriate remedies.
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COMMERCIAL CODE Article L511-40
Where a bearer agrees to accept payment by ordinary cheque, by a payment order drawn on the Bank of France, or by Giro cheque, the cheque or order must indicate the number and expiration dates of the instruments so paid. The said indication shall not, however, be required for cheques or payment orders created for inter-bank payments of balances of transactions between bankers, effected through a clearing house.
Where settlement is effected by ordinary cheque and the cheque is not paid, notice of the non-payment protest relating to the said cheque must be served on the bank at which payment of the bill should take place within the period provided in Article 41 of the Decree-Law of 30 October 1935 unifying the law relating to cheques and payment cards. The protest of non-payment of the
cheque and the notice must be served under cover of the same writ, save where, for reasons of territorial jurisdiction, two separate huissiers are required.
Where settlement is effected by payment order and the order is rejected by the Bank of France, or by Giro cheque and the order is rejected by the Giro bank where the account to be debited is held, the non-payment thereof shall be recorded in a form of notice served at the address for service of the issuer of the said order within eight days of the date of issue.
The said notice must be drawn up by a huissier or a notary.
Article L511-41 Where the final day of the period allowed for service of notice of non-payment of a payment order or Giro cheque is
a legal public holiday, the said period shall be extended until the first working day following the expiration thereof. Intervening public holidays shall be included when calculating the said period. Those days on which the current law states that no payment may be demanded and no protest may be made shall be treated as equivalent to public holidays.
Unless they pay the bill of exchange and the expenses of the notice and, if appropriate, the cheque protest, drawees of bills of exchange who receive such a notice must return the bill of exchange to the huissier who serves the notice. The huissier shall immediately draw up a non-payment protest in relation to the bill of exchange.
If the drawee shall not return the bill of exchange, a deed of protest must immediately be registered, recording the failure to return the bill. A third party bearer shall in these circumstances be exempted from compliance with the provisions of Articles L.511-33 and L.511-34.
Failure to return a bill of exchange shall constitute a criminal offence rendering the perpetrator liable to the penalties laid down in Articles 314-1 and 314-10 of the Penal Code.
Article L511-42 The bearer must give notice of non-acceptance or non-payment to the endorser within four working days of the date
of the protest or of presentation where there is a free return clause. Where the instrument indicates the name and address of the drawer of a bill of exchange, notaries and huissiers
shall be required to notify the latter of the reasons for the non-payment thereof within forty-eight hours of registration thereof by post and registered letter, failing which they may be liable for damages. The said letter shall entitle the notary or huissier to a fee the amount of which shall be fixed by statute, in addition to the expenses of postage and registration of the letter.
Every endorser must, within two working days of the date on which the notice is received, notify the next endorser back, indicating the names and addresses of the persons who served the previous notices, and so on back to the drawer.
The above-mentioned periods shall begin to run on receipt of the previous notice. Where, in accordance with the preceding sub-paragraph, notice is served on the signatory of a bill of exchange, the
same notice must be given to the said signatory's guarantor within the same time limit. Where an endorser has not indicated an address or has done so illegibly, it shall be sufficient that notice has been
served on the previous endorser. Any person having a notice to serve may do so in any form, even by simply returning the bill of exchange. It must be proved that notice was served within the relevant time limit. The said time limit shall be considered to have been observed if a letter giving notice was posted within the said
period. Persons who fail to serve notice within the time limit indicated above shall not be liable to forfeiture of rights; they
shall be liable, if applicable, for any loss or damage caused by their negligence, but the amount of damages awarded shall not exceed the amount of the bill of exchange.
Article 511-43 The drawer or an endorser or guarantor may exempt the bearer from the requirement that a non-acceptance or
non-payment protest must be issued to enable the bearer to exercise the appropriate remedies, by endorsing a"free return"or"no protest required"clause or any other equivalent clause on the instrument and signing the said endorsement.
Such a clause shall not exempt the bearer from presenting the bill of exchange within the legal time limits nor from serving notice.
The burden of proving failure to observe the time limits shall fall to the person pleading the said failure against the bearer.
Where the clause is endorsed by the drawer, it shall bind all signatories; where endorsed by an endorser or guarantor, it shall bind only the latter. A bearer who issues a protest notwithstanding the clause endorsed by the drawer shall be responsible for the expenses thereof.
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COMMERCIAL CODE Where the clause emanates from an endorser, or a guarantor, the expenses of the protest, if one is issued, may be
recovered against all signatories.
Article 511-44 All persons who shall have drawn, accepted, endorsed or guaranteed a bill of exchange shall be jointly and
severally liable to the bearer. The bearer shall be entitled to bring an action against all the said persons, individually or collectively, without being
constrained to observe the order in which they assumed their obligations. Any signatory of a bill of exchange who shall have repaid the same shall be entitled to the same rights. An action against one of the obligees shall not prevent an action from being brought against any of the others, even
if their obligations were assumed later in time than those of the defendant to the original action.
Article L511-45 I. - Bearers may claim the following sums from parties against whom they exercise their remedies: 1. The amount of the non-accepted or unpaid bill of exchange, together with interest, if stipulated; 2. Interest at the legal rate from the expiration date; 3. The expenses of the protest and notices served, and any other expenses. II.- Where the remedy is exercised before the expiration date, a discount shall be deducted from the amount of the
bill. The said discount shall be calculated according to the official discount rate fixed by the Bank of France as it exists at the date of the exercise of the remedy at the bearer's address.
Article L511-46 Persons who shall have repaid a bill of exchange may claim the following sums from their sureties: 1. The full amount of the sum paid; 2. Interest on the said sum, calculated at the legal rate, from the date on which repayment was made; 3. Any expenses incurred.
Article L511-47 Any obligee against whom a remedy shall be exercised or who shall be exposed to the exercise of a remedy may
demand the return of the bill of exchange against payment, with the protest and an acknowledgement of due discharge. Endorsers who shall have repaid a bill of exchange may delete their endorsement and those of any subsequent
endorsers.
Article L511-48 Should a remedy be exercised following partial acceptance, the person repaying the sum for which the bill was not
accepted may demand that a note of the said repayment be endorsed on the letter and that an acknowledgement of receipt be given. The bearer must further deliver a certified copy of the bill and the protest so that any subsequent remedies may be exercised.
Article L511-49 I.- On the expiration of the periods fixed: 1. For the presentation of a bill of exchange at sight or a certain length of time after sight; 2. For the issue of a non-acceptance or a non-payment protest; 3. For presentation for payment where the bill contains a free return clause, the bearer's rights against endorsers,
the drawer and any other obligees except the acceptor shall lapse. II.- Nevertheless, rights against the drawer shall not lapse unless the latter proves having made provision for lapse.
In any such case, the bearer shall retain a right of action only against the person against whom the bill of exchange was drawn.
III. - Bearers who fail to present the bill for acceptance within the time limit stipulated by the drawer shall forfeit their right of action for default on payment or default on acceptance, unless it is apparent from the terms of the stipulation that the drawer was intended to be exonerated only from the acceptance guarantee.
IV. - Where a time limit for presentation is stipulated in an endorsement, only the endorser may rely on it in law.
Article L511-50 Where the presentation of a bill of exchange or the issue of a protest within the legal time limits is prevented by an
insurmountable obstacle such as the legal rules of any State or any other case of force majeure, the said periods shall be extended.
The bearer must immediately give the immediate endorser notice of a case of force majeure and endorse a note of the said notice, signed and dated, on the bill of exchange or a rider thereto. The provisions of Article 511-42 shall apply in all other respects.
As soon as the case of force majeure shall disappear, the bearer must present the bill for acceptance or payment, and register a protest if necessary.
Where a case of force majeure persists for more than thirty days from the expiration date, remedies may be exercised without the need for either presentation or the registration of a protest, unless the said remedies are suspended for a longer period, pursuant to Article L.511-61.
For bills of exchange payable at sight or a certain length of time after sight, the thirty-day period shall begin on the date on which the bearer gave notice of a case of force majeure to his endorser, even if this was done before the end of the period allowed for presentation. For bills of exchange payable a certain length of time after sight, the period after
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COMMERCIAL CODE sight indicated in the bill of exchange shall be added to the thirty-day period.
Events that are purely personal to the bearer, or to any person instructed by the bearer to present the bill or issue the protest, shall in no circumstances be considered cases of force majeure.
Article L511-51 Irrespective of the formalities required for an action to enforce a guarantee, a bearer of a bill of exchange who has
issued a non-payment protest may apply for a Court order for the preventive attachment of movable assets belonging to the drawers, acceptors and endorsers.
SECTION IX Protests Articles L511-52 to
L511-61
Subsection 1 Forms Articles L511-52 to
L511-55
Article L511-52 Non-acceptance or non-payment protests must be drawn by a notary or a huissier. The protest must consist of a single writ served: 1. At the address for service or last known address of the person on whom the bill of exchange was payable; 2. At the address for service of the persons indicated by the bill of exchange for payment in case of necessity; 3. At the address for service of the third party who intervened to accept the bill. In the event of a false address being given, the protest must be preceded by a search.
Article L511-53 The deed of protest must contain a literal transcription of the bill of exchange, the acceptance, the endorsements
and the recommendations indicated therein, and the formal notice to pay the bill of exchange. It must state whether the person required to pay was present or absent, the reasons for the refusal to pay and the inability or refusal to sign.
Article L511-54 No deed executed by the bearer of the bill of exchange may replace a deed of protest, save as provided by Articles
L.511-32 to L.511-37 and Articles L.511-40 and L.511-41.
Article L511-55 Notaries and huissiers must deposit exact copies of protests, failing which they shall be liable to dismissal and
payment of expenses and damages to the parties. Subject to the same sanctions, they must also deliver to the Clerk of the Tribunal de commerce or Tribunal de grande instance having jurisdiction in commercial matters for the area in which the debtor's address for service is located, or send true copies of protests of non-payment of accepted bills of exchange and promissory notes to the said Clerk by registered letter with recorded delivery. This formality must be completed within two weeks of the date of the deed.
Subsection 2 Publication Articles L511-56 to
L511-60
Article L511-56 The Clerk of the Tribunal de commerce shall keep a duly updated register, by name and debtor, of protests of
non-payment of accepted bills of exchange, promissory notes and cheques, according to the formal complaints lodged with him by notaries and huissiers, and also certificates of non-payment of Giro cheques issued by Giro banks. The said register shall consist of statements a list of which shall be fixed by decree.
Article L511-57 On the expiration of a month from the date of the protest or certificate of non-payment of a Giro cheque and for a
period of a year from the same date, any applicant may obtain from the Clerks of the aforementioned Courts an extract from the list of names referred to in Article L.511-56, at his own expense.
Article L511-58 On the deposit by the debtor of the instrument and the protest of non-payment of a postal order, or a receipt for
payment of the order, against an acknowledgement for receipt, the Clerk of the Tribunal de commerce shall at the debtor's expense delete the notice of protest or certificate of non-payment from the list drawn up pursuant to Article L.511-56.
Documents lodged may be withdrawn during the year that follows the end of the period of a year referred to in Article L.511-57, after which the Clerk of the Court shall be discharged from responsibility for the same.
Article L511-59 Any publication, in whatever form, of the lists drawn up pursuant to the provisions of this sub-section is prohibited,
subject to liability for damages.
Article L511-60
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COMMERCIAL CODE A decree approved by the Conseil d'Etat shall determine the methods of application of the provisions of this
sub-section. It shall in particular fix the amount of the remuneration payable to huissiers and Clerks of the Tribunaux de commerce for the various formalities for which they are responsible.
Subsection 3 Extension of deadlines Article L511-61
Article L511-61 In the event of mobilisation of the armed forces, national calamity or public disaster, or interruption of services
operated by the Government or under Government control, the deadlines by which protests and other deeds intended to protect legal remedies in respect of all negotiable instruments must be issued may be extended for all or part of French territory by an Order of the Council of Ministers.
The expiration dates of negotiable instruments may be extended in similar circumstances and subject to the same conditions.
SECTION X Replacement Articles L511-62 to
L511-64
Article L511-62 Any person entitled to exercise a remedy may, unless otherwise stipulated, obtain reimbursement by means of a
replacement bill known as a retraite drawn at sight on one of its guarantors and payable to the latter's account. In addition to the sums specified in Articles L.511-45 and L.511-46, replacement bills shall include a broker's fee
and the stamp duty payable on the replacement. Where a replacement bill is drawn by the bearer, the amount thereof shall be fixed according to the rate for a sight
bill drawn at the place where the original bill was payable on the guarantor's place of residence. Where a replacement bill is drawn by the endorser, the amount thereof shall be fixed according to the rate for a sight bill drawn at the place of residence of the drawer of the replacement bill on the guarantor's place of residence.
Article L511-63 The following fees shall be charged for replacement bills issued in mainland France: 0.25% on chefs-lieux [cities or
towns comprising seats of local government] of departments, 0.50% on chefs-lieux of districts and 0.75% anywhere else.
No replacement shall on any account take place in the same department.
Article L511-64 Replacement bills may not be accumulated. No endorser or drawer shall be required to bear more than one replacement bill.
SECTION XI Honour Articles L511-66 to
L511-65
Article L511-65 The drawer, an endorser or a guarantor may appoint a person to accept or pay a bill should the need arise. Bills of exchange may be accepted or paid, in accordance with the conditions hereinafter determined, by a person
intervening for any debtor against whom a remedy may be exercised. The intervenor may be a third party or even the drawee, or a person already under obligation by virtue of the letter
of exchange, other than the acceptor. Intervenors shall be required to give notice of their intervention to the party on whose behalf they have intervened
within two working days. Should this time limit not be observed, they shall be liable for any loss or damage that may be caused by their negligence, but any damages awarded shall not exceed the amount of the bill of exchange.
Subsection 1 Acceptance for honour Article L511-66
Article L511-66 Acceptance for honour may take place in all cases in which remedies are open to the bearer of an acceptable bill of
exchange before the expiration date. Where a bill of exchange indicates a person to accept or pay it in case of need in lieu of payment, bearers shall not
exercise their rights of action against the person who endorsed the said indication on the bill or any subsequent signatories before the expiration date, unless they shall have presented the bill of exchange to the person so designated and the said person shall have refused acceptance, and the refusal shall not have been recorded by means of a protest.
In other cases of honour, bearers may refuse acceptance for honour. Nevertheless, if they agree to such acceptance, they shall forfeit their rights of action before the expiration date
against the person on whose behalf the acceptance was given and subsequent signatories. A note of acceptance by intervention must be endorsed on the bill of exchange; it must be signed by the intervenor.
It must name the person on whose behalf it takes place; in the absence of any such indication, acceptance shall be
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COMMERCIAL CODE deemed to have been given on behalf of the drawer.
Acceptors by honour shall be obliged to the bearer and endorsers subsequent to the person on whose behalf they shall have intervened, in the same way as the latter.
Notwithstanding the fact of acceptance for honour, the person on whose behalf it took place and that person's sureties may demand that the bearer deliver the latter of exchange, the protest and a discharge of account, if appropriate, against payment of the sum specified in Article L.511-45.
Subsection 2 Payment on behalf of a third party Articles L511-67 to
L511-71
Article L511-67 Payment on behalf of a third party may take place in all cases where rights of action are open to the bearer, whether
on or before the expiration date. Payment must comprise the whole sum which the person on whose behalf intervention takes place would have had
to pay. It must be effected by no later than the last day allowed for the issue of a non-payment protest.
Article L511-68 Where a bill of exchange has been accepted by intervenors whose place of residence is in the place of payment or
where persons whose place of residence is in the same place have been indicated to pay should the need arise, the bearer must present the bill to all the said persons and, if necessary, issue a non-payment protest by no later than the day following the final date allowed for a protest to be issued.
If no protest is issued within the said period, the person who indicated the need, or on whose behalf the bill was accepted, and any subsequent endorsers shall cease to be under obligation.
Article L511-69 Bearers who refuse payment on behalf of a third party shall forfeit their rights of action against those persons who
would thereby have been discharged.
Article L511-70 Payment on behalf of a third party must be recorded by a formal discharge endorsed on the bill of exchange, with
an indication of the person on whose behalf it is made. In the absence of any such indication, payment shall be deemed to have been made on the drawer's behalf.
The bill of exchange and protest, if any, must be delivered to the person paying on behalf of a third party.
Article L511-71 Person paying by intervention shall acquire the rights arising from the bill of exchange against the person on whose
behalf they paid it and those obliged to the latter by virtue of the bill of exchange. They may not, however, further endorse the bill of exchange.
Endorsers subsequent to the signatory on whose behalf payment took place shall be discharged. In the event of simultaneous honour by more than one person, the intervenor discharging the largest sum shall take
priority. Intervenors who knowingly contravene this rule shall forfeit their rights of action against the persons discharged thereby.
SECTION XII Multiple originals and copies Articles L511-72 to
L511-76
Subsection 1 Multiple originals Articles L511-72 to
L511-74
Article L511-72 Bills of exchange may be drawn in a number of identical originals. The said originals must be numbered in the wording of the heading itself, failing which each of them shall be
considered as a separate bill of exchange. Bearers of bills of exchange that do not indicate that only one original thereof has been drawn may request the
issue of more than one copy at their own expense. To that end, they must approach their immediate endorser, who shall be required to assist them by acting against their own endorser, and so on back to the drawer. Endorsers must reproduce their endorsements on all further originals.
Article L511-73 Payment made on one of the said original shall have the effect of a discharge, even where it is not stipulated that
such payment shall cancel the effect of the other originals. Nevertheless, the drawee shall be bound on the basis of each copy accepted and not returned.
An endorser who shall have transferred the originals to more than one person, and any subsequent endorsers, shall be proportionately bound by all originals bearing their signatures and not returned.
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COMMERCIAL CODE Article L511-74
Any person who shall have sent one of the originals for acceptance must indicate the name of the person holding the original in question on the other originals. The said holder must deliver it to the legitimate bearer of another original. If the holder refuses, the bearer may exercise the appropriate remedies only after recording by means of a protest:
1. That the original sent for acceptance was not delivered on demand; 2. That it has not been possible to obtain payment on another original.
Subsection 2 Copies Articles L511-75 to
L511-76
Article L511-75 Every bearer of a bill of exchange shall be entitled to make copies thereof. Copies must be exact reproductions of the original with any endorsements and other notes that appear on it. They
must indicate where they stop. They may be endorsed and guaranteed in the same way and with the same effects as the original.
Article L511-76 Copies must indicate the holder of the original instrument. The latter must deliver the original to the legitimate
bearer of the copy. If the latter refuses, the bearer shall be entitled to exercise the appropriate rights of action against the persons who
have endorsed or guaranteed the copy only after recording by means of a non-payment protest that the original has not been delivered on demand.
Where, after the last endorsement made before the copy was taken, the original instrument bears the clause"from this point on, endorsements are valid only on the copy"or any other equivalent wording, any endorsement on the original signed subsequently shall be void.
SECTION XIII Alterations Article L511-77
Article L511-77 In the event of any alteration of the wording of a bill of exchange, signatories subsequent to the said alteration shall
be bound by the wording as amended; prior signatories shall be bound by the original wording.
SECTION XIV Prescription Article L511-78
Article L511-78 Any actions against an acceptor arising from a bill of exchange must be brought within three years of its expiration
date. Actions by the bearer against endorsers and the drawer must be brought within a year of the date of a protest
issued within the legal time limit or the expiration date, in the case of a bill with a free return clause. Actions by endorsers against one another and against the drawer must be brought within six months of the date on
which the endorser repaid the bill or was sued. The time within which a legal action must be brought shall begin to run only on the date of the last legal action. The
limits shall not apply where sentence has been passed, or where the debt has been acknowledged by a separate deed. The interruption of the running of time shall take effect only against the person in respect of whom the act having
the effect of interruption was interposed. Nevertheless, all alleged debtors must, if required to do so, swear an affidavit that they owe no further monies under
the bill, and their surviving spouses, heirs or successors must swear that they sincerely believe that no sums remain outstanding.
SECTION XV General provisions Articles L511-79 to
L511-81
Article L511-79 Payment of a bill of exchange the expiration date of which falls on a public holiday shall not be enforceable until the
first working day thereafter. Similarly, any other acts in the law relating to a bill of exchange, particularly presentation for acceptance and protests, may be effected only on a working day.
Where any such act must be effected within a certain period of time the last day of which is a public holiday, the said period shall be extended until the first working day thereafter. Intervening public holidays shall be included when calculating the period of limitation.
Article L511-80 Days on which no payment may be enforced nor any protest issued according to the current laws shall be treated
as equivalent to public holidays.
Article L511-81
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COMMERCIAL CODE Statutory or agreed limitation periods shall not include the day on which they begin to run. No legal or judicial days of grace shall be permitted save in the cases referred to in Articles L.511-38 and L.511-50.
CHAPTER II Promissory note Articles L512-1 to
L512-8
Article L512-1 I.- Promissory notes must contain: 1. The order clause or name of the instrument inserted in the actual text and expressed in the language used for the
wording of the instrument; 2. A pure and simple promise to pay a specific sum of money; 3. An indication of the payment date; 4. An indication of the place of payment; 5. The name of the person to whom or to whose order payment is to be made; 6. An indication of the date and place where the note is subscribed; 7. The signature of the person issuing the instrument, known as the subscriber. II.- Promissory notes in which the payment date is not indicated shall be deemed to be payable at sight. III.- In the absence of any specific indication, the place of creation of the instrument shall be deemed to be the place
payment and, at the same time, the subscriber's place of residence. IV.- Promissory notes in which the place of creation is not indicated shall be deemed to be subscribed at the place
indicated next to the name of the subscriber.
Article L512-2 Any instrument lacking one of the items listed in Article 512-1-I shall not be valid as a promissory note, save in the
cases specified in Article 512-1-II to IV.
Article L512-3 The provisions of Articles L.511-2 to L.511-5, L.511-8 to L.511-14, L.511-18, L.511-22 to L.511-47, L.511-49 to
L.511-55, L.511-62 to L.511-65, L.511-67 to L.511-71 and L.511-75 to L.511-81, relating to bills of exchange, shall apply to promissory notes in so far as they are not incompatible with the nature of the said type of instrument.
Article L512-4 The provisions of Article L.511-21 relating to guarantees shall also apply to promissory notes. In the circumstances
referred to in the sixth sub-paragraph of the said Article, where the guarantee does not indicate on whose behalf it has been given, it shall be deemed to have been given on behalf of the subscriber of the promissory note.
Article L512-5 The provisions of Articles L.511-56 to L.511-61 relating to publication and the extension of the periods within which
protests may be issued shall apply to protests of non-payment of a promissory note.
Article L512-6 The subscriber of a promissory note shall be under a similar obligation to that assumed by the acceptor of a bill of
exchange.
Article L512-7 Promissory notes payable a certain length of time after presentation must be presented for approval by the
subscriber within the time limits laid down in Article 511-15. The period for presentation shall run from the date on which the subscriber's approval is endorsed on the note and signed. If the subscriber refuses to endorse it with such approval and date it a protest must be registered, the date of which shall serve as that on which the period from presentation shall begin to run.
Article L512-8 A debtor shall not be permitted to settle a bill by means of a promissory note unless an express provision to that
effect has been made by the parties and endorsed on the invoice. Even then, if the promissory note shall not have reached the creditor within thirty days after the delivery of the invoice, the creditor may issue a bill of exchange which the debtor shall be required to accept according to the conditions stipulated in the penultimate and final sub-paragraphs of Article L.511-15. Any stipulation to the contrary shall be deemed non-existent.
TITLE II Guarantees Articles L521-1 to
L526-4
CHAPTER I General provisions on the commercial security Articles L521-1 to
L521-3
Article L521-1 Security constituted either by a trader, or by a non-trading individual, for a commercial act, must be recorded in
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COMMERCIAL CODE accordance with the provisions of Article L.110-3, for the purposes of the contracting parties and those of notice to third parties.
Negotiable instruments may also be charged by way of security by means of an endorsement in the appropriate form, indicating that the instruments have been charged by way of security.
With regard to company and partnership shares and registered bonds issued by financial, industrial or commercial companies or civil-law partnerships, transferable by transfer registered in the company or partnership's records, and also to nominative entries in the Public Debt Register, security may also be constituted by a transfer by way of guarantee registered in the said records.
There shall be no exemption from the provisions of Article 2075 of the Civil Code regarding rights to receive movable assets, where third parties are able to exercise a right of attachment against the transferee only by notice of assignment served on the debtor.
Commercial instruments charged as security shall be recoverable by the secured creditor.
Article L521-2 All rights of priority shall in all cases be extinguished in respect of security where the same shall have been placed
and shall remain in the possession of the creditor, or of a third party by agreement between the parties. Creditors shall be deemed to have the goods in their possession where the same are at their disposal in their stores
or vessels, in a Customs warehouse or public depository, or where they are put in possession before the arrival thereof by means of a bill of lading or a waybill.
Article L521-3 If payment is not made in the due date, the creditor may, eight days after simple notice served on the debtor and
any third party holding a landlord's lien for rent, may sell the articles held as security at public auction. Sales other than those conducted by suppliers of investment services must be effected by brokers. Nevertheless,
the Presiding Judge of the Tribunal de commerce may at the parties' request appoint another type of public government official to conduct the sale.
The provisions of Articles L.322-9 to L.322-13 on public auctions shall apply to sales such as are referred to in the preceding paragraph.
Any clause purporting to authorise the creditor to appropriate or dispose of the security without observing the aforementioned formalities shall be void.
CHAPTER II Deposits in bonded warehouses Articles L522-1 to
L522-40
SECTION I Approval, assignment and cessation of operation Articles L522-1 to
L522-13
Article L522-1 Operators of warehouses in which manufacturers, traders, farmers or craftsmen store raw materials, merchandise,
foodstuffs or manufactured products must not issue negotiable security instruments or describe their establishments as general warehouses without having first obtained the appropriate authorisation from a prefect.
Article L522-2 A prefectorial order deciding the application for approval shall be made after consultations with the professional and
inter-professional bodies to be specified by the Order approved by the Conseil d'Etat issued for the implementation of this Chapter. The reasons for the decision must be stated.
Article L522-3 The assignment of a general warehouse shall be subject to authorisation by the prefect, granted in the same way..
Article L522-4 Any cessation of operation not followed by an assignment shall be subject to six months' prior notice, to be given by
the operator to the prefect. On the expiration of the said period, if general commercial interests so require, a temporary receiver may be appointed by the Presiding Judge of the Tribunal de grande instance, by an order made in emergency interim proceedings, on an application by the Procureur de la République.
Article L522-5 It shall be prohibited for operators of general warehouses to carry on, either directly or indirectly, either on their own
behalf or on that of another person, as agents on commission or in any other capacity, any business or speculation relating to merchandise for which they are authorised to issue warehouse warrants.
Article L522-6 Companies operating general warehouses shall be deemed to be subject to the rule contained in Article 522-5
where one of their shareholders, owning more than 10% of the share capital, carries on a form of business incompatible with the provisions of the said Article.
Article L522-7
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COMMERCIAL CODE Any operating company which, as a result of a change in the distribution of its share capital between shareholders,
no longer fulfils the conditions laid down in Article 522-6 must, within a month of the said change, apply for the renewal of its authorisation.
The said authorisation shall remain valid until the prefect shall have made an order deciding the application. The prefect may either order that the authorisation remain in force according to the conditions laid down in Article
522-11, or order the withdrawal thereof in accordance with the provisions of Article 522-39.
Article L522-8 Where the opening of an establishment is subject to a ministerial order or decree, the authorisation of the said
establishment as a general warehouse shall be granted by the said decree or order, after consultation with the bodies referred to in Article L.522-2.
Article L522-9 Operators of authorised establishments need not apply for the licence referred to in the rules governing the creation,
extension or transfer of establishments.
Article L522-10 Decrees or orders authorising establishments as general warehouses may include a licence for the operator to open
a public wholesale trading room.
Article L522-11 I. - Companies that fail to comply with the conditions laid down in Articles L.522-5 and L.522-6 may nevertheless
apply for authorisation for the warehouses they operate or propose to operate as general warehouses and obtain the said authorisation, by way of exception to the general rule, where it is recognised that commercial interests so require.
II - In any such case: 1. Notice of the application for authorisation must be publicly displayed at the prefecture and in the municipality of
the locality in question, in accordance with the regulations; 2. The authorisation order shall fix, in addition to the security specified in Article L.522-12, a special security at least
as regards the latter. The special security must be provided either in cash or by means of a bank guarantee authorised by the Tribunal de commerce in whose jurisdiction the establishment is situated.
Article L522-12 The prefectorial order authorising the opening of a general warehouse shall require the operator to provide security. The establishments referred to in Article L.522-8 shall be subject to the same obligation. The amount of the said security, which shall be proportionate to the surface area used for storage, shall be between
two limits to be fixed by an Order approved by the Conseil d'Etat.
Article L522-13 Operating conditions for the said establishments shall be fixed by one or more standard regulations in the context of
this Chapter and the Order approved by the Conseil d'Etat made to implement the said Chapter.
SECTION II Obligations, responsibilities and guarantees Articles L522-14 to
L522-19
Article L522-14 Any person depositing merchandise in a general warehouse must declare its nature and value to the operator.
Article L522-15 Operators of general warehouses shall be responsible, within the limits of the value declared, for the custody and
safe keeping of merchandise deposited with them. They shall not be liable for any natural damage or deterioration resulting from the nature and packaging of the
merchandise from cases of force majeure. The standard and specific regulations laid down in Articles L.522-13 and L.522-17 shall specify the obligations of
operators as regards the safe keeping of articles deposited.
Article L522-16 Merchandise capable of carrying a warranty must be insured against fire under the warehouse's general insurance
policy. Nevertheless, for operators of general warehouses situated at seaports, the said obligation shall be suspended as
regards deposits of merchandise covered by marine insurance for as long as the said insurance covers the relevant risks.
If a claim shall arise during the said period, the operator of the warehouse shall not be liable to depositors, insurance companies or warrant-holders.
On the expiration of the said period, the aforementioned merchandise shall must be insured under the warehouse's general policies.
Article L522-17 Every establishment must have its own specific regulations in addition to the general provisions of the standard
regulations, specifying conditions of operation in the light of the nature and situation of the warehouse.
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COMMERCIAL CODE Article L522-18
The regulations referred to in Article L.522-17 shall be accompanied by a general scale and, if appropriate, special scales of charges for storage, in accordance with the terms of this Chapter, and for services rendered to depositors. The appropriate fees shall be paid without distinction or favour.
Article L522-19 Scales of charges must be notified to the prefect at least a month before the opening of a general warehouse. Any change in the existing charges must be notified to the prefect and to the bodies referred to in Article L.522-2,
and shall not be enforceable until a month after the said notification. This period shall not, however, apply to operators whose charges are subject to Government licence.
SECTION III Operation and supervision Articles L522-20 to
L522-23
Article L522-20 Operators of general warehouses may lend on the security of a charge on merchandise deposited with them, or
trade in warrants representing the said merchandise.
Article L522-21 Chairmen, managers, directors and personnel of general warehouse undertakings shall be required to observe the
rules of professional secrecy in all matters relating to merchandise deposited with them, subject to the penalties laid down in Article 226-13 of the Penal Code.
Article L522-22 General warehouses shall be placed under Government control, according to conditions to be fixed by an Order
approved by the Conseil d'Etat.
Article L522-23 The provisions of this chapter, the order implementing the said provisions, the scales of charges and the regulations
must be displayed in the area of the warehouse offices to which the public has access.
SECTION IV Receipts and warrants Articles L522-24 to
L522-37
Article L522-24 One or more receipts shall be issued to each depositor. The said receipts shall state the name, occupation and
address of the depositor and the nature of the merchandise deposited and the appropriate indications identifying it and determining its value.
Fungible merchandise deposited in general warehouses against a receipt and a warrant may be replaced by merchandise of the same nature, type and quality. The possibility of such replacement must be mentioned on both the receipt and the warrant.
The rights and privileges of the bearer of the receipt shall be transferred to the merchandise substituted. A receipt and a warrant may be issued on a consignment of fungible merchandise to be taken in a larger
consignment.
Article L522-25 Each receipt must have attached to it a security instrument, known as a warrant, containing the same wording as
the receipt. Receipts for merchandise and warrants annexed thereto shall be taken from a counterfoil register.
Article L522-26 Receipts and warrants may be transferred by endorsement, together or separately.
Article L522-27 Transferees of a receipt or warrant may demand that the endorsement in their favour be transcribed on the
counterfoil registers from which they are extracted, with a note of their address.
Article L522-28 The endorsement of a warrant that has been separated from its receipt shall be treated as a charge on the
merchandise in favour of the transferee of the warrant. The endorsement of the receipt shall transfer the right to dispose of the merchandise to the transferee, who shall
thereby be rendered liable, where the warrant is not transferred with the receipt, for payment of the debt secured by the warrant or to allow the amount thereof to be paid out of the proceeds of sale of the merchandise.
Article L522-29 The endorsement of a warrant and receipt, whether transferred together or separately, must be dated. The endorsement of a warrant that has been separated from its receipt must also state the full amount, as to capital
and interest, of the debt secured, the payment date and the name, occupation and address of the creditor. The first
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COMMERCIAL CODE transferee of the warrant must immediately have the endorsement transcribed in the warehouse's record books, with its accompanying statements. A note of the said transcription must be endorsed on the warrant.
Article L522-30 The bearer of a receipt that has been separated from its warrant may, even before the expiration date, pay the debt
secured by the warrant. Where the bearer of the warrant is unknown or, if known, is not in agreement with the debtor as to the conditions of
early payment, the sum due, including interest up to the expiration date, shall be placed on deposit with the management of the general warehouse, which shall be responsible for it. The said deposit shall discharge the merchandise.
Article L522-31 If the debt shall not be paid on the due date, the bearer of a warrant that has been separated from its receipt may,
eight days after the issue of a protest, and without any legal formalities, have the merchandise secured sold wholesale at auction by public Government officials, in accordance with the provisions of Book III relating to the public wholesale auction of merchandise.
Where the original subscriber of the warrant has repaid the bearer, the latter may sell the merchandise, as mentioned in the preceding sub-paragraph, as against the bearer of the receipt, without notice eight days after the payment date.
Article L522-32 I. - Creditors shall have their debts repaid out of the price, directly and without any legal formality, by privilege and
preference over all creditors, without any deduction other than: 1. Indirect taxes and Customs duty payable on the merchandise; 2. Expenses of sale and storage and other expenses of safekeeping of the goods. II. - If the bearer of the receipt is not present at the time of the sale of the merchandise, any sum exceeding that due
to the bearer of the warrant shall be placed on deposit with the management of the general warehouse, as indicated in Article L.522-30.
Article L522-33 Bearers of warrants shall have no right of action against the borrower and the endorsers until they shall have
exercised his rights over the merchandise, and then only if the sum so realised is insufficient. The period fixed by Article L.511-42 for the exercise of the right of action against endorsers shall not begin to run
until the date on which the sale of the merchandise takes place. Bearers of warrants shall in any event forfeit their right of action against the endorsers if they fail to sell the
merchandise within a month of the date of the protest.
Article L522-34 The bearer of a receipt and a warrant shall have the same rights over any insurance monies payable in the event of
a claim as over the insured merchandise.
Article L522-35 Public credit institutions may receive warrants as commercial paper, one of the signatures required by their
Memorandum and Articles of Association being dispensed with.
Article L522-36 Any person losing a warrant or receipt may apply for a Court order for the issue of a duplicate, in the case of a
receipt, or for payment of the debt secured, in the case of a warrant, on producing documentary evidence of ownership and providing security.
If in any such case the subscriber of the warrant shall not have made payment on the due date, a third party bearer whose endorsement shall have been transcribed in the record books of the general warehouse may be authorised by a Court order to have the merchandise secured sold in accordance with the conditions laid down in Article L.522-31, subject to the provision of security.
The protest referred to in the said Article must provide copies of the relevant entries in the register of the general warehouse.
Article L522-37 In the event of a lost receipt, the security referred to in the preceding Article shall be discharged on the expiration of
a period of five years, where the merchandise charged shall not have been claimed by a third party against the general warehouse.
In the event of a warrant being lost, the security shall be discharged on the expiration of a period of three years from the date of transcription of the endorsement.
SECTION V Sanctions Articles L522-38 to
L522-40
Article L522-38 It shall prohibited to open or operate an establishment receiving merchandise on deposit for which negotiable
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COMMERCIAL CODE security instruments are issued to depositors, under the description of warrants or any other name, without the licence specified in Article L.522-1.
Any breach of this prohibition shall be render the perpetrator liable to a fine of 40,000 F and a year's imprisonment. The Court may order that the sentence be published in full or as to extracts thereof in such newspapers as it shall
appoint and displayed in such places as it shall indicate, particularly on the doors of the registered office and warehouses of the convicted party, at the latter's expense, but so that the expenses of such publication shall not exceed the amount of the fine incurred.
Article L522-39 In the event of a breach by the operator of a general warehouse of the provisions of this Chapter, or of Orders
approved by the Conseil d'Etat, the prefect may, having interviewed the operator and consulted the professional and inter-professional bodies referred to in Article L.522-2, make a temporary or permanent order for the withdrawal of that operator's authorisation.
In any such case, the Presiding Judge of the Court, sitting in emergency interim proceedings, shall, on an application by the Procureur de la République, appoint an interim manager and determine the said administrator's powers to operate the undertaking.
In the event of permanent withdrawal of the said authorisation, where the interests of local trade require that the general warehouse be kept open, the powers of the interim manager may include that of selling the business and goodwill thereof and the materials and equipment required to operate the warehouse at public auction.
An order may also be made for the permanent withdrawal of authorisation, after consultation with the professional and inter-professional bodies, from undertakings that have ceased to operate as general warehouses or depositories for at least two years.
Article L522-40 The conditions of application of the provisions of this Chapter shall be fixed by an Order approved by the Conseil
d'Etat.
CHAPTER III Pledge of hotel equipment and furniture Articles L523-1 to
L523-15
Article L523-1 Any hotel operator may borrow on the security of commercial fixtures and fittings, tools and equipment used for the
purposes of its operation, while retaining custody of the same on the hotel premises. Objects charged as security for the debt shall remain as security for the lender and the lender's successors in title
until the sums advanced shall have been repaid. Borrowers shall be responsible for the said objects which shall remain in their custody, and shall not be entitled to
plead any right of indemnity against the lender and the lender's successors in title.
Article L523-2 Hotel operators who are not owners or life tenants of the building in which they carry on their business must, before
taking any loan, give extra-judicial notice to the owner or life tenant of the business and goodwill they rent, or their legal agent, of the nature and value of the objects charged, and the amount to be borrowed. The said notice must be repeated by letter, through the Clerk of the Tribunal d'instance within whose jurisdiction the place of operation of the furnished hotel is located. The letter of notice must be delivered to the Clerk of the Court, who must approve and register it and send it on by registered business letter with recorded delivery.
The owner or life tenant or their legal agent, may, within fifteen clear days of the date of notice of the said act, object to the loan by extra-judicial notice to the Clerk of the Court, where the borrower has not paid any outstanding rent in arrears, six months' current rent and six months' rent to become due.
The borrower may have the objection removed by paying the said rent. If no reply by the owner or life tenant or their legal agent shall be received within the period fixed above it shall be
considered that they have no objection to the loan. The landlord's lien over the objects charged as security shall be reduced up to the amount of the sum advanced. It
shall subsist in law if the loan is granted notwithstanding the landlord's objection. The landlord may at any time waive either the objection or the payment of the aforementioned rent, by signing the
register referred to in Article L.523-3. In the event of any conflict between the right of priority of the bearer of a pledge of hotel equipment and furniture
and that of a mortgagee, their rank shall be determined by the respective dates of transcription of the first endorsement of the warrant and the registration of the mortgages.
Article L523-3 A counterfoil register, which must be duly compared and initialled, shall be kept in every Court Registry. Each
detachable sheet and counterfoil must contain wording, a list of which shall be fixed by decree, based on the borrower's statements.
The detachable sheet containing the said wording shall constitute a pledge of hotel equipment and furniture.
Article L523-4 Pledges of hotel equipment and furniture shall be issued by the Clerk of the Tribunal de commerce of the jurisdiction
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COMMERCIAL CODE within which the hotel is operated. A borrower who receives a pledge of hotel equipment and furniture shall give an acknowledgement of receipt for delivery of the certificate, by public credit institutions may receive pledges of hotel equipment and furniture as commercial paper, one of the signatures required according to their Memorandum and Articles of Association being dispensed with.
Article L523-10 Bearers of warrants shall have the same rights over the proceeds of insurance policies, in the event of a claim, as
over the insured property.
Article L523-11 Bearers of warrants must claim payment of their debts from the borrower when the same become due, and, in the
event of default on payment, may reiterate their claims against the debtor by registered letter with recorded delivery. If the warrant is not paid when due the said bearers shall have the rights to enforce their security as though they
were privileged or secured creditors under the terms of Articles L.143-5 to L.143-15. Nevertheless, the landlord's prior right may be exercised at any time in respect of up to six months rent in arrears,
six months' current rent and six months' rent to become due. Bearers who sell the property shall no longer be entitled to exercise their remedies against the endorsers or even
against the borrower until they shall have claimed their rights against the proceeds of sale of the articles covered by the warrant. Should the price be insufficient to repay the debt due to them, they shall have a period of three months from the date of sale to exercise their remedies against the endorsers.
Article L523-12 A debt owed to the bearer of a warrant shall be repaid directly out of the proceeds of sale, as a right of priority over
all other creditors, with no deductions other than direct taxes and sale expenses and with no formality other than an Order made by the Presiding Judge of the Tribunal de commerce.
Article L523-13 A false declaration or any attempt by a borrower to create a warrant over objects not owned by the said borrower, or
already charged as security, or any act of embezzlement, dissipation or deliberate damage to security charged to a creditor, to the detriment of the latter, shall be punishable by the penalties prescribed for embezzlement or abuse of trust, in Articles 313-1, 313-7, 313-8 or 314-1 and 314-10 of the Penal Code.
Article L523-14 The fees payable to the Clerk of the Court shall be fixed by Order approved by the Conseil d'Etat. The notices stipulated by the provisions of this Chapter must be sent in the form of a registered business letter, at
the appropriate rate.
Article L523-15 Any agreements that run contrary to the provisions of this Chapter, and particularly any stipulations that would
adversely affect the right of tenants to create pledges of hotel equipment and furniture, shall be considered null and void.
CHAPTER IV Oil warrant Articles L524-1 to
L524-21
Article L524-1 Operators and holders of stocks of crude oil or petroleum products may issue stock warrants as security for their
borrowing, while retaining custody thereof at their plants or depots. Products subject to warrants shall remain security for the holder of the warrant until repayment of the sums
advanced. Warrants must be expressed to cover a certain quantity of merchandise of a specific quality, but products subject to
warrants need not be physically separated from other similar products held by the borrower. Borrowers shall be liable for the merchandise in their care and custody and shall not be entitled to plead any right of
indemnity against the benefit of the warrant.
Article L524-2 To create the document known as an"oil warrant", the Clerk of the Tribunal de commerce of the district where the
products to be comprised in the warrant are located shall register, according to the borrower's declarations, the nature, quality, value and location of the products to be charged as security for the loan, the total sums borrowed, and the particular clauses and conditions relating to the oil warrant, as agreed between the parties.
The warrant must be signed by the borrower. It shall be valid for a maximum of three years, but may be renewed.
Article L524-3 The warrant must indicate whether or not the product to which it relates is insured, and, if so, the name and address
of the insurer. Lenders shall be empowered to maintain the said insurance until the warrant is paid. Bearers of warrants shall have the same rights and privileges over the insurance monies in the event of a claim as
they have over the insured products.
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COMMERCIAL CODE Article L524-4
The Clerk of the Tribunal de commerce shall issue to any applicant a list of warrants registered for more than five years in the name of the borrower or a certificate confirming that there are no entries in the register.
Article L524-5 Registrations of warrants shall be cancelled on production of evidence either of repayment of the debt secured by
the warrant, or of a legal release. Borrowers who have repaid their warrants must have the said repayment recorded by the Clerk of the Tribunal de
commerce. A note of the repayment or release shall be entered in the register referred to in Article 524-3. A certificate of cancellation of the entry shall be issued to them.
Entries shall be automatically cancelled after five years, unless renewed before the end of the said period. If an entry is re-registered after automatic cancellation, it shall be valid as against third parties only from the new date.
Article L524-6 The borrower shall retain the right to sell the products to which the warrant relates by amicable agreement before
payment of the debt, even without the lender's participation in the sale. Nevertheless, the products may not be delivered to the purchaser until the creditor has been paid.
Even before the payment date, the borrower may repay the debt secured by the oil warrant. If the bearer of the warrant shall refuse the debtor's offers, the debtor may obtain discharge by placing the sum offered on deposit in accordance with the conditions laid down in Articles 1426 to 1429 of the New Code of Civil Procedure. Offers must be made to the last known successor in title by notice to the Registry at the Tribunal de commerce, in accordance with Article L.524-8. On production of a sufficient legal receipt for the said deposit the Presiding Judge of the competent Tribunal de commerce for the district where the warrant is registered shall make an order under the terms of which the security shall be transferred to the sum placed on deposit.
In the event of early repayment of an oil warrant, the borrower shall have the benefit of the interest still to accrue up to the expiration date of the warrant, less ten days.
Article L524-7 Public credit institutions may receive warrants as commercial paper, one of the signatures required by their
Memoranda and Articles of Association being dispensed with.
Article L524-8 Oil warrants shall be transferable by endorsement. Endorsements must be dated and signed and must state the
names, occupations and addresses of the parties. All those who shall have signed or endorsed a warrant shall be jointly and severally liable to the bearer. A discounter or re-discounter of an oil warrant must give notice to the Registry of the Tribunal de commerce within
eight days, by registered letter with recorded delivery, or verbally against an acknowledgement of receipt of the notice. The borrower may, by a special note endorsed on the warrant, exempt the discounter or re-discounter from giving
the said notice, in which case, however, the provisions of the final sub-paragraph of Article L.524-6 shall not be applicable.
Article L524-9 Bearers of oil warrants must claim payment of their debts by the borrower on the due date, and, in the event of
default, must record and restate their claims against the debtor by registered letter with recorded delivery. If they shall not receive payment within five days of the despatch of the said letter, bearers of oil warrants must
lodge a formal complaint of default on payment, fifteen clear days after the payment date, by notice to each of the endorsers, sent to the Registry of the Tribunal de commerce, which shall give the bearer an acknowledgement of receipt for the said notice; failure to do shall result in forfeiture of the bearer's rights against the endorsers. The Registry of the Tribunal de commerce shall notify the endorsers of the said notice within a week thereafter, by registered letter with recorded delivery.
Article L524-10 In the event of a refusal to pay, the bearer of the oil warrant may, fifteen days after the date of the registered letter
to the borrower, as mentioned above, have the merchandise to which the warrant relates sold by a civil servant or public Government official at public auction. Power to do so shall be conferred on the bearer by an order made by the Presiding Judge of the Tribunal de commerce of the district where the said merchandise is located, on an ex parte application, fixing the date, place and time of the sale. The said details shall be announced at least eight days in advance by notices displayed in the places indicated by the Presiding Judge of the Tribunal de commerce, who may in all cases authorise the publication thereof in the newspapers. Publication shall be recorded by means of a note inserted in the minutes of the sale.
Article L524-11 The public Government official responsible for the sale shall notify the debtor and the endorsers of the date, place
and time of the sale eight days in advance thereof. The borrower may nevertheless agree, by means of a special note endorsed on the oil warrant, that there need not
be a sale by public auction, and that the sale may be arranged by amicable agreement. In such a situation, the sale must always be authorised by an Order of the Presiding Judge of the Tribunal de commerce of the district where the merchandise to which the warrant relates is located, made on an ex parte application.
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COMMERCIAL CODE Article L524-12
The provisions of Article 53 of Law no. 91-650 of 9 July 1991 amending the civil-law enforcement procedures shall apply to sales effected pursuant to the provisions of this Chapter.
Article L524-13 Debts due to bearers of warrants shall be paid directly out of the sale proceeds, by right of priority and preference
over all creditors, after deduction of the sale expenses, and with no formalities other than an Order of the Presiding Judge of the Tribunal de commerce.
Article L524-14 Bearers of oil warrants who sell the merchandise to which the warrant relates, in accordance with Articles L.524-9 to
L.524-11, shall no longer be entitled to exercise their remedies against the endorser or even against the borrower, until they shall have claimed their rights against the sale proceeds of the said products. Should the said proceeds be insufficient to repay the debt due to them, they shall have a period of a month from the date of sale of the merchandise to exercise their right of action against the endorsers.
Article L524-15 Should there be any discrepancy between the existing merchandise and the quantity or quality of that to which the
warrant relates, the lenders may immediately give the holder of the oil warrant notice, by registered letter with recorded delivery, either to reconstitute the security within forty-eight hours of receipt of the registered letter, or to repay some or all of the sums secured by the oil warrant within the same period of time. If not satisfied, the lenders shall be entitled to demand full repayment of the debt, which they shall consider as having become due and payable.
In any such case, the borrower shall forfeit the benefit of the provisions of the final sub-paragraph of Article L.524-6, relating to the repayment of interest.
Article L524-16 In the event of a fall of 10% or more in the value of the stock to which the warrant relates, the lenders may give the
borrowers notice, by registered letter with recorded delivery, either to increase the security or to repay a proportion of the sums advanced. In the latter case, the provisions of the final sub-paragraph of Article 524-6 shall apply.
If the said demand shall not be satisfied within eight clear days, the lenders shall be entitled to demand full repayment of the debt, which they shall consider as having become due and payable.
Article L524-17 Any borrower who shall have made a false declaration, or shall have constituted an oil warrant on products already
charged under a warrant, without first notifying the new lender, or any borrower or depository who shall have embezzled, dissipated or deliberately damaged the creditor's security to the latter's detriment, shall be subject to the penalties laid down in Articles 313-1, 313-7 and 313-8 or 314-1 and 314-10 of the Penal Code.
Article L524-18 Where it is necessary to make an application to a Judge sitting in emergency interim proceedings in order to
enforce the provisions of this Chapter, the said proceedings shall be held before the Presiding Judge of the Tribunal de commerce of the district where the merchandise to which the warrant relates is located.
Article L524-19 The total fees payable to the Clerk of the Tribunal de commerce in respect of oil warrants shall be as fixed by the
Decree governing oil warrants. The said sum may nevertheless be revised by a specific Decree relating to oil warrants. The notices stipulated by the provisions of this Chapter must be sent in the form of recommended business letters
at the appropriate rate.
Article L524-20 The provisions of this Chapter shall be applicable subject to the obligations imposed by Law no. 92-1443 of 31
December 1992, amending the petroleum regulations, particularly as regards the constitution and apportionment of stock and without prejudice to the possible liability of operators in case of infringement.
Article L524-21 This Chapter shall be applicable in the departments of Haut-Rhin, Bas-Rhin and Moselle, subject to the special
provisions of the Law of 1 June 1924 introducing French commercial law in the said three departments. The Registries with competence to constitute oil warrants shall be those indicated in Article 35 of the said Law for
the constitution of oil warrants.
CHAPTER V Charge on tooling and equipment Articles L525-1 to
L525-20
Article L525-1 Payment of the purchase price of professional tooling and equipment may be secured either by the seller, or by a
lender who advances the necessary funds to pay the seller, by a restricted charge on the tooling or equipment so purchased.
Where the purchaser is a trader, the said charge shall be governed, subject to the provisions hereinafter contained, by the rules laid down by Chapters II and III of Title IV of Book I. It shall not be necessary to include the essential
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COMMERCIAL CODE elements of the business and goodwill in the charge.
Where the purchaser is not a trader, the charge shall be governed by the provisions of Article L.525-16.
Article L525-2 The charge shall be created by deed or unattested document, registered at the fixed fee. Where it is given to the seller, it shall be recorded in the sale document. Where it is given to a lender who advances the necessary funds to pay the seller, the charge shall be recorded in
the loan document. The said document must state that the monies advanced by the lender must be used to pay the price of the assets
purchased, failing which it shall be void. The assets purchased must be listed in the body of the deed and each asset must be precisely described in order to
identify it in relation to other assets of the same type belonging to the business. The deed must also indicate the place where the assets are permanently installed or, if they are not so installed, must indicate that they may be moved from place to place.
Guarantors acting as sureties or endorsers in the grant of loans for equipment shall be regarded as equivalent to lenders of funds. Such persons shall automatically be subrogated to the creditors' rights. The same rule shall apply to persons who endorse, discount, guarantee or accept bills created in representation of the said loans.
Article L525-3 Charges must be completed by no later than two months after the date of delivery of the equipment at the premises
where it is to be installed, failing which they shall be void. Similarly, charges shall be void if not registered within fifteen days of the execution of the deed of charge in
accordance with the conditions laid down in Articles L.142-3 and L.142-4. Where the equipment is delivered after the contractual date, if delivery shall not take place at the site originally
agreed, registered debts shall become automatically enforceable unless the debtor shall have notified the secured creditor of the date or place of delivery within fifteen days thereafter.
A charge shall not be binding on third parties if, within fifteen days of receiving notice or of becoming aware of the date or place of delivery, the secured creditor shall not have requested the Clerk of the Court where the charge is registered to note the said date or place in the margin against the relevant entry in the register.
Article L525-4 Assets charged pursuant to this Chapter may, furthermore, at the secured creditor's request, be clearly marked on
an essential part with a permanently fixed notice indicating the place, date and registration number of the preferential charge to which they are subject.
The debtor must not impede the apposition of the said mark, subject to the penalties laid down in Article L.525-19, nor may marks so affixed be destroyed, removed or covered before the preferential charge in favour of the secured creditor shall have been extinguished or cancelled.
Article L525-5 Any agreed subrogation to the benefit of the charge must be noted in the margin against the relevant entry in the
register within fifteen days of the date of the deed or unattested document recording the same, on delivery to the Clerk of the Court of an original or office copy of the said deed.
Any conflicts that may arise between owners of successively registered charges shall be settled in accordance with Article 1252 of the Civil Code.
Article L525-6 The benefit of the charge shall be automatically transferred to the successive bearers of the bills thereby
guaranteed, in accordance with Article 1692 of the Civil Code, whether the said bills shall have been subscribed or accepted to the order of the seller or a lender who has provided all or part of the price, or whether they more generally represent the mobilisation of a validly secured debt pursuant to the provisions of this Chapter.
Where more than one bill is created to represent the debt, the right of priority attached thereto shall be exercised by the first party to sue on it, on behalf of all and for the full amount.
Article L525-7 Subject to the penalties laid down in Article L.525-19, a debtor who, before payment or repayment of the sums
secured in accordance with this Chapter, seeks to sell by amicable agreement all or part of the assets charged must obtain the prior consent of the secured creditor, or, failing that, an Order made by a Judge of the Tribunal de commerce, sitting in emergency interim proceedings, and ruling at final instance.
Where the requirements as to publication laid down by this Chapter have been satisfied and the assets charged have been marked with a notice in accordance with Article L.525-4, the secured creditor or those subrogated to his rights shall have the benefit if the right to follow the assets in order to exercise the preferential rights conferred by the charge, as provided by Article L.143-12.
Article L525-8 The prior rights of a secured creditor holding a charge created pursuant to the provisions of this Chapter shall
subsist if the asset secured becomes a fixed asset. Article 2133 of the Civil Code shall not apply to assets so charged.
Article 2133 of the Civil Code shall not apply to assets so charged.
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COMMERCIAL CODE
Article L525-9 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
I. - The lien of a secured creditor under the provisions of the present Chapter applies to encumbered property in preference to all other liens, with the exception of:
1. The lien in respect of court fees; 2. The lien in respect of the fees for safe custody of the property; 3. The lien granted to employees by Article L. 143-10 of the Labour Code. II. - It is exercised, specifically, against any mortgagee and in preference to the lien of the Trésor public, to the lien
referred to in Article L. 243-4 of the Social Security Code, to the lien of the vendor of a business which makes use of the encumbered property, and also to the lien of the secured creditor over the entirety of the said business.
III. - However, in order for his lien to be binding on the mortgagee, on the vendor of the business, and on the secured creditor in respect of the entirety of the said business, relative to their prior registrations, the beneficiary of the pledge entered into pursuant to the present Chapter must deliver to the said creditors via an extrajudicial process a copy of the instrument which formally recorded the pledge. In order to be valid, such delivery must take place within two months of the pledge being given.
Article L525-10 Subject to the exceptions specified in this Chapter, the rights of chargees shall be governed by the provisions of
Book I, Title IV, Chapter III as regards registration formalities, creditors' rights in the event of relocation of a business, the rights of the landlord of the building, the cancellation of the said rights of priority and the release formalities.
Article L525-11 Registration shall maintain the right of priority for five years from the date of completion of the charge. It shall simultaneously secure two years' interest in addition to the principal sum. It shall cease to have effect unless
it is renewed before the aforementioned period expires; it may be renewed twice.
Article L525-12 A certificate of existing entries in the register, issued pursuant to Article 32 of the Law of 17 March 1909 relating to
sales and charges of a business and goodwill, must include entries registered pursuant to the provisions of this chapter. Applicants may also receive on request a certificate attesting to the existence or non-existence of entries relating to the relevant assets registered pursuant either to the provisions of Chapters I and II of Title IV of Book I, or to those of this Chapter.
Article L525-13 Notice of legal proceedings to obtain the enforced liquidation of certain assets of the business and goodwill to which
assets subject to the prior rights of a seller or secured creditor pursuant to the provisions of this Chapter belong, given in accordance with Article L.143-10, shall render the debts secured by the said rights of priority enforceable.
Article L525-14 In the event of non-payment on the due date, a creditor having the benefit of the rights of priority established by this
Chapter may sue for the realisation of the asset charged therewith, in accordance with the conditions laid down in Article L.521-3. The public Government official responsible for the sale shall be appointed, at the said creditor's request, by the Presiding Judge of the Tribunal de commerce. The creditor must comply with the provisions of Article L.143-10 before the sale takes place.
Such a secured creditor shall be entitled to exercise the rights relating to the ten per cent overbid referred to in Article L.143-13.
Article L525-15 Assets charged pursuant to this Chapter, where an action is brought for the sale thereof together with other items
comprised in the business and goodwill, shall be subject to a separate reserve or sale price where the schedule of conditions requires the party to whom they are awarded to submit them to expert opinion.
In all such cases, sums realised on the sale of the said assets shall, before any distribution takes place, be allocated to holders of registered charges, up to the amount of the principal, interest and expenses thereby secured.
Acknowledgements of receipt by privileged creditors shall be subject to the fixed fee only.
Article L525-16 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
If the buyer is not a registered trader, the pledge is subject to the provisions of Articles L. 525-1 to Article L. 525-9, L. 525-11 and L. 525-12 and of the present Article. The registration provided for in Article L. 525-3 is then effected at the clerk's office of the commercial court ??having jurisdiction at the place where the buyer of the encumbered property is domiciled.
If payment is not effected when due, the creditor holding the lien established by the present Chapter may arrange for the encumbered property to be sold at public auction pursuant to the provisions of Article L. 521-3.
Registrations are struck out either with the consent of the interested parties, or by virtue of a judgment with force of res judicata.
In the absence of a judgment, the registrar cannot effect a total or partial striking off unless a notarially recorded instrument containing the creditor's consent thereto is duly filed.
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COMMERCIAL CODE When a striking off to which the creditor has not consented is sought via a main action, that action is brought before
the commercial court having jurisdiction at the place where the registration was effected. Striking off is effected by means of a notation placed in the margin of the registration by the registrar. Certification thereof is issued to the parties who so request.
Article L525-17 For the purposes of the provisions of this Chapter, Clerks shall be subject to the formalities and responsibilities fixed
by regulation for the maintenance of the register of charges and the issue of statements and certificates on request. Their fees shall be fixed as provided by the current regulations.
Article L525-18 The provisions of this Chapter shall not apply: 1. To motor vehicles as mentioned in Decree no. 53-968 of 30 September 1953; 2. To sea-going vessels and river boats as mentioned in Articles 78 et seq. of the Code of Public Waterways and
Inland Navigation; 3. To aircraft as mentioned in Articles L.110-1 et seq. of the Code of Civil Aviation.
Article L525-19 Any purchaser or holder of assets charged pursuant to this Chapter who shall destroy or attempt to destroy,
embezzle or attempt to embezzle, or damage or attempt to interfere in any way with the said assets with the object of frustrating the creditor's rights, shall be liable to the penalties laid down for fraudulent conversion in Articles 314-1 and 314-10 of the Penal Code.
Any fraudulent manoeuvres designed to frustrate a creditor's prior rights over the assets charged, or to reduce the extent of the said rights, shall be subject to the same penalties.
Article L525-20 The conditions of implementation of the provisions of this Chapter shall be determined by an Order approved by the
Conseil d'Etat.
CHAPTER VI Protection of the Individual Businessman and his Spouse Articles L526-1 to
L526-4
Article L526-1 (inserted by Law No. 2003-721 of 1 August 2003 Article 8 Official Gazette of 5 August 2003)
Contrary to Articles 2092 and 2093 of the Civil Code, a natural person whose name appears in an occupational legal publications register or who is engaged in an agricultural or independent business may declare his rights over the real property which constitutes his principal place of residence to be exempt from seizure. The said declaration, which is published in the Mortgage Registry or, in the departments of Bas-Rhin, Haut-Rhin and Moselle, in the Land Registry, is effective only against creditors whose rights issue from the declarant's business activities subsequent to publication.
If the property houses the business premises as well as the living accommodation, the portion thereof used as the principal place of residence can be declared only if it is designated as such in a description of the division of the property.
Article L526-2 (inserted by Law No. 2003-721 of 1 August 2003 Article 8 Official Gazette of 5 August 2003)
The declaration, executed in the presence of a notary if it is not to be declared null and void, contains a detailed description of the property and an indication as to whether ownership thereof is separate, joint or undivided. The document is published in the local Mortgage Registry or, in the departments of Bas-Rhin, Haut-Rhin and Moselle, in the Land Registry.
If the person's name appears in an occupational legal publications register, the declaration must be referenced therein.
If the person is not required to be registered in a legal publications register, an abstract of the declaration must be published in a periodical available in the department in which the business activity is conducted which carries official notices if that person is to avail himself of the benefit of the first paragraph of Article L. 526-1.
The drafting of the declaration referred to in the first paragraph and completion of the formalities give rise to the payment to notaries of fees for which the ceiling is determined by decree.
Article L526-3 (inserted by Law No. 2003-721 of 1 August 2003 Article 8 Official Gazette of 5 August 2003)
In the event of the real property rights indicated in the initial declaration being sold, the sum received therefor shall remain exempt from seizure in regard to creditors whose debts issue from the declarant's business activities subsequent to publication of that declaration, on condition that the declarant reuses it within one year to acquire real property in which his principal place of residence is located.
If the title deed contains a reuse of funds declaration, the rights to the newly acquired principle place of residence remain exempt from seizure by the creditors referred to in the first paragraph in proportion to the sum reused.
The reuse of funds declaration is subject to the conditions of validity and enforceability provided for in Articles L. 526-1 and L. 526-2.
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COMMERCIAL CODE The declaration may, at any time, be the subject of a relinquishment subject to the same conditions of validity and
enforceability. The declaration remains effective after dissolution of the marriage settlement if the declarant is the recipient of the
property. The decease of the declarant entails revocation of the declaration.
Article L526-4 (inserted by Law No. 2003-721 of 1 August 2003 Article 8 Official Gazette of 5 August 2003)
When a natural person married under a legal or contractual marriage settlement applies for registration in an occupational legal publications register, he must prove that his spouse has been duly informed of the consequences that the debts contracted through his business activities could have on the marital property.
A Conseil d'Etat decree stipulates the present Article's implementing provisions, inasmuch as this is required.
BOOK VI Businesses in difficulty Articles L611-1 to
L610-1 Article L610-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 2, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A Conseil d'Etat decree shall determine in each département (subdivision of France) the court or courts shall have jurisdiction to rule upon the proceedings provided for in this Book and the territorial jurisdiction in which these courts will exercise the powers attributed to them.
TITLE I Prevention of businesses' difficulties Articles L611-1 to
L612-5
CHAPTER I Prevention of businesses' difficulties, special commission (mandat ad hoc) and Articles L611-1 to
composition procedure L611-15
Article L611-1 (Act No 2003-721 of 1 August 2003, Article 10, Official Journal of 5 August 2003) (Act No 2005-845 of 26 July 2005, Article 1, Article 3, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any person registered with the Register of Commerce and Companies or the craftsmen's register as well as private law entities may join a prevention group accredited by an order of the State representative in the region.
This group shall provide its members with a confidential analysis based on the economic, accounting and financial data that they must send it regularly.
Where the prevention group identifies signs of difficulty, it will inform the head of the business and may suggest that an expert provides assistance.
On motion of the State's representative, the competent public authorities shall give assistance to the accredited prevention groups. The Banque de France may also, as stipulated in an agreement, be invited to give its opinion on the financial situation of member businesses. Accredited prevention groups may also receive grants from local authorities.
Accredited prevention groups may enter into agreements with credit institutions and insurance companies in favour of their members.
Article L611-2 (Act No 2005-845 of 26 July 2005, Article 1, Article 4, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I. - Where any deed, document or proceedings shows that a commercial company, an economic interest grouping or a sole ownership, running a trading or a craftsman's business, encounters difficulties that may undermine the continuation of its business operations, its managers may be summoned by the president of the Tribunal de commerce (Commercial court) to determine the appropriate steps necessary to remedy the situation.
At the end of this meeting or if the managers have not come to the meeting, the president of the court may, notwithstanding any statutory or regulatory provision to the contrary, obtain information enabling him to know the debtor's accurate economic and financial situation from statutory auditors, members and representatives of the personnel, public authorities, social security bodies and provident institutions and the bodies responsible for the centralisation of information on banking risks and payment incidents.
II - Where the managers of a commercial company do not file annual accounts within the time limits provided for by the applicable legal provisions, the president of the court may summon them to do so promptly, by means of an injunction accompanied by a periodic pecuniary penalty.
If this injunction is not complied with within the time limit provided for by a Conseil d'Etat decree, the president of the court may also enforce the provisions of the second paragraph of (I) above against the managers.
Article L611-3 (Act No 2005-845 of 26 July 2005, Article 1, Article 5, Official Journal of 27 July 2005, in force on 1 January 2006
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COMMERCIAL CODE subject to Article 190)
The president of the Tribunal de commerce (Commercial court) or of the Tribunal de grande instance (High court) may, at the request of the business's representative, appoint a special commissioner (mandataire ad hoc) whose duties he shall set out.
Article L611-4 (Act No 2005-845 of 26 July 2005, Article 1, Article 5, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A composition procedure is instituted before the Tribunal de commerce (Commercial court) for the persons who carry out a commercial or craftsman's activity, who encounter an actual, or a foreseeable legal, economic or financial difficulty, and who have not been in a state of cessation of payments for more than forty-five days.
Article L611-5 (Act No 2005-845 of 26 July 2005, Article 1, Article 5, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The composition procedure shall be applicable, under the same conditions, to private law entities and to natural persons running an independent professional activity, including independent professional persons with a statutory or regulated status or whose designation is protected. For the implementation of this article, the Tribunal de grande instance (High court) shall have jurisdiction and its president shall have the same powers as those attributed to the president of the Tribunal de commerce (Commercial court).
The composition procedure shall not apply to farmers as they are subject to the procedure provided for in Articles L351-1 to L351-7 of the Rural Code (règlement amiable).
Article L611-6 (Act No 2005-845 of 26 July 2005, Article 1, Article 5, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The debtor shall file its case with the president of the court, stating therein its economic, employment and financial situation, financing needs and, if necessary, the means to tackle them.
In addition to the powers attributed to him by the second paragraph of Article L611-2 (I), the president of the court may appoint an expert of his choice to draw up a report on the debtor's economic, employment and financial situation and, notwithstanding any statutory or regulatory provision to the contrary, obtain all information enabling him to know the debtor's accurate economic and financial situation from banking and financial institutions.
The composition proceedings shall be commenced by the president of the court who shall appoint a conciliator for a period not exceeding four months but that he may, through a reasoned ruling, extend by one month at the most when so requested by the conciliator. The debtor may propose a conciliator to be appointed by the president of the court. At the end of this period, the conciliator's duties and the proceedings shall come automatically to an end.
The order commencing the composition proceedings shall not be subject to appeaLIt shall be notified to the Public prosecutor. Where the debtor runs an independent professional activity with a statutory or regulated status or whose designation is protected, the order will also be notified to the relevant supervisory body or authority, if any.
The debtor may object to the conciliator under the conditions and in the time limits to be fixed by a Conseil d'Etat decree.
Article L611-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 6, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The conciliator's duty is to promote the conclusion of an amicable agreement between the debtor and its main creditors as well as, if applicable, its usual contracting partners, which is intended to put an end to the business's difficulties. He may also make any proposals for the safeguarding of the business, the continuation of the economic activity and the maintenance of employment.
For this purpose, the conciliator may obtain all useful information from the debtor. The president of the court shall transmit to the conciliator all information in his possession and, if applicable, the results of the investigation referred to under the second paragraph of Article L611-6.
Financial authorities, social security bodies, institutions managing the unemployment insurance system provided for by Articles L 351-3 and following of the Labour Code and institutions governed by Book IX of the Social Security Code may consent to a cancellation of debt under the conditions provided for by Article L626-6 of this Code.
The conciliator shall inform the president of the court of the progress of his duties and state all relevant comments on the debtor's performance.
If, during the proceedings, the debtor is sued by a creditor, the judge who has commenced the proceedings may, at the debtor's request and after having been informed regarding the situation by the conciliator, apply Articles 1244-1 to 1244-3 of the Civil Code.
Where it is impossible to reach an agreement, the conciliator will promptly present a report to the president of the court, who shall terminate the conciliator's duties and the composition proceedings. The president's decision shall be notified to the debtor.
Article L611-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 7, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
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COMMERCIAL CODE I - Upon the joint petition of the parties, the president of the court shall record their agreement and make it
enforceable. He shall rule upon the case based on the debtor's certified statement attesting that he was not in a state of cessation of payments at the time the agreement was entered into or that the agreement has put an end to the state of cessation of payments. The decision recording the agreement shall not be subject to publication formalities and shall not be appealed against. The agreement shall terminate the composition proceedings.
II - However, at the debtor's request, the court shall approve the agreement obtained if the following conditions are met:
1°. the debtor is not in a state of cessation of payments or the agreement puts an end to it; 2°. the terms of the agreement should normally ensure the continuity of the business's activity; 3°. the agreement does not harm the interests of non-signatory creditors, without prejudice to the application of
Articles 1244-1 to 1244-3 of the Civil Code.
Article L611-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 7, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court shall rule upon the approval of the agreement after having heard or duly summoned to the judge's chambers, the debtor, the creditors who are party to the agreement, the representatives of the works council or, in the absence of a works council, the employee delegates, the conciliator and the Public prosecutor. The supervisory body or, if any, relevant authority of a debtor who runs an independent profession with a statutory or regulated status or whose designation is protected, shall be heard or summoned under the same conditions.
The court may hear any other person whose hearing that it deems usefuL
Article L611-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 7, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The approval of the agreement shall terminate the composition proceedings. Where the debtor is subject to a statutory audit of its accounts, the approved agreement will be transmitted to the
statutory auditor. The approval decision shall be filed with the clerk's office, where any interested party may consult it, and be published. The approval decision shall be subject to third-party proceedings within ten days from its publication. A decision to refuse to approve the agreement shall not be published. It shall be subject to appeaL
The approved agreement shall stay, during its performance period, all suits and actions filed by creditors individually relating to movable property as well as immovable property of the debtor for the payment of claims referred to in the agreement. It shall interrupt, for the same period, the time limits given to creditors that are parties to the agreement, under the penalty of loss or termination of rights attached to the claims stipulated in the agreement. Co-obligors and persons who are bound by a surety bond or an independent guarantee may avail themselves of the provisions of the approved agreement.
The approved agreement shall lead to the automatic removal of any prohibition from issuing cheques, imposed in compliance with Article L131-73 of the Monetary and Financial Code after rejection of a cheque issued prior to the commencement of the composition proceedings.
Upon a petition by one of the parties to the approved agreement, the court, if it observes non-performance of the obligations emanating from the agreement, shall pronounce the rescission of the latter as well as the loss of any grace period granted.
Article L611-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 8, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If safeguard proceedings, reorganization proceedings or liquidation proceedings as a result are commenced, those persons who, under the approved agreement referred to under Article L611-8 (II), have made a contribution of fresh funds to the debtor in order to ensure the continuation and long-term future of the business's activity will be paid, up to the amount of this sum, according to their preferential lien before all other claims prior to the commencement of the composition proceedings, according to the rank fixed under Article L622-17(II) and Article L641-13(II). Under the same conditions, those persons who, in the approved agreement, supply new assets or services in order to ensure the continuation and long-term future of the business will be paid, for the amount of the price of the assets or services, according to their preferential lien before all claims born prior to the commencement of the composition proceedings.
This provision shall not apply to contributions made by shareholders or partners in the form of a capital increase. Creditors that are signatories to the agreement may not benefit directly or indirectly from this provision in respect of
their contributions prior to the commencement of the composition proceedings.
Article L611-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 9, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The commencement of safeguard, reorganization or liquidation proceedings shall automatically terminate the agreement recognised or approved in compliance with Article L611-8. In this case, the creditors will recover all their claims and guarantees, after deduction of sums received, without prejudice to the provisions of Article L611-11.
Article L611-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 10, Official Journal of 27 July 2005, in force on 1 January
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COMMERCIAL CODE 2006 subject to Article 190)
The duties of a special commissioner (mandataire ad hoc) or those of the conciliator may not be carried out by any person who has received during the last twenty-four months remuneration or payment from the debtor, from any of the debtor's creditors or from a person who controls or is controlled by the debtor within the meaning of Article L233-16 (of the present Code), for whatever reason, directly or indirectly, other than remuneration or payment for a special commission (mandat ad hoc) or duties in connection with an amicable settlement or a composition carried out in favour of the same debtor or the same creditor. The person thus appointed must attest on his honour, at the moment of acceptance of his duties, that he complies with these prohibitions.
The duties of the special commissioner or those of the conciliator may not be entrusted to any Tribunal de commerce (Commercial court) judge who is either in office or who has left office within the previous five years.
Article L611-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 10, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Having obtained the debtor's approval, the president of the court shall determine the conditions of remuneration of the special commissioner, the conciliator and, if necessary, the expert, at the time of their appointment, on the basis of the work entailed in performing their duties. Their remuneration shall be fixed by order of the president of the court on completion of their duties.
Appeals against these decisions shall be filed with the First president of the court of appeal within a time limit to be fixed by a Conseil d'Etat decree.
Article L611-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 10, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any person who has taken part in the composition proceedings or in a special commission (mandat ad hoc) or who, by virtue of his duties, knows about these shall be bound by a duty of confidentiality.
CHAPTER II Provisions applicable to not-for-profit private law entities engaged in economic
activities Articles L612-1 to L612-5
Article L612-1 (Act No 2003-706 of 1 August 2003, Article 116, Official Journal of 2 August 2003) (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 11 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Not-for-profit private law entities engaged in economic activities whose number of employees, sales turnover net of tax or current revenues and total balance sheet assets or liabilities exceed(s), in respect of two of these criteria, the thresholds fixed by a Conseil d'Etat decree, must draw up an annual balance sheet, income statement and notes. The methods and conditions for establishing these documents shall be fixed by a decree.
These legal entities must appoint at least one statutory auditor and one deputy statutory auditor. For agricultural co-operatives and common-interest agricultural companies not organised under commercial law,
where they do not call on registered statutory auditors, this requirement may be met by using the services of an institution accredited under the provisions of Article L527-1 of the Rural Code. The conditions for the application of this provision shall be specified in a Conseil d'Etat decree.
The penalties provided for in Article L242-8 shall apply to the managers of the legal entities provided for in the first paragraph of this article who do not draw up an annual balance sheet, income statement and notes.
Even if the thresholds provided for in the first paragraph have not been reached, not-for-profit private law entities engaged in economic activities may appoint at least one statutory auditor and one deputy under the same conditions as in the second paragraph. In this case, the statutory auditor and his deputy shall be subject to the same obligations, face the same civil and criminal liabilities and have the same powers as if they were appointed in accordance with the first paragraph.
Article L612-2 (Act No 2005-845 of 26 July 2005, Article 1, Article 11 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Not-for-profit private law entities engaged in economic activities whose either the number of employees or the sales turnover net of tax or total balance sheet assets or liabilities exceed(s) the thresholds fixed by a Conseil d'Etat decree must draw up a statement of the quick assets, excluding inventories, and a statement of current liabilities, a forecast income statement, a cash flow statement and a financing plan.
The frequency, time limits and conditions for drawing up these documents shall be specified by a decree. These documents shall be analysed in the reports to be drawn up by the management body on the future of the
legal entity. These documents and reports shall simultaneously be sent to the statutory auditors, to the works council or, in the absence of a works council, to the employee delegates, and to the supervisory body, where one exists.
Where the provisions of the preceding paragraphs are not complied with or where the information given in the reports referred to under the preceding paragraph requires his comment, the statutory auditor will signal it in a written report, which he shall submit to the body responsible for administration or management. This report shall be sent to the works council or, in the absence of a works council, to the employee delegates. This report shall also be presented to
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COMMERCIAL CODE the next meeting of the governing body.
Article L612-3 (Act No 2005-845 of 26 July 2005, Article 1, Article 11 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the statutory auditor of a legal entity referred to under Articles L612-1 and L612-4 discovers, in the course of his duties, facts that may undermine the continuation of the entity's activity, he will inform the managers of the legal entity under the conditions fixed in a Conseil d'Etat decree.
In the absence of a response within the time set in a Conseil d'Etat decree, or if the response does not guarantee the continuation of activity, the statutory auditor will direct the managers in writing, with a copy to the president of the Tribunal de grande instance (High court), to request the collegiate board of the legal entity to deliberate upon these facts. The statutory auditor shall be invited to this meeting. The decisions of the collegiate board shall be notified to the works council or, in the absence of a works council, to the employee delegates and to the president of the Tribunal de grande instance (High court).
Where these provisions are not complied with, or where the statutory auditor observes that despite the decisions taken the continuation of the business's activity remains endangered, a members' general meeting will be summoned under the conditions and within the time limits fixed by a Conseil d'Etat decree. The statutory auditor shall draw up a special report, which shall be presented to this meeting. The report shall be sent to the works council or, in the absence of a works council, to the employee delegates.
If, at the end of this general meeting, the statutory auditor observes that the decisions taken do not ensure the continuation of business's activity, he will inform the president of the court of the steps he has taken and submit the results to him.
The provisions of this article shall not apply where composition or safeguard proceedings have been initiated by managers pursuant to Articles L611-6 and L620-1.
Article L612-4 (Act No 2003-706 of 1 August 2003, Article 116, Article 121, Official Journal of 2 August 2003) (Act No 2005-845 of 26 July 2005, Article 1, Article 11 IV, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No 2005-856 of 28 July 2005, Article 5, Official Journal of 29 July 2005, in force on 1 January 2006)
Any association that has received one or more annual grants from public authorities, within the meaning of Article 1 of the Act of 12 April 2000, or from public bodies of an industrial or commercial nature, of which the total amount exceeds a threshold fixed by a decree must prepare an annual financial statement including a balance sheet, an income statement and notes; the manner of preparing these documents shall be defined by a decree. These associations must publish their annual financial statements and the statutory auditor's report, under conditions defined by a Conseil d'Etat decree.
These same associations shall be required to appoint at least one statutory auditor and one deputy. N.B. Order 2005-856 2005-07-28, Article 9: Article 5 of this order shall apply to the financial years of associations
and foundations commencing on or after 1 January 2006.
Article L612-5 (Act No 2001-420 of 15 May 2001, Article 112, Official Journal of 16 May 2001) (Act No 2003-706 of 1 August 2003, Article 123 I 5°, Official Journal of 2 August 2003) (Act No 2005-845 of 26 July 2005, Article 1, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The legal representative or the statutory auditor, if any, of a not-for-profit private-law entity engaged in economic activities or of an association referred to under Article L612-4 shall present a report regarding the agreements entered into directly or through anybody standing between the legal entity and one of its directors or one of the persons acting as an officer, to the governing body or, in the absence of a governing body, attaches such report to the documents sent to the members.
The same will apply to agreements entered into between this legal entity and a company of which a partner with unlimited liability, manager, director general manager, deputy general manager, member of Board of Directors or Supervisory Board, or shareholder who holds more than 10% of the voting rights, is simultaneously a director or acts as a legal representative of the aforementioned legal entity.
The governing body shall rule upon the report. A Conseil d'Etat decree shall define the conditions according to which the report is drawn up. However, agreements that are not approved shall nevertheless take effect. The harmful effects on the legal entity
resulting from such an agreement may be borne, individually or jointly and severally as the case may be, by the director or the person acting as a legal representative.
The provisions of this article shall not apply to ordinary contracts entered into under normal terms and conditions which, due to their object or their financial implications, are of no great importance for any of the parties.
TITLE II The safeguard procedure Articles L621-1 to
L620-2
Article L620-1
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COMMERCIAL CODE (Act No 2005-845 of 26 July 2005, Article 1, Article 12, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
This article institutes a safeguard procedure to be commenced on the petition of the debtor who is mentioned in Article L620-2 that shows difficulties that it is unable to overcome on its own and that would lead to a cessation of payments. This purpose of this procedure is to facilitate the reorganization of the business in order to allow the continuation of the economic activity, the maintenance of employment and the settlement of liabilities.
The safeguard proceedings shall give rise to a plan to be confirmed by a court order at the end of an observation period and, where appropriate, to the formation of two committees of creditors, in compliance with the provisions of Articles L626-29 and L626-30.
Article L620-2 (Act No 2005-845 of 26 July 2005, Article 1, Article 13, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The safeguard procedure shall apply to traders, persons registered with the craftsmen's register, farmers, other persons running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, as well as private-law entities.
New safeguard proceedings may not be commenced with respect to any person already subject to such proceedings or to reorganization or liquidation proceedings if the operations of the plan that it has given rise to have not been terminated or if the liquidation proceedings have not been closed.
CHAPTER I Commencement of the safeguard proceedings Articles L621-1 to
L621-12
Article L621-1 (Act No 2005-845 of 26 July 2005, Article 1, Article 14, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The Court shall issue an order on the commencement of the proceedings after having heard in or duly summoned to the judge's chambers, the debtor, representatives of the works council or, in the absence of a works council, the employee delegates. The Court may hear any other person whose testimony it deems usefuL
In addition, where the debtor is an independent professional with a statutory or regulated status or whose designation is protected, the Court will decide, if necessary, after hearing or giving notice to the supervisory body or relevant authority, under the same conditions.
The Court may, before making a ruling, appoint a judge who will gather information regarding the business's financial, economic and employment situation. This judge may apply the provisions of Article L623-2. He may be advised by any expert of his choice.
The hearing for the commencement of safeguard proceedings with respect to a debtor who benefits or has benefited from a special commission (mandat ad hoc) or from composition proceedings during the preceding eighteen months must be held in the presence of the Public prosecutor.
In this case, the Court may, of its own motion or on motion of the Public prosecutor, obtain all documents and deeds relating to the special commission (mandat ad hoc) or the composition proceedings, notwithstanding the provisions of Article L611-15.
Article L621-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 15, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The competent court will be the Tribunal de commerce (Commercial court) if the debtor is a trader or he is registered with the craftsmen's register. The Tribunal de grande instance (High court) shall be competent in other cases.
The commenced proceedings may be extended to one or more other persons where their assets are intermingled with those of the debtor or where the legal entity is a sham. The court that has commenced the initial proceedings shall remain competent for this purpose.
Article L621-3 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 16, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The order shall commence an observation period not exceeding six months, which may be renewed once by a reasoned ruling on motion of the administrator, the debtor or the Public prosecutor. It may also be extended exceptionally, on motion of the Public prosecutor, by a reasoned ruling of the Court for a period to be fixed by a Conseil d'Etat decree.
Where an agricultural business is involved, the Court may extend the observation period taking account of the current agricultural year and the practices specific to the farm's products.
Article L621-4 (Act No 2005-845 of 26 July 2005, Article 1, Article 17, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the commencement order, the Court shall appoint the supervisory judge whose functions are specified in Article L621-9. It may, if need be, appoint several supervisory judges.
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COMMERCIAL CODE It shall invite the works council or, in the absence of a works council, the employee delegates to appoint a
representative from among the employees of the business. In the absence of a works council or employee delegates, the employees will elect a representative, who shall perform the functions attributed to these institutions by the provisions of this Title. The terms and conditions for the appointment or election of the employees' representative shall be specified in a Conseil d'Etat decree. Where no employees' representative can be appointed or elected, a record of the default shall be drawn up by the head of the business.
In the same order, without prejudice to the possibility of appointing one or more experts for duties that it shall determine, the Court shall appoint two court nominees, that is, a court nominee and an administrator, whose duties are specified in Article L622-20 and Article L622-1 respectively. It may, on motion of the Public prosecutor, appoint several court nominees or administrators. In the situation provided for in the fourth paragraph of Article L621-1, the Public prosecutor may object to the appointment of a person who had previously been appointed as a commissioner (mandataire ad hoc) or conciliator with regard to a special commission (mandat ad hoc) or composition proceedings with regard to the same debtor.
However, the Court will not be bound to appoint an administrator where the proceedings relate to a debtor whose number of employees and turnover net of tax are below the thresholds provided for by a Conseil d'Etat decree. In this case, the provisions of Chapter VII of this Title shall apply. Until the issuance of the confirmation order of the plan, the Court may, on motion of the debtor, the court nominee or the Public prosecutor, decide to appoint an administrator.
For the purposes of taking inventory and the valuation required by Article L622-6, the Court shall appoint an auctioneer, a bailiff, a notary or an accredited commodity broker.
Article L621-5 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 17, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
No relatives or affines, up to the fourth degree included, of the head of the business or the managers, if the debtor is a legal entity, may be appointed to any one of the positions provided for in Article L621-4 except where this provision prohibits the appointment of an employees' representative.
Article L621-6 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 18, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The employees' representative and employees who take part in the appointment process must not have been convicted to one of the sentences provided for in Article L6 of the Electoral Code. The employees' representative must be at least eighteen years old.
The Tribunal d'instance (Magistrates' Court) that rules in final instance shall have jurisdiction on the objections raised against the appointment of the employees' representative.
Article L621-7 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 19, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The Court may, of its own motion or on the initiative of the supervisory judge or on motion of the Public prosecutor, replace the administrator, the expert or the court nominee.
The Court may appoint, under the same conditions, one or more administrators or court nominees in addition to those already appointed. The administrator, the court nominee or the creditor appointed as controller may ask the supervisory judge to apply to the Court for that purpose.
Where the debtor is an independent professional person with a statutory or regulated status or whose designation is protected, the supervisory body or relevant authority, as the case may be, may apply to the Public prosecutor for the same purpose.
The debtor may ask the supervisory judge to apply to the Court for the replacement of the administrator or the expert. Under the same conditions, the creditors may request the replacement of the court nominee.
Only the works council or, in the absence of a works council, the employee delegates or, if there is none, only the business's employees may replace the employees' representative.
Article L621-8 (Act No 2002-73 of 17 January 2002, Article 122, Official Journal of 18 January 2002) (Act No 2003-7 January 2003, Article 40, Official Journal of 4 January 2003) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 20, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The administrator and the court nominee shall inform the supervisory judge and the Public prosecutor of the progress of the proceedings on regular basis. The supervisory judge and the Public prosecutor may request the disclosure of all deeds and documents relating to the proceedings at any time.
The Public prosecutor shall give to the supervisory judge, on the latter's request or of his own motion, notwithstanding any legal provision to the contrary, any information he holds and which may be useful for the proceedings.
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COMMERCIAL CODE Article L621-9 Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 21, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge shall supervise the speedy progress of the proceedings and the protection of the parties' interests.
Where the appointment of an expert is necessary, this may only be made by the supervisory judge, for the duties he shall determine, without affecting the powers of the Court provided for in Article L621-4 to appoint one or more experts. The terms for the remuneration of the expert shall be fixed by a Conseil d'Etat decree.
Article L621-10 (Act No 2003-7 of 3 January 2003, Article 41, Official Journal of 4 January 2003) Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1, Article 22, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge shall appoint up to five controllers from among those creditors requesting to be appointed. Where he appoints several controllers, he must ensure that at least one of them is chosen from among the secured creditors and one from among the unsecured creditors.
No relatives or affines, up to the fourth degree included, of the manager or the directors of a legal entity, nor any person holding directly or indirectly all or part of the capital of the debtor or whose capital is held, in part or in all, by that same person, may be appointed as controller or as representative of a legal entity appointed as controller.
Where the debtor is an independent professional person with a statutory or regulated status or whose designation is protected, the supervisory body or relevant authority, if any, will act as controller as of right.
In this case, the supervisory judge may not appoint more than four controllers. The controller shall be held liable only in case of gross negligence. He may be represented by one of his employees
or by an advocate. Any creditor appointed as controller may be removed by the Court on motion of the Public prosecutor.
Article L621-11 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1, Article 22, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The controllers shall assist the court nominee in his functions and the supervisory judge in his duty of supervising the management of the business. They may consult all documents sent to the administrator and to the court nominee. They shall observe confidentiality. Controllers shall not be paid for their duties.
Article L621-12 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1, Article 22, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If it appears, after the commencement of the proceedings, that the debtor was already in a state of cessation of payments at the time of issuance of the commencement order, the Court will record this and fix the date of the cessation of payments under the conditions provided for under the second paragraph of Article L631-8. It shall convert the safeguard proceedings into reorganization proceedings. If necessary, it may modify the length of the remaining observation period.
The administrator, the court nominee or the Public prosecutor may apply to the Court which may also initiate a case of its own motion. It shall rule upon the case after having heard or duly summoned the debtor.
CHAPTER II The business during the observation period Articles L622-1 to
L622-33
Article L622-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 23, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I -The management of the business shall be carried out by its manager. II -Where the Court, in accordance with the provisions of Article L621-4, appoints one or more administrators, it will
assign them to jointly or individually supervise the debtor's management operations or to assist the debtor in all or some of the management.
III -In performing his duties, the administrator must comply with the legal and contractual obligations incumbent on the head of the business.
IV - At any time, the Court may alter the administrator's duties on his motion or on motion of the court nominee or that of the Public prosecutor.
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COMMERCIAL CODE V - The administrator may operate, with his signature, the debtor's bank and Post Office accounts if the debtor is
prohibited from so doing under Article 65-2 and the third paragraph of Article 68 of the Decree of 30 October 1935 on the unification of the law governing cheques.
Article L622-2 (Act No 2003-7 of 3 January 2003, Article 45, Official Journal of 4 January 2003) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The debtor's statutory auditor may not avail himself of professional confidentiality rules in order not to meet the requests of the administrator's statutory auditor for information or documents concerning the operation, from the moment the administrator is appointed, of bank or Post Office accounts opened in the debtor's name.
Article L622-3 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The debtor shall continue to carry out acts of disposal and management over his personal estate as well as to exercise rights and actions not included within the administrator's duties.
In addition, subject to the provisions of Articles L622-3 and L622-13, the daily management operations that the debtor performs alone shall be deemed valid with respect to third parties acting in good faith.
Article L622-4 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
As from the time of his entry into office, the administrator must either require the head of the business to carry out all acts necessary for the preservation of the business's interests against its debtors and to maintain the production capacity or do this himself as the case may be.
The administrator shall be entitled to take out, on behalf of the business, any mortgage, security, pledge or lien that the head of the business may have neglected to secure or renew.
Article L622-5 (Act No 2003-7 of 3 January 2003, Article 46, Official Journal of 4 January 2003) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
As of the issuance of the commencement order, all third party holders must hand over to the administrator or, in the absence of an administrator, to the court nominee, at the latter's request, all documents and books of account for examination.
Article L622-6 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1, Article 24, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
From the commencement of the proceedings, an inventory and a valuation of the debtor's estate and the guarantees encumbering it shall be made. The debtor shall add to the inventory to be given to the administrator and the court nominee a statement with respect to assets he holds that may be claimed by a third party.
The debtor shall give the administrator and the court nominee a list of its creditors, the amount of its debts and the main executory contracts. The debtor shall inform them of any pending proceedings to which it is a party.
The administrator or, if none has been appointed, the court nominee may, notwithstanding any statutory or regulatory rule to the contrary, receive information enabling him to know the exact position of the debtor's estate from public authorities and bodies, provident institutions and social security, credit institutions and bodies responsible for the centralisation of information on banking risks and payment incidents.
Where the debtor is an independent professional person with a statutory or regulated status or whose designation is protected, the inventory will be drawn up in the presence of a representative of the debtor's supervisory body or relevant authority, if any. The inventory may not infringe the debtor's duty of professional confidentiality under any circumstances.
The absence of an inventory shall not preclude actions for recovery or restitution. A Conseil d'Etat decree shall define the conditions under which this article shall apply.
Article L622-7 (Act No 2005-845 of 26 July 2005, Article 1, Article 25, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No 2006-346 of 23 March 2006, Article 47, Official Journal of 24 March 2006)
The order commencing the proceedings shall automatically prohibit payment of claims arising prior to the issuance of the commencement order, except set-off payments of connected claims. It shall also automatically prohibit payment of claims arising after the issuance of the commencement order that are not referred to under Article L622-17, other than those claims related to the debtor's daily necessities of life and alimony claims. It shall at last forbid the conclusion and performance of a commisoria lex.
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COMMERCIAL CODE The supervisory judge may allow the head of the business or the administrator to carry out acts of disposition not
included in the ordinary management of the business, to grant mortgages or collateral or to compromise or settle. The supervisory judge may also allow them to pay debts arising prior to the issuance of the order, to withdraw a
pledge or possession of a thing held lawfully, where this withdrawal is justified by the continuation of business operations.
All acts or payments carried out in violation of the provisions of this article shall be nullified on motion of any interested party or of the Public prosecutor to be submitted within a three-year period beginning with the performance of the act or the payment of the debt. Where the act has to be published, this period will run from the date of publication.
Article L622-8 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 26, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
When an asset encumbered with a special lien, a security or a mortgage is sold, the portion of the price corresponding to the claims secured by these guarantees will be placed on a deposit account with the Caisse des dépôts et consignations. After the confirmation of the plan, creditors whose claims are secured by these guarantees or by a general lien shall be paid out of the proceeds according to their priority and in compliance with Article L626-22 where they are subject to the time limits provided for in the plan.
The supervisory judge may order interim payment of the whole or part of the creditors' claims of the secured on the asset. Save where the supervisory judge has issued a specially reasoned ruling or where the payment is in favour of the Treasury, benefits institutions or similar organisations, the interim payment will be subject to the presentation by its beneficiary of a guarantee provided by a credit institution.
The debtor or the administrator may offer to creditors to substitute guarantees equivalent to those existing. In the absence of agreement, the supervisory judge may order this substitution. An appeal against this order may be filed with the Court of AppeaL
Article L622-9 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 27, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The business's activity shall be continued during the observation period, subject to the provisions of Articles L622-10 to L622-16.
Article L622-10 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 28, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The Court may order the partial cessation of the business's operations at any time during the observation period, on motion of the debtor, administrator, court nominee, one of the controllers, the Public prosecutor or, of its own motion.
Under the same conditions, it will convert the safeguard proceedings into reorganization proceedings if the conditions in Article L631-1 are satisfied or will order liquidation proceedings if the conditions of Article L640-1 are satisfied.
It shall rule upon the case after having heard or duly summoned the debtor, the administrator, the court nominee, the controllers, the works council, or, in the absence of a works council, the employee delegates and after having received the Public prosecutor's opinion.
When it converts the safeguard proceedings into reorganization proceedings, the Court may, if necessary, alter the length of the remaining observation period.
Article L622-11 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 28, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the Court pronounces the judicial liquidation it will terminate the observation period and the administrator's duties, subject to the provisions of Article L641-10.
Article L622-12 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 28, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the difficulties that were the grounds for the commencement of the proceedings disappear, the Court will terminate the proceedings at the debtor's request. It shall rule upon the case as provided by the third paragraph of Article L622-10.
Article L622-13 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 29, Article 165 III, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
Only the administrator has the right to require the debtor's contracting party to perform executory contracts in exchange for the performance of the debtor's obligations. The contract shall automatically be terminated once a formal notice has been sent to the administrator that has remained unanswered within a month. Before this time limit expires, the supervisory judge may grant the administrator a shorter time limit or an extension, which may not exceed two months, to take a position.
Where the performance concerns the payment of a sum of money, it must be paid promptly, except where the administrator is given a moratorium by the other party. Based on the forecast documents in his possession, the administrator must ensure at the time he requires the performance of the contract that he will have the necessary funds at his disposaLWhere the contract is to be performed over time and paid in instalments, the administrator will terminate it if he believes that he will not have the necessary funds to satisfy the obligations of the next term.
In the absence of payment under the conditions set out in the preceding paragraph or if the other party does not agree to continue the contractual relationship, the contract will automatically be cancelled and the Public prosecutor, the administrator, the court nominee or a controller may apply to the Court to terminate the observation period.
The other party must perform its obligations despite the non-performance by the debtor of the obligations entered into prior to the issuance of the commencement order. The non-performance of these obligations shall only give creditors a right to submission of claims.
If the administrator does not make use of his right to continue the contract or he terminates it as provided for by the second paragraph, the non-performance may give rise to damages that must be claimed as liabilities due to the other party. The other party may however postpone the reimbursement of sums paid in excess by the debtor in performance of the contract until the question of damages is settled.
Notwithstanding any legal rule or contractual term to the contrary, the indivisibility, termination or rescission of the contract may not result from the commencement of safeguard proceedings alone.
The provisions of this article shall not apply to employment contracts.
Article L622-14 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 30, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The termination of the debtor's lease rights over immovable property used in the business's operations will be recorded or ordered:
1. if the administrator decides not to continue the lease and applies for its termination. In this case, the termination shall take effect on the day of the application.
2. if the lessor requests the termination or has termination of the lease recorded due to non-payment of the rent or tenant's expenses in connection with the occupancy after the issuance of the commencement order, as the lessor may take action only at the end of a three month period from the date of issuance of the order.
If the sums are paid before this period has elapsed, there is no cause for termination. Notwithstanding any contractual term to the contrary, the absence of activity during the observation period in one or
more of the properties leased by the business shall not cause the termination of the lease.
Article L622-15 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 31, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the lease is assigned, any clause imposing a solidary liability with the assignee on the assignor shall be deemed void.
Article L622-16 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 32, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of safeguard proceedings, the lessor shall have a preferential lien only on the rent of the last two years preceding the issuance of the commencement order.
If the lease is terminated, the lessor will have, in addition, a preferential lien in respect of performance of the lease in the current year and damages that may be awarded by court.
If the lease is not terminated, the lessor may not demand payment of the rent yet to fall due where the guarantees given to him at the time of the contract are maintained or where those that have been given after the issuance of the commencement order are regarded as sufficient.
The supervisory judge may allow the debtor or the administrator, as the case may be, to sell movable assets furnishing the leased premises that are susceptible to deteriorate or depreciate rapidly, that are expensive to preserve or whose sale does not undermine the existence of the business or the maintenance of sufficient guarantees for the lessor.
Article L622-17 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 33, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Claims arising in a proper manner after the issuance of the commencement order for the needs of the proceedings or the observation period or as consideration for goods and services provided to the debtor with respect to its professional or activity during this period, shall be paid as they fall due.
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COMMERCIAL CODE II - Where they are not paid as they fall due, these claims will be paid according to their preferential lien before all
the other claims, whether these are secured or not by preferential liens or guarantees, except for those claims secured by a lien provided for in Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code, those claims secured by a lien for legal fees and those claims secured by the lien created by Article L611-11 of this Code.
III - Their payment shall be made in the following order: 1. claims of wages and salaries for which funds have not been advanced in compliance with Articles L143-11-1 to
L143-11-3 of the Labour Code; 2. legal fees; 3. loans and claims arising from the performance of continued contracts according to the provisions of Article
L622-13 and where the other party accepts deferred payments. These loans and the moratorium shall be allowed by the supervisory judge within the limits necessary for the continuation of business operations during the observation period and shall be published. In the event of termination of a contract that had been continued in a proper manner, compensation and penalties will be excluded from this article.
4. sums that have been advanced in application of Article L143-11-1 (3°) of the Labour Code; 5. other claims, according to their priority. IV - Unpaid claims will lose the lien provided for by this article if they have not been notified to the court nominee
and the administrator, where one has been appointed or, where these persons have ceased their functions, to the plan performance supervisor or the liquidator within a year from the end of the observation period.
Article L622-18 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any sum received by the administrator or court nominee, that has not been deposited on the debtor's bank or Post Office accounts in order to continue business operations, must immediately be deposited on a deposit account with the Caisse des dépôts et consignations.
If deposits are delayed, the administrator or the court nominee must pay interest on the unpaid amounts at the legal rate of interest plus five percent.
Article L622-19 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any sum received by the association referred to under Article L143-11-4 of the Labour Code in compliance with Articles L143-11-1 to L143-11-3 of the same Code shall be declared to the tax authority.
Article L622-20 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 34, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Only the court nominee appointed by the Court may act on behalf and in the general interest of the creditors. However, if the court nominee fails to act, any creditor appointed as controller may act in the general interest of the creditors under the conditions provided for in a Conseil d'Etat decree.
The court nominee shall transmit all comments that he receives from the controllers in the course of the proceedings to the supervisory judge and to the Public prosecutor.
Sums recovered following actions initiated by the court nominee or, if the court nominee fails to act, by the creditor(s) appointed as controllers, become part of the debtor's estate and shall be used to pay the debtor's liabilities according to the terms provided for paying liabilities if the continuation of the business is decided.
Article L622-21 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 35, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The issuance of the commencement order shall stay or prohibit legal actions of all creditors whose claims are not referred to under Article L622-17 (I) aimed at obtaining:
1. an order against the debtor to pay a sum of money. 2. the rescission of a contract on the grounds of non-payment of a sum of money. II - In addition, the order shall stay or prohibit all proceedings for enforcement filed by the creditors in respect of
movable and immovable properties. III - Hence, all time limits, to be observed under the penalty of loss or rescission of rights, shall be stayed.
Article L622-22 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to
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COMMERCIAL CODE Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 36, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Save the provisions of Article L625-3, any pending proceedings shall be stayed until the creditor who initiated it has filed its submission of claim. Then, they shall be resumed ipso jure for the sole purpose of verifying the claims and determining their amount after having duly summoned the court nominee and, as the case may be, the administrator or the plan performance supervisor appointed in compliance with Article L626-25.
Article L622-23 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Legal actions and proceedings for enforcement against the debtor other than those referred to under Article L622-21 shall be continued during the observation period after the administrator and the court nominee have been summoned or after the action is resumed at their own initiative.
Article L622-24 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 37, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
From the date of publication of the order, all creditors other than employees whose claims arose prior to the issuance of the commencement order shall submit their claims with the court nominee. Creditors who hold a published security or who are bound to the debtor by a published contract shall be informed personally or, where appropriate, at their elected domicile. The time limit for submitting claims with respect to these creditors shall run from notice of this information.
The claims may be submitted by the creditor or by any employee or proxy of his choice. The claims must be submitted even if they are not proven by a document. Those claims whose amount is not yet
definitively determined shall be submitted based on an assessment. The claims of the Public Treasury, provident institutions and social security as well as claims of the institutions provided for in Article L351-21 of the Labour Code for which no order for enforcement has been issued at the time of submitting shall be admitted on a provisional basis for the amount submitted. Whatever the case, the submissions of claims by the Public Treasury and social security shall always be made subject to any taxes and other claims not proven at the date of the filing of the submission of claims. Subject to pending court and administrative proceedings, final proof must be brought within the time limit provided for in Article L624-1, under the penalty of debarment.
Those institutions referred to under Article L143-11-4 of the Labour Code shall be subject to the provisions of this article for the sums paid by them as an advance and that shall be reimbursed to them under the conditions provided for claims arising prior to the issuance of the order commencing the proceedings.
Claims properly arising after the issuance of the commencement order, other than those referred to under Article L622-17(I) and alimony claims, shall be subject to the provisions of this article. The time limits shall run as of the maturity date of the claim. However, creditors whose claims arise from a successive performance contract shall file the total amount of their claim under the conditions provided for by a Conseil d'Etat decree.
The time limits for submitting claims of a civil party arising from a criminal offence shall run as of a final judgment determining the amount.
Article L622-25 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The submission of claim shall state the amount of the claim due on the date of issuance of the commencement order and the sums yet to fall due and their dates of maturity. It shall state the nature of the lien or security that secures the claim, if any.
Where the claim is expressed in a foreign currency, the conversion to euros shall be made at the exchange rate prevailing on the date of the issuance of the commencement order.
Unless it results from an order for enforcement, the submitted claim shall be certified genuine by the creditor. The supervisory judge may request that the statutory auditor's stamp or, failing this, the stamp of a public accountant, be affixed to the submission of claims. Any refusal to affix the stamp must be explained.
Article L622-26 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 38, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If they fail to submit their claims within the time limits provided for in a Conseil dEtat decree, the creditors will not participate in the allocation of funds and distribution of dividends unless the supervisory judge sets aside the debarment
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COMMERCIAL CODE of their claims if they prove that they are not liable for the absence of submission of claims or that the debtor has deliberately omitted to mention their claim on the list provided for under the second paragraph of Article L622-6. They may then participate only in the distributions of dividends made after their request.
A motion to set aside a debarment may be filed only within a six-month period. This period shall run from the date of publication of the commencement order or, for those institutions referred to under Article L143-11-4 of the Labour Code, from the end of the period during which the claims arising from an employment contract are secured by these institutions. With respect to creditors secured by a published security or bound to the debtor by a published contract, the period shall run from the receipt of the notice delivered to them. As an exception, the period shall be extended to one year with regard to creditors who were unable to know the existence of their claim before the end of the six months period referred to above.
Article L622-27 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, II, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of a dispute over the whole or part of a claim other than those referred to under Article L625-1, the court nominee will inform the creditor concerned, by requesting him to give its explanations. A failure to reply within thirty days shall bar any later dispute over the court nominee's proposals.
Article L622-28 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 39, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The issuance of the commencement order shall stay the legal and contractual interest, as well as any interest due to late payment and surcharges, unless it concerns interest arising from loan contracts for a period of at least one year or contracts with payments deferred for at least one year. Individuals who are sureties, co-obligors or who are bound by an independent guarantee may benefit from the provisions of this paragraph.
The issuance of the commencement order shall stay any action against individuals who are sureties, co-obligors or who are bound by an independent guarantee, until the order confirming the plan or pronouncing the liquidation. The Court may subsequently grant them a moratorium or a deferred payment period for a maximum of two years.
Creditors secured by these guarantees may take protective measures.
Article L622-29 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 40, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The issuance of the commencement order shall not render unmatured claims mature on the day of the issuance of the order. Any clause to the contrary shall be deemed not to have been written.
Article L622-30 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 41, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
No mortgage, pledge or lien may be registered after the issuance of the commencement order. The same shall apply to deeds and court decisions transferring or creating rights in rem except where these deeds have obtained a legal date or the decisions have become enforceable prior to the issuance of the commencement order.
However, the Public Treasury shall not lose its lien for claims that it was not required to register on the date of the issuance of the commencement order and for claims to be collected after this date if these claims have been submitted under the conditions provided for in Article L622-24.
The seller of a business, by way of exception to the provisions of the first paragraph, may register his lien.
Article L622-31 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 42, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A creditor bearing obligations entered into, endorsed or guaranteed jointly and severally by two or more co-obligors subject to safeguard proceedings, may submit its claim for the par value of its claim in all cases of proceedings.
Article L622-32 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 42 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Co-obligors subject to safeguard proceedings may not bring an action against each other regarding payments carried out except where the total of sums paid out in each case exceeds the total amount of the claim including the principal and other sums. In this case, the excess shall be payable, according to the order of the obligations to the co-obligors who are secured by the others.
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COMMERCIAL CODE Article L622-33 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 42 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If a creditor, bearing obligations entered into solidarily by a debtor subject to safeguard proceedings, has received an advance payment on his claim from other co-obligors prior to the issuance of the commencement order, the creditor may submit its claim only after deducting the advance payment and shall retain, for the remaining sum due to it, its rights against the co-obligors or the surety.
A co-obligor or surety who has made a partial payment may submit its claim up to the amount paid to discharge the debtor.
CHAPTER III Drafting an economic, employment and environmental plan Articles L623-1 to
L623-3
Article L623-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 43, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The administrator, in cooperation with the debtor and possibly assisted by one or more experts, shall be required to draw up a report on the business's economic and employment situation.
The report on the economic and employment situation shall state the origin, extent and nature of the business's difficulties.
Where the business operates one or more classified plants within the meaning of Title I of Book V of the Environmental Code, the report on the economic and employment situation will be supplemented by a report on the environmental situation that the administrator shall have drawn up under the conditions provided for by a Conseil d'Etat decree.
Based on this report, the administrator shall propose a safeguard plan, without excluding the application of the provisions of Article L622-10.
Article L623-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 44, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge may, notwithstanding any statutory or regulatory rule to the contrary, obtain information enabling him to know the debtor's exact economic, financial, employment and net asset situation from statutory auditors, public accountants, employees or employees' representatives, public authorities and bodies, social security and provident institutions, credit institutions as well as from bodies responsible for the centralisation of information on banking risks and payment incidents.
Article L623-3 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 45, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The administrator shall obtain from the supervisory judge all information and documents useful for the implementation of his duties and those of any experts.
Where the proceedings are commenced with respect to a business that benefits from an approved amicable agreement provided for in Article L611-8 of this code or in Article L351-6 of the Rural Code, the administrator will receive the expert's report provided for in Article L611-6 or, as the case may be, the expert's report and the report provided for in Articles L351-3 and L351-6 of the Rural Code.
The administrator shall consult court nominee and hear any person capable of informing him about the business's position and the possibilities for its recovery, the conditions for settling its debts and the employment conditions under which the activity may be continued. He shall inform the debtor of this and consider the debtor's views and proposals.
He shall inform the court nominee as well as the works council or, in the absence of a works council, the employee delegates, of the progress of his duties. He shall consult them and the debtor about the measures he will propose based on the information and the offers received.
Where the debtor is an independent professional person with a statutory or regulated status or whose designation is protected, the administrator will consult the debtor's supervisory body or relevant authority, if any.
CHAPTER IV Determination of the debtor's estate Articles L624-1 to
L624-18
SECTION I
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COMMERCIAL CODE Verification and admission of claims Articles L624-1 to
L624-4
Article L624-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 46, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Within the time limit fixed by the Court, and after having received the debtor's views, the court nominee shall draw up the list of the submitted claims with his proposals for their admission, rejection or referral to the competent court. He shall transmit this list to the supervisory judge.
The court nominee may not be paid in respect of the submitted claims not appearing on the list drawn up within the time limit provided above, except for the claims submitted after this time limit in compliance with the last two paragraphs of Article L622-4.
Article L624-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Based on the proposals submitted by the court nominee, the supervisory judge shall decide on the admission or rejection of the claims or mention the existence of a pending legal action or his lack of jurisdiction in respect of the dispute.
Article L624-3 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 47 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
An appeal against the decisions of the supervisory judge to be filed according to this Section shall be available to the creditor, the debtor or to the court nominee.
However, a creditor whose claim is contested in whole or in part and who has not replied to the court nominee within the time limit provided for in Article L622-27 may not appeal against the decision of the supervisory judge where the decision approves the proposal of the court nominee.
The terms and forms of the appeal provided for in the first paragraph shall be specified by a Conseil d'Etat decree.
Article L624-4 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 47 II, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge's decision will not be subject to appeal in the cases provided for in this Section where the value of the principal amount of the claim does not exceed the jurisdiction of final judgement of the court that commenced the proceedings.
SECTION II Rights of spouses Articles L624-5 to
L624-8
Article L624-5 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 48, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The spouse of a debtor subject to safeguard proceedings shall specify the content of his/her personal property in compliance with the rules of the matrimonial regime under the conditions provided for in Article L624-9.
Article L624-6 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court nominee or the administrator may, if he proves by all means that the assets acquired by the debtor's spouse have been paid by money provided by the debtor, request the inclusion of these acquisitions in the debtor's assets.
Article L624-7 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Recovery of assets made in compliance with Article L624-5 may not be exercised except subject to debts and mortgages that lawfully encumber these assets.
Article L624-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 49, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
The spouse of the debtor who was, at the time of the marriage, or who became, within one year of the marriage or within the following year, a trader, a person registered with the craftsmen register, a farmer or an independent professional person may not file within the safeguard proceedings any action based on benefits granted by one spouse to the other in the marriage contract or during the marriage. On the other hand, creditors may not exploit the granting of benefits by one of the spouses to the other.
SECTION III Rights of sellers of movable property, recovery claim (revendication) and Articles L624-9 to
restitution L624-18
Article L624-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 50, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A recovery claim against movable property may be filed only within a three-month period from the date of publication of the order commencing the proceedings.
For assets governed by an executory contract at the commencement of the proceedings, this period shall run as of the termination or expiry of the contract.
Article L624-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 51, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The owner of a property does not need to provide proof of ownership where the contract related to it has been published. He may claim the restitution of his property under the conditions provided for by a Conseil d'Etat decree.
Article L624-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 52, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The lien and right of recovery created by Article 2102 (4) of the Civil Code in favour of the seller of chattels as well as the action for rescission of a contract may be exercised only within the limits of the provisions of Articles L624-12 to L62418 of this Code.
Article L624-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 53, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Goods may be claimed when the sale contract was rescinded prior to the issuance of the commencement order, either pursuant to a court decision or pursuant to a condition subsequent, and if they still exist in kind, wholly or partially.
The recovery claim must also be admitted even if the rescission of the sale had been ordered or referred to by a court decision after the issuance of the commencement order where the action for recovery or for rescission of a contract was initiated by the seller, for a reason other than non-payment of the sales price, prior to the issuance of the commencement order.
Article L624-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Goods sent to the debtor may be reclaimed for such time as they have not been delivered to the debtor's premises or to the agent charged with selling them on the debtor's behalf.
However, the recovery claim will not be allowable if the goods have been resold, other than fraudulently, before their arrival, on the basis of correctly established invoices or transport documents.
Article L624-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The seller may retain goods that have not been delivered or dispatched to the debtor or to a third party acting on the debtor's behalf.
Article L624-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Bills of exchange and any other unpaid securities given by their owner to be collected or to be specially allocated to specific payments may be reclaimed if they remain in the debtor's portfolio.
Article L624-16 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 54, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No2006-346 of 23 March 2006, Article 48 I, Official Journal of 24 March 2006)
Goods held by the debtor on consignment or for sale on behalf of the owner may be claimed if they still exist in kind. Assets sold with retention of title clause may be claimed if they still exist in kind at the time of the issuance of the
commencement order. This clause must have been agreed upon in writing at the latest at the time of delivery. It may
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COMMERCIAL CODE appear in a document governing a number of commercial operations entered into by the parties.
The recovery claim in kind may be brought under the same conditions with respect to movable assets incorporated in another asset where they may be removed without damaging them. A recovery claim in kind may also be made in relation to fungible items where the debtor or any person keeping them on his behalf has in his possession assets of a similar type and the same quality. In every instance, the asset may not be recovered, if, by decision of the supervisory judge, the price is paid immediately. The supervisory judge may also, with the consent of the petitioning creditor, grant a moratorium. The payment of the price shall thus be considered equivalent to the payment of debts referred to under Article L622-17(I).
Article L624-17 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 55 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No2006-346 of 23 March 2006, Article 48 II, Official Journal of 24 March 2006)
The administrator with the consent of the debtor or, in the absence of an administrator, the debtor with the consent of the court nominee may approve the recovery claim or restitution claim of assets dealt with under this Section. In absence of consent or in the event of dispute, the request will be filed with the supervisory judge who will rule upon the fate of the contract based on the views of the creditor, the debtor and the court nominee.
Article L624-18 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 55 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No2006-346 of 23 March 2006, Article 48 III, Official Journal of 24 March 2006)
The price or portion of the price of the assets referred to under Article L624-16, which was not paid or settled in negotiable instruments or set off in the form of credit on a current account between the debtor and the purchaser on the issuance of the order commencing the proceedings, may be claimed. Insurance payouts for lost property subrogated to the property may be claimed under the same conditions.
CHAPTER V Payment of claims resulting from employment contracts Articles L625-1 to
L625-8
SECTION I Verification of claims Articles L625-1 to
L625-6
Article L625-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005 in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 56, Article 165 III, Official Journal of 27 July 2005 in force on 1 January 2006 subject to Article 190)
After verification, the court representative shall draw up, within the time limits provided for in Article L143-11-7 of the Labour Code, statements of claims resulting from an employment contract, after having heard or duly summoned the debtor. The statements of claims shall be handed over to the employees' representative under the conditions provided for in Article L625-2. They must be signed by the supervisory judge, filed with the clerk of the court and shall be submitted to the publication formalities provided for by a Conseil d'Etat decree.
An employee whose claim does not appear in whole or in part on the statements of claims may, under the penalty of debarment, bring an action before the Labour Court within two months following the date of completion of the publication formalities provided for in the preceding paragraph. He may ask the employees' representative to assist him or to represent him before the Labour Court.
The debtor or the administrator, if he assumes management duties, shall be summoned.
Article L625-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005 in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 57, Article 165 III, Official Journal of 27 July 2005 in force on 1 January 2006 subject to Article 190)
The statements of claims resulting from an employment contract shall be handed over, for verification, to the employees' representative provided for in Article L621-4 by the court nominee. The court nominee must transmit all useful documents and information to him. Where problems are encountered, the employees' representative may turn to the administrator and, where appropriate, apply to the supervisory judge. He has a duty of discretion provided for in Article L432-7 of the Labour Code. The time spent in carrying out his duties as provided for by the supervisory judge shall automatically be regarded as working time and shall be paid by the employer, the administrator or the liquidator, as the case may be, at the normal due date.
Article L625-3 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
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COMMERCIAL CODE (Act No 2005-845 of 26 July 2005, Article 1 I, Article 58 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any pending proceedings before the Labour Court on the date of the order commencing the safeguard proceedings shall be continued in the presence of the court nominee or after he has been duly summoned.
The court nominee shall inform the court hearing the case and the employees party to it of the commencement of the safeguard proceedings within ten days.
Article L625-4 (Act No 2005-845 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005 Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the institutions referred to under Article L143-11-4 of the Labour Code refuse on whatsoever ground to pay a claim mentioned on the statements of claims resulting from an employment contract, they will inform the court representative of their refusal and the court representative shall immediately inform the employees' representative and the employee concerned.
The employee concerned may bring his case before the Labour Court. The court representative, the head of the business or the administrator, when he is in charge of management duties, shall be summoned.
The employee may ask the employees' representative to assist him or to represent him before the Labour Court.
Article L625-5 (Act No 2005-845 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Litigation brought before the Labour Court in pursuant to Articles L625-1 and L625-4 shall be brought directly before the Labour Court judges.
Article L625-6 (Act No 2005-845 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005 Article 1 I, II Official Journal of 27 July 2005 in force on 1 January 2006 subject to Article 190)
Statements of claims resulting from an employment contract, signed by the Receiver Judge, as well as the decisions of the Labour Court shall be mentioned on the list of claims handed over to the clerk's office. Any interested person, other than those referred to in Articles L625-1, L625-3 and L625-4, may bring an action or third party proceedings under the conditions provided for in a Conseil d'Etat decree.
SECTION II Employees' lien Articles L625-7 to
L625-8
Article L625-7 (Act No 2005-845 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 58 II, Official Journal of 27 July 2005 in force, on 1 January 2006 subject to Article 190) (Order nº 2006-346 of 23 March 2006, Article 54, Official Journal of 24 March 2006)
Claims resulting from an employment contract shall be secured in the event of commencement of safeguard proceedings:
1. by the lien provided for by Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code, for the reasons and amounts defined in these articles;
2. by the lien provided for by Article 2331 (4) and Article 2375 (2) of the Civil Code.
Article L625-8 (Act No 2005-845 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 58 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Notwithstanding the existence of any other claim, claims secured by the lien provided for by Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code must be paid by the administrator upon the order of the supervisory judge, within ten days from the date of issuance of the order commencing the safeguard proceedings, if the administrator has the necessary funds.
However, before determining the amount of these claims, the administrator must immediately, with the permission of the supervisory judge and depending upon the funds available, pay to the employees, on a provisional basis, a sum equal to one month's unpaid wages, on the basis of the latest pay slip, but without exceeding the ceiling referred to in Article L143-10 of the Labour Code.
If there are insufficient funds available, the sums due under the terms of the two preceding paragraphs must be paid from the first funds received.
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COMMERCIAL CODE CHAPTER VI The safeguard plan Articles L626-2 to
L626-1
Article L626-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 59, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where there is a serious likelihood of saving the business, the Court will draw up a plan, terminating the observation period in so doing.
The safeguard plan shall include, if necessary, the cessation, the addition or the assignment of one or more activities. Assignments made in compliance with this Article shall be subject to the provisions of Section I of Chapter II of Title IV. The court nominee shall carry out the duties entrusted to the liquidator under these provisions.
SECTION I Drawing-up a draft plan Articles L626-2 to
L626-8
Article L626-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 60, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The draft plan shall state the prospects for turning the business around on the basis of the operational possibilities and methods, market conditions and the means of finance available.
It shall define the terms and conditions for settlement of the liabilities and any performance guarantees that the head of the business must provide.
The draft shall state and explain the level of and prospects for employment as well as the employment conditions for continuation of the business's operations.
Where the draft provides for dismissals for economic reasons, it will review steps already taken and define the actions to be carried out to facilitate the re-employment and the compensation of employees whose jobs are under threat. The draft shall take into consideration any work documented in the environmental report.
It shall document, attach and analyse the purchase offers from third parties with regard to one or more activities. It shall state the activity or activities to be closed or added.
Article L626-3 (Order No 2000-916 of 19 September 2000, Article 3, Official Journal of 22 September 2000, in force on 1 January 2002) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 61, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the draft plan provides for a modification of share capital, a shareholders' extraordinary general meeting or a partners' meeting as well as, where their approval is necessary, the special meetings provided for in Articles L225-99 and L228-35-6 or the general meetings of the general body provided for in Article L228-103 will be called under the conditions provided for by a Conseil d'Etat decree.
If owners' equity is less than half of the legal capital, due to the losses recognised in the accounts, the meeting will first be called upon to reconstitute owners' equity up to the amount suggested by the administrator, which may not be less than half of the legal capitaLIt may also be called upon to decide on a reduction or increase of capital, to which one or more persons who have promised to implement the plan may subscribe.
Obligations entered into by shareholders or partners or by new subscribers shall be subject to the approval of the plan by the Court for their implementation.
Clauses providing for the approval of new shareholders or partners shall be deemed not to have been written.
Article L626-4 (Order No 2000-916 of 19 September 2000, Article 3, Official Journal of 22 September 2000, in force on 1 January 2002) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 62, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the safeguard of the business so requires, the court, on motion of the Public prosecutor, may subject the confirmation of the plan to the replacement of one or more managers, except where the debtor is an independent professional person with a statutory or regulated status.
To achieve this and under the same conditions, the court may order that the shares in the company, equity
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COMMERCIAL CODE instruments or securities giving rights to the capital, held by one or more de jure or de facto managers, may not be transferred and decide that any attached voting rights shall be exercised, for a period that it will determine, by a court nominee appointed for this purpose. Likewise, it may order the assignment of the shares in the company, equity instruments or securities giving rights to the capital, held by the same persons; the price of the assignment shall be determined by an expert.
For the application of this article, the managers and representatives of the works council works council, the employee delegates shall be heard or duly summoned.
Article L626-5 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 63, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The administrator shall send the proposals for the settlement of debts, as they are being drafted and under the supervision of the supervisory judge, to the court nominee, the controllers as well as to the works council or, in the absence of a works council, to the employee delegates.
The court nominee must obtain the individual collective assent of the creditors who have submitted claim in compliance with Article L622-24 to the moratoriums and reductions proposed to them. In the event of consultation in writing, failure to reply within thirty days from receipt of the court nominee's letter shall amount to acceptance. These provisions shall apply to the institutions provided for in Article L143-11-4 of the Labour Code with respect to the amounts provided for in the fourth paragraph of Article L622-24, even if their claims have not yet been submitted.
Article L626-6 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 63, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Financial authorities, social security bodies, institutions managing the unemployment insurance system provided for in Articles L 351-3 and following of the Labour Code as well as the institutions governed by Book IX of the Social Security Code may consent, simultaneously with the efforts agreed to by other creditors, to cancel all or part of the debtor's debts on similar terms to those that would have been granted to the debtor, under normal market conditions, by any private economic agent placed in the same situation.
In this context, the financial authorities may cancel the full amount of direct taxes raised for the benefit of the State and local authorities as well as any other statutory revenue amounts payable by the debtor. With respect to indirect taxes raised on behalf of central and local government authorities, only late payment penalties, surcharges, penalties or fines may be cancelled.
The conditions for cancellation of debts shall be determined by a Conseil d'Etat decree. Creditors referred to under the first paragraph may also decide to transfer the priority of their lien or mortgage or to
abandon these guarantees.
Article L626-7 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1, Article 63, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court nominee shall record the creditors' replies. This statement shall be sent to the debtor and to the administrator to enable him to prepare his report, as well as to the controllers.
Article L626-8 (Order No 2000-916 of 19 September 2000, Article 3, Official Journal of 22 September 2000, in force on 1 January 2002) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 64, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The debtor, the works council or, in the absence of a works council, the employee delegates, the controller (s) and the court nominee shall be informed of and consulted on the report presenting the economic and employment situation and the draft plan sent to them by the administrator.
This report shall be sent at the same time to the competent employment authorities. The report of the meeting of which the agenda shows the consultation of the employee delegates shall be sent to the court as well as to the authority referred to above.
The Public prosecutor shall receive a copy of the report.
SECTION II Order confirming the plan and implementation of the plan Articles L626-9 to
L626-28
Article L626-9 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to
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COMMERCIAL CODE Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 65, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
After having heard or duly summoned the debtor, the administrator, the court nominee, the controllers as well as the representatives of the works council or, in the absence of a works council, the employee delegates, the court shall make its decision based on the administrator's report, after having received the opinion of the Public prosecutor. If the proceedings are commenced with respect to a debtor whose the number of employees or sales turnover excluding tax exceeds the thresholds fixed by a Conseil d'Etat decree, the hearing must be held in the presence of the Public prosecutor.
Article L626-10 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 66, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The plan shall state the persons bound to implement it and all of their commitments necessary for the safeguard of the business. These commitments shall relate to the future of the business's activity, the terms and conditions for maintaining and financing the business, the settlement of liabilities arising prior to the issuance of the commencement order as well as any guarantees given to ensure implementation of the plan.
The plan shall state and explain the level of and prospects for employment as well as the employment conditions for continuation of the business's operations.
The persons who will implement the plan, even as shareholders/ partners, shall not be bound to bear obligations other than the commitments they have accepted during its preparation, subject to the provisions of Articles L626-3 and L626-16.
Article L626-11 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 67, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The order confirming the plan shall make its provisions binding on anyone. Except for legal entities, co-obligors and persons who are bound by a surety bond or an independent guarantee
may avail themselves of the provisions of the plan.
Article L626-12 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 68, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Without prejudice to the application of the provisions of Article L626-18, the duration of the plan shall be fixed by the court. It may not exceed ten years. Where the debtor is a farmer, this period may not exceed fifteen years.
Article L626-13 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 69, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The confirmation of the plan by the court shall lead to the automatic lifting of the prohibition to issue cheques, ordered on rejection of a cheque issued prior to the issuance of the commencement order, in compliance with Article L131-73 of the Monetary and Financial Code.
Article L626-14 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 70, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the order confirming or modifying the plan, the court may decide that assets that it deems indispensable for the continuation of the business may not be alienated, for a period fixed by it, without its permission. The period of inalienability may not exceed that of the plan.
The formalities for publication of the temporary inalienability shall be carried out under the conditions provided for by a Conseil d'Etat decree.
Any act entered into in breach of the provisions of the first paragraph may be declared void on motion of any interested party or of the Public prosecutor filed within three years from the date of the conclusion of the contract. Where the act is subject to publication formalities, the time limit shall run from the date of publication.
Article L626-15 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
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COMMERCIAL CODE (Act No 2005-845 of 26 July 2005, Article 1 I, Article 71, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The plan shall state the modification of the articles of association necessary for the reorganization of the company.
Article L626-16 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 72, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where necessary, the order confirming the plan shall give a power of attorney to the administrator to convene, under the conditions provided for by a Conseil d'Etat decree, the competent meeting to put into effect the modifications provided for in the plan.
Article L626-17 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The partners or shareholders must pay the capital contribution they have subscribed to within the time limit determined by the court. In the event of immediate payment, they may benefit from set off up to the amount of their admitted claims and within the limit of the debt reduction included the plan in the form of debt cancellation or moratoriums.
Article L626-18 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 73, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court shall take cognizance of the moratoriums and cancellations accepted by the creditors in the manner provided for in the second paragraph of Article L626-5 and Article L626-6. These moratoriums and cancellations may, if necessary, be reduced by the court. For other creditors, the court shall impose uniform payment terms, subject to, regarding claims for future settlement, longer payment terms than those stipulated by the parties prior to the commencement of the proceedings, which may exceed the period of the plan.
The first payment may not be scheduled more than one year hence. After the second year, the amount of each annuity stipulated by the plan may not, except in the case of an
agricultural activity, be less than 5% of the admitted liabilities. For finance lease contracts, these payment terms will come to an end if, before their expiry, the finance lessee
exercises its purchase option. This may not be exercised if, subject to the deduction of accepted cancellation, all sums contractually due have not been paid.
Article L626-19 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 74, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The plan may grant creditors an option, consisting in a payment to be made within shorter uniform payment terms but with a proportionate reduction of the amount of the claim.
The reduction of the claim shall be definitely gained only after payment of the last instalment provided for by the plan.
Article L626-20 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I -By way of exception to the rules provided for in Articles L626-18 and L626-19, debt cancellations and moratoriums shall not apply to:
1. claims secured by the lien provided for in Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code; 2. claims resulting from a contract of employment secured by the lien provided for in Article 2331, 4° and Article
2375, 2° of the Civil Code where the amount of the claims has not been advanced by the institutions referred to under Article L143-11-4 of the Labour Code or has not been submitted to a subrogation.
II -Within a limit of 5% of the estimated liabilities, the smallest claims taken in an ascending order of their amounts, and provided that each claim does not exceed the amount provided for by a decree, shall be reimbursed without any cancellation or moratorium. This provision will not apply where the amount of the claims held by one and the same person exceeds one tenth of the percentage fixed above or where a subrogation has been agreed to or a payment has been made on behalf of another.
Article L626-21 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 75, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
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COMMERCIAL CODE Inclusion of a claim in the plan and the granting of cancellations or moratoriums by the creditor shall not affect the
definitive admission of the claim in the liabilities. Sums to be distributed corresponding to the disputed claims shall be paid only as of the definitive admission of
these claims in the liabilities. However, the court before which the case has been brought may order that the creditor will participate on a provisional basis, either totally or partially, in the distributions made before the definitive admission of the claim.
Unless the law provides otherwise, payments provided for in the plan shall be payable at the address of the payee. The court shall determine the terms and conditions for the payment of dividends provided for in the plan. The
dividends shall be paid to the plan performance supervisor who will distribute the amount received.
Article L626-22 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 76, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of a sale of an asset encumbered with a special lien, a security or a mortgage, the portion of the proceeds corresponding to the claims secured by these guarantees will be placed on a deposit account with the Caisse des dépôts et consignations and the creditors secured by these guarantees or general lien shall be paid out of the proceeds after payment of those claims secured by the lien provided for in Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code.
They shall receive dividends to fall due pursuant to the plan, reduced according to the advance payment, following their order of priority.
If an asset is encumbered with a special lien, a security or a mortgage, another guarantee may be substituted for this, where necessary, if it grants equivalent benefits. In the absence of agreement, the court may order this substitution.
Article L626-23 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 77, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of a partial assignment of assets, the proceeds shall be paid to the debtor except where Article L626-22 applies.
Article L626-24 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 78, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court may charge the administrator with carrying out acts necessary to implement the plan to be determined by him:
The court nominee shall remain in office during the time necessary for the verification and drawing up of the definitive list of claims.
Article L626-25 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 79, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court shall appoint the administrator or the court nominee as plan performance supervisor for the period provided for in Article L626-12. The court may appoint several supervisors, if necessary.
Litigations initiated prior to the issuance of the order confirming the plan and to which the administrator or the court nominee is a party shall be pursued by the plan performance supervisor or, if he is no longer in office, by a court nominee specially appointed for this purpose by the court.
The plan performance supervisor may also initiate action in the collective interest of creditors. The plan performance supervisor may obtain all documents and information useful for his duties. He shall inform the president of the court and the Public prosecutor of any failure in the implementation of the plan.
He shall also inform the works council or, in the absence of a works council, the employee delegates. Any sum received by the plan performance supervisor must be immediately placed on a deposit account with the
Caisse des dépôts et consignations. If deposits are delayed, the plan performance supervisor must pay interest on the unpaid sums at the legal rate of interest plus five percent.
The plan performance supervisor may be replaced by the court of its own motion or on motion of the Public prosecutor.
Article L626-26 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 80, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Substantial modifications of the goals or means of the plan may be made only by the court, on motion of the debtor and based on the report of the plan performance supervisor.
The court shall rule upon the case after having received the opinion of the Public prosecutor and after hearing or duly summoning the debtor, the plan performance supervisor, the controllers and representatives of the works council or, in the absence of a works council, the employee delegates and any interested party.
Article L626-27 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 81, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The court that confirmed the plan may, after the Public prosecutor has given his opinion, order the rescission of
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COMMERCIAL CODE the plan if the debtor does not fulfil its commitments within the time limits provided for in the plan. Where the non-performance results from a failure by the debtor to pay dividends and the court have not ordered the rescission of the plan, the plan performance supervisor shall recover these dividends in accordance with the provisions of the plan.
Where the debtor's cessation of payments is established during the performance of the plan, the court which has confirmed the plan shall, after the Public prosecutor has given his opinion, order its rescission and pronounce the judicial liquidation.
The order pronouncing the rescission of the plan shall stay its implementation and lapse all moratoriums granted. II - In the cases provided for under (I), a creditor, the plan performance supervisor or the Public prosecutor may file
an action for rescission with the court. The court may also initiate an action of its own motion. III - After the rescission of the plan and the commencement or pronouncement of the new proceedings, creditors
who are subject to the plan shall be relieved from the need to submit their claims and guarantees. Claims included in the plan shall be automatically admitted less any sums already received.
Article L626-28 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 82, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where it is established that the commitments stated in the plan or ordered by the court have been performed, the court, on motion of the plan performance supervisor, the debtor or any interested party, will record that the plan has been implemented.
SECTION III Committees of creditors Articles L626-29 to
L626-35
Article L626-29 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Debtors whose accounts are certified by a statutory auditor or prepared by a public accountant and whose number of employees or sales turnover excluding tax exceeds the thresholds fixed by a Conseil d'Etat decree shall be governed by the provisions of this Section.
On motion of the debtor or the administrator, the supervisory judge may allow the application of this Section where this threshold is not reached.
Article L626-30 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Credit institutions and main suppliers of goods or services shall be grouped into two committees of creditors by the administrator within thirty days from the commencement order. Each supplier of goods or services shall be a member ipso jure of the committee of the main suppliers where its claims account for more than 5% of the total claims of suppliers. The other suppliers may be members of this committee on invitation by the administrator.
The debtor shall present its proposals for the drawing up of the draft plan provided for in Article L626-2 to the committees of creditors within two months from the date on which the committees are formed, which may be extended once for two more months by the supervisory judge on motion of the debtor or the administrator.
After discussion with the debtor and the administrator, the committees will vote on the draft plan, modified if necessary, at the latest within thirty days after the proposals have been sent by the debtor. The decision shall be made by each committee by a majority vote of its members, representing at least two-thirds of the total amount of the claims of all the members of the committee of creditors as indicated by the debtor and certified by its statutory auditor(s) or, where none has been appointed, prepared by its public accountant.
The draft plan adopted by the committees of creditors shall be subject neither to the provisions of Article L626-12 nor to those in the second and third paragraphs of Article L626-18. Local authorities and their public bodies may not be members of the committee of main suppliers.
Article L626-31 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the draft plan has been adopted by the committee of creditors according to the provisions of Article L626-30, the court will ensure that the interests of all of the creditors are sufficiently protected. In this case, the court shall confirm the plan with respect to the adopted draft and in the manner provided for under Section 2 of this Chapter. Its decision shall make binding the proposals accepted by each committee to all their members. Notwithstanding the provisions of Article L626-26, substantial modifications in the goals or means of the plan confirmed by the court in accordance with the first paragraph may occur only in the manner provided for under this Section.
Article L626-32 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where there are bondholders, the administrator shall summon representatives of the body of bondholders, if any, within fifteen days from the date the draft plan is sent to the committees in order to outline it to them.
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COMMERCIAL CODE Representatives of the bondholders shall thereafter convene a general meeting of bondholders within fifteen days in
order to decide on the draft. However, the failure to act or the absence of any representative of the bondholders is properly recorded by the supervisory judge, the administrator will convene the general meeting of bondholders.
The decision may relate to the total or partial abandonment of the bondholders' claims.
Article L626-33 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Creditors who are not members of the committees of creditors formed in compliance with Article L626-30 shall be consulted in the manner provided for under Articles L626-5 to L626-7. The administrator shall perform to this end the duties entrusted to the court nominee by these provisions.
The provisions of the plan regarding the creditors who are not members of the committees of creditors formed in compliance with Article L626-30 shall be confirmed in the manner provided for under Articles L626-12 and L626-18 to L626-20.
Article L626-34 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where one or other of the committees of creditors has not ruled upon the draft plan within the set time limits, where a committee of creditors has rejected the proposals presented to it by the debtor or where the court has not adopted the plan in compliance with Article L626-31, the proceedings will be resumed to prepare a plan in the manner provided for in Articles L626-5 to L626-7 in order to adopt it in the manner provided for under Articles L626-12 and L626-18 to L626-20. The proceedings will be resumed in the same manner where the debtor has not presented any proposals for a plan to the committees of creditors within the set time limits.
Article L626-35 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A Conseil d'Etat decree shall determine the conditions for the application of this Section.
CHAPTER VII Special provisions in the absence of an administrator Articles L627-1 to
L627-4
Article L627-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 84, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of this Chapter will apply where no administrator has been appointed by court according to the penultimate paragraph of Article L621-4. The other provisions of this Title shall apply to the extent that they do not conflict with the provisions of this Chapter.
Article L627-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 85, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The debtor shall, with the consent of the court nominee, exercise the power given to the administrator to assume executory contracts in compliance with Article L622-13. In the event of disagreement, the supervisory judge will hear the petition of any interested party.
Article L627-3 (Act No 2001-1275 of 28 December 2001, Article 152, 2002 Finance Act, Official Journal of 29 December 2001) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 86, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
During the observation period, the debtor, who may be assisted by an expert appointed by the court, shall prepare a draft plan.
The debtor shall send his proposals for the payment of the liabilities provided for in Article L626-5 to the court nominee and the supervisory judge and carry out the information and consultation formalities as provided for under Articles L623-3 and L626-8.
For the implementation of Article L626-3, a shareholders' extraordinary general meeting or a partners' meeting as well as, where their approval is necessary, the special meetings referred to under Articles L225-99 and L228-35-6 or the general meetings of the bodies referred to under Article L228-103, shall be convened in the manner provided for by a Conseil d'Etat decree. The supervisory judge shall determine the amount of the capital increase to be proposed to the meeting to reconstitute shareholders' equity.
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COMMERCIAL CODE Article L627-4 (Order No 200-916 of September 2000, Article 3, Official Journal of 22 September 2000, in force on 1 January 2002) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 87, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
After the filing of the draft plan by the debtor with the clerk's office, the court shall make its rulings based on the report of the supervisory judge.
CHAPTER VIII Provisions applicable to the departments of Haut-Rhin, Bas-Rhin and Moselle Articles L628-1 to
L628-8
Article L628-1 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003) (Law No 2003-710 of 1 August 2003 Article 37 Official Gazette of 2 August 2003)
The provisions of the present Title apply to natural persons domiciled in the Departments of Haut-Rhin, Bas-Rhin and Moselle, and to their successors, who are neither shopkeepers nor persons listed in the trade register, and are not farmers, if they have acted in good faith but are manifestly insolvent.
Before a decision to initiate proceedings is taken, the court shall, if it considers it appropriate, appoint a competent person whose name appears on the list of approved professionals to gather full information regarding the debtor's financial and social position.
The forfeitures and prohibitions which result from personal bankruptcy do not apply to such persons. The present Article's terms of implementation are determined by decree.
Article L628-2 (Law No 2003-710 of 1 August 2003 Article 39 Official Gazette of 2 August 2003) (Law No 2003-710 of 1 August 2003 Article 39 Official Gazette of 2 August 2003)
Unless the insolvency judge grants an exemption, an inventory shall be made of the property of the persons referred to in Article L. 628-1.
Article L628-3 (Law No 2003-710 of 1 August 2003 Article 38 (I) Official Gazette of 2 August 2003) (Law No 2003-710 of 1 August 2003 Article 39 Official Gazette of 2 August 2003)
Contrary to Article L. 621-102, no verification of debts is carried out in connection with compulsory liquidation if it appears that the proceeds from realisation of the assets would be entirely consumed by the legal costs, unless the insolvency judge decides otherwise
Article L628-4 (Law No 2003-710 of 1 August 2003 Article 40 Official Gazette of 2 August 2003)
When the compulsory liquidation operations have been completed, the court may, in exceptional cases, compel the debtor to make a regular contribution towards settlement of the liabilities in the amount that it determines. In such judgments, the court appoints a commissioner to oversee execution of that obligation.
In determining the level of the contribution, the court takes the debtor's ability to pay into account in the light of his resources and his fixed expenses. The court shall reduce the level of the contribution if the debtor's resources decrease or his expenses increase.
Payment thereof must be completed within two years. The present Article's terms of implementation are determined by decree.
Article L628-5 (Law No 2003-710 of 1 August 2003 Article 41 Official Gazette of 2 August 2003)
In addition to the cases referred to in Article L. 622-32, the creditors also recover their right to bring an individual action against the debtor when the court, at its own initiative or at the behest of the insolvency judge, pronounces non-fulfilment of the obligation referred to in Article L. 628.4.
Article L628-6 (Law No 2003-710 of 1 August 2003 Article 42 Official Gazette of 2 August 2003)
Details of the judgment ordering compulsory liquidation remain in the file referred to in Article L. 333-4 of the Consumer Code for a period of eight years and are no longer entered in the debtor's police record.
Article L628-7 (Law No 2003-710 of 1 August 2003 Article 38 (I) Official Gazette of 2 August 2003)
The basis of assessment and the payment arrangements for the tax on legal expenses in cases of insolvency or compulsory liquidation are provisionally determined pursuant to the provisions of the local laws.
Article L628-8 (Law No 2003-710 of 1 August 2003 Article 38 (I) Official Gazette of 2 August 2003)
The provisions of Article 1 of Law No. 75-1256 of 27 December 1975 relating to certain real-property sales in the Departments of Haut-Rhin, Bas-Rhin and Moselle cease to be applicable to the forced sale of real property included in
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COMMERCIAL CODE the assets of a debtor who has been the subject of administration proceedings brought subsequent to 1 January 1986.
TITLE III The reorganization procedure Articles L631-1 to
L631-22
CHAPTER I Commencement and conduct of the reorganization procedure Articles L631-1 to
L631-22
Article L631-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 88, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
This article institutes a reorganization procedure available to any debtor referred to under Articles L631-2 or L631-3 which, being unable to pay its accrued liabilities with its quick assets, is in a state of cessation of payments.
The purpose of the reorganization procedure is to allow the continuation of the business's operations, the maintenance of employment and the settlement of its liabilities. It shall give rise to a plan to be confirmed by a court ruling at the end of an observation period and, as the case may be, to the formation of two committees of creditors according to the provisions of Articles L626-29 and L626-30.
Article L631-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 88, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The reorganization procedure shall apply to traders, persons registered with the craftsmen's register, farmers, other natural persons running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, as well as private-law entities.
No new reorganization proceedings may be commenced with respect to any person already subject to such proceedings or liquidation proceedings, for as long as the operations of the plan resulting from it have not been terminated or the liquidation proceedings have not been closed.
Article L631-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 88, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Likewise, the reorganization procedure will apply to those persons referred to under the first paragraph of Article L631-2 after the end of their professional activity if all or part of their liabilities arises from it.
Where any trader, any person registered with the craftsmen's register, any farmer, any other natural person running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, dies while in a state of cessation of payments, a case may be filed with the court within one year from the date of death, upon the writ of summons of a creditor, whatever the nature of the creditor's claim, or upon the petition of the Public prosecutor. The court may also initiate a case of its own motion within the same time limit and any heir of the debtor may bring an action before it with no time limit.
Article L631-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The commencement of these proceedings must be requested by the debtor at the latest within the forty-five days following the cessation of payments if the debtor has not, within this time limit, requested the commencement of conciliation proceedings.
If the conciliation proceedings fail, the court will initiate a case of its own motion in order to rule upon the commencement of reorganization proceedings if it appears from the conciliator's report that the debtor is in a state of cessation of payments.
Article L631-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where there are no conciliation proceedings pending, the court may also initiate a case of its own motion or on motion of the Public prosecutor for the purpose of commencing reorganization proceedings.
Under the same condition, the proceedings may also be commenced upon a writ of summons of a creditor, whatever the nature of its claim. However, where the debtor has ceased its professional activity, the writ of summons must be filed within one year from:
1. the striking out from the Register of Commerce and Companies. Where a legal entity is concerned, the time limit will run from the date of the striking out subsequent to the publication of the closing of the liquidation operations;
2. the cessation of activity where a person registered with the craftsmen's register, a farmer, a person running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, is concerned;
3. the publication on the completion of liquidation operations, where a legal entity not subject to registration is concerned.
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COMMERCIAL CODE In addition, the proceedings may be commenced with respect to a debtor running an agricultural activity that is not
incorporated in the form of a commercial company only if a case has been filed with the president of the Tribunal de grande instance (High court), prior to the writ of summons, for the appointment of a conciliator in compliance with the provisions of Article L351-2 of the Rural Code.
Article L631-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The works council or, in the absence of a works council, the employee delegates may inform the president of the court or the Public prosecutor of any fact showing the debtor is in a state of cessation of payments.
Article L631-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Articles L621-1, L621-2 and L621-3 shall apply to reorganization proceedings.
Article L631-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court shall determine the date of the cessation of payments. If a date is not being determined, the date of the cessation of payments shall be deemed to be that of the issuance of the order recognizing it.
The date of the cessation of payments may be moved once or more times, without however going back more than eighteen months before the date of issuance of the order recognizing the cessation of payments. Except in cases of fraud, it may not be moved to a date prior to the final decision endorsing an amicable agreement in compliance with Article L611-8 (II).
An action may be filed with the court by the administrator, the court nominee or the Public prosecutor to that effect. The court shall judge the case after hearing or duly summoning the debtor.
The petition for modifying this date must be filed with the court within a year following the issuance of the commencement order.
Article L631-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Articles L621-4 to L621-11 shall apply to the reorganization proceedings. The court may initiate an action of its own motion for the purposes referred to under the third and fourth paragraphs of Article L621-4.
Article L631-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 90, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
As of the date of the commencement order, the de jure or de facto managers, whether remunerated or not, may transfer shares in the company, equity instruments or securities giving rights to the capital representing their corporate rights in the entity to which the commencement order applies only in the manner provided for by the court, under the penalty of nullity.
Equity instruments or securities giving rights to the capital shall be transferred to a special blocked account, opened by the administrator in the name of the holder and held by the company or a financial intermediary as the case may be. No transactions may be made on the account without the permission of the supervisory judge.
The administrator shall mention, if necessary, the prohibition to transfer the shares of the managers in the legal entity's registers.
Article L631-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 91, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge will determine the remuneration for the duties performed by the debtor if the debtor is a natural person or by the managers of a legal entity.
In the absence of remuneration, the persons referred to in the preceding paragraph may obtain subsidies to be fixed by the supervisory judge for themselves or their families, out of the assets.
Article L631-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In addition to the powers which are conferred upon them by this Title, the duties of the administrator(s) shall be set by the court.
The court may require them jointly or separately to assist the debtor in all or certain management operations, or to carry out the entire management of the business, or part of it, alone. Where the administrator (s) is (are) required to carry out the entire management of the business alone and all the thresholds fixed by the fourth paragraph of Article L621-4 have been reached, the court will appoint one or more experts to assist them in carrying out their management tasks. In other cases, the court may appoint them. The president of the court shall determine the remuneration of the experts, which shall be covered by the insolvency estate.
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COMMERCIAL CODE In performing his duties, the administrator must comply with the legal and contractual obligations incumbent upon
the debtor. The court may alter the duties of the administrator at any time, on his motion or on motion of the court nominee or
that of the Public prosecutor or of its own motion. The administrator will operate, under his signature, any bank or Post Office accounts of the debtor where the debtor
is prohibited from so doing under Articles L131-72 or L163-6 of the Monetary and Financial Code.
Article L631-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
From the date on which the proceedings are commenced, third parties shall be allowed to submit offers to the administrator in relation to the maintenance of the activity of the business through a partial or complete assignment of the business's assets according to the provisions of Section I of Chapter II of Title IV.
Article L631-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Articles L622-2 to L622-9 and L622-13 to L622-33 shall apply to reorganization proceedings. II - However, natural persons that are co-obligors and those who have consented to a joint or an independent
guarantee may not avail themselves of the provisions provided for in the first paragraph of Article L622-28.
Article L631-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - At the latest within two months from the date of issuance of the commencement order, the court shall order the observation period to be continued if it appears to the court that the business will have sufficient financial resources. However, where the debtor runs an agricultural activity, this time limit may be modified in accordance with the agricultural year in progress as well as the specific practices with respect to the farm's products.
The court shall rule upon the case based on a report filed by the administrator or, where one has not been appointed, by the debtor.
II - At any time during the observation period, the court, on motion of the debtor, the administrator, the court nominee, one of the controllers, the Public prosecutor or of its own motion may order the partial cessation of the activity or will pronounce its liquidation, if the conditions of Article L640-1 are fulfilled.
It shall rule upon the case after hearing or duly summoning the debtor, administrator, court nominee, controllers, and works council or, in the absence of a works council, the employee delegates and after having received the opinion of the Public prosecutor.
Where the court pronounces the liquidation of the debtor, it will terminate the observation period and the duties of the administrator subject to the provisions of Article L641-10.
Article L631-16 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If it appears, during the observation period, that the debtor has enough money to pay off the creditors and the fees and related costs of the proceedings, the court may terminate the proceedings.
It shall rule upon the case on motion of the debtor in the manner provided for by the second paragraph of Article L631-15 (II).
Article L631-17 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where dismissals for economic reasons are urgent, inevitable and indispensable during the observation period, the administrator may be allowed by the supervisory judge to implement these dismissals.
Before applying to the supervisory judge, the administrator shall consult the works council or, in the absence of a works council, the employee delegates in the manner provided for by Article L321-9 of the Labour Code and shall inform the competent public authority referred to under Article L321-8 of the same Code. He shall attach, in support of the motion transmitted to the supervisory judge, the opinion received and supporting documents of the steps he has taken to facilitate the compensation and re-employment of the dismissed employees.
Article L631-18 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The provisions of Chapters III, IV and V of Title II of this Book shall apply to reorganization proceedings. II - However, the appeal provided for in the first paragraph of Article L624-3 will also be available to the
administrator where he is assigned to manage the business. For the application of Article L625-1, the court nominee who is summoned to appear before the Labour or,
otherwise, the claimant shall summon the institutions referred to under Article L143-11-4 of the Labour Code to appear before the Labour Court.
In addition, for the application of Article L625-3 of this Code, the institutions referred to under Article L143-11-4 of
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COMMERCIAL CODE the Labour Code shall be summoned by the court nominee or, otherwise, by the petitioning employees, within ten days from the issuance of the commencement order of the reorganization proceedings or from the issuance of the order converting safeguard proceedings into reorganization proceedings. Likewise, pending cases before the Labour court on the date of issuance of the commencement order will be continued in the presence of the administrator where he is assigned to manage the business, or after having duly summoned the administrator.
Article L631-19 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The provisions of Chapter VI of Title II shall apply to the reorganization plan. II - Where the plan provides for dismissals on economic grounds, the plan may be confirmed by the court only after
having consulted the works council or, in the absence of a works council, the employee delegates in the manner provided for in Article L321-9 of the Labour Code and only after the competent public authority referred to under Article L321-8 of the same Code has been informed.
The plan shall state in particular the dismissals that must be made within one month following the date of issuance of the order. Within this time limit, these dismissals shall be made by an ordinary notification by the administrator, subject to the rights related to notice of termination provided for by law or collective bargaining agreements.
Article L631-20 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
By way of exception to the provisions of Article L626-11, co-obligors and those who have consented to a joint or independent guarantee may not avail themselves of the provisions of the plan.
Article L631-21 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Chapter VII of Title II shall apply to the reorganization plan. During the observation period, the business operations shall be carried on by the debtor, which exercises the
powers granted to the administrator by Article L631-17 and carries out the notifications provided for in the second paragraph of II of Article L631-19.
The court nominee shall perform the powers granted to the administrator by the second and third paragraphs of Article L631-10.
Article L631-22 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Based on the report of the administrator, the court may order the assignment of all or part of the business as a going concern if the debtor is unable to reorganize the business on its own. Except for Article L642-2 (I), the provisions of Section I of Chapter II of Title IV shall apply to this assignment. The court nominee shall perform the duties entrusted to the liquidator.
The administrator shall remain in office in order to carry out all acts necessary to implement the assignment.
TITLE IV The liquidation procedure Articles L640-1 to
L644-6
PRELIMINARY CHAPTER Commencement and conduct of liquidation proceedings Articles L640-1 to
L640-6
Article L640-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
This article institutes a liquidation procedure available to any debtor mentioned in Article L640-2 that is in a state of cessation of payments and whose reorganization is manifestly impossible.
The purpose of the liquidation procedure is to end the business activity or to sell the debtor's assets through a general or separate sale of its interests and property.
Article L640-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidation procedure shall apply to all traders, persons registered with the craftsmen's register, farmers, other natural persons running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, as well as private law entities.
No other liquidation proceedings may be commenced with respect to a person already subject to proceedings that have not yet been closed.
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COMMERCIAL CODE Article L640-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidation procedure will also be available to those persons referred to under the first paragraph of Article L640-2 once they have ceased their professional activity if all or part of their liabilities arises from it.
Where a trader, a person registered with the craftsmen's register, a farmer or any other person running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, dies in a state of cessation of payments a case may be filed with the court, within one year from the date of death, upon the writ of summons of a creditor, whatever the nature of the creditor's claim, or upon the petition of the Public prosecutor. The court may also initiate a case of its own motion within the same time limit. Any heir of the debtor may bring an action before the court, with no time limit.
Article L640-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The commencement of these proceedings must be requested by the debtor at the latest within forty-five days following the cessation of payments if the debtor has not requested the commencement of conciliation proceedings within this time limit.
In the event of failure of the conciliation proceedings, if the court notes, while ruling according to the second paragraph of Article L631-4, that the conditions referred to under Article L640-1 are satisfied, it will commence liquidation proceedings.
Article L640-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where there are no conciliation proceedings pending, the court may also initiate a case of its own motion or on motion of the Public prosecutor for the purpose of commencing liquidation proceedings.
Under the same condition, the proceedings may also be commenced upon a writ of summons of a creditor, whatever the nature of its claim. However, where the debtor has ceased its professional activity, the writ of summons must be filed within one year from:
1. the striking out from the Register of Commerce and Companies. Where a legal entity is concerned, the time limit will run from the date of the striking out subsequent to the publication of the closing of the liquidation operations;
2. the cessation of activity where a person registered with the craftsmen's register, a farmer, a person running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, is concerned;
3. the publication on the completion of liquidation operations where a legal entity not subject to registration is concerned.
In addition, the proceedings may be commenced with respect to a debtor running an agricultural activity that is not incorporated in the form of a commercial company only if a case has been filed with the president of the Tribunal de grande instance (High court), prior to the writ of summons, for the appointment of a conciliator in compliance with the provisions of Article L351-2 of the Rural Code.
Article L640-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The works council or, in the absence of a works council, the employee delegates may inform the president of the court or the Public prosecutor of any fact showing the debtor is in a state of cessation of payments.
CHAPTER I Liquidation order Articles L641-1 to
L641-15
Article L641-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 98, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Articles L621-1 and L621-2 shall apply to liquidation proceedings. II - In the order commencing the liquidation proceedings, the court shall appoint the supervisory judge and, as
liquidator, a registered court nominee or a person chosen according to the first paragraph of Article 812-2 (II). The court may, at the initiative of the supervisory judge, on motion of the Public prosecutor or of its own motion, replace the liquidator, or appoint one or more assistant liquidators. The debtor or the creditor may ask the supervisory judge to apply to the court to this end.
Where the debtor runs an independent professional activity with a statutory or regulated status or a person whose designation is protected, the supervisory body or authority, if any, may apply to the Public prosecutor for the purposes referred to under the first paragraph.
An employees' representative shall be appointed in the manner provided for by the second paragraph of Article L621-4. He shall be replaced in the manner provided for by the fifth paragraph of Article L621-7. He shall perform the duties provided for in Article L625-2.
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COMMERCIAL CODE The controllers shall be appointed and carry out their functions in the same manner as those provided for in Title II. III - Where the liquidation is pronounced during the observation period of safeguard or reorganization proceedings,
the court will appoint the court nominee as liquidator. However, the court may, through a reasoned order, on motion of the administrator, a creditor, the debtor or the Public prosecutor, appoint another person as liquidator under the conditions provided for by Article L812-2.
The court may replace the liquidator or appoint one or more assistant liquidators in accordance with the rules provided for in (II) of this article.
Where the debtor runs an independent professional activity with a statutory or regulated status or a person whose designation is protected, the supervisory body or authority, if any, may apply to the Public prosecutor for the purposes referred to under the first two paragraphs of III.
IV - The date of the cessation of payments shall be fixed in the manner provided for in Article L631-8.
Article L641-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 99, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator will draw up a report on the debtor's situation within a month of his appointment except where the court pronounces the liquidation during the observation period. The provisions of the second paragraph of Article L621-9 shall apply.
The simplified liquidation procedure provided for under Chapter IV of this Title will be applicable if it appears that the debtor's assets include no immovable property, that the number of its employees during the six months prior to the commencement of the proceedings and its sales turnover excluding tax are equal to or less than the thresholds fixed by a Conseil d'Etat decree.
Article L641-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 100, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The order commencing the liquidation proceedings shall have the same effect as those provided for safeguard proceedings in the first and fourth paragraphs of Article L622-7 and in Articles L622-21, L622-22, L622-28 and L622-30.
The creditors shall submit their claims to the liquidator in the manner provided for in Articles L622-24 to L622-27 and L622-31 to L622-33.
Article L641-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 101, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator shall carry out liquidation operations at the same time as the verification of the claims. He may initiate or pursue actions that are within the competence of the court nominee.
The verification of unsecured claims need not be made if it appears that the proceeds of the asset sales will be totally absorbed by legal fees and secured claims, unless, in the case of a legal entity, there is a reason for holding the de jure or de facto managers liable for all or part of the liabilities pursuant to Articles L651-2 and L652-1.
The liquidator shall carry out the duties entrusted to the administrator and the court nominee under Articles L622-6, L622-20, L622-22, L622-23, L624-17, L625- 3, L625-4 and L625-8.
For the purpose of drawing up the inventory referred to under Article L622-6, the court shall appoint an auctioneer, a bailiff, a notary or an accredited commodity broker.
An estimate of the debtor's assets shall be made by the persons referred to under the fourth paragraph. The dismissals made by the liquidator pursuant to the decision pronouncing the liquidation shall be subject to the
provisions of Articles L321-8 and L321-9 of the Labour Code.
Article L641-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 102, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the liquidation is pronounced during the observation period of safeguard proceedings or of reorganization proceedings, the liquidator will carry out the liquidation operations at the same time as, where appropriate, he completes the verification of claims and determines the priority order of the creditors. He shall continue the legal actions initiated prior to the issuance of the liquidation order by the administrator or by the court nominee and may initiate new legal actions that are within the competence of the court nominee.
Article L641-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
No relatives or affines, up to the fourth degree included, of the head of the business or of the managers if the debtor is a legal entity, may be appointed as liquidator.
Article L641-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 103, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator shall inform the supervisory judge, the debtor and the Public prosecutor of the progress of the proceedings, at least every three months.
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COMMERCIAL CODE Article L641-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any sum received by the liquidator in the performance of his duties must immediately be placed on a deposit account with the Caisse des dépôts et consignations. If deposits are delayed, the liquidator must pay interest on the unpaid sums at the legal rate of interest plus five percent.
Article L641-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 104, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The order commencing or pronouncing the liquidation shall also give rise, from its date of issuance, to the divestment of the debtor from the management and the right to dispose of its assets, including even those acquired by any means, until the closing of the liquidation proceedings. The debtor's rights and rights of action over its estate shall be exercised by the liquidator during the liquidation proceedings.
However, the debtor may initiate or join the case as a civil party with the aim of holding the perpetrator of a crime or a misdemeanour of which the debtor has been a victim liable.
The debtor shall also perform any acts, and exercise rights and rights of action that are not included within the duties of the liquidator or of the administrator, where one is appointed.
II - Where the debtor is a legal entity, the managers in office on the date of issuance of the liquidation order shall remain in office, unless the articles of association or a resolution passed by a shareholders' or partners' general meeting provide otherwise. In case of need, a representative may be appointed in their place by order of the president of the court on motion of any interested party, the liquidator or the Public prosecutor.
The registered office shall be deemed to be fixed at the domicile of the legal representative of the entity or of the appointed representative.
III - Where the debtor is a natural person, he may not carry out any of the activities provided for in the first paragraph of Article L640-2, during the liquidation proceedings.
Article L641-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 105, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If the assignment, in whole or in part, of the business as a going concern can be considered or if the public interest or that of the creditors demands it, the maintenance of the activities may be allowed by the court for the maximum period to be determined by a Conseil d'Etat decree. It may be extended on motion of the Public prosecutor for a period to be determined in the same way. Where an agricultural activity is involved, the period will be determined by the court by reference to the current agricultural year as well as to the practices specific to the farm's products. The provisions of Article L641-13 shall apply to claims arising during this period.
The liquidator shall manage the business. He may require the performance of executory contracts and exercise the powers conferred on the administrator by Article L622-13.
He may dismiss employees under the conditions provided for in Article L631-17. Where appropriate, he shall prepare an assignment plan, carry out the acts necessary to implement the plan,
receive and distribute the price of the assignment However, where the number of persons employed by the business or the sales turnover exceeds thresholds to be
fixed by a Conseil d'Etat decree or, where necessary, the court will appoint an administrator to manage the business. In this case, by way of exception to the preceding paragraphs, the administrator shall be subjected to the provisions of Article L622-13. He shall prepare the assignment plan, carry out the acts necessary to implement the plan and, under the conditions provided for in Article L631-17, he may dismiss employees.
Where the administrator does not have the necessary cash to continue the business's activities, he may require the liquidator to provide it with the permission of the supervisory judge.
The liquidator or the administrator, where one has been appointed, shall perform the functions entrusted to the administrator or court nominee, as the case may be, by Articles L622-4 and L624-6.
Article L641-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 106, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge shall perform the duties entrusted to him by Articles L621-9, L623-2 and L631-11, the first paragraph of Article L622-13 and the fourth paragraph of Article L622-16.
Information held by the Public prosecutor shall be transmitted to him according to the rules provided for in the second paragraph of Article L621-8.
The liquidator and the administrator, where one has been appointed, shall receive all information useful for carrying out their duties from the supervisory judge.
Article L641-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 107, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Judicial liquidation shall not automatically lead to the termination of leases of immovable properties used for the business operations.
The liquidator or the administrator may continue the lease or assign it under the conditions stipulated in the
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COMMERCIAL CODE agreement entered into with the lessor with all the rights and obligations attached therein. In the event of assignment of lease, the provisions of Article L622-15 shall apply.
If the liquidator or the administrator decides not to continue the lease, it will be terminated upon request. The termination shall take effect on the date of the request.
The lessor may request the termination of the lease by court order or have its automatic termination recorded for reasons existing prior to the issuance of the order commencing the liquidation proceedings or, where the latter has been pronounced following safeguard or reorganization proceedings, for reasons existing prior to the issuance of the order commencing the previous proceedings. The lessor must, if it has not done so already, file this request within three months as of the publication of the order commencing the liquidation proceedings.
The lessor may also request the termination of the lease by court order or have its automatic termination recorded because of a default in the payment of the rent or tenant's expenses related to the occupancy after the issuance of the commencement order of the liquidation proceedings, under the conditions provided for in the third, fourth and fifth paragraphs of Article L622-14.
The lessor's lien shall be determined according to the first three paragraphs of Article L622-16.
Article L641-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 108, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Claims arising regularly after the issuance of the order commencing or pronouncing the judicial liquidation or, in the latter case, after the issuance of the commencement order of the safeguard or reorganization proceedings prior to the judicial liquidation, for the needs of the proceedings or for the needs, as the case may be, of the former observation period, or because of goods or services provided to the debtor with respect to its professional activity subsequent to one of these orders, shall be paid as they fall due.
II - If they are not paid as they fall due, they will be paid according to their preferential lien before all other claims, except for the claims secured by the lien provided for in Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code, those that are secured by the lien for legal fees, those that are secured by the lien provided for in Article L611-11 of this Code as well as those that are secured by a security over immovable assets or those secured by a special security over movable assets to which a right of retention is attached or those formed in compliance with Chapter V of Title II of Book V.
III - Their payment shall be made in the following order: 1°. claims of wages and salaries for which funds have not been advanced in compliance with Articles L143-11-1 to
L143-11-3 of the Labour Code; 2°. legal fees; 3°. loans and claims arising from the performance of continued contracts according to the provisions of Article
L622-13 and where the other party accepts deferred payments. These loans and the moratorium shall be allowed by the supervisory judge within the limits necessary for the continuation of business operations and shall be published. In the event of termination of a contract that had been continued in a proper manner, compensation and penalties will be excluded from the application of this article.
4°. sums that have been advanced in application of Article L143-11-1 (3°) of the Labour Code; 5°. other claims according to their priority order. IV - Unpaid claims will lose the lien provided for by this article if they have not been notified to the court nominee or
the administrator, where one has been appointed, or the liquidator, within six months from the publication of the order commencing or pronouncing the liquidation proceedings or, failing this, within one year from the publication of the order confirming the assignment plan.
Article L641-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 109, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Chapters IV and V of Title II of this Book on the determination of the debtor's assets and the payment of claims resulting from an employment contract as well as the provisions of Chapter II of Title III of his Book on the nullity of certain acts shall apply to liquidation proceedings.
However, for the application of Article L625-1, the liquidator summoned before the Labour court or, the petitioner shall summon the institutions referred to under Article L143-11-4 of the Labour Code before the Labour court.
To implement Article L625-3 of this Code, the institutions referred to under Article L143-11-4 of the Labour Code shall be summoned by the liquidator or by the petitioning employees, within ten days from the issuance of the commencement order of the liquidation proceedings or of the order pronouncing the same. Likewise, the proceedings pending before the Labour court on the day of issuance of the commencement order shall be carried on in the presence of the administrator, where one has been appointed, or after he has been duly summoned.
Article L641-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 110, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the course of the liquidation proceedings, the supervisory judge may order that the liquidator or the administrator, where one has been appointed, receive all correspondence sent to the debtor.
The debtor, having been informed, may be present when the correspondence is being opened. However, any summons before a court, any notice of orders or any other correspondence of personal nature must immediately be
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COMMERCIAL CODE given or returned to the debtor.
The supervisory judge may allow the liquidator to have access to the electronic mail received by the debtor under the conditions to be determined by a Conseil d'Etat decree.
Where the debtor is engaged in an activity subject to professional confidentiality rules, the provisions of this article will not apply.
CHAPTER II Realisation of assets Articles L642-1 to
L642-25
SECTION I Assignment of the Business as a going concern Articles L642-1 to
L642-17
Article L642-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2006-11 of 5 January 2006, Article 14 V, Official Journal of 6 January 2006)
The assignment of the business is aimed at maintaining the activities capable of being operated autonomously, maintaining all or part of the related employment contracts and settling the liabilities.
The assignment may relate to all or some of the assets. In the latter case, it shall concern a group of means of production that form one or more complete and autonomous branch or branches of activity.
Where such a group consists mainly of a right to a farm lease, the court may, subject to rights of indemnity for the outgoing lessee and notwithstanding any other provisions governing the agricultural tenancy agreement, either allow the lessor, his spouse or one of his descendants to take back the business in order to operate it or assign the farm lease to another lessee proposed by the lessor or, if none, to any potential lessee whose offer has been received under the conditions provided for by Articles L642-2, L642-4 and L642-5. Provisions relating to the exercise of control over agricultural businesses (contrôle des structures des exploitations agricoles) shall not apply. However, if several offers have been received, the court will take into account the provisions of Article L331-3 (1°) to (4°) and (6°) to (9°) of the Rural Code.
Where a debtor, who is a natural person is an independent professional person with a statutory or regulated status or whose designation is protected, the assignment may only relate to tangible assets. However, where a public or law official is concerned, the liquidator may perform the debtor's right to present a successor to the Keeper of the Seals, the Minister of Justice.
Article L642-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Where the court deems that the total or partial assignment of the business as a going concern may be considered, it will allow the continuation of operations and set the time limit during which purchase offers must be sent to the liquidator and to the administrator, where one has been appointed.
However, if offers received in compliance with Article L631-13 meet the requirements provided for under (II) of this article and if they are satisfactory, the court may decide not to apply the preceding paragraph.
II - All offers must be in writing and state: 1°. the precise identification of the assets, rights and contracts included in the offer; 2°. the forecasts for activity levels and financing; 3°. the price offered, payment conditions, the status of the contributors of capital and, where appropriate, the status
of their guarantors. If the offer includes a recourse to borrowing, it must state the conditions, in particular the duration; 4°. the date of the assignment; 5°. the level and prospects for employment needed for the activity considered; 6°. the performance guarantees given; 7°. the forecasts for the sale of assets during the two years following the assignment; 8°. the duration of each of the commitments made by the offeror. III - Where the debtor is an independent professional person with a statutory or regulated status or whose
designation is protected, the offer must also state the assignee's professional status. IV - The liquidator or the administrator, where one is appointed, shall inform the debtor, the employees'
representative and the controllers of the content of the offers received. He shall file them with the court clerk's office where any interested party may consult them.
They shall be notified, where appropriate, to the debtor's supervisory body or relevant authority. V - The offer may neither be modified, except in a manner more favourable to the aims referred to under the first
paragraph of Article L642-1, nor withdrawn. It shall be binding on the offeror until the issuance of the court order confirming the plan.
Where an appeal against the order confirming the plan is filed, only the assignee will remain bound by his offer.
Article L642-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
The debtor, the de jure or de facto manager of the legal entity subject to liquidation proceedings, the relatives or affines up to the second degree included of the managers or the debtor if he is a natural person, persons who are or were controllers during the proceedings shall not be allowed, directly or through an agent, to present an offer. Likewise, these persons are prohibited from buying, directly or indirectly, within the five years following the assignment, all or part of the assets in the liquidation proceedings, as well as from buying stock or shares in the capital of any company or partnership having, directly or indirectly, as part of its assets, all or part of these assets, as well as securities giving a right to the capital of this company or partnership within the same period.
However, where an agricultural activity is involved, the court may make an exception to these prohibitions and allow the assignment to one of the persons referred to under the first paragraph, excluding the controllers. In the other cases, the court, on motion of the Public prosecutor, may allow the assignment to one of the persons referred to under the first paragraph, excluding the controllers, by a specially reasoned ruling, after having sought the opinion of the controllers.
Any act entered into in violation of the provisions of this article shall be declared void on motion of any interested party or of the Public prosecutor, filed within three years from the date of the conclusion of the act. Where the act is subject to publication formalities, the time limit will run from the date of publication.
Article L642-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator or the administrator, where one is appointed, shall provide the court with all the material that will help it to examine the seriousness of the offer as well as whether the offeror is a third party within the meaning of the provisions of Article L642-3.
He shall also provide the court with all the material that will help to assess the terms under which liabilities will be settled, in particular with respect to the price offered, the assets remaining to be recovered or sold, the debts arising in the period of continuation of business operations and, where appropriate, the other debts for which the debtor remains still liable.
Article L642-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
After having received the opinion of the Public prosecutor and after having heard or duly summoned the debtor, the liquidator, the administrator where one is appointed, the representatives of the works council or, in the absence of a works council, the employee delegates and the controllers, the court will accept the offer which allow the most prolonged maintenance of employments attached to the assets assigned and the payment of the creditors, under the best conditions and which presents the best guarantees for its implementation.
The court shall confirm one or more assignment plans. The hearing must be held in the presence of the Public prosecutor where the proceedings relate to a natural person
or a legal entity whose number of employees, sales turnover excluding tax or assets exceed(s) the thresholds fixed by a Conseil d'Etat decree.
The order confirming the plan shall make its provisions binding on anyone. Where the plan provides for dismissals on economic grounds, it may be confirmed by the court only after having
consulted the works council or, in the absence of a works council, the employee delegates under the conditions provided for in Article L321-9 of the Labour Code and having informed the competent public authority referred to under Article L321-8 of the same Code. The plan shall state in particular the dismissals that must be made within one month starting from the date of issuance of the order. Within this time limit, these dismissals shall be made by way of an ordinary notification by the liquidator, or by the administrator, where one has been appointed, subject to the rights related to notice of termination of employment contracts provided for by law or collective bargaining agreements or contracts.
Article L642-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Substantial modifications in the aims or means of the plan may be made only by the court, on motion of the assignee.
The court shall rule upon the case after having heard or duly summoned the liquidator, the administrator where one is appointed, the controllers, the representatives of the works council or, in the absence of a works council, the employee delegates and any interested person and after having received the opinion of the Public prosecutor.
However, the amount of the price of the assignment as determined in the order confirming the plan may not be modified.
Article L642-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190 Correction JORF 22 October 2005)
The court will determine the finance leases, rental contracts or contracts for the supply of goods or services necessary for the maintenance of activity based on the views of the debtor's contracting parties transmitted to the liquidator or the administrator, where one is appointed.
The order confirming the plan shall result in the assignment of these contracts, even if the assignment is preceded by a trading lease arrangement [location-gérance] provided for in Article L642-13.
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COMMERCIAL CODE These contracts must be performed in the conditions in force on the day of the commencement of the proceedings,
not withstanding any clause to the contrary. In the event of the assignment of a finance lease contract, the lessee may exercise the option to purchase only after
payment of the sums remaining due within the limit of the value of the assets determined by the common agreement of the parties or, failing this, by the court at the date of the assignment.
Article L642-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
For the implementation of the plan confirmed by the court, the liquidator or the administrator, where one is appointed, shall perform all acts necessary for the completion of the assignment. While these acts are being carried out and on proof that the price of the assignment has been deposited or an equivalent guarantee has been given, the court may entrust the assignee, on the assignee's motion and under its responsibility, with the management of the business assigned.
Where the assignment includes the goodwill, no increase in price (surenchère) will be allowed.
Article L642-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
As long as the price of the assignment has not been fully paid, the assignee may not alienate or give in a trading lease arrangement the tangible or intangible assets acquired, other than inventories.
However, partial or complete alienation, use as security, leasing or inclusion in a trading leasing arrangement may be allowed by the court upon a report by the liquidator who must first consult the works council or, in the absence of a works council, the employee delegates. The court must take into consideration the guarantees offered by the assignee.
Any substitution of the assignee must be allowed by the court in the order confirming the plan, without prejudice to the implementation of the provisions of Article L642-6. The person whose offer has been accepted by the court shall be a solidary guarantor for the performance of commitments subscribed by him.
Any act entered into in violation of the provisions of the previous paragraphs shall be declared void on motion of any interested party or of the Public prosecutor, filed within three years from the date of the conclusion of the act. Where the act is subject to publication formalities, the time limit will run from the date of publication.
Article L642-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court may attach a clause to the assignment plan providing that all or part of the assets assigned may not be alienated, for a time fixed by the court.
The publication of this clause shall be carried out under the conditions provided for in a Conseil d'Etat decree. Any act entered into in violation of the provisions of the first paragraph shall be declared void on motion of any
interested party or of the Public prosecutor, filed within three years from the date of the conclusion of the act. Where the act is subject to publication formalities, the time limit will run from the date of publication.
Article L642-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The assignee shall report to the liquidator on the implementation of the provisions provided for in the assignment plan.
If the assignee does not fulfil its commitments, the court may, on motion either of the Public prosecutor, or of the liquidator, of a creditor, of any interested party or of its own motion, after having received the opinion of the Public prosecutor, pronounce the rescission of the plan, without prejudice to any damages to be claimed.
The court may order the rescission or cancellation of any acts entered into for the implementation of the rescinded plan. Repayment of the price paid by the assignee may not be sought.
Article L642-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the assignment includes assets encumbered with a special lien, security or a mortgage, a portion of the price will be set aside by the court for each asset for the distribution of the price and the exercise of preferential rights.
The payment of the price of the assignment shall bar the exercise against the assignee of the creditors' rights attached to the assets.
Until full payment of the price entailing the removal of the rights registered over the assets included in the assignment, creditors holding a right to sue the asset-holder (droit de suite) may exercise it only where the asset assigned is alienated by the assignee.
However, liability for special securities over immovables and movables guaranteeing the repayment of a loan granted to the business for the financing of the incumbered asset shall be conveyed to the assignee. The latter shall be required to pay to the creditor the instalments agreed with the creditor and that remain due as of the transfer of property or, in the event of a trading lease agreement, as of taking possession of the encumbered asset. An exception to the provisions of this paragraph may be made by agreement between the assignee and the creditors holding the securities.
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COMMERCIAL CODE Article L642-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the order confirming the assignment plan, the court may allow the conclusion of a trading lease agreement, even in the presence of any clause to the contrary, notably in the lease of the immovable property, in favour of the person who has presented the acquisition offer which will allow the most prolonged maintenance of employments attached to the assets assigned and the payment of the creditors, under the best conditions.
The court shall rule upon the case after having heard or duly summoned the debtor, the liquidator, the administrator where one is appointed, the controllers, the representatives of the works council or, in the absence of a works council, the employee delegates and any interested person and after having received the opinion of the Public prosecutor.
Article L642-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Articles L144-3, L144-4 and L144-7 on trading lease agreements shall not apply.
Article L642-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of a trading lease agreement, the business must be effectively assigned within the two years following the date of issuance of the order confirming the plan.
Article L642-16 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator may require the lessee-manager [locataire-gérant] to hand all documents and information over to him that are necessary to perform its duties. He shall report to the court on any damage to the assets included in the trading lease agreement and on any breach of obligations incumbent on the lessee manager.
The court, of its own motion or on motion of the liquidator or of the Public prosecutor, may order the termination of the trading lease agreement and the rescission of the plan.
Article L642-17 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If the lessee-manager does not fulfil his obligation to acquire the business under the terms and within the time limits fixed in the plan, the court, of its own motion or on motion of the liquidator or the Public prosecutor, shall order the termination of the trading lease agreement and the rescission of the plan, without prejudice to damages to be claimed.
However, where the lessee-manager proves that he cannot acquire the business under the terms initially stipulated for a reason for which he is not responsible, he may ask the court to modify the terms, except with respect to the price and the time limit provided for in Article L642-15. The court shall rule upon the case before the expiry of the leasing contract, after having received the opinion of the Public prosecutor and after having heard or duly summoned the debtor, the liquidator, the administrator where one is appointed, the controllers, the representatives of the works council or, in the absence of a works council, the employee delegates and any interested person.
SECTION II Assignment of the debtor's assets Articles L642-18 to
L642-21
Article L642-18 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 112, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No 2006-461 of 21 April 2006, Article 14, Official Journal of 22 April 2006, in force at the latest on 1 January 2007)
The sale of immovable property shall be carried out under the conditions provided for seizure of immovable property. However, the supervisory judge shall, after having received the remarks of the controllers, and after having heard or duly summoned the debtor and the liquidator, determine the upset price, the main terms of the sale and the terms and conditions of publication.
Where an action to seize immovable property initiated prior to the commencement of safeguard, reorganization or liquidation proceedings is suspended due to the proceedings, the liquidator may be subrogated in the rights of the seizing creditor for the acts performed by the creditor, which are deemed to have been performed on behalf of the liquidator who sells the immovable property. The seizure of the immovable property may resume at the stage it had reached when the commencement order suspended it.
Under the same conditions, the supervisory judge may, if the nature of the assets, their location or the offers received are such as to allow an amicable sale on the best conditions, order a sale by voluntary public auction at the upset price he shall determine or allow a private sale at a price and on the terms that he shall determine. In the case of a voluntary public auction, higher bids (surenchère) may always be made.
Auctions carried out pursuant to the preceding paragraphs shall entail the discharge of mortgages.
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COMMERCIAL CODE The liquidator shall distribute the proceeds of the sale and settle the priority among the creditors, subject to any
disputes that may be filed with the enforcement judge ("juge de l'exécution"). In the event of liquidation proceedings involving a farmer, the court may, by taking into account the debtor's
personal and family situation, set and grant him a grace period to leave his main residence. The terms and conditions for applying this article shall be determined by a Conseil d'Etat decree. N.B. Order 2006-461 2006-04-21 Article 23: This order shall enter into force at the entry into force of the Conseil
d'Etat decree referred to under Article 23 and, at the latest on 1 January 2007.
Article L642-19 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 113, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
After having received the opinion of the controllers, the supervisory judge shall order the sale at public auction or allow a private sale of the debtor's other assets, the latter having been heard or duly summoned. Where the sale takes place at public auction, it will be carried out as provided for, as the case may be, by the second paragraph of Article L322-2 or by Articles L322-4 or L322-7.
The supervisory judge may require that the draft for an amicable sale be submitted to him to ascertain whether the terms he has provided for have been complied with.
Article L642-20 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 114, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Article L642-3 shall apply to the assignment of assets implemented in compliance with Articles L642-18 and L642-19. In this case, the powers of the court shall be performed by the supervisory judge.
Article L642-21 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 114, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the provisions of Article L631-22 have been applied and the debtor may not obtain court the confirmation of a reorganization plan in court, the provisions of this Title shall apply. Assets not included in the assignment plan shall be disposed of under the conditions provided for under this Section.
SECTION III Common Provisions Articles L642-22 to
L642-25
Article L642-22 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 115, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any assignment of the business as a going concern and any sale of assets must be preceded by publication under the conditions to be determined in a Conseil d'Etat decree according to the size of the business and the nature of the assets to be sold.
Article L642-23 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 116, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Before any sale or destruction of the debtor's archives, the liquidator will inform the competent public authority for the conservation of archives. The authority has a pre-emptive right.
The liquidator, with the consent of the debtor's supervisory body or authority, shall determine the future use of archives of a debtor bound by professional confidentiality rules.
Article L642-24 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 115, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator may, with the permission of the supervisory judge and after having heard or duly summoned the debtor, compromise or settle any disputes of interest to the creditors collectively, even those relating to rights and litigation over immovable property.
If the value of the object of the compromise or settlement is not specified or exceeds the jurisdiction of final judgement of the court, the compromise or the settlement must be approved by court order.
Article L642-25 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 117, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
On payment of the debt, the liquidator so authorised by the supervisory judge may take back assets given as pledge by the debtor or as a retained assets.
If the liquidator does not do this, he must, within six months of the date of issuance of the order of the liquidation proceedings, request the supervisory judge for permission to sell this asset. The liquidator shall give the creditor notice of the permission fifteen days before the sale.
The pledgee, even if its claim has not yet been admitted, may request the supervisory judge, before the sale, that
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COMMERCIAL CODE the pledged asset be assigned to it by order of court (attribution judiciaire). If the claim is rejected, in whole or in part, the asset or its value will be returned, except for the admitted amount of the claim.
In the event of sale by the liquidator, the right of retention will automatically be transferred to the proceeds. Any registration to safeguard the pledge shall be removed upon the request of the liquidator.
CHAPTER III Settlement of liabilities Articles L643-1 to
L643-8
SECTION I Paying creditors Articles L643-1 to
L643-8
Article L643-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 118, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The order commencing or pronouncing the liquidation proceedings shall render all unmatured claims due. However, where the court allows business operations to continue because a total or partial assignment of the business as a going concern is considered, claims not yet fallen due will become due on the date of issuance of the order of assignment.
Where these claims are expressed in a currency other than that of the country where the liquidation is pronounced, they will be converted into the currency of this country at the exchange rate on the date of issuance of the order.
Article L643-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 119, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Creditors holding a special lien, a pledge or a mortgage and the Public Treasury with respect to its secured claims may, once they have submitted their claims even if these have not yet been admitted, exercise their right to bring separate action if the liquidator has not begun to sell the encumbered property within three months from the date of issuance of the order commencing or pronouncing the liquidation proceedings.
Where the court has fixed a time limit in compliance with Article L642-2, these creditors may exercise their right to bring separate action at the end of this time limit, if no offer including this asset has been presented.
In the event of sale of immovable property, the provisions of the first, third and fifth paragraphs of Article L642-18 will apply. Where an action for seizure of immovable property has been initiated prior to the date of issuance of the commencement order, the creditor holding a mortgage will be relieved, upon resumption of separate actions, from any acts and formalities carried out before the issuance of the order.
Article L643-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 120, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge may, of his own motion or on motion of the liquidator or of a creditor, order the payment, on a provisional basis, of a portion of a claim that has definitively been admitted.
The interim payment may be subject to the presentation by its beneficiary of a guarantee provided by a credit institution.
Where the request for an interim payment relates to a claim secured by a lien held by tax services, social security bodies, institutions managing the unemployment insurance system provided for in Articles L 351-3 and following of the Labour Code and institutions governed by Book IX of the Social Security Code, the guarantee provided for in the second paragraph will not be required.
Article L643-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If one or more distributions of sums occur prior to the distribution of the proceeds upon sale of immovable property, admitted lien creditors and mortgagees may participate in the distribution proportionately to their total claims.
After the sale of immovable property and the final settlement of the ranking among the mortgagees and secured creditors, those who rank well enough to be paid out of the proceeds of immovable property for the whole of their claim shall receive the amount fixed according to their rank only after deducting the sums they have already received.
The sums deducted shall be distributed to unsecured creditors.
Article L643-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The rights of mortgagees that rank partially in the distribution of the proceeds of immovable property shall be paid according to the amount owed to them after the settlement of the ranking of mortgages. The excess amount that they have received in previous distributions with respect to the dividend calculated after the settlement of the ranking shall be retained from the amount fixed within the framework of the order of priority of mortgages and shall be included in those sums to be distributed to unsecured creditors.
Article L643-6
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COMMERCIAL CODE (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Lien creditors or mortgagees, who are not fully paid out of the proceeds of immovable property, shall stand alongside unsecured creditors for the remaining amounts due to them.
Article L643-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, II Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Articles L643-4 to L643-6 shall apply to creditors secured by a special security over a movable property, subject to the third paragraph of Article L642-25.
Article L643-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The proceeds of the assets will be divided among all creditors in proportion to their admitted claims once have been deducted the court fees and expenses incurred in the course of the liquidation proceedings, the subsidies granted to the head of the business or managers and their families and sums paid to lien creditors.
The portion corresponding to claims with respect to which the court has not yet given a final admission order and, in particular, the remuneration of managers for as long as no ruling made on their case, will be kept in reserve.
SECTION II Closing of judicial liquidation operations
CHAPTER IV Simplified liquidation procedure Articles L644-1 to
L644-6
Article L644-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 125, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The simplified liquidation procedure shall be governed by the rules applicable to normal liquidation proceedings, subject to the provisions of this chapter.
Article L644-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 124, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
By way of exception to the provisions of Article L642-19, where the court decides to apply this chapter, it will determine those assets of the debtor that may be sold in a private sale. The liquidator shall implement this within three months following the date of issuance of the order.
At the end of this period, the remaining assets will be sold at public auction.
Article L644-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 125, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
By way of exception to the provisions of Article L641-4, the verification shall be limited to those claims of which the ranking could enable payment in the distribution and to claims resulting from a contract of employment.
Article L644-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 125, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
After having carried out the verification and admission of claims and sold the assets, the liquidator shall draw up a draft distribution plan, which he files with the court clerk's office for consultation by any interested party and for publication.
Any interested party may dispute the draft distribution plan before the supervisory judge within a time limit to be determined by a Conseil d'Etat decree.
The supervisory judge shall rule upon the disputes through a ruling, which shall be published and notified to interested creditors. An appeal may be filed within a time limit to be determined by a Conseil d'Etat decree.
The liquidator shall carry out the distribution according to the draft or the order given.
Article L644-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 125, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
One year at the latest after the commencement of the procedure, the court shall pronounce the closing of the liquidation proceedings after having heard or duly summoned the debtor.
It may decide to continue the proceedings for a period not exceeding three months by way of a specially reasoned ruling.
Article L644-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 125, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
At any time, the court may decide, by way of a specially reasoned ruling, to cease applying the exceptions of this chapter.
TITLE V Liabilities and sanctions Articles L651-1 to
L650-1
Article L643-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 121, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the order commencing or pronouncing the liquidation proceedings, the court shall determine the time limit at the end of which the closing of the case will be examined. If the closing cannot be pronounced at the end of this time limit, the court may extend the term by a reasoned ruling.
Where there are no due liabilities anymore, or where the liquidator has sufficient sums at his disposal to satisfy the creditors or where the pursuit of the liquidation operations has become impossible due to the excess of liabilities over assets, the court will order the closing of the judicial liquidation, after having heard or duly summoned the debtor.
The liquidator, the debtor or the Public prosecutor may apply to the court at any time. The court may initiate a case of its own motion. At the expiry of a two-year period from the date of issuance of the order commencing the liquidation proceedings, any creditor may also file a case with the court seeking the closing of the proceedings.
In the event of an assignment plan, the court will pronounce the closing of the case only after having established that the assignee has performed his obligations.
Article L643-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator shall submit his accounts. He will answer for documents given to him in the course of the proceedings for five years beginning with the submission of his accounts.
Article L643-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 122, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I -The final decree closing the judicial liquidation due to an excess of liabilities over assets shall not allow creditors to recover their separate right of action against the debtor except where their claim results from:
1°. a criminal conviction of the debtor; 2°. rights attached to the person of the creditor. II -However, a guarantor or a co-obligor who has made a payment in place of the debtor may sue the latter. III - Creditors will recover their individual rights of action in the following cases: 1°. the personal disqualification of the debtor has been ordered; 2°. the debtor has been found guilty of criminal bankruptcy; 3°. the debtor or a legal entity of which he was a manager has been submitted to previous liquidation proceedings
closed due to an excess of liabilities over assets less than five years before the commencement of the one to which he is currently submitted;
4°. the proceedings have been commenced as territorial proceedings within the meaning of Article 3 (2) of Council Regulation (EC) No. 1346/2000 relative to insolvency proceedings.
IV -In addition, in the event of fraud affecting one or more creditors, the court shall allow the resumption of individual right of action by creditors against the debtor. The court shall decide at the time of the closing of the proceedings after having heard or duly summoned the debtor, the liquidator and the controllers. It may take its decision after the closing of the proceedings, on motion of any interested party, under the same conditions.
V -Creditors who recover their individual rights of action under this article may, if their claims have been admitted, obtain an enforcement order by a ruling of the president of the court or, if the claims have not been verified, ask for enforcement under the terms of general law.
Article L643-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 123, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The closing of the liquidation proceedings shall stay the effects of the prohibition to issue cheques, imposed on the debtor in compliance with Article L65-3 of the decree of 30 October 1935 unifying the law governing cheques and relating to payment cards, imposed on rejection of a cheque issued prior to the issuance of the commencement order.
If the creditors recover their individual rights of action, this prohibition will resume its effect beginning with the issuance of the enforcement order provided for in Article L643-11.
Article L643-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 124, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If the closing of the liquidation proceedings is pronounced due to an excess of liabilities over assets and it appears that assets have not been sold or that litigation in the interest of creditors has not been initiated during the proceedings,
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COMMERCIAL CODE the latter may be resumed.
The liquidator previously appointed, the Public prosecutor or any interested creditor may apply to the court. The court may also initiate a case of its own motion. If the action is filed by a creditor, he must show that he has deposited the funds necessary for the procedural expenses with the court clerk's office. This amount deposited for legal fees will be reimbursed as a priority claim out of sums recovered following the resumption of the proceedings.
If the assets of the debtor are composed of sum of money, the proceedings provided for in Chapter IV of this Title shall automatically apply.
Article L650-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 126, Article 163, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Creditors may not be held liable for harm in relation to credits granted, except in cases of fraud, indisputable interference in the management of the debtor or if the guarantees obtained for the loans or credits are disproportionate.
If the liability of a creditor is established, the guarantees obtained for the loans will be declared void.
CHAPTER I Liability for excess of liabilities over assets Articles L651-1 to
L651-4
Article L651-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 127, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of this chapter and those of Chapter II of this Title shall apply to the managers of private law entities submitted to insolvency proceedings as well as to individuals who serve as permanent representatives of managing legal entities.
N.B. It has not been possible to make the amendments provided in Article 163 of the Act No 2005-845 of 26 July 2005, the expression "of reorganization" not being present in Article L651-1.
Article L651-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 128, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the rescission of a safeguard or of a reorganization plan or the liquidation of a legal entity reveals an excess of liabilities over assets, the court may, in instances where management fault has contributed to the excess of liabilities over assets, decide that the debts of the legal entity will be borne, in whole or in part, by all or some of the de jure or de facto managers, who have contributed to the management fault. If there are several managers, the court may, by way of a reasoned ruling, declare them jointly and severally liable.
The right of action shall be barred after three years from the date of issuance of the order pronouncing the liquidation proceedings or the rescission of the plan.
Sums paid by the managers in compliance with the first paragraph shall form part of the debtor's assets. These sums shall be distributed to all creditors on a pro rata basis.
Article L651-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 129, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court nominee, the liquidator or the Public prosecutor may apply to the court in the case provided for in Article L651-2.
Where the court nominee entitled to bring them has not applied for the actions provided for in that article and has not answered to default notice delivered to him within the time limit and under conditions to be determined by a Conseil d'Etat decree, a majority of creditors appointed as controllers may also apply to the court in the collective interest of creditors.
The supervisory judge may not sit in judgement nor participate in consideration of the case provided for in the first paragraph.
Legal fees that the managers are ordered to pay shall be paid in priority out of the sums that are paid to make up for liabilities.
Article L651-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 130, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
For applying the provisions of Article L651-2, of his own motion or on motion of one of the persons referred to under Article L651-3, the president of the court may charge the supervisory judge or, failing this, one of the members of the court, to obtain, notwithstanding any statutory rule to the contrary, any document or information on the estate of the managers and the individuals who serve as permanent representatives of the managing legal entities provided for in Article L651-1, from the public authorities and bodies, provident institutions, social security bodies and credit institutions.
The president of the court may, under the same conditions, order any useful protective measure in relation to the assets of the managers or their representatives referred to under the preceding paragraph.
The provisions of this article shall also apply to members of or partners in the legal entity submitted to the safeguard, reorganization or liquidation proceedings, where they are jointly and severally liable for its debts.
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COMMERCIAL CODE CHAPTER II Liability for the debts of the company Articles L652-1 to
L652-5
Article L652-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 131, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the course of the liquidation proceedings, the court may decide that one of the de jure or de facto managers of the legal entity shall bear all or part of the latter's debts if it is proven against this manager that one of the faults referred below has contributed to the cessation of payments :
1°. selling property belonging to the legal entity as his own; 2°. carrying out company transactions to further his personal interests, using the legal entity as a cover for his
schemes; 3°. using property or credit of the legal entity, against that entity's interests, for personal purposes or in favour of
another legal entity or business in which he had a direct or indirect interest; 4°. abusively, for his personal interest, an unprofitable business activity that would necessarily lead to the legal
entity's insolvency; 5°. embezzling or concealing all or part of the assets of the legal entity or fraudulently increasing its debts. In the cases provided for in this article, the provisions of Article L651-2 shall not apply.
Article L652-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 131, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the presence of several liable managers, the court will take into account the fault of each manager in order to determine the portion of the debts of the company to be borne by each. It may declare them jointly and severally liable by a reasoned ruling.
Article L652-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 131, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Sums recovered shall be used to pay off creditors according to the order of their secured claims.
Article L652-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 131, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The right of action shall be barred after three years from the issuance of the order pronouncing the liquidation proceedings.
Article L652-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 131, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Articles L651-3 and L651-4 shall apply to the right of action provided for in this chapter.
CHAPTER III Personal disqualification and other prohibitions Articles L653-1 to
L653-11
Article L653-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 132, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Where reorganization or liquidation proceedings are commenced, the provisions of this chapter shall apply to: 1°. natural persons who are traders, farmers, persons registered with the craftsmen's register, and to any other
natural person running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected;
2°. natural persons who are de facto or de jure managers of legal entities; 3°. natural persons, who serve as permanent representatives of legal entities, managers of legal entities defined
under (2). These same provisions shall not apply to natural persons or managers of a legal entity running an independent
professional activity and, for that reason, subject to disciplinary rules. II -The rights of action provided for in this chapter shall be barred after three years from the issuance of the order
pronouncing the commencement of the proceedings provided for under (I).
Article L653-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 133, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Personal disqualification shall entail a prohibition from running, managing, administering or controlling, directly or indirectly, any commercial or craftsman's business, any agricultural activity or any business operating any other independent activity and any legal entity.
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COMMERCIAL CODE Article L653-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 134, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court may pronounce the personal disqualification of any person referred to under Article L653-1 (I) (1), subject to the exceptions provided for in the last paragraph of the same article, against whom any of the following facts has been proved:
1°. abusively operating an unprofitable business activity that would necessarily lead to cessation of payments; 2°. [abrogated]; 3°. embezzling or concealing all or part of his assets or fraudulently increasing his liabilities.
Article L653-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 135, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court may pronounce the personal disqualification of any de jure or de facto manager of a legal entity who has committed one of the faults referred to under Article L652-1.
Article L653-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 136, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A court may pronounce the personal disqualification of any person provided for in Article L653-1 against whom any of the following facts has been proved:
1°. running a commercial, craftsman's or agricultural activity or holding a management or administrative position in a legal entity in violation of a prohibition provided for by law;
2°. purchasing goods for services for resale at below market prices or using ruinous means to procure funds, with the intention of avoiding or delaying the commencement of reorganization or liquidation proceedings.
3°. entering into, on behalf of another, without consideration, commitments deemed to be disproportionate when they were entered into, given the situation of the business or the legal entity;
4°. paying or causing someone else to pay a creditor, after cessation of payments and while being aware of this, to the prejudice of other creditors;
5°. hampering the good progress of the insolvency proceedings by voluntarily abstaining from co-operating with the persons (authorities) in charge of the proceedings;
6°. destroying accounting documents, not keeping accounts where applicable texts made this an obligation or keeping accounts that are fictitious, manifestly incomplete or irregular with respect to the applicable provisions.
Article L653-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court may pronounce the personal disqualification of the manager of a legal entity who has not paid the latter's debts put at his expense.
Article L653-7 The court nominee, the liquidator or the Public prosecutor may apply to the court in the cases provided for in
Articles L653-3 to L653-6 and L653-8. Where the court nominee entitled to bring them has not applied for the actions provided for in these articles and has
not answered to default notice delivered to him within the time limit and under conditions to be determined by a Conseil d'Etat decree, a majority of creditors appointed as controllers may also apply to the court in the collective interest of creditors at any time during the proceedings.
The supervisory judge may not sit in judgement nor participate in consideration of the same cases provided for in the first paragraph.
Article L653-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 138, Article 165, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the cases provided for under Articles L653-3 to L653-6, a court may pronounce, instead of personal disqualification, a prohibition from managing, running, administrating or controlling, directly or indirectly, any commercial or craftsman's business, any agricultural activity or any legal entity or one or more of these.
The prohibition provided for in the first paragraph may also be pronounced against any person provided for in Article L653-1 who, in bad faith, has not given to the court nominee, the administrator or the liquidator, information he is bound to disclose to them in compliance with Article L622-6 within the month following the date of issuance of the commencement order.
The same prohibition may also be pronounced against any person provided for in Article L653-1 who has omitted to file, within the time limit of forty-five days, a statement of cessation of payments, without having otherwise filed for the commencement of conciliation proceedings.
Article L653-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The voting rights of managers under personal disqualification or under a prohibition provided for in Article L653-8
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COMMERCIAL CODE shall be exercised in the meetings of legal entities submitted to safeguard, reorganization or liquidation proceedings by a court nominee appointed by the court for this purpose on motion of the administrator, the liquidator or the plan performance supervisor.
The court may order these managers or some of them to sell shares or share capital in the capital of legal entities or order a forced sale through a court nominee, if necessary after an expert's report. The proceeds of the sale shall be used to pay the debts of the entity borne by the managers.
Article L653-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 139, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court that pronounces the personal disqualification may pronounce the ineligibility to occupy a public office. The ineligibility shall last the period of the personal disqualification, without exceeding a five-year period. Where the decision becomes definitive, the Public prosecutor will inform the interested party of his ineligibility, which shall take effect on the date of notice.
Article L653-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 140, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where a court pronounces the personal disqualification or the prohibition provided for in Article L653-8, it will fix the duration for the prohibition, which may not exceed fifteen years. It may order the provisional enforcement of its decision. The loss of rights, prohibitions and ineligibility to occupy a public office shall automatically cease at the end of the fixed term, without any need for a court decision.
The final decree closing the proceedings on the grounds of extinguishment of liabilities shall, even after enforcement of the liability for the debts of the entity imposed on him by court, return all rights to the head of the business or managers of the legal entity. It shall exempt or relieve them from any loss of rights, prohibition and ineligibility to occupy a public office.
The head of the business or manager concerned may request the court to relieve him from, in whole or in part, any loss of rights, prohibition and ineligibility to occupy a public office if he has made a sufficient contribution to the payment of liabilities.
Where he is subject to the prohibition provided for in Article L653-8, he may be relieved of it if he presents guarantees showing his capacity to manage or control one or more businesses or legal entities provided for in that article.
Where a complete relief from any loss of rights, prohibition and ineligibility is pronounced, the court's decision will entail rehabilitation.
CHAPTER IV Criminal bankruptcy and other offences Articles L654-1 to
L654-20
SECTION I Criminal Bankruptcy Articles L654-1 to
L654-7
Article L654-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 141, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of this section shall apply to: 1°. traders, farmers, natural persons registered with the craftsmen's register and natural persons running an
independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected;
2°. persons who, directly or indirectly, de jure or de facto, have managed or liquidated a private law entity; 3°. natural persons, who serve as permanent representatives of the managing legal entities referred to under (2)
above.
Article L654-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 142, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where reorganization or liquidation proceedings are commenced, any person referred to under Article L654-1 shall be guilty of criminal bankruptcy where any of the following offences is proved against them:
1°. purchasing for resale at below market prices or using ruinous means to obtain funds with the intention of avoiding or delaying the commencement of the reorganization proceedings;
2°. embezzling or concealing all or part of the debtor's assets; 3°. fraudulently increasing the debtor's liabilities; 4°. keeping fictitious accounts or destroying accounting documents belonging to the business or legal entity or
failing to keep any accounts where the applicable texts impose an obligation so to do; 5°. keeping accounts that are manifestly incomplete or irregular with regard to legal provisions.
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COMMERCIAL CODE Article L654-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 142 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Criminal bankruptcy shall be punishable by five years' imprisonment and a fine of €75,000. The same penalties shall be incurred by the accomplices of the criminal bankrupt, even if they are not traders, farmers or craftsmen and do not manage a private law entity, directly or indirectly, de jure or de facto.
Article L654-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the culprit of or accomplice to criminal bankruptcy is a manager of a business that provides investment services, the penalties will be increased to seven years' imprisonment and a fine of €100, 000.
Article L654-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 142 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Natural persons found guilty of those offences provided for in Articles L654-3 and L654-4 shall also incur the following additional penalties:
1°. prohibition from exercising civic, civil and family rights, according to the terms and conditions set by Article 131-26 of the Penal Code;
2°. prohibition, for a maximum period of five years, from occupying a public office, from running the professional or corporate activity in the exercise of which, or while being exercised, the offence was committed unless a Civil or High court has already imposed such a sanction by a decision that has become final;
3°. ineligibility for public procurement contracts for a maximum period of five years; 4°. prohibition, for a maximum period of five years, from issuing cheques other than those allowing for the
withdrawal of funds by the drawer from the issuing bank or from issuing certified cheques; 5°. display or publication of the court order under the conditions provided for in Article 131-35 of the Penal Code.
Article L654-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 143, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The Criminal court that finds one of the persons referred to under Article L654-1 guilty of criminal bankruptcy may, in addition, pronounce the latter's personal disqualification or the prohibition provided for in Article L653-8 unless a Civil or High court has already imposed such a sanction by a decision that has become finaL
Article L654-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Legal entities may be declared guilty, according to the conditions provided for in Article 121-2 of the Penal Code, for those offences provided for in Articles L654-3 and L654-4.
II - The penalties to be incurred by legal entities shall be: 1°. a fine, under the terms and conditions provided for in Article 131-38 of the Penal Code; 2°. the penalties provided for in Article 131-39 of the Penal Code. III - The prohibition provided for in Article 131-39 (2) of the Penal Code shall relate to the activity in the exercise of
which or while being exercised the offence was committed.
SECTION II Other offences Articles L654-8 to
L654-15
Article L654-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 144, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Two years' imprisonment and a fine of €30, 000 shall apply to: 1°. any person referred to under Article L654-1 who, during the observation period, grants a mortgage or a pledge
or carries out an act of disposition without the permission provided for in the second paragraph of Article L622-7 or who pays, in whole or in part, a debt in breach of the prohibition referred to under the first paragraph of that article;
2°. any person referred to under Article L654-1 who makes a payment in breach of the terms and conditions for the payment of liabilities provided for in the safeguard plan or reorganization plan, who carries out an act of disposition without the permission provided for in the second paragraph of Article L626-14 or who sells an asset excluded from sale under the terms of an assignment plan, in compliance with Article L642-10.
3°. any person who, during the observation period or while the safeguard plan or reorganization plan is being implemented, while being aware of the debtor's situation, concludes with the latter one of the acts referred to at (1°) and (2°) or receives from him an irregular payment.
Article L654-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 145, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
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COMMERCIAL CODE The penalties provided for in Articles L654-3 to L654-5 shall apply to any person who: 1°. in the interest of the persons referred to under Article L654-1, removes, illegally holds or conceals all or part of
the movable and immovable property belonging to these persons, without prejudice to the application of Article 121-7 of the Penal Code;
2°. fraudulently submits alleged claims in safeguard, reorganization or liquidation proceedings, either in his name or by using an agent;
3°. while running a commercial, craftsman's or agricultural activity or any other independent activity, under someone else's name or using a false name, is convicted of one of the offences provided for in Article L654-14.
Article L654-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 146 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A spouse, descendant, ancestor or collateral relatives or affines of the persons referred to under Article L654-1 who embezzles, conceals or illegally holds assets included in the insolvency estate of a debtor subject to safeguard or reorganization proceedings, shall incur the penalties provided for in Article 314-1 of the Penal Code.
Article L654-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 146 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In those cases provided for in the preceding articles, the court hearing the case shall rule upon, even where the offender is acquitted:
1°. of its own motion, the return into the debtor's assets of all the property, rights and claims that have been fraudulently removed;
2°. the compensation which would be claimed.
Article L654-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 146 III, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The penalties provided for under Article 314-2 of the Penal Code shall apply to any administrator, court nominee, liquidator or plan performance supervisor who:
1°. voluntarily harms the creditors' or the debtor's interests by either using the payments received while carrying out his duties for his own profit or by causing others to grant him benefits that he is aware that they are not due;
2°. makes use, in his own interest, of his powers for a purpose he knows to be contrary to the creditors' or the debtor's interests.
II - The same penalties shall apply to any administrator, court nominee, liquidator, plan performance supervisor or any other person, except the employees' representatives, who has taken part in the proceedings in any capacity whatsoever, who, directly or indirectly, acquires the debtor's assets for his own account or uses them for his own profit. The court hearing the case shall declare void the acquisition and rule upon the compensation that would be claimed.
Article L654-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 163, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A creditor, who, after the issuance of the order commencing the safeguard, reorganization or liquidation proceedings, enters into an agreement giving rise to a special advantage to be borne by the debtor, shall be punishable by the penalties provided for in Article 314-1 of the Penal Code.
The court hearing the case shall declare void the agreement.
Article L654-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, II Article 163, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The penalties provided for in Articles L654-3 to L654-5 shall apply to those persons referred to under Article L654-1 (2°) and (3°) who, in bad faith and in order to remove all or part of their assets from being subject to actions initiated by the legal entity to which the commencement order of the safeguard, reorganization or liquidation proceedings applies, or from those actions initiated by the partners/shareholders or creditors of the legal entity, who embezzle or conceal, or attempt to embezzle or conceal, all or part of their assets, or who fraudulently cause others to regard them as debtors for sums of money that they do not owe.
Article L654-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, II Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any one who runs a professional activity or holds a position in violation of any prohibition, loss of rights or incapacity provided for in Articles L653-2 and L653-8, shall be punished by two years' imprisonment and a fine of €375 000.
SECTION III Procedural Rules Articles L654-16 to
L654-20
Article L654-16
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COMMERCIAL CODE (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 146 IV, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
For the application of the provisions of Sections I and II of this chapter, the limitation period applicable to penal actions shall run from the date of issuance of the commencement order of safeguard, reorganization or liquidation proceedings where the incriminating facts have arisen before this date.
Article L654-17 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 146 V, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The case shall be filed with the Criminal court either by the action of the Public prosecutor or by an action for damages as a civil party initiated by the administrator, the court nominee, the employees' representative, the plan performance supervisor, the liquidator or a majority of creditors appointed as controllers acting in the collective interest of the creditors where the court nominee entitled to bring action has not done so after notice delivered to him within a time limit and under the conditions to be determined by a Conseil d'Etat decree.
Article L654-18 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The Public prosecutor may require the administrator or the liquidator to hand over all contracts and documents held by them.
Article L654-19 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The legal fees of the cases filed by the administrator, the court nominee, the employees' representative, the plan performance supervisor or the liquidator shall be borne by the Public Treasury in the event of acquittaL
In the event of conviction, the Public Treasury may bring an action for repayment against the debtor only after the closing of the liquidation proceedings.
Article L654-20 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Rulings and sentences of a first degree court and court of appeal judgments of conviction pronounced in compliance with this chapter shall be published at the expense of the convicted person.
TITLE VI General procedural provisions Articles L661-1 to
L663-4
CHAPTER I Means of redress Articles L661-1 to
L661-11
Article L661-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 147, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Appeal or appeal in cassation may be filed against: 1° decisions ruling upon the commencement of safeguard, reorganization and liquidation proceedings by the debtor,
the petitioning creditor as well as the Public prosecutor even if he did not act as the principal party; 2° - decisions ruling upon the liquidation proceedings, confirming or rejecting the safeguard plan or the
reorganization plan by the debtor, the administrator, the court nominee, the works council or, in the absence of a works council, the employee delegates as well as by the Public prosecutor even if he did not act as the principal party;
3- decisions modifying the safeguard plan or the reorganization plan by the debtor, the plan performance supervisor, the works council or, in the absence of a works council, by the employee delegates as well as the Public Persecutor even if he did not act as the principal party.
II - The appeal by the Public prosecutor has a suspensive effect, except with respect to decisions ruling upon the commencement of safeguard or reorganization proceedings.
III - In the absence of a works council or of an employee delegate, the employees' representative shall exercise the means of redress given to these institutions by this article.
Article L661-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 148 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The decisions ruling upon the commencement of proceedings shall be subject to third-party proceedings. The judgement ruling upon third-party proceedings shall be subject to appeal and appeal in cassation by the third party.
Article L661-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 148 II, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
The decisions confirming or modifying the safeguard plan or the reorganization plan shall be subject to third-party proceedings.
The judgement ruling upon third-party proceedings shall be subject to appeal and appeal in cassation by the third party.
Article L661-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 149, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The orders relating to the appointment or the replacement of the supervisory judge shall not be subject to any redress.
Article L661-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 150, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Only the Public prosecutor may bring an appeal and appeal in cassation against judgements ruling upon petitions for redress of orders of the supervisory judge given in compliance with Articles L642-18 and L642-19.
Article L661-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 151, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Only the Public prosecutor may appeal even if he did not act as the principal party against: 1°- orders relating to the appointment or the replacement of the administrator, the court nominee, the liquidator, the
controllers, or the expert(s); 2° - orders upon the duration of the observation period, the continuation or cessation of activity. II - Only the debtor, the Public prosecutor even if he did not act as the principal party, the assignee or the
contracting party referred to under Article L642-7 may appeal against orders which confirm or reject the assignment plan of the business. The assignee may appeal against the order confirming the assignment plan only if it imposes obligations on him other than the commitments that he has accepted during the preparation of the plan. The contracting party referred to under Article L642-7 may appeal only against the section of the order which relates to the assignment of the contract.
III - Only the Public prosecutor even if he did not act as the principal party or the assignee within the limits referred to under the preceding paragraph, may appeal against orders modifying the assignment plan.
IV - The appeal by the Public prosecutor shall have a suspensive effect.
Article L661-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Third-party proceedings or appeal to the court of cassation may not be initiated against court of appeal judgements delivered in compliance with Article L661-6 (I).
Only the Public prosecutor may file an appeal in cassation against court of appeal judgements delivered in compliance with Article L661-6 (II) and (III).
Article L661-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 163, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the Public prosecutor must be kept informed about safeguard, reorganization or liquidation proceedings and the grounds for the corporate managers' liability, the appeal in cassation for absence of information shall be available to him only.
Article L661-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 152, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of invalidation of the ruling that gives rise to the transfer of the case to the first-degree court, the court of appeal may begin a new observation period. This period shall not exceed three months.
In the event of an appeal against the order ruling on judicial liquidation during the observation period or confirming or rejecting the safeguard or reorganization plan and when the provisional enforcement is halted, the observation period will be prolonged until the court of appeal judgement.
Article L661-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
For the application of this Title, the members of the works council or the employee delegates shall appoint the person entitled to exercise the means of redress on their behalf from amongst their number.
Article L661-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 153, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The decisions delivered in compliance with Chapters I, II and III of Title V shall be subject to appeal by the Public
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COMMERCIAL CODE prosecutor, even if he did not act as the principal party.
The appeal of the Public prosecutor shall have a suspensive effect.
CHAPTER II Other provisions Articles L662-1 to
L662-6
Article L662-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
No opposition or proceedings for enforcement of any nature concerning the sums paid into the Caisse des dépôts et consignations shall be admissible.
Article L662-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 154, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
When the interests involved justify it, the court of appeal may decide to refer the case to another court of comparable degree that has jurisdiction within the territorial jurisdiction of the court of appeal, to hear safeguard, reorganization or liquidation proceedings, under the conditions to be fixed by a decree. The court of Cassation, to which the case is referred in the same manner, may refer the case to a court within the territorial jurisdiction of another court of appeaL
Article L662-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 156, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Hearings before the Tribunal de commerce (High court) and the Tribunal de grande instance (High court) shall take place in the judge's chambers. However, the hearings will ipso jure be public after the commencement of the proceedings if the debtor, the court nominee, the administrator, the liquidator, the employees' representative or the Public prosecutor requests it. The president of the Court may decide that they will take place or will continue in the judge's chambers if disturbances occur that undermine the peaceful progress of the hearing.
Notwithstanding the provisions of the first paragraph, the hearings relating to the steps taken in compliance with Chapters I, II and III of Title V shall take place in public. The president of the court may decide that they will take place in the judge's chambers if the debtor requests it before the commencement of the hearing.
Article L662-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 157, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any dismissal of the employees' representative referred to under Articles L621-4 and L641-1, planned by the administrator, the employer or the liquidator, as the case may be, shall obligatorily be presented to the works council, which shall give its opinion on the planned dismissaL
The dismissal may occur only after the permission of the Inspector of Labour who supervises the establishment. When there is no works council in the establishment, the case will be referred directly to the Inspector of Labour.
However, in the event of serious misconduct, the administrator, the employer or the liquidator, as the case may be, may pronounce the immediate suspension of the interested party while awaiting the final decision. If the dismissal is refused, the suspension will be cancelled and its effects will automatically be removed.
The protection instituted in favour of the employees' representative for the exercise of his duties defined by Article L625-2 will cease when all sums paid to the court nominee by the institutions referred to under Article L143-11-4 of the Labour Code, in compliance with the tenth paragraph of Article L143-11-7 of the aforesaid code, are transferred by the court nominee to the employees.
Where the employees' representative discharges his duties in the stead of a works council or, as the case may be, of employee delegates, the protection will cease at the end of the last hearing or consultation planned by the reorganization proceedings.
Article L662-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The funds held by the "syndics" (administrator/liquidator) in a settlement or liquidation of assets governed by Act No 67-563 of 13 July 1967 on settlement or liquidation of assets proceedings, personal disqualification and criminal bankruptcies shall immediately be placed on a deposit account with the Caisse des dépôts et consignations. If the deposits are delayed, the "syndic" (administrator) must pay interest on the unpaid sums at the legal rate of interest plus five percent.
Article L662-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 159, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The clerk's office of the Tribunal de commerce (Commercial court) and that of the Tribunal de grande instance (High court) shall draw up at the end of every six-month period the list of court-appointed administrators and court nominees appointed by the court and the other people to whom a commission related to the proceedings governed by this Book is
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COMMERCIAL CODE given by the aforementioned court, for this period. They shall state, with respect to each interested party, all the cases allotted to him and information relating to the debtors in question provided for by a Conseil d'Etat decree. They shall state in an annexe the amount of its sales turnover, during the previous six-month period, resulting from the exercise of the commissions entrusted to him by the court.
This information shall be disclosed to the Keeper of the Seals, Minister of Justice, to the Public prosecutor of the territorial jurisdiction concerned and to the authorities responsible for the control and the inspection of the administrator and the court nominees, according to the terms and conditions determined by a Conseil d'Etat decree.
CHAPTER III Legal fees of proceedings Articles L663-1 to
L663-4
Article L663-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 158 I, Article 163 Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Where the debtor's available funds are not immediately sufficient, the Public Treasury, upon a reasoned ruling of the supervisory judge or that of the president of the Court, will advance funds to pay fees, taxes, royalties or emoluments due to by the court clerk, fixed disbursements and emoluments due to the solicitors before appeal courts (avoués) and remunerations of attorney-at-law insofar as they are regulated, expenses incurred for serving notice and publication formalities and payment of the experts appointed by the court, after the agreement of the Public prosecutor, related to:
1. the decisions pronounced in the course of safeguard, reorganization or liquidation proceedings delivered in the collective interest of the creditors or that of the debtor;
2. the exercise of actions intended to preserve or reconstitute the debtor's estate or exercised in the collective interest of the creditors; and
3. the exercise of actions provided for in Articles L653-3 to L653-6. The agreement of the Public prosecutor shall not be necessary for the advance payment of the remuneration of the
public officials appointed by the court in compliance with Article L621-4, to carry out the inventory provided for under Article L622-6 and the valuation provided for under Article L641-4.
II - The Public Treasury shall also, upon a reasoned order of the president of the Court, advance funds to pay the same expenses connected with an action for rescission and modification of the plan.
III - These provisions shall apply to appeals and appeals in cassation procedures against all the decisions referred to above.
IV - For the refunding of its advances, the Public Treasury shall be secured by the lien applicable to legal fees.
Article L663-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 158 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A Conseil d'Etat decree shall specify the conditions of remuneration of administrators, court nominees, plan performance supervisors and liquidators. This remuneration shall preclude any other remuneration or reimbursement of legal fees for the same proceedings or for subsequent duties that would be a continuation of the same proceedings.
Article L663-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 158 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If the proceeds of the sale of the business's assets do not allow the liquidator or the court nominee to obtain, as remuneration due to him pursuant to the provisions of Article L663-2, a sum at least equal to a threshold fixed by a Conseil d'Etat decree, the case will be declared impecunious by court order, on proposal of the supervisory judge and based on the supporting documents presented by the liquidator or the court nominee.
The same decision shall determine the sum corresponding to the difference between the remuneration actually received by the liquidator or the court nominee and the threshold specified in the first paragraph.
The sum paid to the court nominee or to the liquidator shall be deducted from a portion of the interest paid by the Caisse des dépôts et consignations on the funds deposited pursuant to Articles L622-18, L626-25 and L641-8. This portion shall be specially assigned to a fund managed by the Caisse des dépôts et consignations under the control of an administration committee. The conditions for application of this paragraph shall be fixed by a Conseil d'Etat decree.
Article L663-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge shall have his travelling expenses reimbursed from the debtor's assets.
TITLE VII Provisions specific to the departments of Moselle, Bas-Rhin and Haut-Rhin Articles L670-1 to
L670-8
Article L670-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 160 I, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
The provisions of this Title are applicable to natural persons, domiciled in the départements of Moselle, Bas-Rhin and Haut-Rhin, and to their estate on death, who are neither traders, nor persons registered with the craftsmen's register, nor farmers, nor persons running any other independent profession, including independent professional persons with a statutory or regulated status, if they are in good faith and in a state of evident and known insolvency. The provisions of Titles II to VI of this Book shall apply insofar as they are not contrary to the provisions of this Title.
Prior to issuing the order on the commencement of proceedings, the court shall appoint, if it considers it useful, a qualified person selected from the list of the approved organizations, to collect all information on the debtor's economic and employment situation.
The losses of rights and prohibitions resulting from personal disqualification shall not be applicable to these persons.
The conditions for the application of this article shall be specified by a decree.
Article L670-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 160 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge may order exemption from carrying out an inventory of the assets of the persons referred to under Article L670-1.
Article L670-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 160 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of liquidation proceedings, the verification of claims shall not be carried out if it appears that the proceeds of the sale of the assets will entirely be absorbed by the legal fees, unless otherwise decided by the supervisory judge.
Article L670-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
On issuance of the final decree closing operations of the liquidation proceedings, the Court may, exceptionally, require the debtor to contribute to settlement of the liabilities in the proportions that it shall determine. The court shall appoint in this order a statutory auditor to supervise the performance of the contribution.
To fix the proportions of the contribution, the court will take into account the debtor's means, to be determined by taking into consideration the debtor's irreducible revenue and obligations. The court shall reduce the amount of the contribution in the event of a decrease of the revenue or increase of the obligations of the contributor.
His payment must be made within a time limit of two years. The conditions for the application of this Article shall be specified by a decree.
Article L670-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 160 IV, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In addition to the cases provided for in Article L643-11, the creditors will also recover their right to initiate individual proceedings against the debtor where the court ascertains, of its own motion or on motion by the supervisor, the non-performance of the contribution provided for in Article L670-4.
Article L670-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The order pronouncing the liquidation proceedings shall be recorded for a period of eight years in the records provided for in Article L333-4 of the Consumer Code and shall no longer be mentioned in the interested party's criminal record.
Article L670-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The tax base and assessment of the tax on legal fees for reorganization or liquidation proceedings shall temporarily be settled in accordance with the provisions of local laws.
Article L670-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Article 1 of Act No 75-1256 of 27 December 1975 on certain sales of immovable property in the départements of Haut-Rhin, Bas-Rhin and Moselle shall cease to be applicable to forced sales of immovable properties which are included in the estate of a debtor submitted to reorganization proceedings commenced after 1 January 1986.
BOOK VII Organisation of commerce Articles L711-1 to
L740-3
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COMMERCIAL CODE TITLE I Chambers of commerce and industry Articles L711-1 to
L713-18
CHAPTER I Organisation and powers Articles L711-1 to
L711-10
Article L711-1 Chambers of commerce and industry are agencies which work closely with the public authorities to serve
commercial and industrial interests in their district. They are public economic establishments.
Article L711-2 Chambers of commerce and industry are responsible for: 1. Giving the government the opinions and information requested from them on industrial and commercial matters. 2. Presenting their views on how to increase the prosperity of industry and commerce. 3. Ensuring, subject to the authorisation for which provision is made in Articles L. 711-6 and L. 711-8, that the
works and the administration of the services necessary to the interests for which they are responsible are carried out.
Article L711-3 The opinion of chambers of commerce shall be requested on: 1. Regulations relating to commercial practice. 2. The creation of new chambers of commerce and industry, marine brokers, tribunaux de commerce, conseils de
prud'hommes, bonded warehouses and auction rooms for new and wholesale merchandise in their district 3. Taxes to remunerate transport services franchised by the public authorities in their district. 4. Any matters regulated by law or special regulations, especially the advisability of public works to be carried out in
their district and the taxes and tolls to be levied in order to meet the cost of such works. 5. Labour tariffs for work in prisons.
Article L711-4 In addition to opinions which the government is always entitled to ask of them, chambers of commerce and industry
may issue opinions at their own initiative on: 1. Planned changes to commercial, customs and economic legislation. 2. Customs tariffs. 3. Tariffs and regulations for transport services franchised by the public authorities outside their jurisdiction but
affecting their district. 4. Tariffs and regulations for commercial establishments opened in their district under an administrative permit.
Article L711-5 Articles L. 121-4 to L. 121-6 of the Town Planning Code reproduced below define the powers of chambers of
commerce and industry to establish master plans for locating commercial and artisan installations. "Article L. 121-4. – Once professional bodies have been consulted, chambers of commerce and industry and the
trade chambers shall be involved, if they so request, in establishing master plans. The reports attached to master plans shall stipulate the projected size of and location for preferred zones for
locating various commercial and artisan installations. Article L. 121-5. – The economic studies needed in order to prepare documents on the planned commercial and
artisan infrastructure may be carried out at the initiative of chambers of commerce and industry and trade chambers. "Article L. 121-6. – Chambers of commerce and industry and trade chambers shall be involved, if they so request, in
drawing up land use plans for commercial and artisan installations and shall be responsible for links with the professional associations affected."
Article L711-6 Chambers of commerce and industry may be authorised to found and administer establishments for commercial use
such as bonded warehouses, auction rooms, depots, weapon testing grounds, packaging and titration offices, permanent exhibitions and commercial museums, business schools, vocational schools and courses in commercial and industrial subjects.
The administration of such establishments founded by private initiative may be handed over to chambers of commerce and industry at the request of the subscribers or donors.
The administration of similar establishments created by the state, the department or the municipality may be delegated to them for similar establishments created by the state, the department or the municipality.
The authorisation referred to in this Article shall be granted to chambers of commerce and industry by decision of the minister in charge of their administrative supervision unless the nature of the establishment is such that a decree or law is needed.
Regulations and maximum tariffs shall be approved by the minister subject to the same reservation. The actual taxes and prices payable shall be approved by the prefect, unless the deed of institution requires a ministerial decision.
Chambers of commerce and industry may acquire or construct buildings for their own premises or premises for
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COMMERCIAL CODE commercial establishments subject to ministerial authorisation.
Article L711-7 Chambers of commerce and industry and trade chambers may create training funds for traders and artisans as
defined in and for the purposes of Article L. 961-10 of the Employment Code, in liaison with professional associations.
Article L711-8 Chambers of commerce and industry may be appointed as franchisees of public works or to take charge of public
services.
Article L711-9 Chambers of commerce and industry or trade chambers may act as town planning project managers in agreement
with the local authority or the project agency in order to install any form of new commercial and artisan installation in the economic and social interest, for the benefit of traders and artisans and to help them set up, convert or relocate their business.
More importantly, they may help traders and artisans acquire ownership [illegible] premises without any initial capital contribution.
They may also be delegated a pre-emptive town planning right or hold or be delegated the pre-emptive right established in deferred planning zones in order to set up any form of commercial and artisan installation.
Loans contracted by chambers of commerce and industry and trade chambers in order to carry out the operations referred to above may be guaranteed by the local authority. Chambers of commerce and industry, trade chambers and their permanent assemblies may contract loans from the Consignments office and the local authority facility aid fund.
Article L711-10 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The chambers of commerce and industry are reorganised as regional chambers of commerce and industry. Without prejudice to the right, which the chambers of commerce and industry retain, to form groups in order to defend special interests which some of them have in common, the regional chambers of commerce and industry constitute the consultative bodies for the regional interests of commerce and industry in their dealings with the public authorities.
The regional chambers of commerce and industry are public institutions with legal personality. The regrouping of the chambers of commerce and industry into regional chambers of commerce and industry, and
the remits, organisation and administrative and financial workings of those regional chambers of commerce and industry are determined in a Conseil d'Etat decree.
CHAPTER II Financial administration Articles L712-1 to
L712-3
Article L712-1 The ordinary expenses of chambers of commerce and industry shall be covered by a tax in addition to the business
tax.
Article L712-2 Chambers of commerce and industry may allocate all or some of their surplus revenue from the management of
their ordinary services to a reserve fund for emergency or contingent expenses. The amount contained in this fund, which must be reported in the services accounts and budget, shall not under any circumstances exceed half the total annual resources of the said budget.
Article L712-3 The chambers of commerce and industry referred to in Article L. 711-1, the regional chambers of commerce and
industry, cross-trade groups and the assembly of the French chambers of commerce and industry shall appoint at least one auditor and one deputy from the list referred to in Article L. 225-219, who shall perform their duties in accordance with the terms of Book II, subject to the regulations applicable to them.
The provisions of Article L. 242-27 shall apply to them. The sanctions for which provision is made in Article L. 242-8 shall apply to directors who fail to draw up a balance
sheet, income statement and notes to the accounts every year. The provisions of Articles L. 242-25 and L. 242-28 shall likewise apply to them.
CHAPTER III Election of members of the chambers of commerce and industry and trade Articles L713-1 to
representatives L713-18
Article L713-1 (Order No. 2003-1067 of 12 November 2003 Art. 1 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 I Official Journal of 17 April 2004)
I. - The members of the chambers of commerce and industry are elected for five years. A member of a chamber of commerce and industry or of a regional chamber of commerce and industry shall not
serve as chairman of that chamber for more than three terms of office, regardless of their effective duration; (1) II. - The following participate in the election of members of the chambers of commerce and industry:
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COMMERCIAL CODE 1. Personally: a) Traders entered in the register of companies in the constituency of the chamber of commerce and industry,
without prejudice, for members who are partners in a partnership or a partnerships limited by shares, to the provisions of III of Article L. 713-2;
b) Company directors registered in the trade register and the register of companies in the constituency; c) The spouses of the persons indicated in a) or b) above who have declared, in the register of companies, that they
are actively engaged in their spouse's business and have no other gainful employment; 2. Through a representative: a) Companies of a commercial nature within the meaning of Article L. 210-1, and public institutions of an industrial
and commercial nature whose registered office is situated in the constituency; b) (by virtue of an establishment which is the subject of an additional entry or a secondary registration in the
constituency, unless exempted therefrom by the applicable laws and regulations) The natural persons referred to in a) and b) of 1 and the legal entities referred to in a) of the present 2, regardless of the constituency in which those persons exercise their own voting rights;
c) Companies of a commercial nature whose registered office is situated outside France and which have an establishment in the constituency which is entered in the register of companies.
NB (1): These provisions shall apply only to terms of office commencing after the elections organised in 2004.
Article L713-2 (Order No. 2003-1067 of 12 November 2003 Art. 2 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 I Official Journal of 17 April 2004)
I. - By virtue of their registered office and all their establishments situated in the constituency of the chamber of commerce and industry, the natural persons or legal entities referred to in 1 and 2 of II of Article L. 713-1 have:
1. One additional representative, when they employ between ten and forty-nine employees in the constituency of the chamber of commerce and industry;
2. Two additional representatives, when they employ between fifty and one hundred and ninety-nine employees in the constituency;
3. Three additional representatives, when they employ between two hundred and four hundred and ninety-nine employees in the constituency;
4. Four additional representatives, when they employ between five hundred and one thousand nine hundred and ninety-nine employees in the constituency;
5. Five additional representatives, when they employ two thousand or more employees in the constituency. II. - However, natural persons indicated in a) and b) of 1 of II of Article L. 713-1 whose spouse benefits from the
provisions of c) of 1 of II of that same article shall not designate any additional representative if they employ fewer than fifty employees in the constituency of the chamber of commerce and industry.
III. - Partnerships and partnerships limited by shares designate a single representative for the members and the company by express deliberation, pursuant to the provisions of their articles of association, without prejudice to the possibility of designating additional representatives pursuant to I above.
Article L713-3 (Order No. 2003-1067 of 12 November 2003 Art. 3 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 I, Art. 15 Official Journal of 17 April 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 IV Official Journal of 10 December 2004)
I. - The representatives referred to in Articles L. 713-1 and L. 713-2 must perform the functions of chairman and managing director, chairman or member of the board of directors, chief executive, chairman or member of the executive board, chairman of the supervisory board, chief executive, chairman or member of the board of directors, or director of a public institution of an industrial and commercial nature, or, failing this, and in order to represent them as their proxy, functions which involve commercial, technical or administrative management responsibilities in the company or institution.
II. - Those voting personally referred to in 1 of II of Article L. 713-1 and the representatives of the natural persons or legal entities referred to in 2 of II of that same article must be citizens of a European Community member state or a European Economic Area member state.
They must, moreover, in order to vote: 1. Meet the conditions stipulated in Article L. 2 of the electoral laws, with the exception of nationality; 2. Not come under the prohibition referred to in Article L. 6 of the electoral laws; 2. bis Not have been declared personally bankrupt or made subject to a prohibition or forfeiture order as provided
for in Chapter V of Part II of Book VI of the present code, Part VI of Act No. 85-98 of 25 January 1985 relating to the judicial receivership or liquidation of companies or, under the scheme which preceded that law, Part II of Act No. 67-563 of 13 July 1967 relating to judicial settlement, judicial liquidation, personal bankruptcy and other forms of bankruptcy, a prohibition order described in Article L. 625-8 of the present code or a prohibition on conducting commercial business;
3. Not have had sentences, forfeitures or sanctions imposed on them under legislations in force in European Community member states or European Economic Area member states equivalent to those referred to in 2 and 2 bis.
Article L713-4 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 I II Official Journal of 17 April 2004)
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COMMERCIAL CODE (Act No. 2004-1343 of 9 December 2004 Art. 78 IV Official Journal of 10 December 2004)
I. - The following may become members of a chamber of commerce and industry, subject to being aged over eighteen years and meeting the conditions stipulated in II of Article L. 713-3:
1. The personal electors referred to in 1 of II of Article L. 713-1 who are entered in the electoral register of the relevant constituency and able to show that they have had an entry in the register of companies for at least two years;
2. The electors registered as representatives, referred to in 2 of II of Article L. 713-1 and Article L. 713-2, who are entered in the electoral register of the constituency and can show that the company that they represent has been conducting its business for at least two years.
II. - Any member of a chamber of commerce and industry who no longer meets the conditions of eligibility laid down in I above shall tender his resignation to the Prefect. Failing this, the Prefect shall automatically declare that member's resignation.
A break in trading of less than six months' duration does not entail resignation, however, save for the cases referred to in 2, 2 bis and 3 of II of Article L. 713-3.
Article L713-5 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 I II Official Journal of 17 April 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 IV Official Journal of 10 December 2004)
I. - In the event of a chamber of commerce and industry being dissolved, it shall be renewed within six months. If such dissolution is pronounced less than one year before a general renewal, however, no renewal shall take
place. II. - When the number of members of a chamber of commerce and industry falls below one half of the initial number,
the Prefect records that fact in a decree and organises new elections for all the seats within six months. If that situation is recorded less than one year before a general renewal, however, no such renewal takes place. III. - The members elected pursuant to the present article shall remain in post for the unexpired portion of the initial
holder's term of office.
Article L713-6 (Order No. 2003-1067 of 12 November 2003 Art. 4 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II III, Art. 3 Official Journal of 17 April 2004)
Consular delegates are elected for five years in the constituency of each chamber of commerce and industry. No consular delegate is elected, however, in a constituency or part of a constituency situated within the jurisdiction
of a court competent to hear commercial cases which does not have any elected judges.
Article L713-7 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II III, Art. 3 Official Journal of 17 April 2004)
The following participate in the election of consular delegates: 1. Personally: a) Traders entered in the register of companies in the constituency of the chamber of commerce and industry,
without prejudice, for members who are partners in a partnership or a partnerships limited by shares, to the provisions of III of Article L. 713-2;
b) Company directors registered in the trade register and the register of companies in the constituency; c) The spouses of the persons indicated in a) or b) above who have declared, in the register of companies, that they
are actively engaged in their spouse's business and have no other gainful employment; d) Master mariners or merchant marine captains in command of a vessel registered in France whose port of registry
is situated in the constituency, inshore pilots working in a port situated in the constituency, aviation pilots domiciled in the district who command an aircraft registered in France;
e) Sitting members of the commercial courts, and former members of such courts having requested an entry in the electoral register;
2. Through a representative: a) Companies of a commercial nature within the meaning of Article L. 210-1, and public institutions of an industrial
and commercial nature whose registered office is situated in the constituency; b) (by virtue of an establishment which is the subject of an additional entry or a secondary registration in the
constituency, unless exempted therefrom by the applicable laws and regulations) The natural persons referred to in a) and b) of 1 and the legal entities referred to in a) of the present 2, regardless of the constituency in which those persons exercise their own voting rights;
c) Companies of a commercial nature whose registered office is situated outside France and which have an establishment in the constituency which is entered in the register of companies.
3. Executives who, being employed in the constituency by electors referred to in 1 or 2, perform functions which involve commercial, technical or administrative management responsibilities in the company or institution.
Article L713-8 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II III, Art. 4 Official Journal of 17 April 2004)
The representatives referred to in 2 of Article L. 713-7 must perform the functions of chairman and managing
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COMMERCIAL CODE director, chairman or member of the board of directors, chief executive, chairman or member of the executive board, or chairman of the supervisory board of a company, or chief executive, chairman or member of the board of directors, or administrator of a public institution of an industrial and commercial nature, or, failing this, and in order to represent them as their proxy, functions which involve commercial, technical or administrative management responsibilities in the company or institution.
Article L713-9 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II, III, Art. 4 Official Journal of 17 April 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XIX Official Journal of 10 December 2004)
Those voting personally and the executives referred to in 1 and 3 of Article L. 713-7 and the representatives of the natural persons or legal entities referred to in 2 of that same article must be citizens of a European Community member state or a European Economic Area member state.
They must, moreover: 1. Meet the conditions stipulated in Article L. 2 of the electoral laws without prejudice to the provisions of the first
paragraph above; 2. Not have been the perpetrator of facts having given rise to a criminal conviction for dishonourable conduct, lack
of integrity or an offence against public decency; 2. bis Not have been declared personally bankrupt or made subject to one of the prohibition or forfeiture measures
provided for in Chapter V of Part II of Book VI of the present code, Part VI of Act No. 85-98 of 25 January 1985 relating to judicial receivership and liquidation of companies or, under the scheme which preceded that law, Part II of Act No. 67-563 of 13 July 1967 relating to judicial settlement, judicial liquidation, personal bankruptcy and other forms of bankruptcy, a prohibition order described in Article L. 625-8 of the present code or a prohibition on conducting commercial business;
3. Not have had sentences, forfeitures or sanctions imposed on them under legislations in force in European Community member states or European Economic Area member states equivalent to those referred to in 2 and 2 bis.
Article L713-10 (Order No. 2003-1067 of 12 November 2003 Art. 5 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II III, Art. 5 Official Journal of 17 April 2004)
Persons belonging to the college of electors as defined in Article L. 713-7 are eligible for the functions of consular delegate.
Article L713-11 (Order No. 2003-1067 of 12 November 2003 Art. 6 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
The electors of consular delegates and of members of the chambers of commerce and industry are distributed in each administrative constituency between three professional categories corresponding respectively to the commercial, industrial and service sectors.
Within those three categories, the electors may be distributed into professional sub-categories defined on the basis of either the size of the company or its specific activities.
Article L713-12 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
The number of consular-delegate seats, which shall not be below sixty or above six hundred, is determined in relation to the size of the constituency's consular electoral body, the number of elected members of the chamber of commerce and industry and the number of commercial courts in that chamber's constituency.
The number of seats of a chamber of commerce and industry is twenty-four to fifty for chambers of commerce and industry having a constituency of fewer than 30,000 electors, thirty-eight to seventy for those having a constituency of 30,000 to 100,000 electors and sixty-four to one hundred for those having a constituency of more than 100,000 electors.
Article L713-13 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
The distribution of the seats between professional categories and sub-categories is made in proportion to the tax bases of the companies, the number of companies and the number of staff they employ.
No professional category may have representation above half the number of seats.
Article L713-14 (Order No. 2003-1067 of 12 November 2003 Art. 7 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
The electoral lists for the commercial court's jurisdictional area are drawn up by a committee chaired by the judge responsible for supervision of the register of companies and are subject to the conditions of the first paragraph of Article L. 25 and Articles L. 27, L. 34 and L. 35 of the electoral laws.
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COMMERCIAL CODE Article L713-15 (Order No. 2003-1067 of 12 November 2003 Art. 8 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II IV, Art. 6 Official Journal of 17 April 2004)
In elections of members of the chambers of commerce and industry, each elector has as many votes as he has elector entitlements pursuant to Article L. 713-1.
In elections of consular delegates, each elector has only one vote. The right to vote in elections of members of the chambers of commerce and industry and elections of consular
delegates is exercised by correspondence or by e-voting. In the event of an elector using both voting methods for the same entitlement, only the e-vote shall be deemed to be valid.
Article L713-16 (inserted by Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
Consular delegates and members of the chambers of commerce and industry are elected via a single-ballot uninominal election. If several candidates obtain the same number of votes, the oldest is declared the winner.
Article L713-17 (inserted by Order No. 2004-328 of 15 April 2004 Art. 2 II IV, Art. 7 Official Journal of 17 April 2004)
The procedures for electing consular delegates and members of the chambers of commerce and industry are organised on the same day by the administrative authority and, under its supervision, by the chambers of commerce and industry. They are subject to the provisions of Articles L. 49, L. 50 and L. 58 to L. 67 of the electoral laws. Violation of the said provisions shall incur the penalties referred to in Articles L. 86 to L. 117-1 of that same code.
A committee chaired by the Prefect or his representative is responsible for ensuring the lawfulness of the ballot and for announcing the results.
Appeals against elections for consular delegates and members of the chambers of commerce and industry are brought before the administrative court in the same way as for municipal elections.
Article L713-18 (inserted by Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
A Conseil d'Etat decree determines the implementing provisions for Articles L. 713-1 to L. 713-14. Inter alia, the said decree determines how the seats of consular delegates and members of a chamber of commerce and industry are distributed between the professional categories and sub-categories.
TITLE II Commercial amenities Articles L720-1 to
L720-11
Article L720-1 (Act No. 2004-804 of 9 August 2004 Art. 18 I Official Journal of 11 August 2004)
New business ventures, expansion, relocation of existing businesses and business sector changes by commercial and handicraft companies must be compatible with the requirements of regional development and environmental protection, as well as town planning matters. In particular, they must help to sustain business in rural and mountainous zones and restore the balance in built-up areas by developing trade in town centres and in urban regeneration zones.
They must also contribute to the modernisation of the commercial amenities, the adaptation and development of consumption patterns and marketing techniques, the enhancement of the consumer's buying experience and an improvement in the employees' working conditions.
The national programme for development and modernisation of commercial and handicraft activities referred to in Article 1 of Act No. 73-1193 of 27 December 1973 on commerce and the craft industries sets out the guiding principles for the commercial amenities required to implement the objectives defined above.
Article L720-2 The authorities shall facilitate groupings of commercial and artisan undertakings and new common services which
allow them to enhance their productivity and competitiveness and, possibly, to provide their customers with additional services.
Article L720-3 (Act No. 2000-1208 of 13 December 2000 Art. 97 Official Journal of 14 December 2000) (Act No. 2004-804 of 9 August 2004 Art. 18 II Official Journal of 11 August 2004)
I. - A Departmental Commercial Amenities Committee shall decide on the applications for authorisation submitted to it by virtue of the provisions of Articles L. 720-5 and L. 720-6.
II. - Applying the principles defined in Articles L. 720-1 and L. 720-2, the committee decides on the basis of the following issues:
1. The overall supply and demand for each business sector in the trading area concerned; - The overall impact of the project on private-car and delivery-vehicle flows; - The quality of the public transport services or potential alternative means; - The accommodation capacities for goods loading and unloading; 2. The density of supermarket and hypermarket outlets in that area; 3. The project's potential impact on the commercial and handicraft structures in that area and in the local towns, and
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COMMERCIAL CODE on the balance sought between the different types of traders. When the project involves the creation or extension of a shopping complex composed mainly of shops specialising in the selling of discounted branded goods, the said project's potential impact is also evaluated independently of the specificity of that type of outlet's commercial policy;
4. The project's likely impact in terms of salaried and unsalaried employment; 5. How competition operates within the commercial and handicraft trades; 6. The readiness of applicants wishing to open retail outlets selling mainly food items to open outlets of the same
type in urban regeneration zones, or rural territories designated for priority development, having a sales area under 300 square metres and occupying at least 10% of the space applied for.
III. - The decisions of the Departmental Committee make reference to the activities of the Departmental Commercial Amenities Monitoring Centre.
IV. - The Departmental Commercial Amenities Monitoring Centre collates the elements required for preparation of the commercial development plans pursuant to the guidelines set out in Article L. 720-1. It takes into consideration, where applicable, the guidelines of the territorial development directives referred to in Article L. 111-1-1 of the Planning Code and the regional planning and territorial development plans referred to in Article 34 of Act No. 83-8 of 7 January 1983 relating to the division of responsibilities between the communes, the Departments, the regions and the State.
V. - The commercial development plans are drawn up and published as determined in a Conseil d'Etat decree. VI. - Moreover, when the project envisaged concerns an urban area in which the procedures referred to in Article L.
303-1 of the Building and Housing Code and Article L. 123-11 of the Planning Code are implemented, the committee takes account of actions intended to ensure the maintenance or establishment of local outlets, tradesmen or handicraft activities.
VII. - Only plans which are accompanied by an indication of the trade name of the future operator(s) of the establishments and whose sales area is equal to or greater than a threshold determined by decree shall be examined by the committee.
VIII. - Applications relating to the creation of a retail outlet or a shopping complex as described in Article L. 720-6 having a sales area greater than 6,000 square metres are accompanied by the conclusions of a public inquiry which addresses the economic, social and regional development aspects of the proposed project in the manner determined in a Conseil d'Etat decree. The said inquiry is conducted in conjunction with the public inquiry carried out pursuant to Article 1 of Act No. 83-630 of 12 July 1983 relating to the democratisation of public inquiries and environmental protection when this is relevant to the examination of the planning application.
Article L720-4 (Law No 2003-660 of 21 July 2003 Article 56 Official Gazette of 22 July 2003)
In the overseas departments, unless a founded derogation from the Departmental Equipment Commission stipulates otherwise, the authorisation requested cannot be granted when it appears that it would have the effect of taking the total selling space of primarily food retailing outlets with a selling space greater than 300 square metres beyond a threshold of 25% for ?the department as a whole, or of increasing it if it is already above that threshold, whether this involves the plan as a whole or only a part thereof, when that space:
1. Belongs to a single trading group; 2. Belongs a single company, or to one of its subsidiaries, or to a company in which that company has an equity
participation of between 10% and 15%, or a company controlled by that single company within the meaning of Article L. 233-3;
3. Is controlled directly or indirectly by at least one partner which exerts an influence on it within the meaning of Article L. 233-16, or has a common manager in law or in fact.
Article L720-5 (Act No. 2005-157 of 23 February 2005 Art. 40, Art. 49 Official Journal of 24 February 2005) (Act No. 2006-10 of 5 January 2006 Art. 37 Official Journal of 6 January 2006)
I. - Plans for the following projects shall require a trader's licence: 1 The creation of a retail outlet having a sales area of more than 300 square metres in a new building or through the
conversion of an existing building; 2 The extension of the sales area of a retail outlet having already reached the threshold of 300 square metres or
which would exceed it through implementation of the plan. The additional use of any space, covered or otherwise, fixed or mobile, which does not come within the purview of Article L310-2 is deemed to constitute an extension;
3 The creation or extension of a shopping complex, as defined in Article L720-6, having a total sales area of more than 300 square metres or which would exceed that threshold through implementation of the plan;
4 The creation or extension of any retail fuel distribution installation, regardless of its sales area, attached to a retail outlet referred to in 1 above or a shopping complex referred to in 3 above which is not located in the public realm of motorways and expressways.
The provisions relating to fuel distribution installations are specified by decree; 5 The reuse for retail selling purposes of a sales area of more than 300 square metres released via an authorisation
to create a shop through the transfer of an existing business, regardless of the date on which the said transfer was authorised;
6 The reopening to the public, on the same site, of a retail outlet having a sales area of more than 300 square metres in premises which have not been exploited for two years, which period, in the event of judicial settlement proceedings having being brought against the operator, shall run from the day on which the owner recovered full vacant possession of the premises;
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COMMERCIAL CODE 7 New buildings, or extensions or conversions of existing buildings, entailing the creation of hotels having a capacity
of more than thirty rooms outside the Ile-de-France region and more than fifty within it. When ruling on such applications, the Departmental Commission for Commercial Equipment seeks the prior opinion
of the Departmental Commission for Touristic Development through the Regional Tourism Delegate, who attends the meeting. In addition to the criteria specified in Article L720-3, it takes the density of hotel provision in the zone concerned into consideration;
8 Any change in the business sector of an outlet having a sales area of more than 2,000 square metres is also subject to the trader's licence provided for in the present article. This threshold is reduced to 300 square metres if the outlet's new business relates mainly to foodstuffs.
For nurserymen and horticulturists, the sales area referred to 1 is the area devoted to the retail selling of products other than their own produce, as determined by decree.
II. - The combining of the sales areas of neighbouring outlets, without creation of additional sales areas, up to 1,000 square metres, or 300 square metres if the new business relates mainly to foodstuffs, does not require a trader's licence.
III. - Pharmacies do not require a trader's licence and do not come within the scope of 3 of I above. IV. - Retail markets, covered or otherwise, established on public land whose creation is decided by the municipal
council, outlets located in airports restricted to ticket-bearing travellers, and public land allocated to railway stations covering a maximum area of 1,000 square metres do not require a trader's licence.
V. - The creation or extension of garages or motor vehicle distributorships having a maintenance and repairs workshop and a total area of less than 1,000 square metres does not require a trader's licence.
VI. - When required, the trader's licence must be issued prior to the granting of a building permit, or before implementation of the plan if a building permit is not required.
Licences are granted per square metre of sales area or per unit. A new application is required if substantial changes are made to the nature of the outlet or the sales areas during
preparation or implementation of the plan. The same shall apply in the event of any change to the signage specified by the applicant.
The prior approval required for the creation of retail outlets is not transferable. VII. - The provisions of 7 of II do not apply to the overseas departments.
Article L720-6 I. – Outlets on the same site: 1. which were designed during the same development project, irrespective of whether it was completed in one or
more stages; 2. which have arrangements allowing the same customers to access various establishments; 3. certain operating elements of which are jointly managed, mainly by creating collective services or using joint
standard practices or advertising; 4. which are linked by a common legal structure directly [illegible] controlled by at least one partner exercising an
influence on it as defined in Article L. 233-16 or with a joint de jure or de facto director, shall be deemed to form part of the same shopping centre, irrespective of whether or not they are housed in
separate buildings or owned or operated by the same person. II. – However, the provisions of this Article shall not apply to joint development areas created in a town centre under
Article L. 311-1 of the Town Planning Code.
Article L720-7 Subject to specific provisions applicable to territorial authorities and local mixed economy companies, all contracts
concluded by public or private persons for the purpose of a project authorised under Articles L. 720-5 and L. 720-6 shall be notified by each contracting party to the prefect and the Tribunal de grande instance of auditors, as stipulated by decree.
This obligation shall also apply to contracts which predate the licence, governing the control or development of the land on which the licensed establishments are located. It shall apply to all types of contract, including contracts making provision for assignments free of charge, services in kind and intangible considerations.
The said notification shall be effected within two months of signature of the contract or, if the contract predates the licence, within two months of the licence.
Any person who infringes the provisions of this Article shall be liable to a fine of 15,000 euros.
Article L720-8 I. – The departmental commercial facilities committee shall be chaired by the prefect who, without taking part in the
vote, shall report to the committee on the content of the national programme for which provision is made in Article 720-1 and on the commercial development plans referred to in Article L. 720-3.
II. – In departments other than Paris it shall consist of: 1. The following three elected persons: a) the mayor of the municipality in which the site is located; b) the chairman of the public inter-municipal cooperation establishment responsible for space planning and
development to which the municipality in which the site is located belongs or, where there is none, the general councillor of the canton in which the site is located;
c) the mayor of the most densely populated municipality in the district other than the municipality in which the site is located; with the exception of the departments of Hauts-de-Seine, Seine-Saint-Denis, Val-de-Marne and the
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COMMERCIAL CODE municipalities of Essonne, Val-d'Oise, Yvelines and Seine-et-Marne, which belong to Greater Paris, if the municipality in which the site is located belongs to a town comprising at least five municipalities, the mayor of the most densely populated municipality shall be chosen from the mayors of the municipalities of the said town.
2. The following three persons: a) the chairman of the chamber of commerce and industry whose district includes the municipality in which the site
is located, or his deputy; b) the chairman of the chamber of trades whose district includes the municipality in which the site is located, or his
deputy; c) a representative of the consumer association in the department. Where the mayor of the municipality in which the site is located or the mayor of the most densely populated
municipality referred to above is also the general councillor of the canton, the prefect shall appoint the mayor of one of the municipalities in the town or district in question to replace him.
III. – In Paris it shall consist of: 1. The following three elected persons: a) the mayor of Paris; b) the mayor of the district in which the site is located; c) a district councillor appointed by the Paris council. 2. The following three persons: a) the chairman of the Paris chamber of commerce and industry or his deputy; b) the chairman of the Paris chamber of trades or his deputy; c) a representative of the consumer associations in the department. IV. – Every member of the departmental commercial facilities committee shall notify the prefect of their financial
interests and business functions. Members of the committee may not vote on projects in which they have a direct personal interest or if they
represent or have represented one of the interested parties. V. - The heads of decentralised government departments in charge of installations, competition, consumer affairs
and employment shall attend committee meetings. VI. - In the region of Ile-de-France, the representative of the prefect of the region shall also attend committee
meetings. Applications for licences shall be processed by the decentralised government departments. VII. - Applications for licences shall be filed as stipulated by decree of the Conseil d'Etat. Applications resulting in
sales surfaces of no more than 1,000 square metres shall be subject to a simplified procedure. VIII. - Members of the committee shall be appointed and shall serve in office as stipulated by decree of the Conseil
d'Etat.
Article L720-9 The departmental commercial facilities committee shall authorise projects for which four members have voted in
favour using the procedure set by decree. The minutes shall record how each member voted.
Article L720-10 The departmental commercial facilities committee shall rule on the applications for licences referred to in Article L.
720-5 within four months of the date on which the application was filed and its decisions shall be reasoned mainly with reference to the provisions of Articles L. 720-1 and L. 720-3. The licence shall be deemed to have been granted on expiration of this deadline. Members of the committee shall be given at least one month's notice of applications before ruling on them.
The decision of the departmental committee may be referred for appeal to the national commercial facilities committee for which provision is made in Article L. 720-11 within two months of notification, at the initiative of the prefect, two members of the committee, one of whom shall be elected, or the applicant. The national commercial facilities committee shall rule on the appeal within four months.
The committees shall authorise or reject projects in their entirety. Planning permission shall not be granted, building work shall not commence and no new application shall be filed
for the same property with the departmental commercial facilities committee before the deadline for appeal expires or, in the event of an appeal, before the decision at appeal is returned by the national committee.
If the application for a licence is rejected on substantive grounds by the aforementioned national committee, no new application may be filed by the same applicant, for the same project or for the same land for a period of one year from the date of the ruling by the national committee.
Article L720-11 I. - The national commercial facilities committee shall consist of eight members appointed by decree for single term
of office of six years at the proposal of the minister for trade. Half the committee may be reappointed every three years. II. - The committee shall consist of: 1. A member of the Conseil d'Etat appointed by the vice-president of the Conseil d'Etat, who shall act as chairman. 2. A member of the court of auditors appointed by the first president of the court of auditors. 3. A member of the tax inspectorate appointed by the chief tax inspector. 4. A general inspector appointed by the vice chairman of the general council of bridges and roads. 5. Four persons appointed for their knowledge of distribution, consumer affairs, town and country planning or
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COMMERCIAL CODE employment, to be appointed (one each) by the president of the national assembly, the president of the Senate, the minister for trade and the minister for employment.
II. - In the event of a tied vote, the chairman of the committee shall have the casting vote. III. - The members of the committee shall notify the chairman of their financial interests and business functions. IV. - Members of the committee may not vote on projects in which they have a direct personal interest or if they
represent or have represented one of the interested parties. V. - The mayor of the municipality in which the site is located and who sits on the departmental committee against
whose decision an appeal has been filed shall be heard by the national committee if he so requests. VI. - A government commissioner appointed by the minister for trade shall attend committee meetings and be given
a copy of the files. VII. - The members and chairman of the committee shall be appointed and shall serve as stipulated by decree of the
Conseil d'Etat.
TITLE III National interest markets Articles L730-1 to
L730-17
Article L730-1 (Order No. 2004-274 of 25 March 2004 Art. 34 Official Journal of 27 March 2004)
National-interest markets are public market management facilities. Access to them is restricted to producers and traders who contribute to the organisation and productivity of the distribution channels for agricultural products and foodstuffs, the promotion of competition in those economic sectors and public food safety.
The classification of an agricultural products and foodstuffs market as a national-interest market, or the creation of such a market, is pronounced by decree on a proposal from the regional council.
Such markets may be established in the public domain, or in the private domain of one or more public-law corporations, or on real property belonging to private bodies.
The declassification of a national-interest market may be pronounced by decree of the Minister of Trade and the Minister of Agriculture on a proposal from the regional council if the market's activities no longer permit performance of the missions specified in the first paragraph or a general organisation pursuant to the provisions of Article L. 730-15.
Article L730-2 (Order No. 2004-274 of 25 March 2004 Art. 35 Official Journal of 27 March 2004)
The list of the national-interest markets which the State intends to develop and manage is determined by decree. Other national-interest markets are developed and managed on behalf of the State by the communes of the territory
in which they are established, or by groups of interested communes, or through the designation of a public or private legal entity. In the latter case, the legal entity is designated after opening to competition in the manner determined in Article L. 1411-1 of the General Territorial Authorities Code.
The said communes, or groups of communes, may nevertheless confer the power to designate on the region or, in Corsica, on the territorial authority of Corsica.
Article L730-3 (Order No. 2004-274 of 25 March 2004 Art. 36 I, II Official Journal of 27 March 2004)
The licence fees collected from permit holders and any other contributions to its operating costs made by its users are established by the market manager and approved by the Prefect.
The market manager shall submit an interim profit-and-loss statement showing how all the market's established or foreseeable social, financial and public-health (1) obligations are to be met.
If the market's financial statements show or point to a serious discrepancy, the ministers in charge may, having informed the manager and, where applicable, the public bodies which guaranteed its borrowings, automatically increase the existing licence fees, generate new income, reduce expenditure and, in general, take any measure conducive to restoring the balance.
(1) NB - These provisions shall apply with effect from the first financial year commenced after publication of the present order (see III of Article 45 of order 2004-274).
Article L730-4 (Order No. 2004-274 of 25 March 2004 Art. 37 Official Journal of 27 March 2004)
A protective perimeter may be placed around a national-interest market under a Conseil d'Etat decree. The protective perimeter enforces the prohibitions referred to in Article L. 730-5. The prohibitions implemented apply to sales of and services pertaining to products which, in each case, are listed
by order of the ministers in charge. The decree referred to in the first paragraph determines the establishment of the national-interest market. Early removal of some or all of the perimeter, extension of the market's facilities or its transfer within the perimeter
may be determined by a decision of the relevant administrative authority.
Article L730-5 (Order No. 2004-274 of 25 March 2004 Art. 38 Official Journal of 27 March 2004)
The decree instituting the protective perimeter prohibits therein the extension, relocation or creation of any establishment in which a natural person or legal entity makes sales, other than retail sales, of products listed by
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COMMERCIAL CODE interministerial order as provided for in Article L. 730-4, or provides services pertaining to such sales.
This prohibition does not apply to producers and groups of producers in respect of products deriving from business operations located within the protective perimeter.
A change of ownership of an establishment is not treated as a new business venture. "Extension of an establishment"shall be understood to mean either the creation of new activities or an extension of
the commercial premises. The implementing regulations for the provisions of the present article are determined in a Conseil d'Etat decree.
Article L730-6 The decree establishing the protective perimeter may prohibit activities by any natural person or legal person
involving non-retail sales of or ancillary transactions pertaining to products listed by joint ministerial decree in accordance with Article L. 730-4 in all or one or more parts of the territory which it encompasses.
This ban shall enter into force on the date stipulated by the decree referred to in the preceding sub-paragraph, irrespective of the state of progress reached in compensation proceedings on the said date.
This ban shall not apply to producers or groups of producers for products from shares located within the zone(s) affected by the aforementioned ban.
The terms of application of this Article shall be stipulated by decree of the Conseil d'Etat.
Article L730-7 (Order No. 2004-274 of 25 March 2004 Art. 39 Official Journal of 27 March 2004)
Where a port zone is included within a national-interest market's protective perimeter, non-retail sales of listed products within the meaning of Article L. 730-4 made in that zone shall be subject to the following provisions.
The prohibitions referred to in Article L. 730-5 shall not apply to products shipped directly to or from that port by sea which are sold in batches above the size limits set by joint order of the ministers in charge of the national-interest markets and the minister for ports.
The decree instituting the protective perimeter may either prohibit sales of products not transported there by sea or authorise them only in batches above certain limits and subject to conditions which it determines.
Article L730-8 (Order No. 2004-274 of 25 March 2004 Art. 40 Official Journal of 27 March 2004)
By way of exception, the relevant administrative authority may grant derogations from the prohibitions referred to in Articles L. 730-5 and L. 730-7, as determined in a Conseil d'Etat decree.
Article L730-9 Where necessary, retail sales be defined by decree of the ministers in charge for the purpose of Articles L. 730-5, L.
730-6 and L. 730-7.
Article L730-10 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-274 of 25 March 2004 Art. 41 Official Journal of 27 March 2004)
Offences against the prohibitions of Articles L. 730-5 and L. 730-7 and the provisions introduced pursuant to those articles are established and prosecuted as provided for in the first paragraph of Article L. 450-1 and Articles L. 450-2 and L. 450-3 and shall incur a fine of 15,000 euros. Articles L. 470-1 and L. 470-4 shall apply.
Article L730-11 I. – Compensation payable in reparation for losses incurred as a result of the application of the bans for which
provision is made in Article L. 730-6 shall comply with the system of compensation for compulsory purchases. II. – Compensation shall be awarded by: 1. Allocating each trader affected by the aforementioned ban an equivalent pitch to the pitch abolished within the
precinct of the market of national interest. The pitch offered shall be deemed to be equivalent if it is such that a similar business of a similar size to the
average business on the old pitch over the last three years can be conducted. If it is acknowledged that the first offer is unsatisfactory, the promoter offering the compensation shall notify the applicant of a new offer. If the judge again finds this new offer to be unsatisfactory, he shall set the balance to be paid by the promoter.
Where a trader's acknowledged right to be allocated a pitch is larger or smaller than one or more full pitches in the market of national interest, the promoter offering the compensation shall meet his obligations by offering to allocate the interested party the unit(s) which represent the pitch which is the nearest in size to the pitch to which he is entitled, whereby:
a) if the full pitch unit(s) allocated exceed the trader's rights, the trader shall pay a balance equal to the sum of the right of first accession to the part of the pitch which exceeds the part allocated as equivalent. However, the trader may ask to be allocated a pitch which is one size smaller than his rights and, if his request is satisfied, he shall receive a balance equal to the amount of the right of first accession to the part of the pitch renounced;
b) if the pitch offered and actually allocated to the interested party pursuant to the foregoing provisions is one size smaller than his rights, he shall again receive a balance calculated as described above.
2. Reimbursing the amount of the right of first accession owed by the trader for the pitch allocated, less the value of the tangible and intangible assets assigned or retained by him, up to the right of first accession.
3. Compensating for the loss of non-transferable assets and relocation expenses. III. – However, compensation may be paid in specie in lieu of the offer of pitches for which provision is made in II (1)
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COMMERCIAL CODE where traders prove that they are unable, for personal reasons or because of the particular nature of their trade, to set up elsewhere within the market precinct.
Compensation in specie shall only be paid to beneficiaries who sign a commitment limiting the activities which they may exercise in time and space.
IV. – The terms of application of the provisions of this Article shall be laid down by decree of the Conseil d'Etat.
Article L730-12 (Order No. 2004-274 of 25 March 2004 Art. 42 Official Journal of 27 March 2004)
The right to occupy a private plot held by a trader established in a national-interest market is likely to be included in any pledge of that trader's assets.
Article L730-13 Tenants of premises housing a business affected by the ban for which provision is made in Article L. 730-6 may
exercise a business for which no provision is made in the lease or transfer the lease so that a third party may exercise such business on the demised premises, any agreement to the contrary notwithstanding, including agreements concluded previously.
Tenants or persons to whom the lease is transferred shall notify the owner of the business which they intend to exercise by extrajudicial deed.
The owner may object to the exercise of the said business within one month of service of the said deed if it will cause greater inconvenience to the building, its inhabitants or the neighbourhood than the business abolished.
Disagreements shall be referred to the Tribunal de grande instance which may uphold the tenant's request and amend the rent, by way of exception from the provisions of Articles L. 145-37 to L. 145-39.
Article L730-14 Business tenants who cease trading pursuant to a decision imposing a ban in accordance with the provisions of this
chapter may terminate the lease without paying compensation to the owner, provided that they give the owner at least three months' notice by extrajudicial deed.
Article L730-15 (Order No. 2004-274 of 25 March 2004 Art. 43 Official Journal of 27 March 2004)
The laws and regulations relating to the organisation and functioning of markets for agricultural products and foodstuffs do not apply to national-interest markets.
The general organisation of the national-interest markets is determined in a Conseil d'Etat decree. Boundary changes to, and relocation of, national-interest markets without a protective perimeter are unrestricted.
Article L730-16 (Order No. 2004-274 of 25 March 2004 Art. 44 Official Journal of 27 March 2004)
The Prefect exercises policing powers within the boundaries of a national-interest market. Within the protective perimeter, he ensures that the laws and regulations governing the market are applied and reports any breaches thereof to the public prosecutor. When a market with a protective perimeter is spread across several Departments, the aforementioned powers are exercised by the Prefect designated by the Minister of the Interior.
Article L730-17 A government commissioner shall be designated and seconded to the market manager. The method of designation
and the powers granted to the commissioner shall be defined by decree of the Conseil d'Etat.
TITLE IV Commercial exhibition Articles L740-1 to
L740-3
Article L740-1 (inserted by Order No. 2004-274 of 25 March 2004 Art. 30 Official Journal of 27 March 2004)
An exhibition centre is a permanent, enclosed and independent real-property complex with appropriate installations and equipment which hosts temporary commercial or other events for all or part of the year. It does not require the licence referred to in Article L. 720-5.
Exhibition centres are registered with the relevant administrative authority. The programme of commercial events which it hosts each year are the subject of a prior declaration made to the relevant administrative authority.
Article L740-2 (inserted by Order No. 2004-274 of 25 March 2004 Art. 30 Official Journal of 27 March 2004)
A trade show is a commercial event devoted to the promotion of a series of commercial activities to invited visitors only. The only goods offered for sale on site are intended for the buyer's personal use and their value cannot exceed a ceiling determined by decree.
All trade shows are the subject of a prior declaration made to the relevant administrative authority.
Article L740-3 (inserted by Order No. 2004-274 of 25 March 2004 Art. 30 Official Journal of 27 March 2004)
The implementing regulations of the present Part are determined in a Conseil d'Etat decree.
BOOK VIII
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COMMERCIAL CODE
Certain regulated professions Articles L811-1 to L822-16
TITLE I Court-appointed receivers, legal agents in the winding-up of undertakings and Articles L811-1 to
corporate analysis experts L814-11
CHAPTER I Court-appointed receivers Articles L811-1 to
L811-16
SECTION I Tasks, conditions of access and performance and incompatibilities Articles L811-1 to
L811-10
Subsection 1 Tasks Article L811-1
Article L811-1 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 1 and Art. 13 Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 158 V, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed receivers are natural persons or legal entities appointed by a court to administer the property of others or to perform auxiliary or supervisory functions in regard to the management of such property.
They are personally responsible for the tasks entrusted to them. When the proper course of the proceedings so requires, however, and when expressly authorised by the presiding judge, they may entrust some of those tasks to third parties, while retaining responsibility therefor.
When court-appointed receivers entrust to third parties tasks forming part of the assignment entrusted to them by the court, they shall compensate them from the remuneration they receive pursuant to the decree provided for in Article L663-2.
Subsection 2 Conditions of access to the profession Articles L811-2 to
L811-5
Article L811-2 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 2 and Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Only those whose name appears in a register drawn up by a national committee created for that purpose may be appointed by a court to perform such functions, without prejudice to the provisions specific to certain matters, including those relating to minors and protected adults, or the occasional missions which may be entrusted to members of the judicial and legal professions in civil proceedings.
By way of exception, however, the court may, via an expressly reasoned decision and after seeking the advice of the public prosecutor, appoint as receiver a natural person who can furnish proof of experience or qualifications particularly relevant to the nature of the case and who meets the conditions laid down in 1 to 4 of Article L811-5.
The persons referred to in the previous paragraph must not, during the previous five years, for whatever reason, either directly or indirectly, have received any reward or payment from the natural person or legal entity against whom an administration, assistance or supervisory measure is sought, from a person who controls that legal entity or a company controlled by it within the meaning of II and III of Article L233-16, or have acted as an advisor to the natural person or legal entity concerned or have been in any way dependent on it. They must, moreover, have no interest in the assignment entrusted to them and must not be a former director or court-appointed administrator whose name has been removed from the registers pursuant to Articles L811-6, L811-12 and L812-4. They are required to perform the duties entrusted to them in accordance with the professional obligations imposed on duly registered court-appointed receivers. They shall not perform receivership functions on a regular basis.
Upon assuming their functions, persons appointed pursuant to the second paragraph must give a sworn statement to the effect that they meet the conditions determined in 1 to 4 of Article L811-5, that they fulfil the obligations enumerated in the previous paragraph and that they are not under any prohibition so to act pursuant to the penultimate paragraph of Article L814-10.
When the court appoints a legal entity, it designates one or more natural persons within it to represent it in regard to performance of the assignment entrusted to it.
Article L811-3 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001)
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COMMERCIAL CODE (Act No. 2003-7 of 3 January 2003 Art. 3 and Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The national register is divided into sections corresponding to the jurisdiction of each court of appeal.
Article L811-4 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 4 and Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The composition of the national committee referred to in Article L811-2 is as follows: - a judge of the Court of Cassation, acting as chairman, appointed by the presiding judge of the Court of Cassation; - an officer of the National Audit Office appointed by the chairman of the National Audit Office; - a member of the Inspectorate of Public Finances appointed by the Finance Minister; - an appeal court judge appointed by the presiding judge of the Court of Cassation; - a higher commercial court judge appointed by the presiding judge of the Court of Cassation; - a professor of law, economics or management appointed by the Minister for the Universities; - a representative of the Conseil d'Etat, appointed by the vice-president of the Conseil d'Etat; - two persons qualified in an economic or social discipline appointed by the Minister of Justice; - three registered court-appointed receivers elected by their peers as determined in a Conseil d'Etat decree. In the event of a tied vote, the chairman has a casting vote. The chairman and the members of the committee, and their deputies (equal in number and chosen from the same
categories), are appointed for a three-year term of office, renewable once. A judge from the public prosecutor's office and his deputy are appointed to act as the Government's representative
on the national committee and to examine, inter alia, the applications for admission. The committee's operating costs are met by the State.
Article L811-5 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 5, Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
All persons registered by the committee must: 1 Be French nationals or citizens of a European Community member state or a European Economic Area member
state; 2 Not have been the perpetrator of facts giving rise to a criminal conviction for dishonourable conduct or lack of
integrity; 3 Not have been the perpetrator of facts of the same kind giving rise to a disciplinary or administrative sanction,
dismissal, striking off, removal from office, withdrawal of approval or withdrawal of authorisation; 4 Not have been declared personally bankrupt or made subject to one of the prohibition or forfeiture measures
provided for in Chapter V of Part II of Book VI of the present code, Part VI of Act No. 85-98 of 25 January 1985 relating to judicial receivership and liquidation of companies or, under the scheme which preceded that law, Part II of Act No. 67-563 of 13 July 1967 relating to judicial settlement, judicial liquidation, personal bankruptcy and other forms of bankruptcy;
5 Have passed the entrance examination for the vocational development programme, completed that programme and passed the receivership aptitude examination.
Only persons who hold diplomas or other qualifications determined by decree may take the entrance examination for the vocational development programme.
Notwithstanding the foregoing, persons who meet the competence and professional experience conditions laid down in a Conseil d'Etat decree are exempted from the entrance examination for the vocational development programme. The committee may, moreover, exempt such persons, as provided for in a Conseil d'Etat decree, from part of the vocational development programme and from all or part of the receivership aptitude examination.
Registered legal entities may only exercise administration functions through a member who is himself registered. Persons who can show that they have acquired a qualification which enables them to act as a court-appointed
administrator in a European Community member state other than France or a European Economic Area member state are exempted from the diploma, training course and professional examination conditions laid down in the sixth and seventh paragraphs, without prejudice to them having taken an examination to verify their knowledge as provided for in a Conseil d'Etat decree. A list of the candidates eligible to take the examination is drawn up by the committee.
Subsection 3 Conditions of performance Articles L811-6 to
L811-10
Article L811-6 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 6 and Art. 13 Official Journal of 4 January 2003)
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COMMERCIAL CODE (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The national committee, on its own initiative or at the request of the Minister of Justice, the chairman of the National Council of Court-Appointed Administrators and Court-Appointed Receivers, the government representative or the public prosecutor in whose jurisdiction the receiver is established, may, through a reasoned decision and after instructing the party concerned to present its observations, delete from the list referred to in Article L811-2 a receiver who, on account of his physical or mental state, is unable to perform his functions in the normal way, or a receiver who has shown himself to be incapable of performing his functions in the normal way.
Deregistration shall not prevent disciplinary proceedings from being brought against the receiver if the offences were committed in the performance of his duties.
Article L811-7 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed administrators may create civil-law professional partnerships governed by Act No. 66-879 of 29 November 1966 relating to civil-law professional partnerships in order to practice their profession collectively. They may also practice their profession through independent professional firms as provided for in Act No. 90-1258 of 31 December 1990 relating to independent professional practices having a specific legislative or regulatory status or a protected designation. They may also be members of an economic interest group or a European economic interest group or partners in an undisclosed partnership governed by Part II of Act No. 90-1258 of 31 December 1990 relating to professional practices having a specific legislative or regulatory status or a protected designation.
Article L811-8 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 7, Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Cases being dealt with by a court-appointed administrator who relinquishes his functions, whatever the reason, are distributed among the other administrators by the court within three months of him ceasing his functions.
In the interest of the proper administration of justice, however, the court may authorise the former administrator to continue to deal with one or more pending cases unless he was forced to abandon his functions on account of deregistration. Such a receiver remains bound by the provisions of Articles L811-10 to L811-16, L814-1 and L814-5.
Article L811-9 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Registered persons are free to practice their profession throughout France.
Article L811-10 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 8 and Art. 13 Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 164 II, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Registered court-appointed receiver status is incompatible with the practising of any other profession, save for that of avocat.
It is also incompatible with: 1 All commercial activities, whether carried out directly or through an intermediary; 2 The status of partner in a general partnership, financing partner in a limited partnership or a partnership limited by
shares, managing director of a limited liability company, chairman of the board of directors, executive board member, general manager or chief executive of a public limited company, chairman or chief executive of a simplified joint-stock company, supervisory board member or director of a commercial company, managing partner of a civil partnership, unless those entities are engaged in administration activities or the acquisition of premises for that purpose. An administrator may also be the managing partner of a civil partnership having as its sole objective the management of family interests.
Registered court-appointed administrator status does not impede engagement in consultancy activities in matters pertaining to qualification of the person concerned or performance of the duties of ad hoc representative or mediator provided for in Articles L611-3 and L611-6 of the present code and Article L351-4 of the Rural Code, commissioner for execution of the plan, amicable administrator or liquidator, legal expert and amicable or court-appointed receiver. These activities and duties, save for those of ad hoc representative, mediator and commissioner for execution of the plan, may only be undertaken subsidiarily.
With the exception of the fourth paragraph, the conditions of the present article apply to registered legal entities.
Subsection 4
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COMMERCIAL CODE Incompatibilities Article L811-10
Article L811-10 (Law No 2001-420 of 15 May 2001 Article 113 (I) (1) Official Gazette of 16 May 2001) (Law No 2003-7 of 3 January 2003 Article 8 and Article 13 Official Gazette of 4 January 2003)
The status of listed court-appointed receiver is incompatible with the practising of any other profession, save that of legal counsel.
It is, moreover, incompatible with: 1. Any business of a commercial nature, whether conducted directly or through an intermediary. 2. The status of partner in a general partnership, of financing partner in a limited partnership or a partnership limited
by shares, of manager of a limited company, of chairman of the board of directors, of member of the executive board, of general manager or assistant general manager of a public limited company, of chairman or chief executive of a simplified joint-stock company, of member of the supervisory board or board of directors of a commercial company, and of manager of a non-commercial partnership, unless the corporate mission of those companies is the practising of the profession of court-appointed receiver or the acquisition of premises for that purpose. Moreover, a receiver may perform management duties within a non-commercial partnership whose sole purpose is the administration of family interests.
The status of listed court-appointed receiver does not preclude consultancy activities in disciplines in which the individual in question is qualified, nor the conducting of the ad hoc administration and conciliation missions provided for in Article L. 611-3 of the present Code and in Article 351-4 of the Rural Code, or those of commissioner for execution of the plan, of amicable administrator or liquidator, of court-appointed expert or of amicable or court-appointed receiver. Such activities and such missions, with the exception of ad hoc administrator, arbitrator and commissioner for execution of the plan, shall only be conducted subsidiarily.
With the exception of the fourth paragraph, the conditions of the present Article are applicable to listed legal entities.
SECTION II Monitoring, inspection and discipline Articles L811-11 to
L811-16
Subsection 1 Monitoring and inspection Articles L811-11 to
L811-11-2
Article L811-11 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 9 and Art. 13 Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 155, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed receivers are placed under the supervision of the public prosecutor. Their professional activities are subject to inspections by the public authority during which they are required to provide all relevant information and documents without being able to object on the grounds of professional secrecy.
The organisation and terms of such inspections are determined in a Conseil d'Etat decree. In connection with the supervision entrusted to the National Council referred to in Article L814-2, court-appointed
receivers are required, without being able to object on the grounds of professional secrecy, to comply with any request for pertinent information or documents made by the inspectors.
The auditor of a receiver undergoing an inspection is required, without being able to object on the grounds of professional secrecy, to comply with the inspectors' requests for any information gathered or any document drawn up in the performance of his duties.
The Caisse des dépôts et consignations is required, without being able to object on the grounds of professional secrecy, to comply with the inspectors' requests and those of the National Council referred to in Article L814-2, concerning the supervision for which it is responsible, for any information or document relating to the movements of funds in the accounts opened in its books in the name of each receiver and the sums deposited therein by virtue of the assignments to which the inspection relates.
NB: Act 2005-845 2005-07-26 Art. 190: The last paragraph of Article L811-11 of the Commercial Code shall become effective upon publication of the act, i.e. 27 July 2005.
Article L811-11-1 (Order No. 2005-1126 of 8 September 2005 Art. 2 Official Journal of 9 September 2005) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed receivers are required to designate an auditor to verify their special accounts and thus provide permanent auditing of all funds, bills, securities and other items belonging to others of which the court-appointed receivers are sole holders by virtue of powers received in performance of their functions.
Such auditing also covers bank accounts or post office accounts opened by an administrator in the names of debtors against whom proceedings are brought under Part II of Book VI and which operate under the sole signature of the administrator or his duly empowered representatives.
For auditing purposes, the auditors may also have access to the general accounts of the practice and the cases
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COMMERCIAL CODE entrusted to the administrator and, notwithstanding any contrary provision, request from the latter or from any third-party holders of funds any information relevant to their auditing assignment.
Article L811-11-2 (inserted by Order No. 2005-1126 of 8 September 2005 Art. 2 Official Journal of 9 September 2005)
As stipulated in a Conseil d'Etat decree, the auditors inform the authorities entrusted with supervision of the inspections and audits of court-appointed receivers and their findings and call attention to any anomalies or irregularities which have come to their notice in the performance of their assignment.
Subsection 2 Discipline Articles L811-12 A to
L811-16
Article L811-12 A (Act No. 2003-7 of 3 January 2003 Art. 10 and Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Any breach of the laws and regulations, any violation of professional ethics, and any failure of integrity or honour, even relating to facts unconnected with professional practice, results in disciplinary proceedings being brought against the receiver responsible.
Article L811-12 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 11 and Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The disciplinary action is brought by the Minister of Justice, the Public Prosecutor of the court of appeal in whose jurisdiction the facts were committed, the government representative or the chairman of the National Council of Court-Appointed Administrators and Court-Appointed Receivers. Acceptance of a registered court-appointed administrator's resignation shall not impede the disciplinary proceedings if the facts alleged were committed while he was in practice.
I. - The national registration committee sits as a disciplinary committee. The government representative performs the public prosecutor's duties thereon. It may impose the following disciplinary penalties:
1 A warning; 2 A reprimand; 3 A prohibition on practising for a period not exceeding three years; 4 Removal from the court-appointed receivers' register. II. - A warning or reprimand may be accompanied, for a period of one year, by supervisory measures determined by
the committee which impose special obligations on the receiver. Such obligations may also be imposed by the committee when a temporarily barred receiver resumes his duties.
III. - When it imposes a disciplinary penalty, the committee may decide, in view of the seriousness of the facts committed, to require the receiver to pay some or all of the costs incurred through having an auditor or an expert present at the audits or inspections which enabled those facts to be determined.
Article L811-13 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 69 3 Official Journal of 12 February 2004) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Any receiver against whom criminal or disciplinary proceedings are brought may be temporarily suspended from practising by the Tribunal de grande instance having jurisdiction at the place where he is established.
In urgent cases, temporary suspension may be imposed even before criminal or disciplinary proceedings commence if inspections or verifications have revealed that the sums received by the receiver in his professional capacity are at risk.
The court may end a temporary suspension at any time if so requested by the government representative or the receiver.
The suspension ceases automatically in the event of the criminal or disciplinary proceedings lapsing. It also ceases automatically, in the case envisaged in the second paragraph, if no criminal or disciplinary proceedings are brought within one month of its being imposed.
Article L811-14 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Disciplinary action lapses after ten years.
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COMMERCIAL CODE Article L811-15 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
A barred, deregistered or suspended receiver shall cease all professional acts. Any act carried out regardless of this prohibition may be declared null and void by the court sitting in chambers at
the request of any interested party or the public prosecutor. The decision is binding on all parties. Any violation of the foregoing provisions shall incur the penalties imposed for usurpation of functions by Article
433-17 of the Penal Code.
Article L811-16 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 12, Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
No person may claim court-appointed administrator status beyond the assignment entrusted to him by virtue of the second paragraph of Article L811-2 or the second paragraph of Article L811-8 unless his name appears in a register of court-appointed administrators.
Any violation of this provision shall incur the penalties imposed for usurpation of functions by Article 433-17 of the Penal Code.
The same penalties shall apply to anyone who uses a designation similar to that of "court-appointed administrator" which could create a misunderstanding in the public perception.
CHAPTER II Legal agents in the winding-up of undertakings Articles L812-1 to
L812-10
SECTION I Tasks, conditions of access and performance and incompatibilities Articles L812-1 to
L812-8
Subsection 1 Tasks Article L812-1
Article L812-1 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 14 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 69 1 Official Journal of 12 February 2004) (Act No. 2005-845 of 26 July 2005 Art. 158 V, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed receivers are natural persons or legal entities appointed by a court decision to represent the creditors and liquidate a business as provided for in Part II of Book VI.
They are personally responsible for the tasks entrusted to them. When the proper course of the proceedings so requires, however, and when expressly authorised by the presiding judge, they may entrust some of those tasks to third parties, while retaining responsibility therefor.
When court-appointed receivers entrust to third parties tasks forming part of the assignment entrusted to them by the court, they shall compensate them from the remuneration they receive pursuant to the decree referred to in Article L663-2.
Subsection 2 Conditions of access to the profession Articles L812-2 to
L812-3
Article L812-2 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 15 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 69 2 Official Journal of 12 February 2004) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
I. - Only those whose name appears in a register drawn up by a national committee created for that purpose may be appointed by a court to perform the functions of a court-appointed administrator.
II. - By way of exception, however, the court may, via an expressly reasoned decision and after seeking the advice of the public prosecutor, appoint as a court-appointed administrator a natural person who can furnish proof of experience or qualifications particularly relevant to the nature of the case and who meets the conditions laid down in 1 to 4 of Article L812-3.
The persons referred to in the previous paragraph must not, during the previous five years, for whatever reason,
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COMMERCIAL CODE either directly or indirectly, have received any reward or payment from a natural person or legal entity who is the subject of court-ordered receivership or liquidation proceedings, from a person who controls such a legal entity or a company controlled by it within the meaning of II and III of Article L233-16, or have acted as an advisor to the natural person or legal entity concerned or have been in any way dependent on it. They must, moreover, have no interest in the assignment entrusted to them and must not be a former director or court-appointed administrator whose name has been removed from the registers pursuant to Articles L811-6, L811-12, L812-4 and L812-9. They are required to perform the duties entrusted to them in accordance with the professional obligations imposed on duly registered court-appointed administrators. They shall not act as court-appointed administrators on a regular basis.
Upon assuming their functions, persons appointed pursuant to the first paragraph of the present indent II must give a sworn statement to the effect that they meet the conditions determined in 1 to 4 of Article L812-3, that they fulfil the obligations enumerated in the previous paragraph and that they are not under any prohibition so to act pursuant to the penultimate paragraph of Article L814-10.
III. - When the court appoints a legal entity, it designates one or more natural persons within it to represent it in regard to performance of the assignment entrusted to it.
Article L812-2-1 (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 16 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The register referred to in Article L812-2 is divided into sections corresponding to the jurisdiction of each court of appeal.
Article L812-2-2 (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 16 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 53 II 1 Official Journal of 12 February 2004) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The composition of the national committee referred to in Article L812-2 is as follows: - a judge of the Court of Cassation, acting as chairman, appointed by the presiding judge of the Court of Cassation; - an officer of the National Audit Office appointed by the chairman of the National Audit Office; - a member of the Inspectorate of Public Finances appointed by the Finance Minister; - an appeal court judge appointed by the presiding judge of the Court of Cassation; - a higher commercial court judge appointed by the presiding judge of the Court of Cassation; - a professor of law, economics or management appointed by the Minister for the Universities; - a representative of the Conseil d'Etat, appointed by the vice-president of the Conseil d'Etat; - two persons qualified in an economic or social discipline appointed by the Minister of Justice; - three registered court-appointed receivers elected by their peers as determined in a Conseil d'Etat decree. One of
them is replaced by a person chosen from a register of organisational diagnostics experts when, pursuant to the provisions of the last paragraph of Article L813-1, the committee gives an opinion on the inclusion in the register of an expert in this specialism, or his deregistration or withdrawal.
In the event of a tied vote, the chairman has a casting vote. The chairman and the members of the committee, and their deputies (equal in number and chosen from the same
categories), are appointed for a three-year term of office, renewable once A judge from the public prosecutor's office and his deputy are appointed to act as the Government's representative
on the national committee and to examine, inter alia, the applications for admission. The committee's operating costs are met by the State.
Article L812-3 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 17 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
All persons registered by the committee must: 1 Be French nationals or citizens of a Member State of the European Community or the European Economic Area; 2 Not have been the perpetrator of facts giving rise to a criminal conviction for dishonourable conduct or lack of
integrity; 3 Not have been the perpetrator of facts of the same kind giving rise to a disciplinary or administrative sanction,
dismissal, striking off, removal from office, withdrawal of approval or withdrawal of authorisation; 4 Not have been declared personally bankrupt or made subject to one of the prohibition or forfeiture measures
provided for in Chapter V of Part II of Book VI of the present code, Part VI of the aforementioned Act No. 85-98 of 25 January 1985 or, under the scheme which preceded that law, Part II of the aforementioned Act No. 67-563 of 13 July 1967;
5 Have passed the entrance examination for the vocational development programme, completed that programme and passed the receivership aptitude examination.
Only persons who hold diplomas or other qualifications determined by decree may take the entrance examination for the vocational development programme.
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COMMERCIAL CODE Notwithstanding the foregoing, persons who meet the competence and professional experience conditions laid
down in a Conseil d'Etat decree are exempted from the entrance examination for the vocational development programme. The committee may, moreover, exempt such persons, as provided for in a Conseil d'Etat decree, from part of the vocational development programme and from all or part of the receivership aptitude examination.
Registered legal entities may only exercise receivership functions through a member who is himself registered. Persons who can show that they have acquired a qualification which enables them to act as a court-appointed
liquidator in a European Community member state other than France or a European Economic Area member state are exempted from the diploma, training course and professional examination conditions laid down in the sixth and seventh paragraphs, without prejudice to them having taken an examination to verify their knowledge as provided for in a Conseil d'Etat decree. A list of the candidates eligible to take the examination is drawn up by the committee.
Subsection 3 Conditions of performance Articles L812-4 to
L812-7
Article L812-4 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 18 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The national committee, on its own initiative or at the request of the Minister of Justice, the chairman of the National Council of Court-Appointed Administrators and Court-Appointed Receivers, the government representative or the public prosecutor in whose jurisdiction the receiver is established, may, through a reasoned decision and after instructing the party concerned to present its observations, delete from the list referred to in Article L812-2 a receiver who, on account of his physical or mental state, is unable to perform his functions in the normal way, or a court-appointed administrator who has shown himself to be incapable of performing his functions in the normal way.
Deregistration shall not prevent disciplinary proceedings from being brought against the court-appointed liquidator if the offences were committed in the performance of his duties.
Article L812-5 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed receivers may create civil-law professional partnerships governed by Act No. 66-879 of 29 November 1966 relating to civil-law professional partnerships in order to practice their profession collectively. They may also practice their profession through independent professional firms as provided for in Act No. 90-1258 of 31 December 1990 relating to independent professional practices having a specific legislative or regulatory status or a protected designation. They may also be members of an economic interest group or a European economic interest group or partners in an undisclosed partnership governed by Part II of Act No. 90-1258 of 31 December 1990 relating to professional practices having a specific legislative or regulatory status or a protected designation.
Article L812-6 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 19 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Cases being dealt with by a court-appointed receiver who relinquishes his functions, whatever the reason, are distributed among the other receivers by the court within three months of him ceasing his functions.
In the interest of the proper administration of justice, however, the court may authorise the former receiver to continue to deal with one or more pending cases unless he was forced to abandon his functions on account of deregistration. Such a receiver remains bound by the provisions of Articles L812-8 to L812-10, L814-1 and L814-5.
Article L812-7 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 20 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Registered persons are free to practice their profession throughout France.
Subsection 4 Incompatibilities Article L812-8
Article L812-8 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 21 Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 164 II, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
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COMMERCIAL CODE Registered court-appointed administrative receiver status is incompatible with the practising of any other profession. It is also incompatible with: 1 All commercial activities, whether carried out directly or through an intermediary; 2 The status of partner in a general partnership, financing partner in a limited partnership or a partnership limited by
shares, managing director of a limited liability company, chairman of the board of directors, executive board member, general manager or chief executive of a public limited company, chairman or chief executive of a simplified joint-stock company, supervisory board member or director of a commercial company, and managing partner of a civil partnership, unless those entities are engaged in administrative receivership activities or the acquisition of premises for that purpose. A receiver may also be the managing partner of a civil partnership having as its sole objective the management of family interests.
Registered court-appointed receiver status does not impede engagement in consultancy activities in matters pertaining to qualification of the person concerned or performance of the duties of ad hoc representative or mediator provided for in Articles L611-3 and L611-6 of the present code and Article L351-4 of the Rural Code, commissioner for execution of the plan, amicable administrator or liquidator, legal expert and amicable or court-appointed receiver. These activities and duties, save for those of ad hoc representative, mediator and commissioner for execution of the plan, may only be undertaken subsidiarily.
With the exception of the fourth paragraph, the conditions of the present article apply to registered legal entities.
SECTION II Monitoring, inspection and discipline Articles L812-9 to
L812-10
Article L812-9 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 22 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The provisions relating to the supervision, inspection and discipline of court-appointed administrators set forth in Articles L811-11 to L811-15 apply to court-appointed receivers.
The national registration committee sits as a disciplinary committee. The government representative performs the public prosecutor's duties thereon.
Article L812-10 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 23 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
No person may claim court-appointed receiver status beyond the assignment entrusted to him by virtue of the first paragraph of II of Article L812-2 and the second paragraph of Article L812-6 unless his name appears in a register of court-appointed receivers.
Any violation of this provision shall incur the penalties imposed for usurpation of functions by Article 433-17 of the Penal Code.
The same penalties shall apply to anyone who uses a designation similar to that of "court-appointed receiver" which could create a misunderstanding in the public perception.
CHAPTER III Corporate analysis experts Article L813-1
Article L813-1 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 24 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 53 I 1 and 2 Official Journal of 12 February 2004) (Order No. 2005-845 of 26 July 2005 Art. 165 I Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Organisational diagnostics experts are appointed by the courts to draw up a report on the economic and financial situation of a company in the context of conciliation proceedings or protection proceedings or judicial reorganisation proceedings, or to assist the drawing up of such a report pertaining to protection proceedings or judicial reorganisation proceedings.
Such experts must not, during the previous five years, for whatever reason, either directly or indirectly, have received any reward or payment from the natural person or legal entity against whom an administration, assistance or supervisory measure is sought or from a person who controls that legal entity, nor must they have been in any way dependent on it. They must, moreover, have no interest in the assignment entrusted to them.
Upon assuming their functions, the experts thus designated must give a sworn statement to the effect that they fulfil the obligations enumerated in the previous paragraph.
Such experts may be chosen from those in this specialism listed in the registers compiled for the information of judges pursuant to Article 2 of Act No. 71-498 of 29 June 1971 concerning court-appointed experts.
Each court of appeal shall register experts in this specialism pursuant to the provisions of Article 2 of Act No. 71-498
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COMMERCIAL CODE of 29 June 1971 relating to court-appointed experts. They are listed in a national register of court-appointed experts once the national committee created in Article L812-2 has deliberated thereon.
CHAPTER IV Common provisions Articles L814-1 to
L814-11
SECTION I Appeals against decisions of registration committees and representation before Articles L814-1 to
the public authorities L814-2
Subsection 1 Appeals against decisions of registration committees Article L814-1
Article L814-1 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 26 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 69 4 Official Journal of 12 February 2004) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Appeals against the decisions made in regard to registration, withdrawal and discipline by the national committees are brought before the Paris Court of Appeal.
Such appeals have suspensive effect.
Subsection 2 Representation of the professions before the public authorities Article L814-2
Article L814-2 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 26 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The professions of court-appointed administrator and court-appointed receiver are represented in dealings with the public authorities by a National Council of Court-Appointed Administrators and Court-Appointed Receivers, a public interest institution with legal personality which is responsible for protecting the collective interests of those professions. The National Council is also responsible for ensuring that the members of those professions meet their obligations, for organising their professional training, for ensuring that they meet their obligation to maintain and improve their knowledge, for overseeing their studies and for drawing up an annual report thereon for the Minister of Justice.
The electoral and operational formalities of the National Council, which has two electoral colleges of equal numbers representing the court-appointed administrators and the court-appointed receivers respectively, are determined in a Conseil d'Etat decree.
SECTION II Guarantee of the representation of businesses, professional civil liability and Articles L814-3 to
remuneration L814-11
Subsection 1 Guarantee of the representation of businesses and professional civil Articles L814-3 to
liability L814-5
Article L814-3 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 27 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
A fund having legal personality and managed by its contributors is established to guarantee repayment of the funds, bills or securities received or managed by each registered court-appointed administrator and each registered court-appointed receiver relative to the transactions they carry out as a result of their remit. Two public prosecutors are designated to perform the government representative's functions in relation to the fund, one as the incumbent and the other as his deputy.
Membership of this fund is compulsory for each registered court-appointed administrator and each registered court-appointed receiver.
The fund's resources consist of the proceeds of a special annual subscription paid by each registered court-appointed administrator and each registered court-appointed receiver.
The subscriptions paid by the court-appointed administrators and the court-appointed receivers are applied to guaranteeing registered court-appointed administrators and court-appointed receivers only.
In the event of the fund's resources proving insufficient to meet its obligations, it shall issue a supplementary call for
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COMMERCIAL CODE funds to the registered professionals.
The fund's guarantee applies without the benefit of discussion provided for in Article 2021 of the Civil Code being invoked against the creditors and upon simple proof of the due and payable nature of the debt and non-representation of the funds by the registered court-appointed administrator or court-appointed receiver.
The fund is required to take out insurance against the risks it incurs through application of the present code. Appeals against the fund's decisions are brought before the Tribunal de grande instance of Paris.
Article L814-4 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 28 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Each registered court-appointed administrator and each registered court-appointed receiver must be able to show that he has taken out insurance through the guarantee fund. This insurance covers the financial consequences of the civil liability incurred by court-appointed administrators and court-appointed receivers through acts of negligence or misconduct committed by them or their employees in the performance of their duties.
Article L814-5 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 29 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
An unregistered court-appointed administrator, designated as provided for in the second paragraph of Article L811-2, and an unregistered court-appointed receiver, designated as provided for in the first paragraph of II of Article L812-2, must prove, upon accepting his assignment, that he has a guarantee covering reimbursement of the funds, bills or securities, and also, when necessary, an insurance contract underwritten by the guarantee fund. This insurance covers the financial consequences of the civil liability incurred by that court-appointed administrator or court-appointed receiver through acts of negligence or misconduct committed by him or his employees in the performance of their duties.
Subsection 2 Remuneration Articles L814-6 to
L814-11
Article L814-6 (Law No 2001-420 of 15 May 2001 Article 113 I (1) Official Gazette of 16 May 2001)
The Conseil d'Etat shall issue a decree stipulating the terms of remuneration of court-appointed receivers, irrespective of whether or not they are registered on the national list, and of legal agents for winding up companies, together with the rules for paying remuneration to persons called, at their request, to carry out certain technical tasks for the benefit of the company not included in their brief.
Article L814-7 (inserted by Law No. 2003-7 of 3 January 2003 Article 13 and Article 34 (I) Official Gazette of 4 January 2003)
When the proceeds from realisation of the company's assets are insufficient to enable the liquidator or the creditors' representative to receive, by way of the remuneration due to him pursuant to the provisions of Article L. 814-6, a sum at least equal to the threshold set in a Conseil d'Etat decree, a decision of the court declares that case to be impecunious on the basis of a proposal from the insolvency judge and in the light of the elements of proof produced by the liquidator or the creditors' representative.
That same decision determines the sum corresponding to the difference between the remuneration actually received by the liquidator or the creditors' representative and the threshold referred to in the previous paragraph.
The sum paid to the creditors' representative or the liquidator is deducted from a portion of the interest paid by the Caisse des dépôts et consignations on the funds deposited with it pursuant to Articles L. 621-33, L. 621-64 and L. 622.8. That portion is allocated to a special fund managed by the Caisse des dépôts et consignations under the control of an administration committee. The present paragraph's terms of application are determined in a Conseil d'Etat decree.
Article L814-8 (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 30, Art. 31 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
When a registered court-appointed administrator or court-appointed receiver instructed by a court to carry out the tasks referred to in Book VI in regard to a company has already acted as a consultant to that company or carried out the tasks referred to in the antepenultimate paragraphs of Articles L811-10 and L812-8 therein, he shall inform the court of the nature and scale of such involvement during the previous five years.
Failure to comply with the provisions of the previous paragraph shall result in disciplinary proceedings.
Article L814-9 (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 30, Art. 32 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
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COMMERCIAL CODE Registered court-appointed administrators and court-appointed receivers are required to undergo continuous
training which enables them to maintain and improve their knowledge. This training is organised by the National Council referred to in Article L814-2.
Article L814-10 (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 30 and Art. 35 Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 164 III, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Unregistered court-appointed administrators and court-appointed receivers instructed as provided for in the second paragraph of Article L811-2 or the first paragraph of II of Article L812-2 are placed under the supervision of the public prosecutor and their professional activities are subject to inspections by the public authority during which they are required to provide all relevant information and documents without being able to object on the grounds of professional secrecy.
The auditors of unregistered court-appointed administrators or receivers undergoing an inspection are required, without being able to object on the grounds of professional secrecy, to comply with the inspectors' requests for any information gathered or document drawn up in the performance of their duties.
In the event of such court-appointed professionals being accused of an act constituting an offence, violation or infraction referred to in Article L811-12 A, the public prosecutor may ask the Tribunal de grande instance to ban them from acting as court-appointed administrators or receivers.
Prohibition measures imposed pursuant to the previous paragraph are notified to the Minister of Justice for onward transmission to the chief public prosecutors.
Article L814-11 (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 30 and Art. 36 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Any sum held by a court-appointed administrator or a court-appointed receiver by virtue of an amicable remit is paid in to a deposit account with the Caisse des dépôts et consignations upon receipt, barring any express decision of the principal to designate another financial institution. In the event of a delay, the court-appointed administrator or court-appointed receiver shall pay interest at the legal rate plus five points on any sum he has failed to deposit.
TITLE II Auditors Articles L820-1 to
L822-16
PRELIMINARY CHAPTER General provisions Articles L820-1 to
L820-7
Article L820-1 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 99, Article 110 (1) Official Gazette of 2 August 2003)
Notwithstanding any provision to the contrary, Articles L. 225-227 to L. 225-242, as well as the provisions of the present Title, are applicable to auditors appointed in all legal entities regardless of the scope of their remit. They are also applicable to those persons, without prejudice to the specific rules which apply to them, regardless of their legal status.
The obligations imposed on chairmen of boards of directors, managing directors, directors, members of the executive board and managers of commercial companies are applicable to the management of legal entities which are required to have an auditor.
Article L820-2 ( (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 99, Article 110 (2) Official Gazette of 2 August 2003)
No person who fails to meet the conditions laid down in Articles L. 225-227 to L. 225-242 and the provisions of the present Title may claim to be an auditor.
Article L820-3 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 99, Article 109 Official Gazette of 2 August 2003)
Prior to his appointment, the auditor shall write to the entity whose accounts he proposes to audit to tell it that he is a member of a national or international network which is not solely devoted to the legal auditing of accounts and whose members have a common financial interest. If applicable, he shall also inform it of the total amount of fees received by that network for services unconnected with auditing which were provided by that network to an entity controlled by or which controls, within the meaning of subparagraphs I and II of Article L. 233-3, the entity whose accounts the said auditor is proposing to audit. This information is included in the documents made available to shareholders pursuant to Article L. 225-108. After annual updating by the auditor, that information is made available to the partners and shareholders and, in the case of associations, to the members and donors, at the registered office of the entity whose
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COMMERCIAL CODE accounts he audits.
The information regarding the amount of the fees paid to each auditor is available to the partners and shareholders and, in the case of associations, to the members and donors, at the controlled entity's registered office.
Article L820-4 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-706 of 1 August 2003 Article 99 Official Gazette of 2 August 2003)
Notwithstanding any provision to the contrary: 1. A penalty of two years' imprisonment and a fine of 30,000 euros (criminal penalties) are imposed on any
executive of a legal entity required to have an auditor who fails to organise such an appointment or who fails to invite the auditor to any general meeting;
2. A penalty of five years' imprisonment and a fine of 75,000 euros are imposed on the executives of a legal entity or any person in the service of a legal entity required to have an auditor who obstructs the auditing or verification of the accounts by the auditors or other experts appointed pursuant to Articles L. 223-37 and L. 225-231, or who refuses to provide them, there and then, with all the items relevant to their mission and, in particular, any contracts, books, accounting documents and minute books.
Article L820-5 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-706 of 1 August 2003 Article 99 Official Gazette of 2 August 2003)
A penalty of one years' imprisonment and a fine of 15,000 euros (criminal penalties) are imposed on any person who:
1. Uses the designation"auditor", or any similar designation which might be confused with it, who is not duly registered as prescribed in subparagraph I of Article L. 225-219, and has not taken an oath in the manner stipulated in Article L. 225-223;
2. Illegally practises as an auditor in breach of the provisions of subparagraph I of Article L. 225-219 and Article L. 225-223 or those of any temporary ban or suspension.
Articles 226-3 and 226-14 of the Penal Code, relating to professional secrecy, are applicable to auditors.
Article L820-6 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-706 of 1 August 2003 Article 99 Official Gazette of 2 August 2003)
A penalty of six months' imprisonment and a fine of 7,500 euros (criminal penalties) are imposed on any person who, either on his own account, or as a partner in an auditing firm, accepts, performs or retains the functions of an auditor notwithstanding legal incompatibilities.
Article L820-7 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-706 of 1 August 2003 Article 99 Official Gazette of 2 August 2003)
A penalty of five years' imprisonment and a fine of 75,000 euros (criminal penalties) are imposed on any person who, either on his own account, or as a partner in an auditing firm, gives or confirms false information regarding a legal entity's position or who fails to disclose any criminal facts he is aware of to the Public Prosecutor.
CHAPTER I Organisation and Monitoring of the Profession Articles L821-1 to
L821-12
Article L821-1 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
A High Council for Auditorship has been created by the Minister of Justice, with the following mission: - to provide supervision for the profession with the support of the National Company of Auditors instituted by Article
L. 821-6; - to ensure respect for professional ethics and the independence of auditors. Consistent with this mission, the High Council for Auditorship performs the following tasks, among others: - to identify and promote good professional practices; - to give an opinion on the rules of professional practice drafted by the National Company of Auditors prior to their
approval via an order of the Minister of Justice; - in its capacity as an appeals authority for decisions of the regional commissions referred to in Article L. 822-2, to
effect registration of auditors; - to determine the content of and framework for the periodic inspections provided for in Article L. 821-7 and to
supervise their implementation and monitoring pursuant to Article L. 821-9; - in its capacity as an appeals authority for decisions of the regional chambers referred to in Article L. 822-6, to deal
with disciplinary issues relating to auditors.
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COMMERCIAL CODE Article L821-2 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The opinion referred to in subparagraph six of Article 281-1 is accepted by the Minister of Justice after consultation with the Financial Markets Authority, the Banking Commission and the Supervisory Commission for general insurance companies, mutual insurance companies and provident societies whenever it pertains to their specific areas of responsibility.
Article L821-3 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The composition of the High Council for Auditorship is as follows: 1. Three law officers, one of whom is a judge at the Court of Cassation, as chairman, a senior official of the Cour
des Comptes, and a second Judge; 2. The chairman of the Financial Markets Authority or his representative, a representative of the Minister for the
Economy and a university professor specialising in law, economics or finance; 3. Three persons qualified in economics and finance; two of whom are chosen for their expertise in the field of
corporate public issues; the third is chosen for his expertise in the field of small and medium-sized enterprises, commercial private-law corporations or associations;
4. Three auditors, two of whom have experience of auditing the accounts of entities which launch public issues or appeals for public generosity.
The decisions are taken on a majority of the votes cast. In the event of a tied vote, the chairman has a casting vote. The chairman and the members of the High Council for Auditorship are appointed by decree for renewable periods
of six years. The composition of the High Council for Auditorship is renewed by half every three years. The High Council for Auditorship forms specialised advisory committees from among its members to prepare its
decisions and recommendations. Those committees may co-opt experts if necessary.
Article L821-4 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The Minister of Justice appoints a government representative to the High Council for Auditorship. He sits on the Council with a right of discussion only. The government representative does not attend deliberations relating to disciplinary matters. In regard to other matters, he may request a second deliberation under terms and conditions determined in a Conseil d'Etat decree.
Article L821-5 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The funds required to operate the High Council are charged to the budget of the Ministry of Justice.
Article L821-6 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
A National Company of Auditors, a public corporation with legal personality instituted under the aegis of the Minister of Justice and directed to the public benefit, is tasked with representing the auditing profession in its dealings with the public authorities.
It contributes to the promotion of proper practises in the profession, supervision thereof and the protection of the honour and independence of its members.
A Regional Company of Auditors having legal personality is instituted within the territorial jurisdiction of each court of appeal. The Minister of Justice may nevertheless constitute groupings based on a proposal from the National Company after the latter has consulted the Regional Companies concerned.
The resources of the National Company and the Regional Companies are provided mainly by an annual subscription collected from the auditors.
Article L821-7 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
While practising their profession, auditors are subject to: a) The inspections referred to in Article L. 821-8; b) Periodic checks organised on the basis of parameters defined by the High Council; c) Occasional checks decided on by the national company or the regional companies.
Article L821-8 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The Minister of Justice may launch immediate inspections and request the assistance of the Financial Markets Authority, the National Company of Auditors, the Banking Commission or the Commission for general insurance companies, mutual insurance companies and provident societies in connection therewith.
The Financial Markets Authority may immediately launch any inspection of an auditor of an entity which makes public issues or of a collective investment undertaking and request the assistance of the National Company of Auditors in connection therewith, and also, if appropriate, that of the authorities enumerated in subparagraph 2 of Article L. 621-9-2 of the Monetary and Financial Code. Neither the chairman of the Financial Markets Authority nor his representative shall sit on the High Council while any disciplinary proceedings resulting from such an inspection are in progress.
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COMMERCIAL CODE Article L821-9 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The checks referred to in subparagraphs b) and c) of Article L. 821-7 are carried out by the national company or the regional companies.
When such checks relate to the auditors of entities that make public issues or of collective investment undertakings, they are carried out by the National Company with the assistance of the Financial markets Authority.
Article L821-10 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
When particularly serious facts come to light which would justify criminal or disciplinary penalties, the Minister of Justice may, from the inception of proceedings, when the urgent nature and the public interest warrant it, and when the person concerned has had an opportunity to present his observations, pronounce the temporary suspension of an auditor (natural person). The chairman of the Financial Markets Authority and the chairman of the National Company of Auditors may refer the matter to him.
The Minister of Justice may end the temporary suspension at his own discretion at any time at the request of the person concerned or of the authorities referred to in the first paragraph.
The temporary suspension ceases automatically and immediately upon closure of the criminal and disciplinary procedures.
Article L821-11 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The implementing provisions for Articles L. 821-3 and L. 821-6 to L. 821-10 are determined in a Conseil d'Etat decree.
Article L821-12 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
Auditors are requested to provide all the information and documents requested of them when inspections and checks are carried out, without being able to invoke professional secrecy.
CHAPTER II Auditors'status Articles L822-1 to
L822-16
SECTION I Registration and discipline Articles L822-1 to
L822-8
Subsection 1 Registration Articles L822-1 to
L822-5
Article L822-1 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
No person shall practice as an auditor without prior registration on a list established for that purpose.
Article L822-2 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
A Regional Registration Commission is established at the main facility of each court of appeal. It compiles and revises the list referred to in Article L. 822-1.
Each Regional Registration Commission is composed of: 1. A judge acting as chairman; 2. A senior official of the Chambre Régionale des Comptes; 3. A university professor specialising in law, economics or finance; 4. Two persons qualified in law, economics or finance; 5. A representative of the Minister for the Economy; 6. A member of the Regional Company of Auditors. The chairman and members of the Regional Registration Commission, and their deputies, are appointed by a
decree of the Minister of Justice for a renewable period of three years. The decisions are taken on a majority of the votes cast. In the event of a tied vote, the chairman has a casting vote. Appeals against the decisions of the Regional Registration Commissions are brought before the High Council for
Auditorship.
Article L822-3 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
Every auditor must go before the court of appeal within whose jurisdiction he practices to swear to fulfil the duties of his profession with honour, probity and independence, and to respect, and impose respect for, the laws.
Article L822-4
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COMMERCIAL CODE (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
Any person registered pursuant to Article L. 822-1 who has not practised as an auditor for three years is required to take a special part-time training course before accepting an auditing mission.
Article L822-5 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
The implementing provisions of the present subsection are determined in a Conseil d'Etat decree.
Subsection 2 Discipline Articles L822-6 to
L822-8
Article L822-6 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
The Regional Registration Commission, sitting as a Regional Disciplinary Chamber, is competent to judge a disciplinary action brought against an auditor who is a member of a regional company, regardless of the place in which the misconduct with which he is charged is alleged to have taken place.
Article L822-7 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
Cases may be referred to the Regional Disciplinary Chamber by the Minister of Justice, the Public Prosecutor, the Chairman of the National Company of Auditors or the chairman of the Regional Company.
In addition to the persons determined in a Conseil d'Etat decree, the chairman of the Financial Markets Authority may refer cases pertaining to disciplinary action to the Principal State Prosecutor. When he has exercised that right, he is not entitled to sit on the disciplinary bench of the High Council hearing the same proceedings.
The decisions of the Regional Disciplinary Chamber are appealable before the High Council for Auditorship at the initiative of the authorities referred to in the present Article and the professional concerned.
A judge, appointed by the Minister of Justice, attached to the Principal State Prosecutor's Office or the Public Prosecutor's Office, exercises the Public Prosecutor's functions for each Regional Chamber and the High Council in regard to disciplinary matters.
The present Article's implementing provisions are determined in a Conseil d'Etat decree.
Article L822-8 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
- The disciplinary penalties are: 1. A warning; 2. A reprimand; 3. A temporary ban of up to five years; 4. Removal from the list. Honorary titles may also be withdrawn. A warning, a reprimand or a temporary ban may be accompanied by the additional penalty of ineligibility for
membership of professional bodies for a maximum of ten years. A temporary ban may be pronounced with suspended effect. The suspension of the penalty does not extend to any
additional penalty imposed pursuant to the previous paragraph. If the auditor commits a breach or an offence which results in the application of a further disciplinary penalty within five years of the penalty being pronounced, this shall, barring a reasoned decision to the contrary, give rise to execution of the first penalty without any prospect of concurrency with the second.
When they pronounce a disciplinary penalty, the High Council and the Regional Chambers may decide to make the auditor liable for payment of some or all of the costs incurred through carrying out the inspections or verifications which enabled the penalised misconduct to be established.
SECTION II Ethics and Independence of Auditors Articles L822-9 to
L822-16
Article L822-9 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (I) Official Gazette of 2 August 2003)
The auditing profession is practised by natural persons or by firms created by such persons in whatever form. Three quarters of an auditing firm's capital shares must be held by auditors. When an auditing firm has an equity
interest in another auditing firm, shareholders or partners who are not auditors cannot hold more than 25% of the total of the two firms' capital shares. The posts of chief executive, chairman of the board of directors or of the executive board, chairman of the supervisory board and general manager must be held by auditors. At least three quarters of the members of the management, administrative and supervisory structures and at least three quarters of the shareholders or partners must be auditors. The permanent representatives of auditing firms, whether partners or shareholders, must be auditors.
In registered auditing firms, the auditing functions are performed, on behalf of the firm, by natural-person auditors who are partners, shareholders or executives of that firm. Those persons can only perform auditing functions for one
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COMMERCIAL CODE auditing firm. The members of the board of directors or of the supervisory board can be employees of the company without limitation in terms of number or conditions of seniority being applied to employee status.
In the event of the decease of an auditor who is a shareholder or a partner, his beneficiaries have two years in which to sell their shares to an auditor.
The admission of any new shareholder is subject to prior approval which, under the terms and conditions of the memorandum and articles of association, can be given either by a general meeting of shareholders or partners, or by the board of directors or the supervisory board or the management, as applicable.
Notwithstanding these provisions, these functions may be performed concurrently within one auditing firm and a second auditing firm in which the first firm holds more than half of the share capital or if at least half of the partners of the two firms are common to both.
Article L822-10 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (I) Official Gazette of 2 August 2003)
The functions of an auditor are incompatible with: 1. Any activity or any act likely to jeopardise his independence; 2. Any paid employment; an auditor may nevertheless provide training associated with the practising of his
profession or occupy a remunerated post in an auditing firm or an accounting firm; 3. Any commercial activity, whether conducted directly or through an intermediary.
Article L822-11 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (II) Official Gazette of 2 August 2003)
I - An auditor shall not directly or indirectly take, receive or retain an interest in an entity whose accounts he audits, or in an entity which controls that entity or is controlled by it within the meaning of subparagraphs I and II of Article L. 233-3.
Without prejudice to the provisions of the present Book or those of Book II, the code of ethics referred to in Article L. 822-16 defines the concomitant or prior personal, financial and professional connections which are incompatible with the auditor's mission. It specifies, among other things, the situations in which the auditor's independence is affected when he belongs to a national or international multidisciplinary network whose members have a common economic interest through the provision of services to an entity which is controlled by or which controls, within the meaning of subparagraphs I and II of Article L. 233-3, the entity whose accounts are audited by the said auditor. The code of ethics also specifies the limitations that must be applied to the holding of financial interests by the auditor's employees and associates in the companies whose accounts he audits.
II. - Auditors are prohibited from providing any advice or other service to the person who entrusts them with the auditing of their accounts, or to the persons who control that person within the meaning of subparagraphs I and II of that same Article, which is unrelated to the formalities having direct relevance to their auditing task as defined in the standards of professional practice referred to in the sixth paragraph of Article L. 821-1.
When an auditor is affiliated to a national or international network whose members have a common economic interest and which is not exclusively involved in the legal auditing of accounts, he cannot audit the accounts of an entity which, by virtue of a contract entered into with that network or with a member of that network, benefits from a provision of services which are not directly linked to the auditor's mission according to the assessment made by the High Council for Auditorship pursuant to the third paragraph of Article 821-1.
Article L822-12 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (II) Official Gazette of 2 August 2003)
Individual auditors and signing members of an auditing firm cannot be appointed as directors or employees of a company they have audited until five years have elapsed since they last audited that company.
During that same period, they cannot perform those functions in a legal entity which controls or is controlled, within the meaning of subparagraphs I and II of Article L. 233-3, by the company whose accounts they audited.
Article L822-13 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (II) Official Gazette of 2 August 2003)
Persons who have been directors or employees of a legal entity cannot be appointed as auditors of that legal entity until five years have elapsed since they were employed by that company.
During that same period, they cannot be appointed as auditors of legal entities which hold at least 10% of the capital of the legal entity in which they performed their functions, or which held at least 10% of the capital when those functions ceased.
The prohibitions provided for in the present Article for the persons referred to in the first paragraph are applicable to auditing firms in which the said persons are partners, shareholders or executives.
Article L822-14 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (II) Official Gazette of 2 August 2003)
Individual auditors and signing members of auditing firms are prohibited from auditing the accounts of legal entities which make public issues for more than six consecutive financial years.
This provision also applies to the legal entities referred to in Article 612-1 and the associations referred to in Article L. 612-4, when such legal entities make appeals for public generosity.
Article L822-15 (Act No. 2003-706 of 1 August 2003 Art. 104 II Official Journal of 2 August 2003)
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COMMERCIAL CODE (Act No. 2005-845 of 26 July 2005 Art. 162 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Without prejudice to the provisions of Article L225-240 and the specific legislative provisions, the auditors and their employees and experts are bound by professional secrecy in respect of all facts, actions and information of which they have knowledge on account of their functions. They are nevertheless released from professional secrecy in regard to the presiding judge of the commercial court or the Tribunal de grande instance when they apply the provisions of Chapter IV of Part III of Book II or Chapter II of Part I of Book VI.
When a legal entity draws up consolidated accounts, the consolidating legal entity's auditors and the auditors of the consolidated entities are, each in respect of the others, released from professional secrecy. These provisions also apply when an entity draws up combined accounts.
Article L822-16 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (II) Official Gazette of 2 August 2003)
A Conseil d'Etat decree approves a code of ethics for the profession after seeking the advice of the High Council for Auditorship and, for the provisions which apply to auditors who act for entities that make public issues, the Financial Markets Authority.
BOOK IX Provisions relating to overseas Articles L911-1 to
L950-7 TITLE I Provisions specific to Saint-Pierre-et-Miquelon Articles L911-1 to
L910-5
Article L910-1 (Order No. 2004-328 of 15 April 2004 Art. 8 Official Journal of 17 April 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XIX Official Journal of 10 December 2004) (Act No. 2005-842 of 26 July 2005 Art. 11 III Official Journal of 27 July 2005)
The following articles do not apply in Saint Pierre and Miquelon: 1 L125-3, L126-1; 2 L225-245-1, L229-1 to L229-15, L238-6, L244-5 and L252-1 to L252-13; 3 L470-6; 4 L522-1 to L522-40 and L524-20; 5 L711-5, L711-9, L713-6 to L713-10, L713-11 to L713-17 insofar as they relate to consular delegates; L720-1 to
L730-17.
Article L910-2 The terms set out below shall be replaced as follows for the purpose of the application of this Code to
Saint-Pierre-et-Miquelon: 1. "Tribunal de grande instance"or"Tribunal d'instance"by"court of first instance". 2. "Tribunal de commerce"or"lay commercial judge"by"court of first instance ruling on commercial matters". 3. "Department"or"district"by"territorial authority". 4. "Official Gazette of Civil and Commercial Announcements"by"Records of administrative deeds of the territorial
authority".
Article L910-3 References in the provisions of this Code applicable to Saint-Pierre-et-Miquelon to other Articles of this Code shall
only refer to the Articles made applicable to the authority with the changes for which provision is made in the following chapters.
Article L910-4 Where no changes are made, references in the provisions of this Code applicable to Saint-Pierre-et-Miquelon to
provisions which do not apply to it shall be replaced by references to local provisions which serve the same purpose.
Article L910-5 Articles which refer to the European Community shall apply in accordance with the association decision for which
provision is made in Article 136 of the Treaty establishing the European Community. References to the agreement on the European Economic Area shall not apply.
CHAPTER I Provisions Amending Book I Articles L911-1 to
L911-14
Article L911-1 (Order No. 2004-279 of 25 March 2004 Art. 6 Official Journal of 27 March 2004)
In Article L. 122-1, the words"by the Prefect of the Department in which he envisages conducting his business initially"are replaced by the words"by the prefect of the territory if the foreign national is to conduct his business there
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COMMERCIAL CODE initially".
Article L911-2 The exemptions for which provision is made in Articles L. 123-25 to L. 123-27 shall apply to natural persons subject
to a simplified taxation system under regulations in force in Saint-Pierre-et-Miquelon.
Article L911-3 In Article L. 133-7, the words"customs duty, tax, expenses and fines connected with a transport operation"shall be
deleted.
Article L911-4 Registration with the registry of the court of first instance ruling on commercial matters shall exempt deeds and
declarations submitted to it in application of Article L. 141-5 from the need to be formally recorded.
Article L911-5 For the purpose of Articles L. 141-15, L. 143-7 and L. 145-28, a magistrate of the court of first instance may be
delegated by the president.
Article L911-6 In Article L. 141-13, the words"by Articles 638 and 653 of the General Tax Code"shall be replaced by the words"by
the provisions of local tax laws".
Article L911-7 In Article L. 144-5, the words"Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code"shall be
replaced by the words"the Articles of the public health Code applicable locally to hospitalisation or confinement with or without the consent of the interested party".
Article L911-8 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Article L. 145-2 is modified as follows: I. - In 4, the words:"to the State, to the departments, to the communes, to the public institutions"are replaced with
the words"to the State, to the territorial authorities and to the public institutions"; II. - In 6, the words"to the social security fund of the Maison des Artistes et reconnus auteurs d'œuvres graphiques
et plastiques, as defined in Article 71 of Annex III of the General Tax Code"are replaced with the words"to the local social security fund for the creators of graphic and plastic arts, as defined in the tax code applicable in the territory".
Article L911-9 For the purpose of Article L. 145-6, the words"evacuation of the premises included in a sector or perimeter for which
provision is made in Articles L. 313-3 and L. 313-4 of the Town Planning Code"shall be replaced by the words"evacuation of the premises for which provision is made in Article L. 145-18".
Article L911-10 In Article L. 145-13, the words"subject to the provisions of the law of 28 May 1943 on the application to foreigners of
legislation governing residential leases and farming leases"shall be deleted.
Article L911-11 The second sub-paragraph of Article L. 145-18 shall be worded as follows: "The same shall apply for the purpose of restoring buildings involving repair, conservation, modernisation or
demolition work which changes the living conditions of a set of buildings so that the premises have to be evacuated. Such work may be decided and carried out in accordance with local regulations either by the public authorities with local jurisdiction or at the initiative of one or more owners who may but need not have form a freeholders' association, in which case the owner or owners shall be specially authorised to do so on terms laid down by the state representative, who shall stipulate the commitments which owners must make as to the type and extent of the work.
Buildings acquired by developers shall only be assigned by mutual agreement, once they have been restored, in accordance with the type specifications approved by the state representative."
Article L911-12 In Article L. 145-26, the words"and the territorial authority"shall be inserted after the words"to the state, the
departments, the municipalities".
Article L911-13 The first sub-paragraph of Article L. 145-34 shall be worded as follows: "Unless the factors which determine the rental value change significantly, the variation in the rent applicable when
the lease for renewal takes effect, provided that it is for no longer than nine years, shall not exceed the variation in a local quarterly construction cost index since the rent for the expired lease was originally set. This index shall be calculated in accordance with the terms of an order issued by the state representative. If there is no clause in the contract stipulating the reference quarter for the index, the variation in the local quarterly construction index set for the purpose by the aforementioned order shall be used."
Article L911-14 Article L. 145-35 shall be amended as follows:
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COMMERCIAL CODE I. – In the first sub-paragraph, the word"departmental"shall be deleted. II. – The final sub-paragraph shall be worded as follows: "The composition of the committee and the method of appointing the members and the rules of procedure thereof
shall be decided by order of the state representative."
CHAPTER II Provisions Amending Book II Articles L912-1 to
L912-6
Article L912-1 (Order No. 2004-274 of 25 March 2004 Art. 46 II Official Journal of 27 March 2004)
In Articles L. 223-18, L. 225-36 and L. 225-65, the words"in the same Department or an adjacent department"are replaced by the words"in the territory".
Article L912-2 The final sub-paragraph of Article L. 225-43 and of Article L. 225-91 shall be deleted.
Article L912-3 In the second sub-paragraph of Article L. 225-102, the words"and by the salaried employees of a workers'
cooperative as defined in Law No 78-763 of 19 July 1978 on the status of workers' cooperatives"shall be deleted.
Article L912-4 (Order No. 2004-604 of 24 June 2004 Art. 59 Official Journal of 26 June 2004)
In Article L. 225-115 (5), the words"payments made pursuant to 1 and 4 of Article 238 bis of the General Tax Code"are replaced by the words"tax deductions under the provisions of the local Tax Code applicable to the total deductions from the taxable profits of companies which make payments for the benefit of works by public-interest bodies or approved societies or which make donations of works of art to the State".
Article L912-5 In Article L. 225-196 IV, the words"calculating national insurance contributions"shall be replaced by the
words"calculating national insurance contributions payable under the local social security system".
Article L912-6 In Article L. 225-270 VI, the words"the provisions of Article 94 A of the General Tax Code"shall be replaced by the
words"the provisions of the local tax Code applicable to net capital gains from disposals for money consideration of securities and corporate rights".
CHAPTER III Provisions Amending Book III Article L913-1
Article L913-1 The second sub-paragraph of Article L. 322-9 shall be worded as follows: "They shall comply with the provisions of the local tax Code applicable to public sales and auctions."
CHAPTER IV Provisions Amending Book IV Articles L914-1 to
L914-2
Article L914-1 In the second sub-paragraph of Article L. 442-2 the word"any"shall be inserted before the words"turnover taxes".
Article L914-2 Article L. 443-1 shall be amended as follows: I. – In no. 3, the words"Article 403 of the General Tax Code"shall be replaced by the words"by the provisions of the
local tax Code". II. – No. 4 shall be worded as follows: "4. "Seventy-five days from delivery for purchases of alcoholic beverages liable for the circulation taxes for which
provision is made in the local tax Code".
CHAPTER V Provisions Amending Book V Articles L915-1 to
L915-5
Article L915-1 The second sub-paragraph of Article L. 511-62 shall read as follows: "The withdrawal shall include the sums referred to in Articles L. 511-45 and L. 511-46, in addition to any brokerage
fees or stamp duty for which provision is made in the local tax Code."
Article L915-2 The first sub-paragraph of Article L. 524-19 shall be worded as follows: "The duty to be collected by the clerk of the court of first instance ruling on commercial matters shall be set by
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COMMERCIAL CODE decree."
Article L915-3 In the first sub-paragraph of Article L. 525-2, the words"according to local regulations"shall be inserted after the
words"the fixed duty".
Article L915-4 In Article L. 525-9 II, the words"the preferential right referred to in Article L. 243-4 of the Social Security Code"shall
be replaced by the words"the preferential right organised for the benefit of the social welfare fund of the territorial authority".
Article L915-5 Article L. 525-18 shall be amended as follows: I. – In no. 1, the reference to decree no. 53-968 of 30 September 1953 shall be replaced by a reference to decree
no. 55-639 of 20 May 1955. II. – No. 2 shall be worded as follows: "Ocean-going ships."
CHAPTER VI Provisions Amending Book VI Article L916-1
Article L916-1 (inserted by Act No. 2005-845 of 26 July 2005 Art. 193 I Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
4 of III of Article L643-11 is not applicable in Saint Pierre and Miquelon.
CHAPTER VI Provisions Amending Book VI Articles L917-1 to
L917-4
Article L917-1 In Articles L. 711-2 and 711-4, the word"government"shall be replaced by the words"state representative to the
authority".
Article L917-2 In the third sub-paragraph of Article L. 711-6, the words"or the municipality"shall be replaced by the words"the
municipality or authority".
Article L917-3 In Article L. 711-7, the words"as defined in and for the purpose of Article L. 961-10 of the Employment Code"shall
be deleted.
Article L917-4 In Article L. 712-1, the words"by means of a tax in addition to the business tax"shall be replaced by the words"as set
out in the local tax Code".
TITLE II Provisions applicable to Mayotte Articles L921-1 to
L920-7
Article L920-1 (Act No. 2003-710 of 1 August 2003 Art. 38 II Official Journal of 2 August 2003) (Order No. 2005-43 of 20 January 2005 Art. 3 I Official Journal of 22 January 2005 effective 1 February 2005) (Act No. 2005-842 of 26 July 2005 Art. 11 III Official Journal of 27 July 2005)
Without prejudice to the amendments made in the following chapters, the following provisions of the present code are applicable in Mayotte:
1 Book I, with the exception of Articles L125-3 and L126-1; 2 Book II, with the exception of Articles L225-245-1, L229-1 to L229-15, L238-6, L244-5 and L252-1 to L252-13; 3 Book III, with the exception of Articles L321-1 to L321-38; 4 Book IV, with the exception of Articles L441-1, L442-1 and L470-6; 5 Book V, with the exception of Articles L522-1 to L522-40, L524-12, L524-20 and L524-21; 6 Book VI, excluding Articles L622-19, L625-9 and L670-1 to L670-8; 7 Part I of Book VII, with the exception of Articles L711-5 and L712-1 and the provisions relating to consular
delegates; 8 Book VIII.
Article L920-2 The terms set out below shall be replaced as follows for the purpose of the application of this Code to the authority: 1. "Tribunal de grande instance"or"Tribunal d'instance" by "court of first instance". 2. "Tribunal de commerce"or"lay commercial judge"by"court of first instance ruling on commercial matters".
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COMMERCIAL CODE 3. "Conseil de prud'hommes"by"employment tribunal". 4. "Department"or"district"by"territorial authority". 4. "Official Gazette of Civil and Commercial Announcements"by"Records of administrative deeds of the territorial
authority".
Article L920-3 References in the provisions of this Code applicable to Mayotte to other Articles of this Code shall only refer to the
Articles made applicable to the authority with the changes for which provision is made in the following chapters.
Article L920-4 Where no changes are made, references in the provisions of this Code applicable to Mayotte to provisions which do
not apply to it shall be replaced by references to local provisions which serve the same purpose.
Article L920-5 References in the provisions of this Code applicable to Mayotte to provisions of the Employment Code shall only
apply there if there is a provision applicable locally which serves the same purpose.
Article L920-6 References to registration in the trades register shall be replaced by references to registration in accordance with
regulations applicable to Mayotte.
Article L920-7 Articles which refer to the European Community shall apply in accordance with the association decision for which
provision is made in Article 136 of the Treaty establishing the European Community. References to the agreement on the European Economic Area shall not apply.
CHAPTER I Provisions Amending Book I Articles L921-1 to
L921-14
Article L921-1 (Order No. 2004-279 of 25 March 2004 Art. 7 I Official Journal of 27 March 2004)
In Article L. 122-1, the words"by the Prefect of the Department in which he envisages conducting his business initially"are replaced by the words"by the Prefect of Mayotte if the foreign national is to conduct his business there initially".
Article L921-2 The exemptions for which provision is made in Articles L. 123-25 to L. 123-27 shall apply to natural persons subject
to a simplified taxation system under regulations in force in Mayotte.
Article L921-3 In Article L. 133-6, the words"those which derive from the provisions of Article 1269 of the New Code of Civil
Procedure"shall be replaced by the words"claims for accounts to be revised and proceeds to be settled which are presented with a view to adjustment in the event of error, omission or inaccurate presentation".
Article L921-4 In Article L. 133-7, the words"customs duty, tax, expenses and fines connected with a transport operation"shall be
deleted.
Article L921-5 For the purpose of Articles L. 141-15, L. 143-7, L. 144-1 to L. 144-13 and L. 145-28, a magistrate of the court of first
instance may be delegated by the president.
Article L921-6 In Article L. 141-13, the words"of the return prescribed by Articles 638 and 653 of the General Tax Code"shall be
replaced by the words"of the return prescribed by the provisions of local tax laws".
Article L921-7 In Article L. 144-5, the words"Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code"shall be
replaced by the words"the Articles of the public health Code applicable in the authority to hospitalisation or confinement with or without the consent of the interested party".
Article L921-8 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Article L. 145-2 is modified as follows: I. - In 4, the words:"to the State, to the departments, to the communes, to the public institutions"are replaced with
the words"to the State, to the territorial authorities and to the public institutions"; II. - In 6, the words"to the social security fund of the Maison des Artistes et reconnus auteurs d'œuvres graphiques
et plastiques, as defined in Article 71 of Annex III of the General Tax Code"are replaced with the words"to the local social security fund for the creators of graphic and plastic arts, as defined in the tax code applicable in the territory".
Article L921-9
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COMMERCIAL CODE For the purpose of Article L. 145-6, the words"evacuation of the premises included in a sector or perimeter for which
provision is made in Articles L. 313-3 and L. 313-4 of the Town Planning Code"shall be replaced by the words"evacuation of the premises for which provision is made in Article L. 145-18".
Article L921-10 In Article L. 145-13, the words"subject to the provisions of the law of 28 May 1943 on the application to foreigners of
legislation governing residential leases and farming leases"shall be deleted.
Article L921-11 The second sub-paragraph of Article L. 145-18 shall be worded as follows: "The same shall apply for the purpose of restoring buildings involving repair, conservation, modernisation or
demolition work which changes the living conditions of a set of buildings so that the premises have to be evacuated. Such work may be decided and carried out in accordance with local regulations either by the public authorities with local jurisdiction or at the initiative of one or more owners who may but need not have form a freeholders' association, in which case the owner or owners shall be specially authorised to do so on terms laid down by the state representative, who shall stipulate the commitments which owners must make as to the type and extent of the work.
Buildings acquired by developers shall only be assigned by mutual agreement, once they have been restored, in accordance with the type specifications approved by the state representative."
Article L921-12 In Article L. 145-26, the words"and the territorial authority"shall be inserted after the words"to the state, the
departments, the municipalities".
Article L921-13 The first sub-paragraph of Article L. 145-34 shall be worded as follows: "Unless the factors which determine the rental value change significantly, the variation in the rent applicable when
the lease for renewal takes effect, provided that it is for no longer than nine years, shall not exceed the variation in a local quarterly construction cost index since the rent for the expired lease was originally set. This index shall be calculated in accordance with the terms of an order issued by the state representative. If there is no clause in the contract stipulating the reference quarter for the index, the variation in the local quarterly construction index set for the purpose by the aforementioned order shall be used."
Article L921-14 Article L. 145-35 shall be amended as follows: I. – In the first sub-paragraph, the word"departmental"shall be deleted. II. – The final sub-paragraph shall be worded as follows: "The composition of the committee and the method of appointing the members and the rules of procedure thereof
shall be decided by order of the state representative."
CHAPTER II Provisions Amending Book II Articles L922-1 to
L922-10
Article L922-1 (Order No. 2004-604 of 24 June 2004 Art. 56 II Official Journal of 26 June 2004)
In Articles L. 225-177, L. 225-179 and L. 233-11, the words"the publication date of Act No. 2001-420 of 15 May 2001"are replaced by the words"the publication date of Order No. 2004-604 of 24 June 2004 reforming the rules governing transferable securities issued by commercial companies and the extension overseas of the provisions which amended the commercial legislation".
Article L922-2 (Order No. 2004-274 of 25 March 2004 Art. 47 III Official Journal of 27 March 2004)
In Articles L. 223-18, L. 225-36 and L. 225-65, the words"in the same Department or an adjacent Department"are replaced by the words"in the territory".
Article L922-3 The final sub-paragraph of Article L. 225-43 and of Article L. 225-91 shall be deleted.
Article L922-4 (Order No. 2004-604 of 24 June 2004 Art. 60 II Official Journal of 26 June 2004)
In 5 of Article L. 225-115, the words"payments made pursuant to 1 and 4 of Article 238 bis of the General Tax Code"are replaced by the words"tax deductions under the provisions of the local tax law applicable to the total deductions from the taxable profits of companies which make payments for the benefit of works by public-interest bodies or approved societies or which make donations of works of art to the State".
Article L922-5 (Order No. 2004-604 of 24 June 2004 Art. 56 II Official Journal of 26 June 2004)
In Articles L. 225-105, L. 225-230 and L. 225-231, the words"the works council"are replaced by the words"the staff delegates".
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COMMERCIAL CODE Article L922-6
In Articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 and L. 234-2, the words"works council"shall be replaced by the words"staff delegates".
Article L922-7 In Article L. 225-270 VI, the words"the provisions of Article 94 A of the General Tax Code"shall be replaced by the
words"the provisions of the local tax Code applicable to net capital gains from disposals for money consideration of securities and corporate rights".
Article L922-8 The final sub-paragraph of Article L. 228-36 shall be deleted.
Article L922-9 In Article L. 233-24, the words"or of Article 97 VII"shall be deleted.
Article L922-10 The second sub-paragraph of Article L. 251-7 shall be deleted.
CHAPTER III Provisions Amending Book III Articles L923-1 to
L923-2
Article L923-1 In Article L. 322-1, the words"Article 53 of Law No 91-650 of 9 July 1991 on the reform of enforcement procedures
and Article 945 of the Code of Civil Procedure"shall be replaced by the words"the provisions of civil procedure applicable in the territory to the sale of inherited chattels".
Article L923-2 The second sub-paragraph of Article L. 322-9 shall be worded as follows: "They shall comply with the provisions of the tax Code applicable in the authority to public sales and auctions."
CHAPTER IV Provisions Amending Book IV Articles L924-1 to
L924-6
Article L924-1 (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
In the first paragraph of Article L. 430-2, the word"three"is replaced by the word"two". The fourth and fifth paragraphs of the said article are deleted.
Article L924-2 (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
In Article L. 430-3, the last sentence of the first paragraph is deleted. In the third paragraph of that same article, the words", or the total or partial referral of an operation of community-wide dimensions,"are deleted.
Article L924-3 (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
The last paragraph of Article L. 441-2 is replaced by four paragraphs worded as follows: "The cessation of advertising which does not comply with the provisions of paragraph 1 may be ordered by the
investigating judge or by the court to which the proceedings are referred, or at the request of the public prosecutor or as a matter of course. The measure thus taken shall be enforceable notwithstanding any appeal.
The measure may be lifted by the court which ordered it or to which the case is referred. It shall become ineffective if a judgment of nonsuit or acquittal is returned.
Rulings on applications for the lifting of orders may be appealed against before the appellate court of next instance, depending on whether they were made by an investigating judge or the court to which the proceedings were referred.
The appellate court of next instance shall rule within ten days of receiving the evidence."
Article L924-4 (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
In the second paragraph of Article L. 442-2, the word"any"is inserted before the words"turnover tax".
Article L924-5 (inserted by Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
The last paragraph of Article L. 442-3 is replaced by four paragraphs worded as follows: "The cessation of advertising may be ordered by the investigating judge or by the court to which the proceedings
are referred, or at the request of the public prosecutor or as a matter of course. The measure thus taken shall be
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COMMERCIAL CODE enforceable notwithstanding any appeal.
The measure may be lifted by the court which ordered it or to which the case is referred. It shall become ineffective if a judgment of nonsuit or acquittal is returned.
Rulings on applications for the lifting of orders may be appealed against before the appellate court of next instance. The appellate court of next instance shall rule within ten days of receiving the evidence."
Article L924-6 (inserted by Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
Article L. 443-1 is amended as follows: I. - In 1, the words"referred to in Articles L. 326-1 to L. 326-3 of the Rural Code"are replaced by the words"pursuant
to the provisions of the Rural Code applicable in the territory"; II. - In 3, the words"in Article 403 of the General Tax Code"are replaced by the words"by the provisions of the Tax
Code applicable in the territory"; III. - 4 is worded as follows: "4. Seventy-five days after the date of delivery for purchases of alcoholic beverages subject to consumption duty
under the Tax Code applicable in the territory."
CHAPTER V Provisions Amending Book V Articles L925-1 to
L925-6
Article L925-1 The second sub-paragraph of Article L. 511-62 shall read as follows: "The withdrawal shall include the sums referred to in Articles L. 511-45 and L. 511-46, in addition to any brokerage
fees or stamp duty for which provision is made in the local tax Code."
Article L925-2 In Articles L. 523-8 and L. 524-6, the words"Articles 1426 to 1429 of the New Code of Civil Procedure"shall be
replaced by the words"provisions of civil procedure applicable locally to offers of payment and consignations".
Article L925-3 The first sub-paragraph of Article L. 524-19 shall be worded as follows: "The duty to be collected by the clerk of the court of first instance ruling on commercial matters shall be set by
decree."
Article L925-4 In the first sub-paragraph of Article L. 525-2, the words"according to local regulations"shall be inserted after the
words"the fixed duty".
Article L925-5 In Article L. 525-9 II, the words"the preferential right referred to in Article L. 243-4 of the Social Security Code"shall
be replaced by the words"the preferential right organised for the benefit of the social welfare fund of the territorial authority".
Article L925-6 Article L. 525-18 shall be amended as follows: I. – In no. 1, the reference to decree no. 53-968 of 30 September 1953 shall be replaced by a reference to decree
no. 55-639 of 20 May 1955. II. – No. 2 shall be worded as follows: "Ocean-going ships and inland waterway boats."
CHAPTER VI Provisions Amending Book VI Articles L926-1 to
L926-7
Article L926-1 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L625-2, the words "referred to in Article L432-7 of the Labour Code" are replaced by the words "in regard to information of a confidential nature provided as such".
Article L926-2 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Article L622-24, the bodies referred to in Article L351-21 of the Labour Code are the local bodies
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COMMERCIAL CODE responsible for allocating unemployment benefit and collecting contributions.
Article L926-3 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L622-24, L622-26, L626-5 to L626-7, L626-20, L625-3, L625-4 and L662-4, the institutions referred to in Article L143-11-4 of the Labour Code are the local institutions responsible for implementing the insurance scheme covering the risk of non-payment of wages and salaries in the event of court-ordered receivership or liquidation proceedings.
Article L926-4 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L626-5 to L626-7, the institutions governed by Book IX of the Social Security Code are the local occupational, supplemental or occupational benefits pensions institutions which are linked to the national insurance and welfare schemes and are covered by the provisions applicable in the municipality.
Article L926-5 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L626-14, the reference to Article 28 of decree No. 55-22 of 4 January 1955 reforming real-property advertising is replaced by the reference to the provisions applicable in the municipality relating to the advertising of real-property rights other than liens and mortgages.
Article L926-6 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L642-1, the obligation placed on the court to take account of the provisions of 1, 2, 3 and 4 of Article L331-3 of the Rural Code entails the following:
"Observance of the order of priority established between settlement of young farmers and enlargement of farms, bearing in mind the economic and social interest of maintaining the autonomy of the farm to which the application relates;
When farms are enlarged or combined, to take account of the prospects of settlement on a viable farm, the location of the land concerned in relation to the applicant's or applicants' principal place(s) of business, the area of the property covered by the application and the areas already developed by the applicant(s), and by the sitting tenant;
To take into consideration the personal situation of the applicant(s): age, family and business situation and, if applicable, those of the sitting tenant, as well as the number and nature of the jobs involved;
To take account of the registered plan of the farms concerned, either in relation to the principal place of business or with a view to preventing changes of ownership from compromising developments made with the aid of public funds."
Article L926-7 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
4 of III of Article L643-11 is not applicable.
CHAPTER VII Provisions Amending Book VII Article L927-1
Article L927-1 (inserted by Order No. 2005-43 of 20 January 2005 Art. 3 III Official Journal of 22 January 2005 effective 1 February 2005)
For application of Article L711-6 in Mayotte, the government representative in Mayotte is empowered to grant the authorisation provided for in this article to the chamber of commerce and industry of Mayotte through a permanent delegation from the minister in charge of the chambers of commerce and industry.
TITLE III Provisions applicable in New Caledonia Articles L931-1 to
L930-7
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COMMERCIAL CODE Article L930-1 (Act No. 2003-706 of 1 August 2003 Art. 116 Official Journal of 2 August 2003) (Act No. 2003-710 of 1 August 2003 Art. 38 II Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 57 III Official Journal of 26 June 2004) (Act No. 2005-842 of 26 July 2005 Art. 11 III Official Journal of 27 July 2005) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Without prejudice to the amendments made in the following chapters, the following provisions of the present code are applicable in New Caledonia:
1 Book I, with the exception of Articles L124-1 to L126-1, L131-1 to L131-6, L131-9, L134-1 to L134-17, L145-34 to L145-36, L145-38 and L145-39;
2 Book II, with the exception of Articles L225-245-1, L229-1 to L229-15, L238-6, L244-5 and L252-1 to L252-13; 3 Book III, with the exception of Articles L310-4, L321-1 to L321-38, L322-7 and L322-10; 4 Book V, with the exception of Articles L522-1 to L522-40, L524-12, L524-20 and L524-21; 5 Book VI, with the exception of Articles L622-19, L625-9 and L670-1 to L670-8; 6 Part II of Book VIII.
Article L930-2 The terms set out below shall be replaced as follows for the purpose of the application of this Code in the territory: 1. "Tribunal de grande instance"or"Tribunal d'instance"by"court of first instance". 2. "Tribunal de commerce"or"lay commercial judge"by"joint Tribunal de commerce". 3. "Conseil de prud'hommes"by"employment tribunal". 4. "Official Gazette of Civil and Commercial Announcements"by"Official Gazette of New Caledonia". 5. "Department"or"district"by"New Caledonia"or"province". 6. "Prefect"or"sub-prefect"by"state representative in New Caledonia".
Article L930-3 References in the provisions of this Code applicable to New Caledonia to other Articles of this Code shall only refer
to the Articles made applicable to New Caledonia with the changes for which provision is made in the following chapters.
Article L930-4 Where no changes are made, references in the provisions of this Code applicable to New Caledonia to provisions
which do not apply to it shall be replaced by references to local provisions which serve the same purpose.
Article L930-5 References in the provisions of this Code applicable to New Caledonia to provisions of the Employment Code shall
only apply there if there is a provision applicable locally which serves the same purpose.
Article L930-6 References to registration in the trades register shall be replaced by references to registration in accordance with
regulations applicable in New Caledonia.
Article L930-7 Articles which refer to the European Community shall apply in accordance with the association decision for which
provision is made in Article 136 of the Treaty establishing the European Community. References to the agreement on the European Economic Area shall not apply.
CHAPTER I Provisions Amending Book I Articles L931-1 to
L931-19
Article L931-1 In Article L. 122-1, the words"by the prefect of the department in which the foreigner is to conduct his business"shall
be replaced by the words"by the New Caledonian authority with jurisdiction".
Article L931-2 The exemptions for which provision is made in Articles L. 123-25 to L. 123-27 shall apply to natural persons subject
to a simplified taxation system under regulations in force in New Caledonia.
Article L931-3 In Article L. 131-11, the words"If registered, he shall be struck off from and may not be reinstated on the list of
brokers drawn up in accordance with regulations"shall be deleted.
Article L931-4 For the purpose of Article L. 133-6: 1. The words"those which derive from the provisions of Article 1269 of the New Code of Civil Procedure"shall be
replaced by the words"claims for accounts to be revised and proceeds to be settled which are presented with a view to adjustment in the event of error, omission or inaccurate presentation".
2. The provisions of the final sub-paragraph shall apply in the event of transportation effected on behalf of New Caledonia.
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COMMERCIAL CODE Article L931-5
In Article L. 133-7, the words"customs duty, tax, expenses and fines connected with a transport operation"shall be deleted.
Article L931-6 For the purpose of Articles L. 141-15, L. 143-7, L. 144-1 to L. 144-13 and L. 145-28, a magistrate of the court of first
instance may be delegated by the president.
Article L931-7 In Article L. 141-13, the words"by Articles 638 and 653 of the General Tax Code"shall be replaced by the words"by
the provisions of the tax Code applicable in New Caledonia on verbal declarations of changes".
Article L931-8 In Article L. 144-5, the words"Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code"shall be
replaced by the words"the Articles of the public health Code applicable in New Caledonia to hospitalisation or confinement with or without the consent of the interested party".
Article L931-9 Article L. 144-11 shall be worded as follows: "Article L. 144-11. – If, under local regulations, the real estate management contract contains a sliding scale clause,
a rent review may be demanded in accordance with the terms of a decision by the local authority with jurisdiction, any agreement to the contrary notwithstanding if, when the said clause is applied, the rent rises or falls by more than one quarter in relation to the previous price set in the contract or by law."
Article L931-10 Article L. 144-12 shall be worded as follows: "Article L. 144-12 – If the parties are unable to reach an amicable agreement on the rent review, proceedings shall
be instituted and heard in accordance with the provisions governing price reviews for residential leases on buildings or commercial or industrial leases on premises.
The judge shall take account of all the factors to be assessed and shall adjust the range of the sliding scale to the fair rental value on the day of notification. The new price shall apply as of the said date, unless the parties agree on an earlier or later date before or during the proceedings."
Article L931-11 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Article L. 145-2 is modified as follows: I. - In 4, the words:"to the State, to the departments, to the communes, to the public institutions"are replaced with
the words"to the State, to the territorial authorities and to the public institutions"; II. - In 6, the words"to the social security fund of the Maison des Artistes et reconnus auteurs d'œuvres graphiques
et plastiques, as defined in Article 71 of Annex III of the General Tax Code"are replaced with the words"to the local social security fund for the creators of graphic and plastic arts, as defined in the tax code applicable in the territory".
Article L931-12 For the purpose of Article L. 145-6, the words"evacuation of the premises included in a sector or perimeter for which
provision is made in Articles L. 313-3 and L. 313-4 of the Town Planning Code"shall be replaced by the words"evacuation of the premises for which provision is made in Article L. 145-18".
Article L931-13 In Article L. 145-13, the words"subject to the provisions of the law of 28 May 1943 on the application to foreigners of
legislation governing residential leases and farming leases"shall be deleted.
Article L931-14 The second sub-paragraph of Article L. 145-18 shall be worded as follows: "The same shall apply for the purpose of restoring buildings involving repair, conservation, modernisation or
demolition work which changes the living conditions of a set of buildings so that the premises have to be evacuated. Such work may be decided and carried out in accordance with local regulations either by the public authorities with local jurisdiction or at the initiative of one or more owners who may but need not have form a freeholders' association, in which case the owner or owners shall be specially authorised to do so on terms laid down by the local authorities with jurisdiction, which shall stipulate the commitments which owners must make as to the type and extent of the work. Buildings acquired by developers shall only be assigned by mutual agreement, once they have been restored, in accordance with the type specifications approved by the said authorities."
Article L931-15 In Article L. 145-26, the words"the departments"have been replaced by the words"New Caledonia, the provinces".
Article L931-16 Article L. 145-37 shall be worded as follows: "Article L. 145-37. – The rent for leases on buildings or premises governed by this chapter may be revised at the
request of either party, irrespective of whether or not the lease has been renewed, on the terms for which provision is made in decisions by the authority of New Caledonia with jurisdiction."
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COMMERCIAL CODE Article L931-17
Article L. 145-43 shall be worded as follows: "Article L. 145-43 – Traders or artisans who are tenants of premises on which their business is located and who
have been accepted on a diversification or promotion traineeship in accordance with the provisions of the Employment Code applicable in New Caledonia shall be released from the obligation to run the business during the said traineeship."
Article L931-18 The third sub-paragraph of Article L. 145-47 shall be deleted.
Article L931-19 In Article L. 145-56, the words"and procedural"shall be deleted.
CHAPTER II Provisions Amending Book II Articles L932-6 to
L932-17
Article L932-6 (Order No. 2004-604 of 24 June 2004 Art. 57 III Official Journal of 26 June 2004)
In Articles L. 225-177, L. 225-179 and L. 233-11, the words"the publication date of Act No. 2001-420 of 15 May 2001 relating to the new economic regulations"are replaced by the words"the publication date of Order No. 2004-604 of 24 June 2004 reforming the rules governing transferable securities issued by commercial companies and the extension overseas of the provisions which amended the commercial legislation".
Article L932-7 (Order No. 2004-274 of 25 March 2004 Art. 48 V Official Journal of 27 March 2004)
In Articles L. 223-18, L. 225-36 and L. 225-65, the words"in the same Department or an adjacent Department"are replaced by the words"in New-Caledonia".
Article L932-8 The final sub-paragraph of Article L. 225-43 and of Article L. 225-91 shall be deleted.
Article L932-9 Article 225-67 IV (4) and Article L. 225-77 III (4) shall be deleted.
Article L932-10 Article L. 225-115 (5) shall be worded as follows: "5. Total deductions, as certified by the auditors, from the taxable profit of companies which make payments to
works by bodies of general interest or authorised companies or donations of works of art to the state or to New Caledonia in accordance with the provisions of tax legislation applicable in New Caledonia and the list of registered sponsoring and patronage shares."
Article L932-11 (Order No. 2004-604 of 24 June 2004 Art. 57 III Official Journal of 26 June 2004)
In Articles L. 225-105, L. 225-230 and L. 225-231, the words"or failing this the staff delegates"are inserted after the words"the works council".
Article L932-12 In Articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 and L. 234-2, the words"or, where there is none, the staff
delegates"shall be inserted after the words"works council".
Article L932-13 Article L. 225-239 shall be worded as follows: "Article L. 225-239 – The auditors' fees shall be borne by the company and shall be set as determined by decision
of congress."
Article L932-14 In Article L. 225-270 VI, the words"the provisions of Article 94 A of the General Tax Code"shall be replaced by the
words"the provisions of the tax Code applicable in New Caledonia to net capital gains from disposals for money consideration of securities and corporate rights".
Article L932-15 The final sub-paragraph of Article L. 228-36 shall be deleted.
Article L932-16 In Article L. 233-24, the words"or of Article 97 VII"shall be deleted.
Article L932-17 The second sub-paragraph of Article L. 251-7 shall be deleted.
CHAPTER III Provisions Amending Book III Articles L933-1 to
L933-8
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COMMERCIAL CODE Article L933-1
The second and third sub-paragraphs of Article L. 310-1 shall be deleted.
Article L933-2 The second and third sub-paragraphs of Article L. 310-2 I and II shall be deleted.
Article L933-3 The second sub-paragraph of Article L. 310-3 I shall be deleted.
Article L933-4 Article L. 310-5 (1), (2) and (3) shall be deleted.
Article L933-5 In Article L. 322-1, the words"Article 53 of Law No 91-650 of 9 July 1991 on the reform of enforcement procedures
and Article 945 of the Code of Civil Procedure"shall be replaced by the words"the provisions of civil procedure applicable in New Caledonia to the sale of inherited chattels".
Article L933-6 Article L. 322-11 shall be worded as follows: "Article L. 322-11 – Disputes relating to sales effected in application of local decisions governing voluntary sales,
auctions and wholesale sales of goods by sworn brokers shall be brought before the joint Tribunal de commerce."
Article L933-7 Article L. 322-15 shall be worded as follows: "Article L. 322-15 – Where necessary, it shall be incumbent upon the court or the judge authorising or ordering the
sale pursuant to the preceding Article to appoint a class of public officer other than a sworn broker to proceed therewith."
Article L933-8 Article L. 322-16 shall be worded as follows: "Article L. 322-16 – The provisions of Article L. 322-11 shall apply to the sales referred to in Articles L. 322-14 and
L. 322-15."
CHAPTER V Provisions Amending Book V Articles L935-1 to
L935-9
Article L935-1 In Article L. 511-55, the word"destitution"shall be deleted.
Article L935-2 Article L. 511-60 shall be worded as follows: "Article L. 511-60 – The method of application of the provisions of this sub-section, with the exception of the amount
owed in remuneration to notaries public or sheriff's officers who have filed protests for the various formalities for which they are responsible, shall be determined by decree of the Conseil d'Etat."
Article L935-3 In Article L. 511-61, the words"or the territorial authorities"shall be replaced by the words"the municipalities, the
provinces or New Caledonia".
Article L935-4 The second sub-paragraph of Article L. 511-62 shall read as follows: "The withdrawal shall include the sums referred to in Articles L. 511-45 and L. 511-46, in addition to any brokerage
fees or stamp duty for which provision is made in the tax Code applicable to New Caledonia."
Article L935-5 In Articles L. 523-8 and L. 524-6, the words"Articles 1426 to 1429 of the New Code of Civil Procedure"shall be
replaced by the words"provisions of civil procedure applicable locally to offers of payment and consignations".
Article L935-6 The first sub-paragraph of Article L. 524-19 shall be worded as follows: "The duty to be collected by the clerk of the joint Tribunal de commerce shall be set by decree."
Article L935-7 In the first sub-paragraph of Article L. 525-2, the words"according to regulations in force in New Caledonia"shall be
inserted after the words"the fixed duty".
Article L935-8 In Article L. 525-9 II, the words"the preferential right referred to in Article L. 243-4 of the Social Security Code"shall
be replaced by the words"the preferential right organised for the benefit of the social welfare fund of the territory".
Article L935-9 Article L. 525-18 shall be amended as follows: I. – In no. 1, the reference to decree no. 53-968 of 30 September 1953 shall be replaced by a reference to decree
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COMMERCIAL CODE no. 55-639 of 20 May 1955.
II. – No. 2 shall be worded as follows: "Ocean-going ships and inland waterway boats."
CHAPTER VI Provisions Amending Book VI Articles L936-1 to
L936-13
Article L936-1 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The implementing measures provided for in Articles L621-4, L625-1, L626-3, L626-6, L626-14 and L626-16 are determined by the proper authority in New Caledonia.
Article L936-2 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In the first paragraph of Article L611-1, "the order of the government representative in the region" is replaced by "a decision of the government of New Caledonia".
Article L936-3 For application of Article L612-1, the auditors and their deputies are appointed under, and are subject to, the locally
applicable regulations.
Article L936-4 The third paragraph of Article L612-1 is deleted.
Article L936-5 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L621-2, the words "in each department", are replaced by the words "in New Caledonia".
Article L936-6 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L625-2, the words "referred to in Article L432-7 of the Labour Code" are replaced by the words "in regard to information of a confidential nature provided as such".
Article L936-7 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Article L622-24, the bodies referred to in Article L351-21 of the Labour Code are the New Caledonian bodies responsible for allocating unemployment benefit and collecting contributions.
Article L936-8 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L622-24, L622-26, L625-3, L625-4, L626-5 to L626-7, L626-20 and L662-4, the institutions referred to in Article L143-11-4 of the Labour Code are the New Caledonian institutions responsible for implementing the insurance scheme covering the risk of non-payment of wages and salaries in the event of court-ordered receivership or liquidation proceedings.
Article L936-9 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L626-5 to L626-7, the institutions governed by Book IX of the Social Security Code are the occupational, supplemental or occupational benefits pensions institutions which are linked to the national insurance and welfare schemes and are covered by the provisions applicable in New Caledonia.
Article L936-10
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COMMERCIAL CODE (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L621-72, the reference to Article 28 of decree No. 55-22 of 4 January 1955 reforming real-property advertising is replaced by the reference to the locally applicable provisions relating to the advertising of real-property rights other than liens and mortgages.
Article L936-11 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L642-1, the obligation placed on the court to take account of the provisions of 1, 2, 3 and 4 of Article L331-3 of the Rural Code entails the following:
"Observance of the order of priority established between settlement of young farmers and enlargement of farms, bearing in mind the economic and social interest of maintaining the autonomy of the farm to which the application relates;
When farms are enlarged or combined, to take account of the prospects of settlement on a viable farm, the location of the land concerned in relation to the applicant's or applicants' principal place(s) of business, the area of the property covered by the application and the areas already developed by the applicant(s), and by the sitting tenant;
To take into consideration the personal situation of the applicant(s): age, family and business situation and, if applicable, those of the sitting tenant, as well as the number and nature of the jobs involved;
To take account of the registered plan of the farms concerned, either in relation to the principal place of business or with a view to preventing changes of ownership from compromising developments made with the aid of public funds."
Article L936-12 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
4 of III of Article L643-11 is not applicable.
Article L936-13 (Law No 2003-7 of 3 January 2003 Article 49 (I) Official Gazette of 4 January 2003)
The first paragraph of Article L. 622-2 is supplemented by a sentence worded as follows: "One or more liquidators may be appointed in the same way to assist him."
CHAPTER VIII Provisions Amending Book VIII Article L938-1
Article L938-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 57 III Official Journal of 26 June 2004)
For application of Articles L. 822-2 to L. 822-7 in New-Caledonia, the terms enumerated below are replaced as follows:
1."regional registration committee"by"territorial registration committee"; 2."regional court of accounts"by"territorial court of accounts"; 3."regional disciplinary committee"by"territorial disciplinary committee".
TITLE IV Provisions applicable in French Polynesia Articles L941-1 to
L940-8
Article L940-1 (Act No. 2003-706 of 1 August 2003 Art. 116 Official Journal of 2 August 2003) (Act No. 2003-710 of 1 August 2003 Art. 38 II Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 66 Official Journal of 26 June 2004)
Without prejudice to the adaptations referred to in the following Chapters, the following provisions of the present code are applicable in the territory of French Polynesia:
1. Book I, with the exception of Articles L. 124-1 to L. 126-1, L. 145-34 to L. 145-36, L. 145-38 and L. 145-39; 2. Book II, with the exception of Articles L. 822-1 to L. 822-10, L. 252-1 to L. 252-13; 3. Book III, with the exception of Articles L. 310-4, L. 321-1 to L. 321-38, L. 322-7 and L. 322-10; 4. Book V, with the exception of Articles L. 522-1 to L. 522-40, L. 524-12, L. 524-20 and L. 524-21; 5. Book VI, with the exception of Articles L. 621-38, L. 621-132 and L. 628-1 to L. 628-8. The foregoing provisions are those in force on the publication date of incorporating act No. 2004-192 of 27 February
2004 granting autonomous status to French Polynesia. They may be amended only as provided for in Article 11 of the said incorporating act.
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COMMERCIAL CODE Article L940-2
The terms set out below shall be replaced as follows for the purpose of the application of this Code in French Polynesia:
1. "Tribunal de grande instance"or"Tribunal d'instance"by"court of first instance". 2. "Tribunal de commerce"or"lay commercial judge"by"joint Tribunal de commerce". 3. "Conseil de prud'hommes"by"employment tribunal". 4. "Official Gazette of Civil and Commercial Announcements"by"Official Gazette of French Polynesia". 5. "Department"or"district"by"territory of French Polynesia". 6. "Prefect"or"sub-prefect"by"state representative in the territory".
Article L940-3 References in the provisions of this Code applicable to French Polynesia to other Articles of this Code shall only
refer to the Articles made applicable to French Polynesia with the changes for which provision is made in the following chapters.
Article L940-4 Where no changes are made, references in the provisions of this Code applicable to French Polynesia to provisions
which do not apply to it shall be replaced by references to local provisions which serve the same purpose.
Article L940-5 References in the provisions of this Code applicable to French Polynesia to provisions of the Employment Code
shall only apply there if there is a provision applicable locally which serves the same purpose.
Article L940-6 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The referrals to provisions of a regulatory nature made by the provisions of the present code which are applicable in French Polynesia are replaced by referrals to deliberations of the competent authority in French Polynesia, without prejudice to the provisions of the following Chapters.
Article L940-7 References to registration in the trades register shall be replaced by references to registration in accordance with
regulations applicable in French Polynesia.
Article L940-8 Articles which refer to the European Community shall apply in accordance with the association decision for which
provision is made in Article 136 of the Treaty establishing the European Community. References to the agreement on the European Economic Area shall not apply.
CHAPTER I Provisions Amending Book I Articles L941-1 to
L941-19
Article L941-1 By way of exception from Article L. 940-6, the reference to provisions of a regulatory nature referred to in Article L.
143-23 shall be maintained with regard to the National Intellectual Property Institute.
Article L941-2 In Article L. 122-1, the words"by the prefect of the department in which the foreigner is to conduct his business"shall
be replaced by the words"by council of ministers of French Polynesia".
Article L941-3 The exemptions for which provision is made in Articles L. 123-25 to L. 123-27 shall apply to natural persons subject
to a simplified taxation system under regulations in force in French Polynesia.
Article L941-4 For the purpose of Article L. 133-6: 1. The words"those which derive from the provisions of Article 1269 of the New Code of Civil Procedure"shall be
replaced by the words"claims for accounts to be revised and proceeds to be settled which are presented with a view to adjustment in the event of error, omission or inaccurate presentation".
2. The provisions of the final sub-paragraph shall apply in the event of transportation effected on behalf of French Polynesia.
Article L941-5 In Article L. 133-7, the words"customs duty, tax, expenses and fines connected with a transport operation"shall be
deleted.
Article L941-6 For the purpose of Articles L. 141-15, L. 143-7, L. 144-1 to L. 144-13 and L. 145-28, a magistrate of the court of first
instance may be delegated by the president.
Article L941-7
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COMMERCIAL CODE In Article L. 141-13, the words"by Articles 638 and 653 of the General Tax Code"shall be replaced by the words"by
the provisions of the tax Code applicable in French Polynesia".
Article L941-8 In Article L. 144-5, the words"Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code"shall be
replaced by the words"the Articles of the public health Code applicable in the territory to hospitalisation or confinement with or without the consent of the interested party".
Article L941-9 Article L. 144-11 shall be worded as follows: "Article L. 144-11. – If, under local regulations, the real estate management contract contains a sliding scale clause,
a rent review may be demanded in accordance with the terms of a decision of the assembly of French Polynesia, any agreement to the contrary notwithstanding if, when the said clause is applied, the rent rises or falls by more than one quarter in relation to the previous price set in the contract or by law."
Article L941-10 Article L. 144-12 shall be worded as follows: "Article L. 144-12 – If the parties are unable to reach an amicable agreement on the rent review, proceedings shall
be instituted and heard in accordance with the provisions governing price reviews for residential leases on buildings or commercial or industrial leases on premises.
The judge shall take account of all the factors to be assessed and shall adjust the range of the sliding scale to the fair rental value on the day of notification. The new price shall apply as of the said date, unless the parties agree on an earlier or later date before or during the proceedings."
Article L941-11 Article L. 145-2 shall be amended as follows: 1. In no. 4, the words"to the state, departments, municipalities and public establishments"shall be replaced by the
words"to the state, territorial authorities and public establishments". II. In no. 6, the words"to the social security fund of the centre of artists and recognised authors of graphic and
plastic works as defined in Article 71 of Annex II to the General Tax Code"shall be replaced by the words"to the local national insurance fund and recognised authors of graphic and plastic works as defined in the tax Code applicable in the territory".
Article L941-12 For the purpose of Article L. 145-6, the words"evacuation of the premises included in a sector or perimeter for which
provision is made in Articles L. 313-3 and L. 313-4 of the Town Planning Code"shall be replaced by the words"evacuation of the premises for which provision is made in Article L. 145-18".
Article L941-13 In Article L. 145-13, the words"subject to the provisions of the law of 28 May 1943 on the application to foreigners of
legislation governing residential leases and farming leases"shall be deleted.
Article L941-14 The second sub-paragraph of Article L. 145-18 shall be worded as follows: "The same shall apply for the purpose of restoring buildings involving repair, conservation, modernisation or
demolition work which changes the living conditions of a set of buildings so that the premises have to be evacuated. Such work may be decided and carried out in accordance with local regulations either by the public authorities with local jurisdiction or at the initiative of one or more owners who may but need not have form a freeholders' association, in which case the owner or owners shall be specially authorised to do so on terms laid down by the local authorities with jurisdiction, which shall stipulate the commitments which owners must make as to the type and extent of the work. Buildings acquired by developers shall only be assigned by mutual agreement, once they have been restored, in accordance with the type specifications approved by the said authorities."
Article L941-15 In Article L. 145-26, the words"the departments"have been replaced by the words"French Polynesia, the provinces".
Article L941-16 Article L. 145-37 shall be worded as follows: "Article L. 145-37. – The rent for leases on buildings or premises governed by this chapter may be revised at the
request of either party, irrespective of whether or not the lease has been renewed, on the terms for which provision is made in decisions of the assembly of French Polynesia."
Article L941-17 Article L. 145-43 shall be worded as follows: "Article L. 145-43 – Traders or artisans who are tenants of premises on which their business is located and who
have been accepted on a diversification or promotion traineeship in accordance with the provisions of the Employment Code applicable in French Polynesia shall be released from the obligation to run the business during the said traineeship."
Article L941-18
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COMMERCIAL CODE The third sub-paragraph of Article L. 145-47 shall be deleted.
Article L941-19 In Article L. 145-56, the words"and procedural"shall be deleted.
CHAPTER II Provisions Amending Book II Articles L942-1 to
L942-15
Article L942-1 By way of exception from Article L. 940-6, the references to decrees referred to in Articles L. 225-35 and L. 225-68
shall be maintained.
Article L942-2 For the purpose of Book II, auditors and their deputies shall be selected and shall perform their duties in accordance
with regulations in force in French Polynesia.
Article L942-3 Article L. 225-21 III (4) and (5) shall be deleted:
Article L942-4 In Articles L. 225-25 and L. 225-72, the reference to Articles 20 and 21 of Law No 88-1201 of 23 December 1988 on
undertakings for collective investment in transferable securities creating joint private debt funds shall be deleted.
Article L942-5 In Articles L. 225-36 and L. 225-65, the words"in the same department or a neighbouring department"shall be
replaced by the words"in French Polynesia".
Article L942-6 The final sub-paragraph of Article L. 225-43 and of Article L. 225-91 shall be deleted.
Article L942-7 Article 225-67 IV (4) and Article L. 225-77 III (4) shall be deleted.
Article L942-8 Article L. 225-115 (5) shall be worded as follows: "5. Total deductions, as certified by the auditors, from the taxable profit of companies which make payments to
works by bodies of general interest or authorised companies or donations of works of art to the state or to French Polynesia in accordance with the provisions of tax legislation applicable in French Polynesia and the list of registered sponsoring and patronage shares."
Article L942-9 In Article L. 225-230, the words"or, where there is none, the staff delegates"shall be inserted after the words"works
council".
Article L942-10 In Articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 and L. 234-2, the words"or, where there is none, the staff
delegates"shall be inserted after the words"works council".
Article L942-11 The second sub-paragraph of Article L. 225-239 shall be deleted.
Article L942-12 In Article L. 225-270 VI, the words"the provisions of Article 94 A of the General Tax Code"shall be replaced by the
words"the provisions of the tax Code applicable in the territory to net capital gains from disposals for money consideration of securities and corporate rights".
Article L942-13 The final sub-paragraph of Article L. 228-36 shall be deleted.
Article L942-14 In Article L. 233-24, the words"or of Article 97 VII"shall be deleted.
Article L942-15 The second sub-paragraph of Article L. 251-7 shall be deleted.
CHAPTER III Provisions Amending Book III Articles L943-1 to
L943-8
Article L943-1 The second and third sub-paragraphs of Article L. 310-1 shall be deleted.
Article L943-2
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COMMERCIAL CODE The second and third sub-paragraphs of Article L. 310-2 I and II shall be deleted.
Article L943-3 The second sub-paragraph of Article L. 310-3 I shall be deleted.
Article L943-4 Article L. 310-5 (1), (2) and (3) shall be deleted.
Article L943-5 In Article L. 322-1, the words"Article 53 of Law No 91-650 of 9 July 1991 on the reform of enforcement procedures
and Article 945 of the Code of Civil Procedure"shall be replaced by the words"the provisions of civil procedure applicable locally to the sale of inherited chattels".
Article L943-6 Article L. 322-11 shall be worded as follows: "Article L. 322-11 – Disputes relating to sales effected in application of local decisions governing voluntary sales,
auctions and wholesale sales of goods by sworn brokers shall be brought before the joint Tribunal de commerce."
Article L943-7 Article L. 322-15 shall be worded as follows: "Article L. 322-15 – Where necessary, it shall be incumbent upon the court or the judge authorising or ordering the
sale pursuant to the preceding Article to appoint a class of public officer other than a sworn broker to proceed therewith."
Article L943-8 Article L. 322-16 shall be worded as follows: "Article L. 322-16 – The provisions of Article L. 322-11 shall apply to the sales referred to in Articles L. 322-14 and
L. 322-15."
CHAPTER IV Provisions Amending Book IV Articles L945-1 to
L945-9
Article L945-1 By way of exception from Article L. 940-6, the references to provisions of a regulatory nature referred to in Articles
L. 523-14 and L. 524-19 shall be maintained.
Article L945-2 In Article L. 511-55, the work"destitution"shall be deleted
Article L945-3 Article L. 511-60 shall be worded as follows: "Article L. 511-60 – The method of application of the provisions of this sub-section shall be determined by decree of
the territorial authority with jurisdiction."
Article L945-4 In Article L. 511-61, the words"or the territorial authorities"shall be replaced by the words"or the municipalities or
French Polynesia".
Article L945-5 The second sub-paragraph of Article L. 511-62 shall read as follows: "The withdrawal shall include the sums referred to in Articles L. 511-45 and L. 511-46, in addition to any brokerage
fees or stamp duty for which provision is made in the legislation applicable in French Polynesia."
Article L945-6 In Articles L. 523-8 and L. 524-6, the words"Articles 1426 to 1429 of the New Code of Civil Procedure"shall be
replaced by the words"provisions of civil procedure applicable locally to offers of payment and consignations".
Article L945-7 In the first sub-paragraph of Article L. 525-2, the words"according to regulations in force in French Polynesia"shall
be inserted after the words"the fixed duty".
Article L945-8 In Article L. 525-9 II, the words"the preferential right referred to in Article L. 243-4 of the Social Security Code"shall
be replaced by the words"the preferential right organised for the benefit of the social welfare fund of the territory".
Article L945-9 Article L. 525-18 shall be amended as follows: I. – In no. 1, the reference to decree no. 53-968 of 30 September 1953 shall be replaced by a reference to decree
no. 55-639 of 20 May 1955. II. – No. 2 shall be worded as follows: "Ocean-going ships and inland waterway boats."
CHAPTER V
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COMMERCIAL CODE Provisions Amending Book V Articles L946-1 to
L946-13
Article L946-1 By way of exception from Article L. 940-6, the reference to provisions of a regulatory nature referred to in Article L.
621-5 shall be maintained.
Article L946-2 Article L. 611-1 shall be amended as follows: "I – In the first sub-paragraph, the order of the state representative in the region shall be replaced by a decision by
the government of French Polynesia. II – In the fourth sub-paragraph, the words"mainly in application of Articles 5, 48 and 66 of Law No 82-213 of 2
March 1982 (amended) on the rights and liberties of municipalities, departments and regions"shall be deleted.
Article L946-3 For the purpose of Article L. 621-1, auditors and their deputies shall be selected and shall perform their duties in
accordance with local regulations.
Article L946-4 The third sub-paragraph of Article L. 612-1 shall be deleted.
Article L946-5 In Article L. 612-2, the words"or, where there is none, the staff delegates"shall be inserted after the words"the works
council".
Article L946-6 In Article L. 621-5, the words"in each department"shall be replaced by the words"in French Polynesia".
Article L946-7 In Article L. 621-36, the words"referred to in Article L. 432-7 of the Employment Code"shall be replaced by the
words"with respect to information of a confidential nature and data per se".
Article L946-8 For the purpose of Article L. 621-43, the agencies referred to in Article L. 351-21 of the Employment Code shall be
local agencies in charge of the service responsible for paying unemployment benefit and recovering contributions.
Article L946-9 For the purpose of Articles L. 621-43, L. 621-46, L. 621-60, L. 621-78, L. 621-126, L. 621-127 and L. 627-5, the
institutions referred to in Article L. 143-11-4 of the Employment Code shall be local institutions in charge of implementing the insurance system against the risk of non-payment of salaries in the event of an administrative order or court-ordered winding-up.
Article L946-10 For the purpose of Article L. 621-60, the institutions governed by Book IX of the Social Security Code shall be the
local additional or supplementary pension or welfare funds for which provision is made in legislation relating to social security and protection systems in the territory.
Article L946-11 In Article L. 621-72, the reference to Article 28 of decree no. 55-22 of 4 January 1955 reforming real estate publicity
shall be replaced by a reference to local provisions governing the publicity of property rights other than preferential rights and mortgages.
Article L946-12 In Article L. 621-84, the obligation imposed upon the court to take account of the provisions of Article L. 331-7 (1),
(2), (3) and (4) of the Rural Code shall be extended to include the following requirements: "To observe the order of priority established between installing young farmers and extending shares, taking account
of the economic and social benefits of maintaining the independence of the holding to which the application refers. To take account, where shares are extended or merged, of the possibility of installing on a viable holding, the
location of the land in question in relation to the seat of the applicant's or applicants' holding, the surface area of the property to which the application refers and the surface areas already developed by the applicant(s) and by the tenant.
To take account of the applicant's or applicants' personal status (age, marital and professional status) and, where applicable, the personal status of the tenant and the number and type of salaried jobs affected.
To take account of the division of land into plots on the shares in question, either in relation to the seat of the holding or to prevent changes of tenure from affecting improvements obtained with the help of public funds."
Article L946-13 (Law No 2003-7 of 3 January 2003 Article 49 (I) Official Gazette of 4 January 2003)
The first paragraph of Article L. 622-2 is supplemented by a sentence worded as follows: "One or more liquidators may be appointed in the same way to assist him."
TITLE V
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COMMERCIAL CODE Provisions applicable in the islands of Wallis and Futuna Articles L951-1 to
L950-7
Article L950-1 (Act No. 2003-710 of 1 August 2003 Art. 38 II Official Journal of 2 August 2003) (Act No. 2004-130 of 11 February 2004 Art. 53 II 2 Official Journal of 12 February 2004) (Order No. 2004-274 of 25 March 2004 Art. 49 V Official Journal of 27 March 2004) (Act No. 2005-842 of 26 July 2005 Art. 11 III Official Journal of 27 July 2005) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Without prejudice to the amendments made in the following chapters, the following provisions of the present code are applicable in the Wallis and Futuna Islands:
1 Book I, with the exception of Articles L124-1 to L126-1; 2 Book II, with the exception of Articles L225-245-1, L229-1 to L229-15, L238-6, L244-5 and L252-1 to L252-13; 3 Book III, with the exception of Articles L321-1 to L321-38; 4 Book IV, with the exception of Articles L441-1, L442-1 and L470-6; 5 Book V, with the exception of Articles L522-1 to L522-40, L524-12, L524-20 and L524-21; 6 Book VI, with the exception of Articles L622-19, L625-9, L653-10 and L670-1 to L670-8; 7 Book VII, with the exception of Articles L711-5, L711-9 and L720-1 to L740-3. 8 Book VIII, with the exception of Articles L812-1 to L813-1.
Article L950-2 (Order No. 2004-274 of 25 March 2004 Art. 49 VI Official Journal of 27 March 2004)
For application of the present code in the Wallis and Futuna Islands, the terms enumerated below are replaced as follows:
1."Tribunal de grande instance"or"Tribunal d'instance"by"court of first instance"; 2."Commercial Court"or"justice consulaire"by"court of first instance ruling on commercial matters"; 3."conseil de prud'hommes"by"industrial tribunal"; 4."Bulletin officiel des annonces civiles et commerciales"by"Official Journal of the Territory"; 5."Department"or"arrondissement"by"territory"; 6."prefect"or"sub- prefect"by"government representative in the territory"; 7."mayor"by"constituency leader".
Article L950-3 References in the provisions of this Code applicable to the Wallis and Futuna Islands to other Articles of this Code
shall only refer to the Articles made applicable to the Wallis and Futuna Islands with the changes for which provision is made in the following chapters.
Article L950-4 Where no changes are made, references in the provisions of this Code applicable to the Wallis and Futuna Islands
to provisions which do not apply to it shall be replaced by references to local provisions which serve the same purpose.
Article L950-5 References in the provisions of this Code applicable to the Wallis and Futuna Islands to provisions of the
Employment Code shall only apply there if there is a provision applicable locally which serves the same purpose
Article L950-6 References to registration in the trades register shall be replaced by references to registration in accordance with
regulations applicable in the Wallis and Futuna Islands.
Article L950-7 Articles which refer to the European Community shall apply in accordance with the association decision for which
provision is made in Article 136 of the Treaty establishing the European Community. References to the agreement on the European Economic Area shall not apply.
CHAPTER I Provisions Amending Book I Articles L951-1 to
L951-14
Article L951-1 In Article L. 122-1, the words"by the prefect of the department in which the foreigner is to conduct his business"shall
be replaced by the words"by the state representative in the territory if the foreigner is to conduct his business there".
Article L951-2 The exemptions for which provision is made in Articles L. 123-25 to L. 123-27 shall apply to natural persons subject
to a simplified taxation system under local regulations.
Article L951-3 In Article L. 133-6, the words"those which derive from the provisions of Article 1269 of the New Code of Civil
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COMMERCIAL CODE Procedure"shall be replaced by the words"claims for accounts to be revised and proceeds to be settled which are presented with a view to adjustment in the event of error, omission or inaccurate presentation".
Article L951-4 For the purpose of Articles L. 141-15, L. 143-7, L. 144-1 to L. 144-13 and L. 145-28, a magistrate of the court of first
instance may be delegated by the president.
Article L951-5 In Article L. 141-13, the words"by Articles 638 and 653 of the General Tax Code"shall be replaced by the words"by
the provisions of the tax Code applicable in the territory".
Article L951-6 In Article L. 144-5, the words"Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code"shall be
replaced by the words"the Articles of the public health Code applicable in the territory to hospitalisation or confinement with or without the consent of the interested party".
Article L951-7 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Article L. 145-2 is modified as follows: I. - In 4, the words:"to the State, to the departments, to the communes, to the public institutions"are replaced with
the words"to the State, to the territorial authorities and to the public institutions"; II. - In 6, the words"to the social security fund of the Maison des Artistes et reconnus auteurs d'œuvres graphiques
et plastiques, as defined in Article 71 of Annex III of the General Tax Code"are replaced with the words"to the local social security fund for the creators of graphic and plastic arts, as defined in the tax code applicable in the territory".
Article L951-8 For the purpose of Article L. 145-6, the words"evacuation of the premises included in a sector or perimeter for which
provision is made in Articles L. 313-3 and L. 313-4 of the Town Planning Code"shall be replaced by the words"evacuation of the premises for which provision is made in Article L. 145-18".
Article L951-9 In Article L. 145-13, the words"subject to the provisions of the law of 28 May 1943 on the application to foreigners of
legislation governing residential leases and farming leases"shall be deleted.
Article L951-10 The second sub-paragraph of Article L. 145-18 shall be worded as follows: "The same shall apply for the purpose of restoring buildings involving repair, conservation, modernisation or
demolition work which changes the living conditions of a set of buildings so that the premises have to be evacuated. Such work may be decided and carried out in accordance with local regulations either by the public authorities with local jurisdiction or at the initiative of one or more owners who may but need not have form a freeholders' association, in which case the owner or owners shall be specially authorised to do so on terms laid down by the state representative, who shall stipulate the commitments which owners must make as to the type and extent of the work. Buildings acquired by developers shall only be assigned by mutual agreement, once they have been restored, in accordance with the type specifications approved by the state representative."
Article L951-11 In Article L. 145-26, the words"the territory"shall be inserted after the words"the state, the departments, the
municipalities".
Article L951-12 (Order No. 2004-604 of 24 June 2004 Art. 58 III Official Journal of 26 June 2004)
The first paragraph of Article L. 145-34 is worded as follows: "Unless the factors referred to in 1 to 4 of Article L. 145-33 change significantly, the variation in the rent applicable
upon renewal of the lease, provided its term does not exceed nine years, shall not exceed the variation in a local quarterly construction cost index for the period since the initial rent for the expired lease was determined. The said index is calculated as determined in an order issued by the government representative. If there is no clause in the contract which stipulates the index's reference quarter, the variation in the local quarterly construction cost index indicated for that purpose in the aforementioned order shall be applied."
Article L951-13 Article L. 145-35 shall be amended as follows: I. – In the first sub-paragraph, the word"departmental"shall be deleted. II. – The final sub-paragraph shall be worded as follows: "The composition of the committee and the method of appointing the members and the rules of procedure thereof
shall be decided by order of the state representative."
Article L951-14 Article L. 145-43 shall be worded as follows: "Article L. 145-43 – Traders or artisans who are tenants of premises on which their business is located and who
have been accepted on a diversification or promotion traineeship in accordance with the provisions of the Employment
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COMMERCIAL CODE Code applicable in the territory shall be released from the obligation to run the business during the said traineeship."
CHAPTER II Provisions Amending Book II Articles L952-1 to
L952-10
Article L952-1 (Order No. 2004-604 of 24 June 2004 Art. 58 III Official Journal of 26 June 2004)
In Articles L. 225-177, L. 225-179 and L. 233-11, the words"the publication date of Act No. 2001-420 of 15 May 2001 relating to the new economic regulations"are replaced by the words"the publication date of Order No. 2004-604 of 24 June 2004 reforming the rules governing transferable securities issued by commercial companies and the extension overseas of the provisions which amended the commercial legislation".
Article L952-2 (Order No. 2004-274 of 25 March 2004 Art. 49 VII Official Journal of 27 March 2004)
In Articles L. 223-18, L. 225-36 and L. 225-65, the words"in the same Department or an adjacent Department"are replaced by the words"in the territory".
Article L952-3 The final sub-paragraph of Article L. 225-43 and of Article L. 225-91 shall be deleted.
Article L952-4 (Order No. 2004-604 of 24 June 2004 Art. 62 II Official Journal of 26 June 2004)
In 5 of Article L. 225-115, the words"payments made pursuant to 1 and 4 of Article 238 bis of the General Tax Code"are replaced by the words"tax deductions under the provisions of the tax code applicable in the territory relative to the total deductions from the taxable profits of companies which make payments for the benefit of works by public-interest bodies or approved societies or which make donations of works of art to the State".
Article L952-5 (Order No. 2004-604 of 24 June 2004 Art. 58 III Official Journal of 26 June 2004)
In Articles L. 225-105, L. 225-230 and L. 225-231, the words"the works council"are replaced by the words"the staff delegates".
Article L952-6 In Articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 and L. 234-2, the words"works council"shall be replaced by the
words"staff delegates".
Article L952-7 In Article L. 225-270 VI, the words"the provisions of Article 94 A of the General Tax Code"shall be replaced by the
words"the provisions of the tax Code applicable in the territory to net capital gains from disposals for money consideration of securities and corporate rights".
Article L952-8 The final sub-paragraph of Article L. 228-36 shall be deleted.
Article L952-9 In Article L. 233-24, the words"or of Article 97 VII"shall be deleted.
Article L952-10 The second sub-paragraph of Article L. 251-7 shall be deleted.
CHAPTER III Provisions Amending Book III Articles L953-1 to
L953-3
Article L953-1 (Order No. 2004-274 of 25 March 2004 Art. 49 VIII Official Journal of 27 March 2004) (Order No. 2004-274 of 25 March 2004 Art. 49 VIII Official Journal of 27 March 2004)
III of Article L. 310-2 and 6 of Article L. 310-5 are deleted.
Article L953-2 (Order No. 2004-274 of 25 March 2004 Art. 49 VIII Official Journal of 27 March 2004) (Order No. 2004-274 of 25 March 2004 Art. 49 VIII Official Journal of 27 March 2004)
In Article L. 322-1, the words"to Article 53 of Act No. 91-650 of 9 July 1991 relating to the reform of the enforcement procedures and Article 945 of the Code of Civil Procedure"are replaced by the words"to the civil provisions applicable in the territory to the sale of personal property deriving from an inheritance".
Article L953-3 (inserted by Order No. 2004-274 of 25 March 2004 Art. 49 VIII Official Journal of 27 March 2004)
The second paragraph of Article L. 322-9 is worded as follows: "They shall comply with the provisions of the tax Code applicable in the territory to public sales and auctions."
Updated 03/20/2006 - Page 303/307
COMMERCIAL CODE CHAPTER IV Provisions Amending Book IV Articles L954-1 to
L954-7
Article L954-1 (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
In the first paragraph of Article L. 430-2, the word"three"is replaced by the word"two". The fourth and fifth paragraphs of the said article are deleted.
Article L954-2 (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
In Article L. 430-3, the last sentence of the first paragraph is deleted. In the third paragraph of that same article, the words", or the total or partial referral of an operation of community-wide dimensions,"are deleted.
Article L954-3 (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
The last paragraph of Article L. 441-2 is replaced by four paragraphs worded as follows: "The cessation of advertising which does not comply with the provisions of paragraph 1 may be ordered by the
investigating judge or by the court to which the proceedings are referred, or at the request of the public prosecutor or as a matter of course. The measure thus taken shall be enforceable notwithstanding any appeal.
The measure may be lifted by the court which ordered it or to which the case is referred. It shall become ineffective if a judgment of nonsuit or acquittal is returned.
Rulings on applications for the lifting of orders may be appealed against before the appeal court. The appeal court shall rule within ten days of receiving the evidence."
Article L954-4 (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
In the second paragraph of Article L. 442-2, the word"any"is inserted before the words"turnover tax".
Article L954-5 (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
The last paragraph of Article L. 442-3 is replaced by four paragraphs worded as follows: "The cessation of advertising may be ordered by the investigating judge or by the court to which the proceedings
are referred, or at the request of the public prosecutor or as a matter of course. The measure thus taken shall be enforceable notwithstanding any appeal.
The measure may be lifted by the court which ordered it or to which the case is referred. It shall become ineffective if a judgment of nonsuit or acquittal is returned.
Rulings on applications for the lifting of orders may be appealed against before the appeal court. The appeal court shall rule within ten days of receiving the evidence."
Article L954-6 (inserted by Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
In Article L. 442-7, the words"or in-house purchasing facility for the benefit of staff"are deleted.
Article L954-7 (inserted by Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
Article L. 443-1 is amended as follows: I. - In 1, the words"referred to in Articles L. 326-1 to L. 326-3 of the Rural Code"are replaced by the words"as
provided for in the rural law applicable in the territory"; II. - In 3, the words"in Article 403 of the General Tax Code"are replaced by the words"by the provisions of the Tax
Code applicable in the territory." III. - 4. is worded as follows: "4. Seventy-five days after the date of delivery for purchases of alcoholic beverages subject to consumption duty
under the Tax Code applicable in the territory".
CHAPTER V Provisions Amending Book V Articles L955-1 to
L955-7
Article L955-1 In Article L. 511-61, the words"or the territorial authorities"shall be replaced by the words"or the Wallis and Futuna
Islands".
Article L955-2
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COMMERCIAL CODE The second sub-paragraph of Article L. 511-62 shall read as follows: "The withdrawal shall include the sums referred to in Articles L. 511-45 and L. 511-46, in addition to any brokerage
fees or stamp duty for which provision is made in the legislation applicable in the Wallis and Futuna Islands."
Article L955-3 In Articles L. 523-8 and L. 524-6, the words"Articles 1426 to 1429 of the New Code of Civil Procedure"shall be
replaced by the words"provisions of civil procedure applicable locally to offers of payment and consignations".
Article L955-4 The first sub-paragraph of Article L. 524-19 shall be worded as follows: "The sum in duty to be collected by the clerk of the court of first instance ruling on commercial matters shall be set
by decree."
Article L955-5 In the first sub-paragraph of Article L. 525-2, the words"according to regulations in force in the Wallis and Futuna
Islands"shall be inserted after the words"the fixed duty".
Article L955-6 In Article L. 525-9 II, the words"the preferential right referred to in Article L. 243-4 of the Social Security Code"shall
be replaced by the words"the preferential right organised for the benefit of the social welfare fund of the territory".
Article L955-7 Article L. 525-18 shall be amended as follows: I. – In no. 1, the reference to decree no. 53-968 of 30 September 1953 shall be replaced by a reference to decree
no. 55-639 of 20 May 1955. II. – No. 2 shall be worded as follows: "Ocean-going ships and inland waterway boats."
CHAPTER VI Provisions Amending Book VI Articles L956-1 to
L956-9
Article L956-1 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The implementing measures provided for in Articles L625-1, L626-3, L626-5 to L626-7, L626-14 and L626-16 are determined by the territorial assembly.
Article L956-2 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L625-2, the words "referred to in Article L432-7 of the Labour Code" are replaced by the words "in regard to information of a confidential nature provided as such".
Article L956-3 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Article L622-24, the bodies referred to in Article L351-21 of the Labour Code are the local bodies responsible for allocating unemployment benefit and collection of contributions.
Article L956-4 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L622-24, L622-26, L625-3, L625-4, L626-5 to L626-7, L626-20 and L662-4, the institutions referred to in Article L143-11-4 of the Labour Code are the local institutions responsible for implementing the insurance scheme covering the risk of non-payment of wages and salaries in the event of court-ordered receivership or liquidation proceedings.
Article L956-5 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L626-5 to L626-7, the institutions governed by Book IX of the Social Security Code are
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COMMERCIAL CODE the local occupational, supplemental or occupational benefits pensions institutions which are linked to the national insurance and welfare schemes and are covered by the provisions applicable in the Wallis and Futuna Islands.
Article L956-6 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L626-14, the reference to Article 28 of decree No. 55-22 of 4 January 1955 reforming real-property advertising is replaced by the reference to the provisions applicable in the territory relating to the advertising of real-property rights other than liens and mortgages.
Article L956-7 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L642-2, the obligation placed on the court to take account of the provisions of 1, 2, 3 and 4 of Article L331-3 of the Rural Code entails the following:
"Observance of the order of priority established between settlement of young farmers and enlargement of farms, bearing in mind the economic and social interest of maintaining the autonomy of the farm to which the application relates;
When farms are enlarged or combined, to take account of the prospects of settlement on a viable farm, the location of the land concerned in relation to the applicant's or applicants' principal place(s) of business, the area of the property covered by the application and the areas already developed by the applicant(s), and by the sitting tenant;
To take into consideration the personal situation of the applicant(s): age, family and business situation and, if applicable, those of the sitting tenant, as well as the number and nature of the jobs involved;
To take account of the registered plan of the farms concerned, either in relation to the principal place of business or with a view to preventing changes of ownership from compromising developments made with the aid of public funds."
Article L956-8 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The following sentence is inserted after the first sentence of the first paragraph of II of Article L641-1: "He may likewise be assisted by one or more liquidators."
Article L956-9 (Act No. 2003-7 of 3 January 2003 Art. 49 III Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
4 of III of Article L643-11 is not applicable.
CHAPTER VII Provisions Amending Book VII Articles L957-1 to
L957-3
Article L957-1 In Articles L. 711-2 and 711-4, the word"government"shall be replaced by the words"state representative in the
territory".
Article L957-2 In the third sub-paragraph of Article L. 711-6, the words"or the municipality"shall be replaced by the words"or the
territory".
Article L957-3 In Article L. 712-1, the words"by means of a tax in addition to the business tax"shall be replaced by the words"as set
out in the tax Code applicable in the Wallis and Futuna Islands".
CHAPTER VIII Provisions Amending Book VIII Articles L958-1 to
L958-2
Article L958-1 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
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COMMERCIAL CODE Articles L814-1 to L814-5 are applicable insofar as they concern court-appointed administrators.
Article L958-2 (inserted by Order No. 2004-604 of 24 June 2004 Art. 58 III Official Journal of 26 June 2004)
For application of Articles L. 822-2 to L. 822-7 in the Wallis and Futuna Islands, the terms enumerated below are replaced as follows:
1."regional registration committee"by"territorial registration committee"; 2."regional court of accounts"by"territorial court of accounts of New-Caledonia"; 3."regional disciplinary committee"by"territorial disciplinary committee".
Updated 03/20/2006 - Page 307/307
CÓDIGO DE COMERCIO
CÓDIGO DE COMERCIO
Con el concurso de las personas siguientes: Prof. Michel MENJUCQ, Catedrático de la Universidad de París I ; Clara Fernández Carron. Profesor Ayudante de Derecho Procesal en la Facultad de Derecho de la Universidad Complutense de Madrid
LIBRO I DEL COMERCIO EN GENERAL Artículos L110-1 a
L146-4 TITULO I DEL ACTO DE COMERCIO Artículos L110-1 a
L110-4
Artículo L110-1 La Ley considerará actos de comercio: 1° Toda compra de bienes muebles para la reventa, bien en su estado original, bien tras haberlos modificado y
adaptado por medio de un trabajo realizado sobre ellos; 2° Toda compra de bienes inmuebles para revenderlos, a menos que el comprador haya actuado con la intención
de edificar uno o varios edificios y venderlos en conjunto o por locales; 3° Toda operación de intermediación para la compra, la suscripción o la venta de inmuebles, de fondos de
comercio, de acciones o partes de acciones o participaciones de sociedades inmobiliarias; 4° Toda empresa de alquiler de bienes muebles; 5° Toda empresa de manufacturas, de comisión, de transporte por tierra o por agua; 6° Toda empresa de suministros, de representaciones, oficinas de negocios, establecimientos de venta por
subasta, de espectáculos públicos; 7° Toda operación cambiaria, bancaria, de corretaje; 8° Todas las operaciones de establecimientos bancarios públicos; 9° Todas las obligaciones entre tratantes, comerciantes y banqueros; 10° Toda negociación sobre letras de cambio.
Artículo L110-2 La ley considerará igualmente actos de comercio: 1° Toda empresa de construcción, de compraventa y de reventa de embarcaciones para la navegación interior y
exterior; 2° Todas las expediciones marítimas; 3° Toda compra o venta de aparejos, accesorios y avituallamiento para una embarcación; 4° Todo contrato de transporte marítimo y fletamento de una nave, suscripción o concesión de un préstamo a la
gruesa; 5° Todo tipo de pólizas de seguros y otros contratos relativos al comercio marítimo; 6° Todo acuerdo y convenio en cuanto a la contratación y a la retribución de las tripulaciones; 7° Todo contrato de enrolamiento para el servicio de los buques mercantes.
Artículo L110-3 Con respecto a los comerciantes, los actos de comercio podrán probarse por cualquier medio a menos que la Ley
disponga de otro modo.
Artículo L110-4 I. - Las obligaciones contraídas con ocasión del acto de comercio entre comerciantes, o entre comerciantes y no
comerciantes, prescribirán a los diez años si no están sometidas a prescripciones especiales de menor duración. II. - Toda acción de pago prescribirá: 1° Si se trata de provisión de alimentos para los marineros hecha por orden del capitán, un año después de su
entrega; 2° Si es para aprovisionamiento de materiales y otros productos necesarios para la construcción, el equipamiento y
el avituallamiento del barco, un año después de realizado el suministro; 3° Si se trata de obras realizadas, un año después de la recepción de éstas. III. - Las acciones iniciadas para obtener el pago de los salarios de los oficiales, marineros y otros miembros de la
tripulación prescribirán a los cinco años según lo dispuesto en el artículo 2277 del Código Civil.
TITULO II DE LOS COMERCIANTES Artículos L121-1 a
L128-6
CAPITULO I
Fecha de actualización 20/03/2006 - Page 1/317
CÓDIGO DE COMERCIO De la definición y del estatuto Artículos L121-1 a
L121-3
Sección I De la condición de comerciante Artículos L121-1 a
L121-3
Artículo L121-1 Serán considerados comerciantes aquellos que ejerzan actos de comercio y que hagan de ellos su profesión
habitual.
Artículo L121-2 El menor de edad, aunque estuviera emancipado, no podrá ser comerciante.
Artículo L121-3 El cónyuge de un comerciante no podrá ser considerado en sí mismo comerciante si no ejerce una actividad
comercial separada de la de su cónyuge.
Sección II De los cónyuges de artesanos y comerciantes que trabajan en la empresa
familiar
CAPITULO II De los comerciantes extranjeros Artículos L122-1 a
L122-4
Artículo L122-1 (Disposición nº 2004-279 de 25 de marzo de 2004 Artículo 1 1º Diario Oficial de 27 de marzo de 2004)
Ningún extranjero podrá ejercer en el territorio francés una profesión comercial, industrial o artesanal en condiciones que exijan su inscripción o su anotación en el Registro de Comercio y de Sociedades o en el Registro central de artesanos sin haber sido previamente autorizado por el Prefecto del departamento en el pretende ejercer por primera vez su actividad.
Artículo L122-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Toda infracción a las prescripciones del artículo L. 122-1 y a las del decreto de aplicación previsto en el artículo L. 122-4 será castigada con una pena de prisión de seis meses y una multa de 3750 euros. En caso de reincidencia las penas serán aumentadas al doble. El Tribunal podrá ordenar además el cierre del establecimiento
Artículo L122-3 (Disposición nº 2004-279 de 25 de marzo de 2004 Artículo 1 1º Diario Oficial de 27 de marzo de 2004)
I. - Las disposiciones de los artículos L. 122-1 y L. 122-2 no serán aplicables a los ciudadanos de un Estado miembro de la Comunidad Europea, de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo o de un Estado miembro de la Organización de Cooperación y de Desarrollo Económicos, que ejerza por cuenta propia o por cuenta de otro ciudadano de uno de estos Estados, o bien de una sociedad constituida de conformidad con la legislación de uno de estos Estados y que tenga su sede estatutaria, su administración central o su principal establecimiento en uno de estos Estados.
II. - Sin embargo, cuando un extranjero o una sociedad de los mencionados en el punto I crea una agencia, una sucursal o una filial en el territorio de la República Francesa o presta sus servicios en ella, no se otorgará el beneficio del I salvo que:
1° El extranjero esté establecido en el territorio de un Estado miembro de la Comunidad Europea, de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo o de un Estado miembro de la Organización de Cooperación y de Desarrollo Económicos;
2° La sociedad que solamente tenga su sede estatutaria en el interior de la Comunidad Europea o de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo o de un Estado miembro de la Organización de Cooperación y de Desarrollo Económicos, y que ejerza una actividad que presente un vínculo efectivo y continuo con la economía de uno de estos Estados.
Artículo L122-4 Las condiciones de aplicación del presente capítulo serán determinadas por un decreto adoptado en Conseil d'Etat.
CAPITULO III De las obligaciones generales de los comerciantes Artículos L123-1 a
L123-28
Sección I
Fecha de actualización 20/03/2006 - Page 2/317
CÓDIGO DE COMERCIO Del Registro de Comercio y de Sociedades Artículos L123-1 a
L123-11
Subsección 1 De las personas obligadas a inscribirse Artículos L123-1 a
L123-5-1
Artículo L123-1 I. - Existe un Registro de Comercio y de Sociedades en el que se inscribirán, de acuerdo a su declaración: 1° Las personas físicas consideradas como comerciantes, aunque estén obligadas también a su inscripción en el
Registro central de artesanos; 2° Las sociedades y agrupaciones de interés económico cuya sede se encuentre en un departamento francés y
que gocen de personalidad jurídica en conformidad con el artículo 1842 del Código Civil o con el artículo L. 251-4; 3° Las sociedades mercantiles cuya sede principal se encuentre fuera de cualquier departamento francés pero
tengan un establecimiento en uno de ellos; 4° Los establecimientos públicos franceses de carácter industrial o comercial; 5° Las demás personas jurídicas cuya inscripción esté prevista por las disposiciones legislativas o reglamentarias; 6° Las representaciones o agencias comerciales de los Estados, entidades o establecimientos públicos extranjeros
establecidos en un departamento francés. II. - En el Registro figurarán, para su conocimiento público, las inscripciones, actas o documentaciones
depositadas, previstas por decreto adoptado en Conseil d'Etat.
Artículo L123-2 Nadie podrá inscribirse en el Registro si no cumple las condiciones necesarias para el ejercicio de su actividad. Las
personas jurídicas deberán además haber cumplido los requisitos formales correspondientes exigidos por la legislación y la reglamentación vigentes.
Artículo L123-3 Si una persona física no solicitara su inscripción en el plazo prescrito, el Juez competente dictará resolución de
requerimiento para que solicite dicha inscripción, de oficio, o bien a petición del Fiscal de la República o de cualquier otra persona que justifique su interés en ello.
En las mismas condiciones, el Juez competente podrá requerir a toda persona inscrita en el Registro de Comercio y de Sociedades para que realice las anotaciones complementarias o las rectificaciones que debiera haber hecho en los plazos prescritos, para que efectúe las anotaciones o rectificaciones necesarias en caso de declaraciones inexactas o incompletas, o para que se dé de baja en el Registro.
El Secretario de una jurisdicción que ordenara la obligatoriedad de la inscripción de una persona deberá notificar esta decisión a la secretaría del Tribunal de commerce en cuya circunscripción el interesado tenga la sede de su empresa o su establecimiento principal. El secretario del Tribunal de commerce destinatario de la decisión lo someterá al Juez encargado de la supervisión del Registro.
Artículo L123-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Toda persona obligada a solicitar su inscripción, una anotación complementaria o de rectificación, o su baja en el Registro de Comercio y de Sociedades, y que no se someta, sin una excusa considerada válida al requerimiento de cumplir uno de estos requisitos formales, en los quince días siguientes a la fecha en la que la resolución del Juez adscrito a la supervisión del Registro sea definitiva, será sancionada con una multa de 3.750 euros.
El Tribunal podrá además privar al interesado, durante un tiempo que no excederá de los cinco años, del derecho de voto y de elegibilidad en las elecciones de los Tribunaux de commerce, de las Cámaras de Comercio e Industria y de la Cour des comptes.
El Tribunal ordenará que se realicen en un determinado plazo la inscripción, las anotaciones o la baja que deban figurar en el Registro, a petición del interesado.
Artículo L123-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con seis meses de prisión y 4.500 euros de multa el que, de mala fe, proporcionara indicaciones inexactas o incompletas en una inscripción, una baja o una anotación complementaria o de rectificación al Registro de Comercio y de Sociedades.
Las disposiciones del segundo y tercer apartado del artículo L. 123-4 serán también aplicables en los casos previstos en el presente artículo.
Artículo L123-5-1 (Introducido por la Ley nº 2001-420 de 1 de agosto de 2001 Artículo 123 II Diario Oficial de 16 de mayo de 2001)
A petición de cualquier interesado o del Ministerio Público, el presidente del Tribunal, por resolución en forma sumaria, podrá requerir al dirigente de cualquier entidad con personalidad jurídica, bajo pena de multa, para que
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CÓDIGO DE COMERCIO proceda al depósito de los documentos y actas en el Registro de Comercio y de Sociedades en el que esté obligado a hacerlo por las disposiciones legislativas o reglamentarias.
El presidente podrá, en las mismas condiciones y con la misma finalidad, designar un mandatario para que efectúe dichas formalidades.
Subsección 2 Teneduría de los libros del Registro y los efectos vinculados a la Artículos L123-6 a
inscripción L123-9-1
Artículo L123-6 El Registro de Comercio y de Sociedades será llevado por el Secretario de cada Tribunal de commerce, bajo la
supervisión del presidente o de un Juez encargado de esta cuestión, los cuales serán competentes para resolver cualquier litigio que pudiera surgir entre el sujeto obligado y la Secretaría.
Artículo L123-7 La inscripción de una persona física conllevará la presunción de su condición de comerciante. Sin embargo, esta
presunción no será oponible frente a terceros y administraciones públicas que aporten la prueba en contrario. Los terceros y administraciones públicas no podrán prevalerse en dicha presunción si ya tenían conocimiento de que la persona inscrita no era comerciante.
Artículo L123-8 La persona obligada a realizar la inscripción que no la haya solicitado tras la expiración del plazo de quince días a
contar desde el inicio de su actividad, no podrá prevalerse, hasta efectuarla, de la condición de comerciante, tanto frente a terceros como frente a las administraciones públicas. Sin embargo no podrá invocar el no estar inscrito en el Registro para sustraerse a las responsabilidades y a las obligaciones inherentes a esta inscripción.
Sin perjuicio de la aplicación del artículo 144-7, el comerciante inscrito que traspase su fondo de comercio o que ceda su explotación, en particular bajo la forma de arrendamiento de negocio, no podrá hacer valer el cese de su actividad comercial, para sustraerse a las acciones de responsabilidad civil de las que sea objeto, por el hecho de las obligaciones contraídas por su sucesor en la explotación del fondo de comercio, hasta el día en que haya realizado la tramitación de su baja en la actividad o la anotación correspondiente.
Artículo L123-9 La persona obligada realizar la inscripción, no podrá oponer en el ejercicio de su actividad, frente a terceros o
administraciones públicas, los hechos y actos cuya anotación sea obligatoria hasta que éstos hayan sido publicados en el Registro, sin embargo sí podrán alegarlos los terceros o las administraciones públicas en cuestión.
Además, la persona obligada al depósito de actas o documentos en anexo en el Registro, sólo podrá oponerlos frente a terceros o administraciones públicas cuando esta formalidad haya sido efectuada. Sin embargo, los terceros o las administraciones públicas sí podrán prevalerse de dichas actas, de dichos documentos.
Las disposiciones de los párrafos anteriores serán aplicables a los hechos o actos cuya anotación o depósito sea obligatoria, aun cuando hayan sido objeto de cualquier otra publicidad legal. Sin embargo no podrán ser alegados por terceros y administraciones que tuvieran conocimiento de estos hechos o actos.
Artículo L123-9-1 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 2 II Diario Oficial de 5 de agosto de 2003)
El secretario del Tribunal o del organismo mencionado en el último párrafo del artículo 2 de la Ley n° 126 de 11 de febrero de 1994 relativa a la iniciativa y a la empresa individual entregará un recibo de presentación de solicitud de creación de empresa a toda persona que esté sujeta a la inscripción en el registro, tan pronto como esta última haya presentado una solicitud de inscripción completa. Dicho recibo permitirá que se realicen, bajo la responsabilidad personal de la persona física que tenga la condición de comerciante o actúe en nombre de la sociedad en fase de constitución, las gestiones necesarias ante los organismos públicos y los organismos privados encargados de una misión de servicio público. Dicho recibo incluirá la mención: "Pendiente de inscripción en el Registro".
Las condiciones de aplicación del presente artículo serán definidas por decreto adoptado en Conseil d'Etat.
Subsección 3 Domiciliación de las personas inscritas Artículos L123-10 a
L123-11
Artículo L123-10 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 6 I 1°Diario Oficial de 5 de agosto de 2003)
Las personas físicas que soliciten su inscripción en el Registro de Comercio y de Sociedades o en el Registro Central de Artesanos deberán declarar la dirección de su empresa y acreditar su uso y disfrute.
Las personas físicas podrán declarar la dirección de su vivienda y ejercer en ésta su actividad, salvo disposición legislativa o estipulación contractual en contrario.
Cuando no dispusieran de un establecimiento, las personas físicas podrán declarar a título exclusivo de dirección de empresa la dirección de su local de vivienda. De esta declaración no podrán derivarse ni el cambio de de destino del inmueble, ni la aplicación del estatuto de arrendamientos comerciales.
Nota: Ley n° 2003-721 de 1 de agosto de 2003 art. 6 II: Estas disposiciones serán aplicables a las empresas inscritas en el Registro de Comercio y de Sociedades o en el Registro Central de Artesanos en la fecha de
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CÓDIGO DE COMERCIO promulgación de la Ley nº 2003-721 de 1 de agosto de 2003.
Artículo L123-11 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 6 I 2° Diario Oficial de 5 de agosto de 2003)
Toda persona jurídica que solicite su inscripción en el Registro de Comercio y de Sociedades deberá presentar el justificante del disfrute del o de los locales en que instala, sola o con otros, la sede de la empresa, o, cuando ésta se encuentre en el extranjero, de la agencia, de la sucursal o de la representación establecida en territorio francés.
Se autorizará la domiciliación de una empresa en locales ocupados en común por varias empresas en las condiciones determinadas por decreto adoptado en Conseil d'Etat. Este decreto precisará, además, los equipamientos o servicios requeridos para acreditar la realidad de la sede de la empresa domiciliada.
Nota: Ley n° 2003-721 de 1 de agosto de 2003 art. 6 II: Estas disposiciones serán aplicables a las empresas inscritas en el Registro de Comercio y de Sociedades o en el Registro Central de Artesanos en la fecha de promulgación de la Ley nº 2003-721 de 1 de agosto de 2003.
Sección II De la contabilidad de los comerciantes Artículos L123-12 a
L123-28
Subsección 1 De las obligaciones contables aplicables a todos los comerciantes Artículos L123-12 a
L123-24
Artículo L123-12 Toda persona física o jurídica que posea la calidad de comerciante deberá proceder al registro contable de los
movimientos correspondientes al patrimonio de su empresa. Estos movimientos serán registrados en su orden cronológico.
Deberá controlar por medio de un inventario, al menos una vez cada doce meses, la existencia y el valor de los elementos activos y pasivos del patrimonio de su empresa.
Tendrá que realizar las cuentas anuales al cierre del ejercicio según sus registros contables y el inventario. Estas cuentas anuales incluirán el balance, la cuenta de resultados y un anexo explicativo, formando todos ellos un todo indisociable.
Artículo L123-13 El balance presentará separadamente los elementos activos y pasivos de la empresa, y distinguirá de manera
diferenciada los fondos propios. La cuenta de resultados recapitulará los ingresos y los gastos del ejercicio, sin tener en cuenta su fecha de cobro o
de pago. Presentará el beneficio o la pérdida obtenido en el ejercicio tras la deducción de las amortizaciones y de las provisiones. Los ingresos y los gastos, clasificados por categorías, deberán presentarse bien en forma de cuadro, bien en forma de lista.
El importe de los compromisos asumidos por la empresa en materia de cargas sociales como pensiones, complementos de jubilación, indemnizaciones y ayudas por jubilación o ventajas similares de los miembros o socios de su personal y de sus mandatarios sociales se indicará en el anexo explicativo. Por otra parte, las empresas podrán decidir la inclusión en el balance, en el apartado de provisiones, de la totalidad o de una parte de estas cargas.
El anexo explicativo completará y comentará la información dada por el balance y la cuenta de resultados.
Artículo L123-14 Las cuentas anuales serán regulares, verdaderas y darán una imagen fidedigna del patrimonio, de la situación
financiera y de los resultados de la empresa. Cuando la aplicación de un asiento contable no baste para dar la imagen fidedigna a la que se refiere este artículo,
deberán suministrarse informaciones complementarias en el anexo explicativo. Si, excepcionalmente, la aplicación de un asiento contable no resultara adecuado para dar una imagen fidedigna
del patrimonio, de la situación financiera o del resultado, deberá ser eliminado. Esta eliminación tendrá que ser mencionada en el anexo explicativo y ser debidamente justificada, con las indicaciones correspondientes sobre su influencia en el patrimonio, la situación financiera y los resultados de la empresa.
Artículo L123-15 El balance, la cuenta de resultados y el anexo explicativo deberán incluir tantas rúbricas y partidas como sean
necesarias para dar una imagen fidedigna del patrimonio, de la situación financiera y de los resultados de la empresa. Cada una de las partidas del balance y de la cuenta de resultados incluirá la indicación de la cifra relativa a la partida correspondiente del ejercicio anterior.
Se determinará por decreto la clasificación de los elementos del balance y de la cuenta de resultados, los elementos que componen los fondos propios, así como las anotaciones que se deberán incluir en el anexo explicativo.
Artículo L123-16 Los comerciantes, personas físicas o jurídicas, podrán, en condiciones determinadas por decreto, elegir una
presentación simplificada de sus cuentas anuales cuando al cierre del ejercicio no sobrepasen las cifras definidas por el decreto en dos de los criterios siguientes: el total de su balance, el importe neto de su volumen de negocios o el número medio de personas empleadas permanentemente a lo largo del ejercicio. Perderán esta facultad cuando no se
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CÓDIGO DE COMERCIO cumpla esta condición durante dos ejercicios sucesivos.
Artículo L123-17 A menos que se produzca un cambio excepcional en la situación del comerciante, persona física o jurídica, la
presentación de cuentas anuales como método de evaluación seleccionado no podrá ser modificado de un ejercicio a otro. Si se produjeran modificaciones, deberán ser descritas y justificadas en el anexo explicativo.
Artículo L123-18 Los bienes adquiridos a título oneroso se registrarán en su fecha de entrada en el patrimonio de la empresa, por su
precio de adquisición, los bienes adquiridos gratuitamente, por su valor venal y los bienes producidos, por su coste de producción.
En cuanto a la declaración del activo inmovilizado en el registro de los elementos, deberán tenerse en cuenta, si procede, los planes de amortización. Si el valor de un elemento del activo llegara a ser inferior a su valor neto contable, este último será modificado para que tenga el valor de inventario de la fecha de cierre del ejercicio, tanto si la depreciación fuera definitiva o no.
Los bienes fungibles serán valorados bien por su coste medio ponderado de adquisición o de producción, bien considerando que el primer bien salido es el primer bien entrado.
La plusvalía constatada entre el valor de inventario de un bien y su valor de entrada no será contabilizada. Si se procediera a una revaloración del conjunto de las inmovilizaciones corporales y financieras, la diferencia de revaloración entre el valor actual y el valor neto contable no podrá utilizarse para compensar las pérdidas sino que deberá inscribirse de modo diferenciado en el pasivo del balance.
Artículo L123-19 Los elementos del activo y del pasivo deberán ser valorados por separado. No se podrá efectuar ninguna compensación entre las partidas del activo y del pasivo del balance o entre las
partidas de ingresos y gastos de la cuenta de resultados. El balance de apertura de un ejercicio deberá corresponderse con el balance de cierre del ejercicio anterior.
Artículo L123-20 Las cuentas anuales deberán respetar el principio de prudencia valorativa. Para su fondo de comercio, el
comerciante, persona física o jurídica, presupondrá que la empresa proseguirá sus actividades. Incluso en caso de ausencia o insuficiencia de beneficios, se deberá proceder a las amortizaciones y provisiones
necesarias. Se tendrán que tener en cuenta los riesgos y pérdidas producidos en el curso del ejercicio o de un ejercicio
anterior, incluso aunque sean conocidos entre la fecha de cierre del ejercicio y la de la realización de las cuentas.
Artículo L123-21 Sólo se podrán incluir en las cuentas anuales los beneficios realizados en la fecha de cierre de un ejercicio. Podrá
ser incluido, tras el inventario, el beneficio realizado en una operación parcialmente ejecutada y aceptada por el cocontratante siempre y cuando su realización sea segura y sea posible evaluar con seguridad suficiente el beneficio global de la operación por medio de documentos contables de previsión.
Artículo L123-22 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Los documentos contables deberán establecerse en euros y estar redactados en lengua francesa. Los documentos contables y los documentos justificantes deberán conservarse durante diez años. Los documentos contables relativos al registro de las operaciones y al inventario deberán realizarse y mantenerse
sin espacios en blanco ni alteraciones de ningún tipo, en las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Artículo L123-23 La contabilidad llevada debidamente podrá ser admitida como prueba en juicio entre comerciantes para hechos de
comercio. Si ésta ha sido llevada de modo irregular, su autor no podrá invocarla en su propio beneficio. No se podrá ordenar judicialmente la presentación de los documentos contables salvo en los casos de sucesión,
comunidad de bienes, división de sociedad y en los casos de procedimientos de suspensión de pagos o de liquidación judiciales.
Artículo L123-24 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Todo comerciante estará obligado a abrirse una cuenta en un establecimiento de crédito o en una Oficina de cheques postales.
Subsección 2 De las obligaciones contables aplicables a algunos comerciantes, Artículos L123-25 a
personas físicas L123-28
Artículo L123-25 Por excepción a lo dispuesto en los apartados primero y tercero del artículo L. 123-12, las personas físicas que se
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CÓDIGO DE COMERCIO acogieran, por elección o por pleno derecho, al régimen impositivo real simplificado, no están obligadas a registrar los créditos y las deudas hasta el cierre del ejercicio ni a presentar el anexo explicativo.
Artículo L123-26 Por excepción a lo dispuesto en el segundo párrafo del artículo L. 123-13, las personas físicas acogidas al régimen
impositivo real simplificado, por propia elección o de pleno derecho, podrán inscribir en la cuenta de resultados, en función de su fecha de pago, los gastos cuya periodicidad no exceda de un año, con exclusión de las compras.
Artículo L123-27 Por excepción a lo dispuesto en el tercer párrafo del artículo L. 123-18, las personas físicas acogidas al régimen
impositivo real simplificado, por propia elección o de pleno derecho, podrán proceder a una valoración simplificada de los stocks y de las producciones en curso, según un método determinado por decreto.
Artículo L123-28 Por excepción a lo dispuesto en los artículos L. 123-12 a L. 123-23, las personas físicas sometidas al régimen
impositivo de las micro-empresas no están obligadas a realizar cuentas anuales. Deberán registrar día a día las facturas cobradas y los gastos pagados, realizar un extracto al final del ejercicio de las facturas cobradas y de los gastos pagados, de las deudas financieras, de los inmovilizados y de los stocks, valorados de manera simplificada, en las condiciones determinadas por decreto.
Sin embargo, cuando el volumen de negocios anual no exceda de un importe de 18.293,88 euros, las personas físicas inscritas en el Registro de Comercio y de Sociedades, podrán llevar únicamente un libro en el que anotarán cronológicamente el importe y el origen de las facturas que perciben en concepto del ejercicio de su actividad profesional. Las condiciones en las que debe llevarse este libro serán determinadas por un decreto.
CAPITULO IV De las sociedades cooperativas de comerciantes minoristas Artículos L124-1 a
L124-16
Artículo L124-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 64 I, II y III Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 1 Diario Oficial de 27 de marzo de 2004)
Las sociedades cooperativas de comerciantes minoristas tendrán la finalidad de mejorar por medio del esfuerzo común de sus socios las condiciones en las que éstos ejercieran su actividad comercial. En especial, podrán ejercer a este efecto, directa o indirectamente por cuenta de sus socios, las actividades siguientes:
1° Suministrar en todo o en parte a sus socios el género, las mercancías o los servicios, el equipamiento y el material necesarios para el ejercicio de su comercio, en particular por medio de la constitución y el mantenimiento de todo stock de mercancías, la construcción, la adquisición o el alquiler, así como la gestión de los depósitos y almacenes particulares, la realización en sus establecimientos o en los de sus socios, de todas las operaciones, transformaciones y modernizaciones útiles;
2° Reagrupar en un mismo recinto los comercios que pertenezcan a sus socios, crear y gestionar todos los servicios comunes a la explotación de estos comercios, construir, comprar o alquilar los inmuebles necesarios para su actividad o para la de sus socios, asegurar la gestión de los mismos, todo ello en las condiciones previstas por el capítulo V del presente título;
3° Facilitar el acceso de los socios y de su clientela a los diferentes medios de financiación y crédito, en el marco de las disposiciones legislativas correspondientes a las actividades financieras;
4° Ejercer las actividades complementarias a las enunciadas anteriormente, y especialmente proporcionar asistencia a sus socios en materia de gestión técnica, financiera y contable;
5° Comprar fondos de comercio y conceder su arrendamiento y gerencia en el plazo de dos meses a un socio, por excepción a lo dispuesto en el artículo L. 144-3, el cuál deberá restituirlo en el plazo máximo de siete años, bajo pena de las sanciones previstas en el segundo y tercer apartado del artículo L. 124-15;
6° Definir y poner en marcha una política comercial común que asegure el desarrollo y la actividad de sus socios, y especialmente:
- mediante la creación de una organización jurídica adecuada; - mediante la puesta a su disposición de rótulos o marcas que la cooperativa posea o tenga en usufructo; - mediante la realización de operaciones comerciales, publicitarias o no, que puedan conllevar precios comunes; - mediante la elaboración de métodos y modelos comunes de compra, de surtido y de presentación de productos,
de arquitectura y de organización de los establecimientos. 7° Suscribir participaciones incluso mayoritarias en sociedades directa o indirectamente asociadas que exploten
fondos de comercio.
Artículo L124-2 Las sociedades cooperativas de comerciantes minoristas no podrán admitir a terceros que no sean socios para que
se beneficien de sus servicios. Sin embargo, las sociedades cooperativas de farmacéuticos que regenten una farmacia, no podrán negar sus
servicios en caso de urgencia a los farmacéuticos no asociados ni a aquellas instituciones, públicas o privadas, en las que se atienda a enfermos, cuando éstas sean propietarias legales de una farmacia.
Artículo L124-3
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CÓDIGO DE COMERCIO Las sociedades cooperativas de comerciantes minoristas son sociedades anónimas de capital variable que se han
constituido y que funcionan en conformidad con lo establecido en las disposiciones del libro II, título III, capítulo 1º. Se regirán por las disposiciones del presente capítulo y por las que no sean contradictorias del libro II, títulos del I al IV y de la Ley no 47-1775 de 10 de septiembre de 1947 que contiene el Estatuto de la Cooperación. Se les aplicarán las disposiciones del libro II, títulos del I al IV, referidas a la constitución de las reservas legales.
Únicamente podrán ser consideradas como sociedades cooperativas de comerciantes minoristas, por sí solas o en unión de varias de estas sociedades, y sólo estarán autorizadas a usar esta denominación y añadirla a la suya propia, las sociedades y uniones de sociedades constituidas con el fin de efectuar las operaciones citadas en el artículo L. 124-1 y que, por su constitución y su funcionamiento, se plieguen a las prescripciones establecidas en el presente capítulo.
Artículo L124-4 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 2 Diario Oficial de 27 de marzo de 2004)
Sin perjuicio de la aplicación de las disposiciones del artículo 3 bis de la Ley no 47-1775 de 10 de septiembre de 1947 que contiene el Estatuto de la Cooperación, todo comerciante que ejerza el comercio minorista y esté legalmente establecido en el territorio de un Estado extranjero podrá ser miembro de cooperativas de comerciantes. Lo dispuesto en el párrafo anterior se aplicará a las sociedades cooperativas regidas por el presente capítulo, así como a las empresas registradas en el Registro central de artesanos y en el Registro de Comercio y de Sociedades a la vez. Las cooperativas regidas por el presente capítulo podrán admitir en calidad de socios a personas físicas o jurídicas interesadas en su actividad y competentes para conocerla.
Las sociedades cooperativas de comerciantes minoristas que ejerzan las actividades citadas en el apartado 2° del artículo L. 124-1 podrán además, admitir en calidad de socio a todas las personas a las que se refiere el artículo 125-1.
Los comerciantes minoristas cuya cooperativa esté afiliada a otra cooperativa de comerciantes minoristas podrán beneficiarse directamente de los servicios de ésta.
Artículo L124-5 Las sociedades regidas por el presente capítulo podrán constituir entre ellas agrupaciones que tengan los mismos
objetivos que los definidos en el artículo L. 124-1. Estas agrupaciones deberán cumplir, para su constitución y su funcionamiento, las mismas reglas que dichas
sociedades. Se les aplicará el segundo apartado del artículo 9 de la Ley de 10 de septiembre de 1947 que incluye el Estatuto de la Cooperación.
Las agrupaciones de sociedades cooperativas de comerciantes minoristas sólo podrán incluir a sociedades cooperativas de minoristas o a sus socios. Los comerciantes minoristas cuya cooperativa esté afiliada a una agrupación podrán beneficiarse directamente de los servicios de ésta.
Las sociedades cooperativas de comerciantes minoristas y sus agrupaciones podrán constituir uniones mixtas con otras sociedades cooperativas y sus agrupaciones.
Por excepción a lo dispuesto en el artículo L. 225-1, el número de socios de una agrupación regida por el presente artículo podrá ser inferior a siete.
Artículo L124-7 Los estatutos podrán prever que sociedades cooperativas de comerciantes minoristas se asocien en las
condiciones establecidas en el artículo 3 bis de la Ley de 10 de septiembre de 1947 que incluye el Estatuto de la Cooperación. En ese caso, éstas no podrán recurrir a los servicios de la sociedad cooperativa a la que se hayan asociado.
Artículo L124-8 La junta general deliberará válidamente cuando estuvieran presentes o representados un tercio de los socios
existentes en la fecha del convenio. Sin embargo, las juntas convocadas para modificar los estatutos no deliberarán válidamente si no están presentes
o representados al menos la mitad de los socios existentes en la fecha de la convocatoria. Los socios que hayan emitido su voto por correspondencia contarán para determinar el quórum, si los estatutos lo
autorizaran,. Cuando no se alcance el quórum requerido, se convocará una nueva junta. Deliberará válidamente cualquiera que
sea el número de socios presentes o representados.
Artículo L124-9 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 4 Diario Oficial de 27 de marzo de 2004)
Los acuerdos de la junta general se tomarán por mayoría de los votos de que dispongan los socios presentes o representados. Sin embargo, se requerirá una mayoría de dos tercios de los socios presentes o representados para cualquier modificación de los estatutos.
Si la cooperativa ejerciera las actividades previstas en el apartado 2° del artículo L.124-1, dejará de aplicarse esta disposición en las condiciones previstas por el artículo L. 125-10.
Artículo L124-10 El Consejo de Administración o el Consejo de Supervisión, según los casos, podrán decidir la exclusión de un
socio, tras haber escuchado debidamente las declaraciones del interesado. Todo socio afectado por una medida de exclusión tendrá la posibilidad de apelar tal decisión ante la junta general
que decidirá sobre su recurso en la primera reunión ordinaria que siga a la notificación de la exclusión, la cual será
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CÓDIGO DE COMERCIO efectiva el día de la notificación de su aceptación por parte de la junta general.
Sin embargo, cuando el interés de la sociedad lo requiera, el consejo de administración o el consejo de supervisión, según los casos, podrán suspender del ejercicio de los derechos que el asociado excluido posea en su calidad de miembro de la cooperativa hasta la notificación a éste de la decisión de la junta general, sin que la duración de esta suspensión pueda exceder de un año.
Si la decisión favorable a la exclusión de un socio no estuviera justificada por un motivo serio y legítimo, el Tribunal al que se recurra en el plazo de un mes a partir de la notificación de la desestimación del recurso del socio por parte de la junta general, podrá reintegrar al socio indebidamente excluido, o bien indemnizarlo por daños y perjuicios, o bien ambas medidas al mismo tiempo.
Si la cooperativa ejerciera las actividades previstas en el apartado 2° del artículo L.124-1, dejarán de aplicarse las disposiciones del presente artículo. Se aplicarán los artículos L. 125-15 y L. 125-16.
Artículo L124-11 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 5 Diario Oficial de 27 de marzo de 2004)
Si se tratase de una cooperativa que ejerciera las actividades previstas en el apartado 2° del artículo L. 124-1, se efectuaría el reembolso de las participaciones sociales del socio que se retirara o que hubiera sido excluido, por excepción a lo dispuesto en el artículo 18 de la Ley de 10 de septiembre de 1947 relativa al Estatuto de la Cooperación, en las condiciones previstas por los artículos L. 125-17 y L. 125-18.
Sin embargo, durante cinco años a partir del día en que haya perdido definitivamente su calidad de socio, tanto con respecto a la cooperativa como frente a terceros quedará sujeto a todas las obligaciones que existieran al cierre del ejercicio en el curso del cual haya abandonado la cooperativa. El consejo de administración o el consejo de supervisión, según los casos, podrá conservar durante cinco años como máximo la totalidad o una parte de las sumas debidas al antiguo socio, en aplicación del apartado anterior, hasta el límite del importe necesario para cubrir la garantía de las obligaciones a las que está sujeto en aplicación del presente párrafo, a menos que el interesado proporcione garantías suficientes.
Artículo L124-12 La junta general ordinaria podrá, resolviendo en las mismas condiciones de quórum y de mayoría que la junta
general extraordinaria, transformar en participaciones sociales todo o parte de los retornos cooperativos bloqueados en cuentas individuales así como todo o parte de los retornos distribuibles entre los miembros de la cooperativa en razón del ejercicio transcurrido.
En este último caso, los derechos de cada miembro en la atribución de las participaciones resultantes de esta ampliación de capital, serán idénticos a los que habría tenido en el reparto de los retornos cooperativos.
Artículo L124-13 La Caja Central de Crédito Cooperativo estará autorizada a efectuar todas las operaciones financieras en beneficio
de las sociedades constituidas en conformidad con las disposiciones del presente capítulo, sobre todo a poner a su disposición los fondos que le sean especialmente atribuidos o que pueda procurarse por sí misma bajo la forma de préstamos o por el redescuento de los efectos suscritos, a dar su aval o ser fiador para avalar sus préstamos, a recibir y a gestionar sus depósitos de fondos.
Artículo L124-14 En caso de disolución de una sociedad cooperativa o de una agrupación regida por las disposiciones del presente
capítulo y ateniéndose a las disposiciones de los párrafos siguientes del presente artículo, el excedente neto del activo sobre el capital se asignará a otras sociedades cooperativas o a agrupaciones de cooperativas, o bien a obras de interés general o profesional.
Sin embargo, una sociedad cooperativa o una agrupación de sociedades cooperativas podrá ser autorizada por orden del Ministro de Economía y de Hacienda, previa autorización del Consejo Superior de la Cooperación, a repartir el excedente neto del activo entre sus socios. Este reparto no podrá incluir la parte del excedente neto del activo producto de la ayuda concedida directa o indirectamente a la sociedad o a la agrupación de sociedades por el Estado o por una entidad pública. Esta parte tendrá que ser reembolsada en las condiciones previstas por el decreto de autorización.
Este reparto entre los socios del excedente neto del activo será de pleno derecho cuando la sociedad cooperativa ejerza las actividades citadas en el 2° del artículo L. 124-1.
Artículo L124-15 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Toda agrupación de comerciantes minoristas creada con el objeto de ejercer una o varias actividades citadas en los 1°, 3° y 4° del artículo L. 124-1, si no ha adoptado la forma de sociedad cooperativa de comerciantes minoristas regida por las disposiciones del presente capítulo, deberá constituirse bajo la forma de sociedad anónima, de sociedad de responsabilidad limitada, de agrupación de interés económico o de agrupación europea de interés económico.
Será sancionado con multa de 9.000 euros el que formara una agrupación de comerciantes minoristas infringiendo las disposiciones del apartado anterior.
El Tribunal podrá además ordenar el cese de las operaciones del organismo encausado y, si hubiere lugar a ello, la confiscación de las mercancías adquiridas y el cierre de los locales utilizados.
Artículo L124-16
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CÓDIGO DE COMERCIO Se considerará que las sociedades cooperativas para la compra en común de comerciantes minoristas y sus
uniones, constituidas al amparo de la Ley no 49-1070 de 2 de agosto de 1949 satisfacen las disposiciones del presente capítulo sin que sea necesaria la modificación de sus estatutos.
No obstante, las sociedades beneficiarias de las disposiciones del párrafo anterior tendrán que renovar y adaptar sus estatutos en el momento en que introduzcan en ellos alguna modificación ulterior.
CAPITULO V De las áreas comerciales colectivas de comerciantes independientes Artículos L125-1 a
L125-19
Sección I De la constitución del área comercial colectiva Artículos L125-1 a
L125-9
Artículo L125-1 Las disposiciones del presente capítulo serán aplicables a las personas físicas y jurídicas reunidas en un mismo
recinto, bajo una misma denominación, para explotar, bajo las mismas normas, su fondo de comercio o su empresa inscrita en el Registro central de artesanos sin ceder su propiedad, creando de este modo un área comercial colectiva de comerciantes independientes.
Artículo L125-2 Las personas citadas en el artículo L. 125-1 se unirán, bajo la forma de agrupación de interés económico o de
sociedad anónima de capital variable o de sociedad cooperativa de comerciantes minoristas y constituirán una persona jurídica que ostentará la propiedad y el goce de los edificios y áreas anexas del área comercial colectiva, definirá y aplicará la política común, organizará y gestionará los servicios comunes.
La agrupación de interés económico o la sociedad propietaria de todo o parte de los solares, edificios y áreas anexas del área comercial colectiva, no podrá restituir todo o parte de estos bienes inmobiliarios a sus miembros durante la existencia de dicho centro comercial.
Únicamente podrán ser consideradas como áreas comerciales colectivas de comerciantes independientes, y sólo podrán llevar esta denominación, uniéndola a su propio nombre, las agrupaciones de interés económico, las sociedades anónimas de capital variable y las sociedades cooperativas de comerciantes minoristas que cumplan, para su constitución y su funcionamiento, las prescripciones del presente capítulo.
Artículo L125-3 La agrupación de interés económico o la sociedad que utilizase el leasing será considerada como usuaria de
acuerdo con el artículo 5 b de la Disposición no 67-837 del 28 de septiembre de 1967.
Artículo L125-4 Cada miembro de la agrupación de interés económico o de la sociedad será titular de participaciones o de acciones
no disociables de la utilización de un emplazamiento determinado por el contrato de constitución o por los estatutos, y se beneficiará de los servicios comunes.
El contrato de constitución o los estatutos podrán asignar a cada titular otro emplazamiento en función de las actividades de temporada.
La junta de miembros o la junta general, según los casos, será la única competente para modificar la asignación de los emplazamientos, con el acuerdo previo de los interesados.
Las disposiciones del presente capítulo relativas a las participaciones sociales serán aplicables a las acciones citadas en el primer párrafo del presente artículo.
Artículo L125-5 Cuando se cree o traslade un fondo de comercio o una empresa inscrita en el Registro central de artesanos al área
comercial colectiva, las participaciones asignadas a su propietario, a la agrupación o a la sociedad no se corresponderán con la aportación efectuada. No se hará aportación a la agrupación o a la sociedad en representación de las participaciones atribuidas a su propietario. Quedarán igualmente prohibidas las aportaciones que no sean dinerarias.
Artículo L125-6 En caso de arrendamiento de negocio o de empresa inscrita en el Registro central de artesanos, sólo será
considerado miembro de la agrupación o de la sociedad el arrendador. No podrá trasladarse al área comercial colectiva un fondo de comercio o una empresa que existiera anteriormente,
sin el acuerdo previo del arrendatario-gerente.
Artículo L125-7 El propietario de un fondo de comercio gravado con un privilegio o una pignoración previstos por los capítulos I, II y
III del título IV del presente libro, deberá cumplir con los requisitos formales de publicidad previstos en los artículos L. 141-21 y L. 141-22, antes de su adhesión a un área comercial colectiva y al traslado de este fondo de comercio a dicho centro.
Si el acreedor titular del privilegio o de la pignoración no notificara su oposición por vía de inscripción en la secretaría en los diez días siguientes a la fecha de la última de las publicaciones previstas en los artículos L. 141-12 y
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CÓDIGO DE COMERCIO L. 141-13, se considerará que ha dado su consentimiento a la adhesión del propietario del fondo de comercio.
En caso de oposición, se ordenará judicialmente el levantamiento de ésta, si el propietario del fondo de comercio justifica que las garantías del socio no se verán disminuidas por el hecho de la adhesión al área comercial colectiva o que, al menos, serán equivalentes. Si no hubiera levantamiento de la oposición, el comerciante no podrá adherirse al área comercial colectiva en tanto sea propietario del fondo de comercio.
Artículo L125-8 El contrato de constitución o los estatutos, según el caso, deberán contener la mención expresa, bajo pena de
nulidad y bajo la responsabilidad solidaria de los firmantes de que ningún fondo de comercio está sujeto a un privilegio o a una pignoración, como prevén los capítulos I al III del título IV del presente libro, o bien, en caso contrario, de que no ha habido oposición previa a la adhesión de uno de sus miembros, o que ha sido ordenado judicialmente el levantamiento de ésta.
Artículo L125-9 Las áreas comerciales colectivas de comerciantes independientes ya creadas por intermediación de una persona
jurídica podrán, por medio de adaptación o transformación, acogerse al régimen previsto en el presente capítulo. Todo miembro, podrá solicitar por procedimiento sumario la designación de un mandatario especialmente
encargado de convocar la junta para decidir sobre estas adaptaciones o transformaciones. Salvo disposición contraria, estas decisiones tendrán que ser tomadas por mayoría en número de los miembros
que compongan la persona jurídica. Sin embargo, aquéllos que no hayan aceptado, podrán retirarse solicitando el reembolso de sus títulos, acciones o participaciones, en las condiciones previstas en los artículos L. 125-17 y L. 125-18.
Sección II De la administración del área comercial colectiva Artículos L125-10 a
L125-11
Artículo L125-10 Se adjuntará al contrato de constitución o a los estatutos, según los casos, un reglamento de régimen interno. El contrato de constitución o los estatutos, así como el reglamento de régimen interno, sólo podrán ser modificados
por la junta, o la junta general, según los casos, que resolverá por mayoría absoluta del número de miembros de la agrupación o de la sociedad, o, por una mayoría más amplia, si el contrato de constitución o los estatutos lo determinaran así. Lo mismo para las decisiones relativas a la admisión o la exclusión.
Las demás decisiones se tomarán en las condiciones propias para cada una de las formas de constitución previstas en el artículo L. 125-2. No obstante las disposiciones del libro II, los estatutos de una sociedad anónima de capital variable, constituida por la aplicación del presente capítulo, podrán estipular que cada uno de los accionistas disponga de un voto en junta general, sea cual fuere el número de acciones que posea.
Artículo L125-11 El reglamento de régimen interno determinará las normas propias que aseguren una política comercial común.
Definirá las condiciones generales de explotación y, en particular: 1° Los días y horas de apertura así como, llegado el caso, los períodos de cierre estacionales o por vacaciones
anuales; 2° La organización y la gestión de los servicios comunes y el reparto de los gastos correspondientes a estos
servicios; 3° No obstante lo dispuesto por la legislación vigente sobre la materia, la ordenación de las actividades en
competencia, así como la determinación de las actividades complementarias que podrán ser llevadas a cabo por cada miembro en competencia con las de los otros miembros del área comercial;
4° La elección de las inscripciones publicitarias y las decoraciones propias de cada local, y, eventualmente de su armonización;
5° Las acciones colectivas o individuales de animación del área comercial, en particular las de carácter estacional.
Sección III De la admisión y de la exclusión Artículos L125-12 a
L125-18
Artículo L125-12 El contrato de constitución o los estatutos, según el caso, podrán subordinar toda cesión de participaciones a la
admisión del cesionario por parte de la junta de la agrupación o de la junta general de la sociedad, según los casos. La junta o la junta general se pronunciará en el plazo de un mes a partir de la fecha de la solicitud de admisión.
El contrato de constitución o los estatutos, según el caso, podrán igualmente someter a esta admisión a los derechohabientes de un titular de participaciones fallecido que no participasen en su actividad en el área comercial colectiva.
La denegación de esta admisión dará lugar a indemnización en las condiciones previstas en los artículos L. 125-17 y L. 125-18.
Artículo L125-13 La cláusula de autorización no será oponible en caso de venta forzosa de las participaciones, incluso si éstas
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CÓDIGO DE COMERCIO hubieran sido o no objeto de una pignoración.
Artículo L125-14 El contrato de constitución o los estatutos, según los casos, podrán subordinar el arrendamiento de un fondo de
comercio o de una empresa artesanal del área comercial a la admisión del arrendatario gerente por parte de la junta. En caso de suspensión de pagos o liquidación judicial del propietario, esta cláusula no podrá ser invocada si el
Tribunal autoriza la firma de un contrato de arrendamiento de negocio, de conformidad con las disposiciones del título II del libro VI.
Artículo L125-15 El órgano de administración del área comercial colectiva podrá dirigir un apercibimiento a cualquier miembro que,
por sí mismo o por medio de las personas a las que ha confiado la explotación de su establecimiento o empresa, cometiese una infracción al régimen interno.
En caso de arrendamiento de negocio, este apercibimiento será notificado también al arrendatario-gerente. Si en los tres meses siguientes, este apercibimiento no surtiese efecto y si los intereses legítimos del área
comercial colectiva o de algunos de sus miembros se viesen comprometidos, la junta de miembros, o la junta general, según los casos, tendrá la facultad de decidir, por la mayoría prevista en el artículo L. 125-10, la exclusión del interesado.
El excluido tiene la facultad, hasta que esta decisión de exclusión sea definitiva, de presentar uno o varios cesionarios, en las condiciones fijadas por el contrato de constitución o por los estatutos.
Artículo L125-16 Sin perjuicio de lo dispuesto por el procedimiento de valoración de las participaciones, previsto en el segundo
apartado del artículo L. 125-17, todo miembro de un área comercial colectiva podrá someter a un Tribunal de grande instance cualquier decisión tomada en aplicación de los artículos L. 125-12, L. 125-14 y del tercer apartado del artículo L. 125-15, en el plazo de un mes a partir de su notificación por carta certificada con acuse de recibo.
El Tribunal podrá anular o reformar la decisión que le haya sido presentada o sustituirla por su propia decisión. Salvo cláusula en contrario, el recurso judicial tendrá efecto suspensivo de la ejecución de la resolución recurrida
en apelación, excepto en el caso de una decisión de exclusión motivada por la no utilización de los locales o por la falta de pago de los gastos.
Artículo L125-17 En caso de exclusión, de marcha o de fallecimiento acompañados de denegación de la admisión del cesionario o
de los sucesores, el titular de las participaciones, o, en caso de fallecimiento, sus derechohabientes, tendrán la facultad de transferir o enajenar su fondo de comercio o su empresa inscrita en el Registro central de artesanos. El nuevo adjudicatario del local o, en su defecto, la agrupación o la sociedad, según el caso, les reembolsará el importe del valor de sus participaciones, incrementado, si procede, por la plusvalía que sus obras de acondicionamiento hayan podido conferir al local del que eran titulares.
Este valor será determinado por la junta o la junta general, según el caso, al mismo tiempo que se tomará la decisión de exclusión o de denegación de la admisión del cesionario o de sus sucesores. En caso de desacuerdo, será determinado, en la fecha de estas decisiones, por un perito designado por resolución del presidente del Tribunal de grande instance que resolverá en forma sumaria. Esta Disposición no será susceptible de ninguna vía de recurso, salvo cláusula en contrario. El informe pericial será sometido a la homologación del presidente del Tribunal de grande instance que resolverá en forma sumaria.
Artículo L125-18 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
En los casos previstos en el primer apartado del artículo L. 125-17, la agrupación o la sociedad no podrán proceder a la instalación de un nuevo adjudicatario hasta que no hayan pagado al antiguo titular de las participaciones, o en caso de fallecimiento, a sus derechohabientes, las sumas previstas en dicho artículo L. 125-17, o en su defecto, una provisión determinada por el presidente del Tribunal de grande instance que resolverá en forma sumaria.
Sin embargo, no se exigirá este pago previo cuando haya sido ofrecida una fianza por el importe de estas sumas o de esta provisión por parte de un establecimiento de crédito o de una entidad financiera especialmente habilitada a este efecto o cuando esta suma haya sido consignada en manos de un mandatario designado para ello por resolución judicial recaída en forma sumaria.
Además, si se trata de una cooperativa, el Consejo de Administración o el Directorio, según el caso, podrá invocar las disposiciones del segundo párrafo del artículo L.124-11.
Sección IV De la disolución Artículo L125-19
Artículo L125-19 Salvo cláusula en contrario del contrato de constitución o de los estatutos, la suspensión de pagos o la liquidación
judicial de uno de sus miembros no conllevará de pleno derecho la disolución de la agrupación de interés económico.
CAPITULO VI De las sociedades de garantía recíproca Artículo L126-1
Artículo L126-1
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CÓDIGO DE COMERCIO Las normas de creación de sociedades de garantía recíproca entre comerciantes, empresarios, fabricantes,
artesanos, sociedades mercantiles, miembros de profesiones liberales, propietarios de inmuebles o de derechos inmobiliarios, así como entre los operadores comerciales mencionados en el artículo L. 524-1, serán determinadas por la Ley de 13 de marzo de 1917.
CAPITULO VII Del contrato de apoyo al proyecto de empresa para la creación o la continuación de Artículos L127-1 a
una actividad económica L127-7
Artículo L127-1 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
El apoyo al proyecto de empresa para la creación o la continuación de una actividad económica consistirá en un contrato mediante el cual una persona jurídica se compromete a proporcionar, con los medios de que dispone, una ayuda específica y continua a una persona física que no sea asalariada a tiempo completo, la cual a su vez se compromete a seguir un programa de preparación a la creación o continuación y a la gestión de una actividad económica. Este contrato también podrá concertarse entre una persona jurídica y el dirigente socio único de una persona jurídica.
Artículo L127-2 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
El contrato de apoyo al proyecto de empresa se firmará por una duración que no podrá exceder de doce meses renovables dos veces. Las condiciones de aplicación del programa de apoyo y preparación y así como las condiciones de compromiso respectivo de las partes contratantes estarán precisadas por el contrato. Se determinarán así las condiciones en las que la persona beneficiaria podrá comprometerse, con respecto a terceros, en relación con la actividad económica proyectada.
El contrato se realizará por escrito, bajo pena de nulidad.
Artículo L127-3 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
El hecho de poner a disposición del beneficiario los medios necesarios para su preparación a la creación o la continuación y para la gestión de la actividad económica proyectada, no conllevará en sí mismo, para la persona jurídica responsable de dicho apoyo, la presunción de una relación de subordinación.
La puesta a disposición de estos medios y la contrapartida eventual de gastos realizados por la persona jurídica responsable del apoyo en aplicación del contrato, figurarán en su balance.
Artículo L127-4 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
Cuando se inicie una actividad económica en el transcurso del contrato, el beneficiario deberá proceder a la inscripción de la empresa, siempre que esta inscripción sea requerida por la naturaleza de dicha actividad.
Antes de cualquier inscripción, las obligaciones a las que se hubiera comprometido el beneficiario en relación a terceros en el marco del programa de apoyo y preparación serán asumidas por el acompañante. Tras la inscripción, la persona jurídica responsable del apoyo y el beneficiario quedarán obligados de manera solidaria al cumplimiento de los compromisos de este último, de conformidad con las estipulaciones del contrato de apoyo hasta la finalización del mismo.
Artículo L127-5 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
El contrato de apoyo al proyecto de empresa para la creación o la continuación de una actividad económica no podrá tener como objeto o efecto la infracción a las disposiciones de los artículos L. 125-1, L. 125-3, L. 324-9 o L. 324-10 del Código de Trabajo.
El acto de creación o de continuación de empresa deberá diferenciarse claramente de la función de acompañamiento.
Artículo L127-6 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
La situación profesional y social del beneficiario del contrato de apoyo al proyecto de empresa será determinada por los artículos L. 783-1 y L.783-2 del Código de Trabajo.
La persona jurídica responsable del apoyo será responsable frente a terceros de los perjuicios causados por el beneficiario en el marco del programa de apoyo y preparación mencionado en los artículos L. 127-1 y L. 127-2 antes de la inscripción mencionada en el artículo L. 127-4. Después de la inscripción, la persona jurídica responsable del apoyo garantizará la responsabilidad en el marco del contrato de apoyo, siempre que el beneficiario haya respetado las cláusulas del contrato hasta la finalización del mismo.
Artículo L127-7 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
Las modalidades de publicidad de los contratos de apoyo al proyecto de empresa para la creación o la continuación de una actividad económica así como las demás medidas de aplicación del presente capítulo serán determinadas por decreto adoptado en Conseil d'Etat.
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CÓDIGO DE COMERCIO CAPITULO VIII De las incapacidades para el ejercicio de una profesión comercial o industrial Artículos L128-1 a
L128-6
Artículo L.128-1 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
Nadie podrá, ni directa ni indirectamente, por su propia cuenta o por cuenta ajena, ejercer una profesión comercial o industrial, dirigir, administrar, gestionar o controlar, en cualquier concepto, una empresa comercial o industrial o una sociedad comercial si hubiera sido objeto, en un plazo inferior a diez años, de una condena definitiva:
1° Por crimen; 2° A una pena de al menos tres meses de prisión sin suspensión por: a) Una de las infracciones previstas en el título I del libro III del Código Penal, así como por los delitos
contemplados en leyes especiales y sancionados por las penas previstas para la estafa o el abuso de confianza; b) Ocultación o una de las infracciones equiparables a la ocultación o semejante a esta previstas en la sección 2
del capítulo I del título II del libro III del Código Penal; c) Blanqueo; d) Corrupción activa o pasiva, tráfico de influencias, sustracción y desvío de bienes; e) Falsedad documental, falsificación de títulos o de otros valores fiduciarios emitidos por la autoridad pública,
falsificación de las marcas de autoridad; f) Pertenencia a una asociación para delinquir; g) Tráfico de estupefacientes; h) Proxenetismo o una de las infracciones contempladas en las secciones 2 y 2 bis del capítulo V del título II del
libro II del Código Penal; i) Una de las infracciones previstas en la sección 3 del capítulo V del título II del libro II del Código Penal; j) Una de las infracciones a la legislación sobre las sociedades comerciales previstas en el título IV del libro II del
presente Código; k) Bancarrota; l) Práctica de préstamo usurario; m) Una de las infracciones contempladas por la Ley de 21 de marzo de 1836 relativa a la prohibición de loterías,
por la Ley de 15 de junio de 1907 que regula el juego en los círculos y casinos de los centros turísticos en la costa y de las estaciones termales y por la Ley nº 83-628 de 12 de julio de 1983 relativa a los juegos de azar;
n) Infracciones contra la legislación y la normativa sobre las relaciones financieras con el extranjero; o) Fraude fiscal; p) Una de las infracciones previstas en los artículos L.115-16 y L.115-18, L.115-24, L.115-30, L.121-6, L.121-28,
L.122-8 a L.122-10, L.213-1 a L.213-5, L.217-1 a L.217-3, L.217-6 a L.217-10 del Código de Consumo; q) Una de las infracciones previstas en los artículos L.324-9, L.324-10 y L.362-3 del Código de Trabajo; 3º A la destitución de las funciones de oficial o fedatario público.
Artículo L.128-2 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
Las personas que ejercieran una función, una actividad o una profesión de las mencionadas en el artículo L.128-1, y que fueran objeto de una de las condenas previstas en el mencionado artículo deberán cesar en su actividad en un plazo de un mes a contar desde la fecha en que la resolución fuera definitiva.
Artículo L.128-3 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
En caso de condena dictada por una jurisdicción extranjera con fuerza de cosa juzgada por una infracción que constituyera para la ley francesa un crimen o uno de los delitos mencionados en el artículo L.128-1, el Tribual de Grande Instance del domicilio del condenado competente en materia penal, declarará, a instancias del Ministerio Fiscal, tras constatación de la regularidad y la legalidad de la condena y tras haber convocado y tomado declaración al interesado en sesión celebrada a puerta cerrada, que procede la aplicación de la incapacidad contemplada en el artículo L.128-1.
Esta incapacidad se aplicará también a cualquier persona no rehabilitada que hubiera sido objeto de quiebra personal declarada por una jurisdicción extranjera cuando la providencia declarativa haya adquirido fuerza ejecutiva en Francia. La solicitud de exequátur podrá ser formulada, únicamente con este fin, por la Fiscalía ante el Tribunal de Grande Instance del domicilio del condenado.
Artículo L.128-4 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
El órgano jurisdiccional que hubiera dictado la destitución mencionada en el apartado 3° del artículo L.128-1 podrá decidir, a petición del oficial o fedatario público destituido, la suspensión de la incapacidad prevista en el artículo arriba mencionado o la reducción del periodo de aplicación de la misma.
Artículo L.128-5 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
Será castigado con las penas previstas en el artículo 313-1 del Código Penal el que infringiera las incapacidades previstas en los artículos L.128-1, L.128-2 y L.128-3.
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CÓDIGO DE COMERCIO Las personas culpables de la infracción citada en el párrafo anterior podrán ser sancionadas asimismo, como pena
accesoria, a la confiscación de las mercancías o del fondo de comercio, conforme a las modalidades definidas en el artículo 131-21 del Código Penal.
Artículo L.128-6 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
Las disposiciones del presente capítulo no obstarán a la aplicación de las normas de ejercicio de determinadas profesiones.
Las mismas se aplicarán asimismo a quienes se dedicaran profesionalmente a la representación comercial.
TITULO III DE LOS CORREDORES, DE LOS COMISIONISTAS, DE LOS TRANSPORTISTAS Y
DE LOS AGENTES MEDIADORES DE COMERCIO Artículos L131-1 a L134-17
CAPITULO I De los corredores Artículos L131-1 a
L131-11
Artículo L131-1 Existen varios tipos de corredores: corredores de mercancías, corredores intérpretes conductores de buques,
corredores de transporte por tierra y agua.
Artículo L131-3 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Los corredores de transporte por tierra y por agua, constituidos según la Ley, tendrán en exclusiva, en los lugares en que se hayan establecido, el derecho a realizar el corretaje de los transportes por tierra y por agua. No podrán acumular sus funciones con las de corredores de mercancías o con las de corredores intérpretes de buques, designados en los artículos L. 131-1.
Artículo L131-5 Los proveedores de servicios de inversión podrán hacer, en competencia con los corredores de mercancías, las
negociaciones y el corretaje de las ventas o las compras de materiales metálicos. Sólo ellos tendrán derecho a comprobar su cotización.
Artículo L131-11 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será sancionado con multa de 3750 euros, sin perjuicio de la acción de las partes por daños y perjuicios, el corredor que se encargara de una operación de corretaje en un asunto en el que tuviera un interés personal, sin advertirlo a las partes a las que sirviera de intermediario,. Si estuviera inscrito en la lista de corredores, elaborada de acuerdo a las disposiciones reglamentarias vigentes al respecto, será eliminado de ella y no podrá ser inscrito de nuevo.
CAPITULO II De los comisionistas Artículos L132-1 a
L132-9
Sección I De los comisionistas en general Artículos L132-1 a
L132-2
Artículo L132-1 El comisionista será aquel que actúe en su propio nombre o bajo un nombre social por cuenta de un comitente. Los derechos y deberes del comisionista que actúa en nombre de un comitente están especificados en el titulo XIII
del libro III del Código Civil.
Artículo L132-2 El comisionista tendrá un crédito preferencial sobre el valor de las mercancías que sean objeto de su obligación y
sobre los documentos referidos a ellas para todas sus créditos de comisión sobre su comitente, incluso los nacidos en operaciones anteriores.
En el crédito privilegiado del comisionista se incluirán, además del capital, los intereses, comisiones y gastos accesorios.
Sección II De los comisionistas de transportes Artículos L132-3 a
L132-9
Artículo L132-3 El comisionista que se encargue de un transporte por tierra o por agua estará obligado a inscribir en su libro diario
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CÓDIGO DE COMERCIO la declaración de la naturaleza y de la cantidad de las mercancías, y, si se le solicitara, de su valor.
Artículo L132-4 El comisionista será responsable de la llegada de las mercancías y de los efectos en el plazo determinado por la
carta de porte, salvo en los casos de fuerza mayor legalmente constatados.
Artículo L132-5 El comisionista será responsable de las averías y pérdidas de las mercancías y efectos, si no hubiera estipulación
en contrario en la carta de porte, o fuerza mayor.
Artículo L132-6 El comisionista será responsable de los hechos realizados por el comisionista intermediario al que dirigiera las
mercancías.
Artículo L132-7 La mercancía salida del almacén del vendedor o del remitente, viajará, si no hay un acuerdo que determine lo
contrario, por cuenta y riesgo del propietario, salvo que éste actúe contra el comisionista y el transportista encargados del transporte.
Artículo L132-8 La carta de porte tendrá el valor de un contrato entre el remitente, el transportista y el destinatario o entre el
remitente, el destinatario, el comisionista y el transportista. De este modo el transportista posee una acción directa para requerir el pago por sus prestaciones frente al remitente y al destinatario, los cuales son garantes del pago del precio del transporte. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L132-9 I. - La carta de porte deberá estar fechada. II. - Deberá especificar: 1° La naturaleza y el peso o la capacidad de los objetos a transportar; 2° El plazo en el que el transporte deberá ser efectuado. III. - Deberá indicar: 1° El nombre y el domicilio del comisionista, si lo hay, por cuya intermediación se efectúa el transporte; 2° El nombre de aquél a quien se dirige la mercancía; 3° El nombre y el domicilio del transportista. IV. - Declarará también: 1° El precio del transporte; 2° La indemnización que se pagará en caso de retraso. V. - Estará firmada por el remitente o el comisionista. VI. - Anotará en su margen las marcas y su números de los objetos a transportar. VII. - La carta de porte será copiada por el comisionista en un registro numerado y rubricado, sin intervalos y sin
espacios en blanco.
CAPITULO III De los transportistas Artículos L133-1 a
L133-7
Artículo L133-1 El transportista será garante de la pérdida de los objetos que transportara, salvo en los casos de fuerza mayor. Será también responsable de cualquier daño que no provenga del vicio propio de la cosa o de la fuerza mayor. Cualquier cláusula en contrario, incluida en cualquier carta de porte, tarifa o cualquier otro documento, será
considerada nula.
Artículo L133-2 Si, por efecto de fuerza mayor, el transporte no se efectuara en el plazo convenido, no habrá lugar a
indemnización contra el transportista por causa de este retraso.
Artículo L133-3 La recepción de los objetos transportados extinguirá cualquier acción contra el transportista por causa del daño o
pérdida parcial si en los tres días siguientes a esta recepción, sin incluir los días festivos, el destinatario no hubiera notificado al transportista, por medio de documento extrajudicial o por carta certificada, su reclamación justificada.
Si durante este plazo se formulase una petición de dictamen pericial en aplicación del artículo L. 133-4, esta solicitud valdrá como reclamación sin que sea necesario proceder de la forma citada en el primer párrafo.
Cualquier otra estipulación en contrario será nula de pleno derecho. Esta última disposición no será aplicable a los transportes internacionales.
Artículo L133-4 En caso de rechazo de los objetos transportados o presentados para ser transportados, o de conflicto, cualquiera
que sea su naturaleza, sobre la realización o la ejecución del contrato de transporte, o por causa de un incidente ocurrido en el transcurso mismo y en ocasión del transporte, uno o varios peritos designados por el presidente del Tribunal de commerce o, en su defecto, el presidente del Tribunal de Instancia y por resolución dada por
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CÓDIGO DE COMERCIO requerimiento, comprobarán y verificarán el estado de los objetos transportados o presentados para ser transportados, y, si es necesario, su embalaje, su peso, su naturaleza, etc.
El requirente estará obligado, bajo su responsabilidad, a citar para este informe pericial, incluso por simple carta certificada o por telegrama, a todas las partes susceptibles de ser acusadas, especialmente al remitente, al destinatario, al transportista y al comisionista, y los peritos tendrán que prestar juramento, sin formalidades de audiencia, ante el Juez que los haya nombrado o ante el Juez del Tribunal de Instancia del lugar de dónde procedan. Sin embargo en caso de urgencia, el Juez competente podrá dispensar del cumplimiento de todas o de parte de estos requisitos formales previstos en el presente párrafo. Esta dispensa deberá anotarse en la resolución.
Podrá ordenarse el depósito o consignación de los objetos en litigio y posteriormente su traslado a un depósito público.
Podrá ordenarse su venta para proceder al pago de los gastos de transporte u otros ya realizados. El Juez asignará el producto de la venta a la parte que haya adelantado la suma de dichos gastos.
Artículo L133-5 Las disposiciones contenidas en este capítulo son comunes para los transportistas por carretera y los
transportistas fluviales.
Artículo L133-6 Las acciones contra el transportista por daños, pérdidas o retrasos, a las que pueda dar lugar el contrato de
transporte, prescribirán en el plazo de un año, sin perjuicio de los casos de fraude o incumplimiento. Cualquier otra acción a la que este contrato pueda dar lugar, tanto contra el transportista o el comisionista como
contra el remitente o destinatario, así como las que tienen su origen en las disposiciones del artículo 1269 del Nuevo Código de Proceso Civil, prescribirán en el plazo de un año.
El plazo de estas prescripciones en el caso de pérdida total, comenzará a partir del día en que la entrega de las mercancías tendría que haberse producido, y, en todos los demás casos, desde el día en el que la mercancía haya sido entregada u ofrecida al destinatario.
El plazo para emprender cualquier tipo de recurso será de un mes. Esta prescripción sólo empezará a contar desde el día del ejercicio de la acción contra el garantizado
En el caso de transportes realizados por cuenta del Estado, la prescripción empezará a contar desde el día de la notificación de la decisión ministerial que implique la liquidación o el libramiento definitivo.
Artículo L133-7 El transportista tendrá crédito privilegiado sobre el valor de las mercancías que sean objeto de su obligación y de
los documentos referidos a ellas para todas las deudas de transporte, incluso aunque provengan de operaciones anteriores, en las que el ordenante, remitente o destinatario haya quedado como su deudor, en la medida en que el propietario de las mercancías sobre las que se ejerce el privilegio esté implicado en dichas operaciones.
Los créditos de transporte cubiertos por el privilegio serán los precios del transporte propiamente dicho, los complementos de remuneración adeudados incluidos en el concepto de prestaciones complementarias y de inmovilización del vehículo en la carga o la descarga, los gastos realizados en interés de la mercancía, los derechos, tasas, gastos y posibles sanciones de aduana vinculadas a una operación de transporte y los intereses correspondientes.
CAPITULO IV De los agentes mediadores de comercio Artículos L134-1 a
L134-17
Artículo L134-1 El agente es un mandatario que, como profesional independiente, sin estar vinculado por un contrato de
arrendamiento de servicios, estará encargado, de modo permanente, de negociar y, eventualmente, de ultimar contratos de venta, de compra, de alquiler o de prestación de servicios en nombre y por cuenta de productores, de empresarios, de comerciantes o de otros agentes comerciales. Puede ser una persona física o jurídica.
Las disposiciones del presente capítulo no afectarán a los agentes cuya misión de representación se ejerza en el marco de actividades económicas que sean objeto, en lo que concierne a dicha misión, de disposiciones legislativas particulares.
Artículo L134-2 Cada parte tendrá el derecho, si lo solicitara, de obtener de la otra parte un escrito firmado en el que se mencione
el contenido del contrato de agencia, incluido el de sus cláusulas adicionales.
Artículo L134-3 El agente comercial podrá aceptar sin autorización la representación de nuevos mandantes. Sin embargo, no podrá
aceptar la representación de una empresa competidora de la de uno de sus mandantes sin el acuerdo de éste.
Artículo L134-4 Los contratos concertados entre los agentes comerciales y sus mandantes serán firmados en el interés común de
ambas partes. Las relaciones entre el agente comercial y el mandante se regirán por una obligación de lealtad y un deber
recíproco de información.
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CÓDIGO DE COMERCIO El agente comercial tendrá que ejecutar su mandato como buen profesional; el mandante tendrá que poner los
medios para que el agente comercial ejecute su mandato.
Artículo L134-5 Todo elemento de la remuneración que varíe con el número o el valor de las operaciones constituirá una comisión
a efectos del presente capítulo. Los artículos L. 134-6 a L. 134-9 serán aplicables cuando el agente sea remunerado en todo o en parte con la
comisión así definida. A falta de especificación en el contrato el agente comercial tendrá derecho a una remuneración que se
corresponda con las prácticas usuales en el sector de actividad cubierto por su mandato, allí dónde ejerza su actividad. Si estas prácticas usuales no existiesen, el agente comercial tendrá derecho a una remuneración razonable que tenga en cuenta todos los elementos relacionados con la operación.
Artículo L134-6 El agente comercial tendrá derecho, en toda operación comercial realizada durante el período de duración del
contrato de agencia, a percibir la comisión definida en el artículo L. 134-5 cuando haya sido concertada gracias a su intervención o cuando la operación se haya cerrado con un tercero, que haya sido conseguido anteriormente por él como cliente para operaciones del mismo tipo.
Cuando esté encargado de un sector geográfico o de un grupo de personas determinado, el agente comercial tendrá igualmente derecho a percibir la comisión por toda operación concertada durante la vigencia del contrato de agencia con una persona que pertenezca a ese sector o ese grupo.
Artículo L134-7 En toda operación comercial concluida tras la cancelación del contrato de agencia, el agente comercial tendrá
derecho a la comisión cuando la operación se deba principalmente a su actividad en el curso del contrato de agencia y haya sido concluida aún dentro de un plazo razonable tras la cancelación del contrato, o bien cuando la orden del tercero haya sido recibida por el mandante o por el agente comercial antes de la cancelación de dicho contrato de agencia, en las condiciones previstas por el artículo L. 134-6.
Artículo L134-8 El agente comercial no tendrá derecho a la comisión prevista en el artículo L. 134-6 si ésta se debiera, en virtud del
artículo L.134-7 al agente comercial anterior, a menos que las circunstancias justifiquen un reparto equitativo de la comisión entre ambos.
Artículo L134-9 Se devengará la comisión en cuanto el mandante haya efectuado la operación o debiera haberla ejecutado en
virtud del acuerdo concertado con el tercero o bien en cuanto el tercero haya ejecutado la operación. La comisión será devengada, como máximo, cuando el tercero haya ejecutado su parte de la operación o debiera
haberla ejecutado si el mandante hubiera ejecutado la suya propia. Será pagada a más tardar el último día del mes siguiente al trimestre en que haya sido devengada.
Artículo L134-10 El derecho a la comisión no podrá extinguirse hasta que se haya probado que el contrato entre el tercero y el
mandante no será ejecutado y siempre que esa falta de ejecución no sea debida a circunstancias imputables al mandante.
Los comisiones que el agente comercial ya haya percibido serán reembolsadas si el derecho correspondiente a ella se hubiera extinguido.
Artículo L134-11 Se considerará que un contrato de duración determinada que continúe siendo ejecutado por ambas partes tras su
finalización, se habrá transformado en un contrato por tiempo indefinido. Cuando el contrato de agencia fuera por tiempo indefinido, cada una de las partes podrá ponerle fin mediante
preaviso. Las disposiciones del presente artículo serán aplicables al contrato de duración determinada transformado en contrato por tiempo indefinido. En ese caso, el cálculo del plazo del preaviso tendrá en cuenta el período de duración determinada anterior.
El plazo del preaviso será de un mes para el primer año de contrato, de dos meses para el segundo año comenzado, de tres meses para el tercer año comenzado y los años siguientes. Salvo acuerdo en contrario, el fin del plazo del preaviso coincidirá con el fin de un mes civil.
Las partes no podrán concertar plazos de preaviso más cortos. Si deciden plazos más largos, el plazo de preaviso previsto para el mandante no podrá ser más corto que el previsto para el agente comercial.
Estas disposiciones no serán aplicables cuando el contrato finalice por causa de una falta grave de una de las partes o porque se produzca un caso de fuerza mayor.
Artículo L134-12 En caso de denuncia del contrato por el mandante, el agente comercial tendrá derecho a una indemnización
compensatoria para reparar el perjuicio sufrido. El agente comercial perderá el derecho a esta reparación si no hubiera notificado al mandante, en un plazo de un
año a contar desde la finalización del contrato que pretende hacer valer sus derechos. Los derechohabientes del agente comercial se beneficiarán igualmente del derecho a la reparación cuando la
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CÓDIGO DE COMERCIO extinción del contrato se deba al fallecimiento de éste.
Artículo L134-13 No se tendrá derecho a la reparación prevista por el artículo L. 134-12: 1° Cuando la denuncia del contrato haya sido provocada por una falta grave del agente comercial; 2° Cuando la denuncia del contrato provenga de la iniciativa del agente comercial a menos que esta denuncia esté
justificada por circunstancias imputables al mandante o debidas a la edad, la invalidez o la enfermedad del agente comercial, a consecuencia de las cuales no se le pueda razonablemente exigir la continuación de su actividad;
3° Cuando según un acuerdo con el mandante, el agente comercial ceda a un tercero los derechos de que es titular y las obligaciones que posea en virtud del contrato de agencia.
Artículo L134-14 El contrato podrá incluir una cláusula de no competencia tras la extinción del mismo. Esta cláusula deberá ser consignada por escrito y referirse al sector geográfico y, llegado el caso, al grupo de
personas confiadas al agente comercial, así como al tipo de bienes o servicios para los que ejercerá la representación en los términos del contrato.
La cláusula de no competencia sólo será válida por un periodo máximo de dos años tras la extinción del contrato.
Artículo L134-15 Cuando la actividad de agente comercial sea ejercida en virtud de un contrato escrito concertado entre las partes
con otro objeto a título principal, éstas podrán decidir por escrito que las disposiciones del presente capítulo no sean aplicables a la parte correspondiente a la actividad de agencia comercial.
Esta renuncia será considerada nula si la ejecución del contrato muestra que la actividad de agencia es ejercida en realidad a título principal o determinante.
Artículo L134-16 Se tendrá por no puesta cualquier cláusula o acuerdo contrario a las disposiciones de los artículos L. 134-2 y L.
134-4, del párrafo tercero y cuarto del artículo L. 134-11, y del artículo L. 134-15 o que no tenga en cuenta la aplicación, en detrimento del agente comercial, de las disposiciones del segundo apartado del artículo L.134-9, del primer párrafo del artículo L. 134-10, de los artículos L. 134-12 y L. 134-13 y del párrafo tercero del artículo L. 134-14.
Artículo L134-17 Las condiciones de aplicación del presente capítulo serán determinadas por un decreto adoptado en Conseil d'Etat.
TITULO IV DEL ESTABLECIMIENTO DEDICADO A LA ACTIVIDAD COMERCIAL Artículos L141-1 a
L146-4
CAPITULO I De la venta del fondo de comercio Artículos L141-1 a
L141-22
Sección I Del acta de venta Artículos L141-1 a
L141-4
Artículo L141-1 I. - En todo documento que consigne una cesión amistosa de un fondo de comercio, suscrito incluso bajo la
condición y la forma de otro tipo de contrato o la aportación en sociedad de un fondo comercial, el vendedor estará obligado a declarar:
1° El nombre del vendedor anterior, la fecha y la clase de su documento de compra y el precio de compra en lo que se refiera a los elementos incorporales, a las mercancías y al material;
2° El estado de los privilegios y pignoraciones que pesaran sobre el fondo; 3° El volumen de negocio que haya realizado en el curso de los tres últimos años de explotación, o desde su
compra si lo explotaba desde hace menos de tres años; 4° Los beneficios obtenidos durante ese tiempo; 5° El contrato de arrendamiento, su fecha, su duración, el nombre y la dirección del arrendador y del cedente si
procediera. II. - La omisión de alguna de estas declaraciones anteriormente citadas, podrá conllevar la nulidad del documento
de venta, si el comprador lo solicitara antes de un año.
Artículo L141-3 El vendedor responderá, salvo estipulación en contrario, con la fianza depositada por razón de la inexactitud de sus
declaraciones en las condiciones promulgadas por los artículos 1644 y 1645 del Código Civil. Los intermediarios, redactores de los documentos y sus encargados, responderán solidariamente con él si
conocieran la inexactitud de las declaraciones realizadas.
Artículo L141-4 La acción resultante de la aplicación del artículo L. 141-3 tendrá que ser presentada por el comprador en el plazo
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CÓDIGO DE COMERCIO de un año, a contar desde la fecha de su toma de posesión.
Sección II Del privilegio del vendedor Artículos L141-5 a
L141-22
Artículo L141-5 El crédito privilegiado del vendedor de un fondo de comercio sólo existirá si se hubiera consignado la venta en
escritura pública o en un documento privado, debidamente registrado, y hubiera sido inscrita en un registro público situado en la secretaría del Tribunal de commerce en cuya circunscripción se explotara dicho fondo de comercio.
Sólo afectará a los elementos del fondo enumerados en la venta y en la inscripción, y si no existiera designación precisa, al rótulo y nombre comercial, al contrato de arrendamiento, a la clientela y al buen nombre del fondo de comercio.
Se determinarán separadamente los precios de los elementos incorporales del fondo de comercio, el material y las mercancías.
El crédito privilegiado del vendedor garantizado por cada uno de estos precios, o por el resto del precio debido por los demás elementos, se ejercerá separadamente sobre los respectivos precios de la reventa correspondientes a las mercancías, al material y a los elementos incorporales del fondo.
Salvo acuerdo en contrario, los pagos parciales que no sean al contado se imputarán primero al precio de las mercancías, después al precio del material.
Se procederá a determinar la tasación con relación al precio global del precio de reventa si se aplica a uno o a varios elementos no incluidos en la primera venta.
Artículo L141-6 La inscripción deberá realizarse, bajo pena de nulidad, dentro de los quince días siguientes a la fecha del
documento de compraventa. Primará sobre cualquier inscripción hecha en el mismo plazo por derecho del comprador; será oponible a los acreedores del comprador en situación de suspensión de pagos o en liquidación judicial, así como a sus causahabientes.
La acción resolutoria descrita en el artículo 1654 del Código Civil deberá ser anotada y reservada expresamente en la inscripción para producir su efecto. No podrá ejercerse en perjuicio de terceros tras la extinción del privilegio. Se limitará, como el privilegio, a los elementos que hayan formado parte de la venta.
Artículo L141-7 En caso de resolución judicial o amistosa de la venta, el vendedor estará obligado a retomar todos los elementos
del fondo de comercio que hayan formado parte de la venta, incluso aquéllos cuyo privilegio y acción resolutoria correspondiente hayan caducado. Contabilizará el precio de las mercancías y del material existente en el momento en que vuelva a tomar posesión del fondo de comercio, según la tasación que haga el informe pericial contradictorio, amistoso o por orden judicial, descontando lo que se le deba por privilegio en los precios respectivos de las mercancías y del material; el excedente, si lo hubiera, deberá quedar como garantía para los acreedores inscritos y, si no los hubiera, para los acreedores no privilegiados.
Artículo L141-8 El vendedor que ejerza la acción resolutoria deberá notificarla a los acreedores inscritos en el fondo de comercio,
en el domicilio elegido por ellos en sus inscripciones. La decisión judicial no podrá producirse hasta después de transcurrido un mes de dicha notificación.
Artículo L141-9 El vendedor que haya estipulado en el momento de la venta que, si no se efectuase el pago en el plazo convenido,
ésta quedaría anulada de pleno derecho, o el vendedor que haya obtenido del comprador una rescisión de modo amistoso, deberá notificar a los acreedores inscritos en los domicilios elegidos, la rescisión acordada o consentida, que no será definitiva hasta un mes después de realizada la debida notificación.
Artículo L141-10 Cuando la venta de un fondo de comercio se realice por medio de subasta pública por requerimiento de un
administrador judicial o de un mandatario judicial para la liquidación de las empresas, o bien judicialmente por requerimiento de cualquier otro derechohabiente, el demandante deberá notificarla a los vendedores anteriores, en el domicilio elegido en sus inscripciones, con la declaración de que al no haber iniciado ellos la acción resolutoria en el mes siguiente a la notificación han incurrido en caducidad en el derecho de ejercerla, con relación al adjudicatario.
Artículo L.141-11 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006)
Los artículos L.624-11 a L.624-18 no serán aplicables al privilegio ni a la acción resolutoria del vendedor de un fondo de comercio.
Artículo L.141-12 (Ley nº 2003-7 de 3 de enero de 2003 art. 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 161 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO No obstante las disposiciones relativas a la aportación en sociedad de los fondos de comercio recogidas en los
artículos L.141-21 y L.141-22, cualquier venta o cesión de fondo de comercio, acordada incluso bajo la condición o la forma de otro contrato, así como cualquier adjudicación de un fondo de comercio por reparto o subasta, deberá ser publicada, excepto si se realizara en aplicación del artículo L.642-5, en los quince primeros días siguientes a su fecha de celebración, a instancia del comprador, en forma de extracto o aviso en un periódico autorizado para recoger anuncios legales en la circunscripción o el departamento en el que se explote dicho fondo y, en los quince días a partir de esta publicación, en el Boletín oficial de anuncios civiles y comerciales. En cuanto a los negocios de venta ambulante, el lugar de explotación será aquel en cuyo Registro de Comercio y de Sociedades esté inscrito el vendedor.
Artículo L141-13 La publicación del extracto o del aviso, realizada por ejecución del artículo anterior, deberá ser precedida de la
inscripción en el Registro del acta que contenga el cambio de titular, o bien, a falta de acta, de la declaración prescrita en los artículos 638 y 653 del Código General de Impuestos, bajo pena de nulidad. Este extracto deberá, bajo pena de la misma sanción, señalar la fecha, el importe y el número de la percepción o, en caso de simple declaración, la fecha y el número del recibo de dicha declaración y, en ambos casos, la indicación de la oficina en la que han tenido lugar estas operaciones. Contendrá, además, la fecha del acta, los apellidos, los nombres y domicilios del antiguo y del nuevo propietario, la naturaleza y el lugar del fondo de comercio, el precio estipulado, incluidos los impuestos o la valoración que hayan servido de base para la percepción de los derechos de registro, la indicación del plazo fijado posteriormente para las posibles impugnaciones y la elección de un domicilio en la circunscripción del Tribunal.
Artículo L141-14 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
En los diez días siguientes a la última de las publicaciones citadas en el artículo L. 141-12, todo acreedor del propietario anterior, tanto si su crédito fuera o no exigible, podrá presentar su oposición al pago del precio, en el domicilio elegido y por simple documento extrajudicial. La oposición, bajo pena de nulidad, contendrá el importe y el origen del crédito y especificará una elección de domicilio en la circunscripción del emplazamiento del fondo de comercio. El arrendador no podrá presentar su oposición en relación a alquileres en curso o por vencer, salvo estipulación en contrario. No será oponible frente a los acreedores que se hayan dado a conocer en este plazo ninguna cesión amistosa o judicial del precio o de parte del precio.
Artículo L141-15 En caso de oposición al pago del precio, el vendedor podrá, en cualquier caso, recurrir a través de un
procedimiento sumario ante el presidente del Tribunal de grande instance , tras la expiración del plazo de diez días, con el fin de obtener la autorización para cobrar su precio, a pesar de la oposición, con la condición de depositar en la Caja de Depósitos y Consignaciones, o en manos de terceros designados a este efecto, una suma suficiente, determinada por el Juez de procedimientos sumarios, para responder eventualmente de las causas de oposición en el caso de se reconociera o fuera juzgado como deudor. El depósito así ordenado será destinado especialmente, en manos del tercero detentador, a garantizar las deudas objeto de la oposición y se les atribuirá sobre dicho depósito privilegio exclusivo sobre cualquier otra, sin que, sin embargo, pueda resultar de ello una cesión judicial en provecho del oponente o de los oponentes encausados con relación a otros acreedores oponentes del vendedor, si los hubiera. A partir de la ejecución de la resolución sumaria, el comprador quedará liberado y los efectos de la oposición serán transferidos al tercer detentador.
El Juez de procedimientos sumarios no concederá la autorización solicitada si no fuera justificada por una declaración formal del comprador encausado de que no existen más acreedores oponentes que aquéllos contra los que se ha procedido, realizada bajo su responsabilidad personal y de la que se levantará acta. El comprador, al ejecutar la
resolución, no estará liberado de su precio con relación a otros acreedores oponentes anteriores a dicha resolución, si los hubiera.
Artículo L141-16 Si la oposición hubiera sido formulada sin título y sin causa o fuera nula en su forma, y si no hubiera iniciada
instancia por cuestión principal, el vendedor podrá recurrir en procedimiento sumario ante el presidente del Tribunal de grande instance, para obtener la autorización de cobrar su precio, a pesar de la oposición.
Artículo L141-17 El comprador que pagara a su vendedor, sin haber efectuado las publicaciones en las formas prescritas, o antes de
la expiración del plazo de diez días, no estará liberado con respecto a terceros.
Artículo L141-18 Si la venta o transmisión de un fondo de comercio incluyera sucursales o establecimientos en el territorio francés,
la inscripción y la publicación prescritas en los artículos L. 141-6 a L. 141-17 deberán realizarse igualmente en un periódico autorizado para recibir anuncios legales en el lugar de la sede de estas sucursales o establecimientos.
Artículo L.141-19 (Ley nº 2005-845 de 26 de julio de 2005 art. 161 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Durante los veinte días siguientes a la publicación en el Boletín oficial de anuncios civiles y comerciales, tal como se prevé en el artículo L.141-12, se tendrá que dejar una copia legalizada o uno de los originales del documento de compraventa en el domicilio elegido, a la disposición de cualquier acreedor oponente o inscrito, para que este pueda
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CÓDIGO DE COMERCIO consultar dichos documentos sin necesidad de desplazarse.
Durante este mismo plazo, cualquier acreedor inscrito o que haya formulado oposición en el plazo de diez días fijado por el artículo L.141-14 podrá acceder al documento de venta y a las oposiciones formuladas en el domicilio elegido. Si el precio no bastase para resarcir a los acreedores inscritos y a los que se hayan revelado en las oposiciones, el acreedor podrá formular además una sobrepuja de la sexta parte del precio principal del fondo de comercio, sin incluir el material y las mercancías, con arreglo a lo dispuesto en los artículos L.141-14 a L.141-16.
No se admitirá la sobrepuja de la sexta parte tras la venta judicial de un fondo de comercio o la venta que hubiera sido realizada por requerimiento de un administrador judicial o de un mandatario judicial para la liquidación de empresas, o de copropietarios indivisos del fondo de comercio, y que hubiera sido realizada en subasta pública y según lo dispuesto por los artículos L.143-6 y L.143-7 o el artículo L.642-5.
El oficial público designado para proceder a la venta sólo deberá admitir en la puja a personas de reconocida solvencia, o que hayan depositado una suma, bien en sus manos, bien en la Caja de Depósitos y Consignaciones, con el destino específico del pago del precio, que no podrá ser inferior a la mitad del importe total de la primera venta, ni inferior a la porción del precio de dicha venta estipulada como pagadera al contado, aumentada por la puja.
La adjudicación por sobrepuja de la sexta parte tendrá lugar en las mismas condiciones y plazos que la venta que se haya hecho por subasta.
Si el comprador sobrepujado fuera desposeído a causa de la sobrepuja, deberá, bajo su responsabilidad, poner en manos del adjudicatario las oposiciones formuladas, a cambio de recibo, en los ocho días siguientes a la adjudicación, si no las hubiera dado a conocer anteriormente por medio de una anotación incluida en el pliego de condiciones. El efecto de esas oposiciones será sumado al precio de la adjudicación.
Artículo L141-20 Cuando el precio de la venta esté definitivamente fijado, haya habido o no sobrepuja, si no hubiera acuerdo entre
los acreedores para el reparto amistoso de su precio, el comprador estará obligado a consignar la porción exigible del precio, a petición de cualquier acreedor y en los quince días siguientes, y el excedente, a medida que pueda ser exigible, se destinará al pago de todas las oposiciones depositadas en sus manos, a las inscripciones que gravan el fondo y a las cesiones que se le hubieran notificado.
Artículo L141-21 Salvo si se tratara de una operación de fusión o de escisión, sujeta a las disposiciones del párrafo cuarto del
artículo L. 236-2 y de los artículos L. 236-7 a L. 236-22, toda aportación de un fondo comercial realizada a una sociedad en fase de constitución o ya existente deberá ser dada a conocer a terceros en las condiciones previstas en los artículos L. 141-12 a L. 141-18, por medio de la inserción en los periódicos de anuncios legales y en el Boletín oficial de anuncios civiles y comerciales.
No obstante, si a consecuencia de la aplicación de las disposiciones legislativas y reglamentarias vigentes relativas a la publicación de los actos de las sociedades, las indicaciones previstas por estos artículos figuraran ya en el número del periódico de anuncios legales en el que deberían efectuarse la inserciones, se podrá proceder por simple referencia a dicha publicación.
En estas inserciones, la elección de domicilio será sustituida por la indicación de la Secretaría del Tribunal de commerce en el que los acreedores del aportante deberán hacer la declaración de sus créditos.
Artículo L141-22 En los diez días siguientes a la fecha de la última de las publicaciones previstas en los artículos L. 141-12 y L.
141-13, todo acreedor del socio aportador no inscrito dará a conocer en la secretaría del Tribunal de commerce el emplazamiento del fondo, su condición de acreedor y la suma que se le debiera. El Secretario le entregará un recibo de su declaración.
Si los socios, o uno de ellos, no presentaran una solicitud de anulación de la sociedad o de la aportación, en los quince días siguientes, o si dicha anulación no se hubiera pronunciado, la sociedad estará obligada, solidariamente con el deudor principal, al pago del pasivo declarado en el plazo anteriormente citado y debidamente justificado.
En caso de aportación de un fondo comercial por parte de una sociedad a otra, especialmente a consecuencia de una fusión o de una escisión, las disposiciones del apartado anterior no serán aplicables cuando proceda aplicar los artículos L. 236-14, L. 236-20 y L. 236-21 o cuando se ejerza la facultad prevista en el artículo L. 236-22.
CAPITULO II De la pignoración del fondo de comercio Artículos L142-1 a
L142-5
Artículo L142-1 Los fondos de comercio podrán ser objeto de pignoraciones sin otra condición ni requisito formal que los prescritos
por el presente capítulo y por el capítulo III posterior. La pignoración de un fondo de comercio no dará derecho al acreedor pignoraticio a hacerse adjudicar el fondo de
comercio en pago hasta el tope del importe de lo que se le debe.
Artículo L142-2 Sólo son susceptibles de ser incluidos en la pignoración sujeta a las disposiciones del presente capítulo, como
formando parte de un fondo comercial: el rótulo y el nombre comercial, el derecho al contrato de arrendamiento, la clientela y el buen nombre, el mobiliario comercial, el material o el utillaje que sirva para la explotación del fondo de
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CÓDIGO DE COMERCIO comercio, las patentes de inventos, las licencias, las marcas, los dibujos y modelos industriales, y generalmente los derechos de propiedad intelectual vinculados a ellos.
El certificado de adición posterior a la pignoración que incluya la patente a la que se aplique seguirá la misma suerte de esta patente y forma parte, como ella, de la garantía constituida.
Si no hubiera un desglose expreso y preciso en el acta que la constituye, la pignoración sólo incluirá el rótulo, el nombre comercial, el derecho al arrendamiento, la clientela y el buen nombre.
Si la pignoración se hiciera sobre un fondo de comercio y sus sucursales, éstas deberán ser designadas con las indicaciones precisas de su emplazamiento.
Artículo L142-3 El contrato de prenda deberá ser consignado por escritura pública o por un documento privado debidamente
registrado. El privilegio resultante del contrato de pignoración quedará establecido simplemente con su inscripción en un
registro público depositado en la secretaría del Tribunal de commerce en cuya circunscripción sea explotado dicho fondo.
Se deberá cumplir el mismo requisito formal en la secretaría del Tribunal de commerce en cuya circunscripción se sitúen cada una de las sucursales del fondo de comercio incluidas en la pignoración.
Artículo L.142-4 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006)
La inscripción deberá ser efectuada, bajo pena de nulidad de la pignoración, en los quince días siguientes a la fecha del acto de constitución.
En caso de saneamiento judicial o liquidación judicial, serán aplicables a las pignoraciones de los fondos de comercio los artículos L.632-1 a L.632-4.
Artículo L142-5 El orden de prelación de los acreedores pignoraticios será determinado por la fecha de sus inscripciones. Los
acreedores inscritos en el mismo día estarán en concurrencia.
CAPITULO III Disposiciones comunes para la venta y la pignoración de los fondos de comercio Artículos L143-1 a
L143-23
Sección I De la ejecución de la prenda y del pago de las deudas inscritas Artículos L143-1 a
L143-15
Artículo L143-1 En caso de traslado del fondo de comercio, los créditos inscritos se harán exigibles de pleno derecho si el
propietario del fondo de comercio no hubiera dado a conocer a los acreedores inscritos su intención de trasladar el comercio y la nueva dirección en la que piense instalarlo, al menos quince días antes.
Dentro de los quince días posteriores a la notificación que se les hubiera remitido o dentro de los quince días siguientes al día en que ellos hayan tenido conocimiento del traslado, el vendedor o el acreedor pignoraticio deberá anotar, al margen de la inscripción existente, el nuevo local, y si el fondo de comercio ha sido trasladado a una nueva circunscripción, cambiar la fecha de la inscripción primitiva con la indicación de la nueva dirección, en el Registro del Tribunal de esta circunscripción.
El traslado del fondo de comercio sin el consentimiento del vendedor o de los acreedores pignoraticios podrá hacer exigibles las cantidades adeudadas anteriormente, si hubiera una depreciación del fondo de comercio.
La inscripción de una pignoración podrá igualmente hacer exigibles las cantidades adeudadas que tuvieran su origen en la explotación del fondo de comercio.
Las demandas presentadas ante el Tribunal de commerce en virtud de los dos apartados anteriores que hubieran incurrido en caducidad, serán sometidas a las reglas de procedimiento señaladas por el párrafo cuarto del artículo L. 143-4.
Artículo L143-2 El propietario que pretenda la rescisión del contrato de arrendamiento del inmueble en el que se explota un fondo
de comercio gravado por inscripciones registrales deberá notificar su demanda a los acreedores anteriormente inscritos, en el domicilio elegido por ellos en sus inscripciones. La decisión judicial no podrá producirse hasta después de transcurrido un mes de dicha notificación.
La rescisión amistosa del contrato de arrendamiento no será definitiva hasta un mes después de la notificación que se haya hecho a los acreedores inscritos en los domicilios elegidos.
Artículo L143-3 Todo acreedor que ejerza las acciones ejecutivas de embargo y el deudor contra el que se ejerzan podrán solicitar,
ante el Tribunal de commerce en cuya circunscripción se explotase el fondo de comercio, la venta del fondo de comercio del embargado con el material y las mercancías que dependan de él.
A petición del acreedor demandante, el Tribunal de commerce ordenará que se realice la venta del fondo de
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CÓDIGO DE COMERCIO comercio por falta de pago en el plazo concedido al deudor, tras el cumplimiento de los requisitos formales prescritos en el artículo L. 143-6.
Lo mismo ocurrirá si, por procedimiento iniciado por el deudor, el acreedor solicitara la venta del fondo de comercio.
Si no lo solicitara, el Tribunal de commerce fijará el plazo en el que deberá producirse la venta del fondo de comercio por requerimiento del deudor, siguiendo los requisitos formales promulgados por el artículo L. 143-6, y ordenará que, al no haber procedido el deudor a la venta en dicho plazo, se retomen y se continúen las diligencias de ejecución de embargo en el punto en que se hubieran suspendido.
Artículo L143-4 El Tribunal nombrará, si procede, a un administrador provisional del fondo de comercio, fijará su precio,
determinará las condiciones principales de la venta, designará a un oficial público que realice el pliego de condiciones para proceder a dicha venta.
La publicidad extraordinaria, cuando se considere útil, será regulada por decisión judicial, o, en su defecto, por resolución del presidente del Tribunal de commerce emitida en respuesta a una demanda.
Por esta resolución, este último podrá autorizar al demandante, si no hubiera otro acreedor inscrito u oponente, y previo descuento de los gastos privilegiados en beneficio de quien tenga derecho a ellos, a cobrar el precio directamente contra un simple recibo del adjudicatario, o del oficial público vendedor, según los casos, previa deducción o hasta el importe total de su deuda en capital, intereses y gastos.
El Tribunal de commerce resolverá, dentro de los quince días siguientes a la primera audiencia, en sentencia judicial no susceptible de oposición, directamente ejecutable. La apelación de la resolución será suspensiva. Se formulará dentro de los quince días siguientes a la comunicación a la parte y será juzgada por el Tribunal en el plazo de un mes. La sentencia será directamente ejecutable.
Artículo L143-5 El vendedor y el acreedor pignoraticio inscritos sobre un fondo de comercio podrán igualmente, incluso en virtud de
títulos en documentos privados, obligar a la venta del establecimiento que constituya su prenda, ocho días después del requerimiento de pago sin respuesta dirigido al deudor y al tercero detentador si lo hubiera.
La demanda será llevada ante el Tribunal de commerce en cuya circunscripción se explotase dicho fondo de comercio, el cual resolverá de acuerdo con lo dispuesto en el artículo L. 143-4.
Artículo L143-6 El demandante instará al propietario del fondo de comercio y a los acreedores inscritos antes de la resolución que
haya ordenado la venta, en el domicilio elegido por ellos en las inscripciones, y al menos quince días antes de la venta, a conocer el contenido del pliego de condiciones, a aportar sus declaraciones y observaciones y a asistir si así lo desean a la adjudicación.
La venta tendrá lugar al menos diez días después de la colocación de carteles en los que se indicará: los apellidos, profesiones, domicilios del demandante y del propietario del fondo de comercio, la decisión en virtud de la cual se actúa, una elección de domicilio en el lugar en el que se encuentra el Tribunal de commerce en cuya circunscripción se explote el fondo de comercio, los diversos elementos constitutivos de dicho fondo, la naturaleza de sus operaciones, su situación, los precios fijados, el lugar, el día y la hora de la adjudicación, los apellidos y el domicilio del oficial público adscrito y que será el depositario del pliego de condiciones.
Estos carteles serán obligatoriamente colocados, a instancia del oficial público, en la puerta principal del inmueble y del ayuntamiento en el que esté situado el fondo de comercio, del Tribunal de commerce en cuya circunscripición se explote el fondo, y en la puerta del despacho del oficial público encargado.
Este aviso será también publicado diez días antes de la venta en un periódico autorizado para publicar anuncios legales en la circunscripción o el departamento en el que se sitúe el fondo de comercio.
Se hará constar la publicidad por una anotación realizada en el documento de la venta.
Artículo L143-7 El presidente del Tribunal de grande instance en cuya circunscripción se explote el fondo de comercio resolverá, si
procede, sobre las causas de nulidad del procedimiento de venta anterior a la adjudicación y sobre los gastos. Estas causas tendrán que ser presentadas, bajo pena de caducidad, al menos ocho días antes de la adjudicación. Se aplicará el párrafo cuarto del artículo L. 143-4 a la resolución dada por el presidente.
Artículo L143-8 El Tribunal de commerce al que se ha sometido la demanda de pago de una deuda vinculada a la explotación de
un fondo de comercio, podrá ordenar en la misma resolución judicial, si decide condenar y si el acreedor lo requiere, la venta del fondo de comercio. Resolverá en los términos del párrafo primero y segundo del artículo L. 143-4 y determinará el plazo tras el cual se podrá diligenciar la venta si no se hubiera producido el pago,.
Las disposiciones del párrafo cuarto del artículo L. 143-4 y de los artículos L. 143-6 y L. 143-7 serán aplicables a la venta ordenada así por el Tribunal de commerce.
Artículo L143-9 Si el adjudicatario no ejecutara las cláusulas de adjudicación, el fondo de comercio será vendido en segunda
subasta, según las formas prescritas en los artículos L. L. 143-6 y L. 143-7. El mejor postor estará obligado, con respecto a los acreedores del vendedor y con respecto al propio vendedor,
por el importe de la diferencia entre su precio y el de la reventa en segunda subasta, sin poder reclamar el excedente,
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CÓDIGO DE COMERCIO si lo hubiera.
Artículo L143-10 No se procederá a la venta separada de uno o varios elementos de un fondo de comercio gravado con
inscripciones, demandada judicialmente o bien por embargo ejecutivo, o bien en virtud de las disposiciones del presente capítulo, hasta al menos diez días después de la notificación de la acción judicial a los acreedores que se hayan inscrito al menos quince días antes de dicha notificación, en el domicilio elegido por ellos en sus inscripciones. Durante este plazo de diez días, todo acreedor inscrito, haya o no vencido su deuda, podrá emplazar a los interesados ante el Tribunal de commerce en cuya circunscripción se explote el fondo de comercio, para solicitar que se proceda a la venta de todos los elementos del fondo de comercio, por requerimiento del demandante o por su propio requerimiento, en los términos y en conformidad de las disposiciones de los artículos L. 143-3 à L. 143-7.
El material y las mercancías serán vendidas al mismo tiempo que el establecimiento por tasaciones separadas, o por precios independientes si el pliego de condiciones obligara al adjudicatario a evaluarlos por medio de un peritaje.
Se procederá al desglose de los precios de coste para los elementos del fondo de comercio no gravados por privilegios inscritos.
Artículo L143-11 No será admitida ninguna puja cuando la venta haya tenido lugar en las formas prescritas por los artículos L.
141-19, L. 143-3 a L. 143-8, L. 143-10 y L. 143-13 a L. 143-15.
Artículo L143-12 Los privilegios del vendedor y del acreedor pignoraticio continuarán vinculados al establecimiento aunque pase a
manos de otras personas. Cuando la venta del fondo de comercio no se haya hecho por subasta pública de acuerdo con los artículos
mencionados en el artículo L.143-11, el comprador que quiera evitar las acciones judiciales de los acreedores inscritos, estará obligado, bajo pena de caducidad, antes de las diligencias o en los quince días siguientes al requerimiento de pago que se le haga, a notificarlo a todos los acreedores inscritos en las condiciones definidas por decreto.
Artículo L143-13 Todo acreedor inscrito como tal de un fondo de comercio podrá, cuando no sea aplicable el artículo L.143-11,
requerir su salida a subasta pública, ofreciendo abonar el precio principal, sin incluir el material y las mercancías, incrementado en una décima parte y proponiendo constituirse garante del pago de los precios y de las cargas o justificar su solvencia para ello.
Este requerimiento firmado por el acreedor, deberá, bajo pena de caducidad, comunicarse al comprador y al deudor anterior propietario, en los quince días siguientes a las notificaciones, con emplazamiento ante el Tribunal de commerce del lugar del establecimiento, para estar presente en el acto de resolución, en caso de recurso, sobre la validez de la subasta, la admisibilidad de la fianza o la solvencia del mejor postor, y asistir a la decisión judicial de salida a subasta pública del fondo de comercio con el material y las mercancías dependientes de él, y de requerimiento al comprador sobrepujado para que muestre su título y el acta de arrendamiento o cesión del arrendamiento al oficial público designado. El plazo de quince días anteriormente citado no será susceptible de prolongación en razón de la distancia entre el domicilio elegido y el domicilio real de los acreedores inscritos.
Artículo L143-14 A partir de la comunicación de la subasta, el comprador, si ya estuviera en posesión del fondo de comercio, será
administrador depositario por derecho y sólo podrá realizar actos de administración. Sin embargo, podrá solicitar al Tribunal de commerce o Juez competente en procedimientos sumarios, según el caso, en todo momento durante el procedimiento, la designación de otro administrador. Esta petición podrá ser hecha igualmente por cualquier acreedor.
El mejor postor no podrá, incluso pagando el importe de la oferta, impedir por desistimiento la adjudicación pública, si no es con el consentimiento de todos los acreedores inscritos.
Los actos formales del procedimiento y de la venta serán realizados a instancia del mejor postor y, en su defecto, de todo acreedor inscrito o del comprador, por cuenta y riesgo del mejor postor, quedando comprometida su fianza, según las reglas prescritas por los artículos L. 143-4, L. 143-5 a L. 143-7 y por el tercer apartado del artículo L. 143-10.
Si no hubiera subasta, el acreedor mejor postor será declarado adjudicatario.
Artículo L143-15 El adjudicatario estará obligado a hacerse cargo del material y de las mercancías que existan en el momento de la
toma de posesión, a los precios fijados por un peritaje amistoso o judicial, contradictoriamente entre el comprador sobrepujado, su vendedor y el adjudicatario.
Estará obligado también ante el comprador desposeído y a quien corresponda, al pago del precio de la adjudicación, a reembolsar por las costas y los gastos de escritura de su contrato, los de notificaciones, los de inscripción y publicidad previstos por los artículos L. 141-6 a L. 141-18, y por los gastos realizados para lograr la reventa.
El artículo L. 143-9 será aplicable a la venta y a la adjudicación por subasta. El comprador sobrepujado, que se haga adjudicatario a consecuencia de la reventa por subasta podrá recurrir por
derecho contra el vendedor, para cobrar el reembolso de la cantidad que sobrepase del precio estipulado por su título y del interés devengado desde el día de cada pago por este excedente.
Sección II
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CÓDIGO DE COMERCIO De los requisitos formales para la inscripción y la baja en el Registro Artículos L143-16 a
L143-20
Artículo L143-16 La inscripción y la cancelación registral del privilegio del vendedor o del acreedor pignoraticio estarán sujetas a
requisitos formales cuyas condiciones serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L143-17 Además de los requisitos formales para la inscripción mencionados en el artículo L. 143-16, las ventas o cesiones
de fondos de comercio que tengan marcas de fábrica y de comercio, diseños o modelos industriales, así como las pignoraciones de fondos de comercio que incluyan patentes de inventos o licencias, marcas o dibujos y modelos deberán inscribirse en el Instituto Nacional de la Propiedad Industrial, con la presentación del certificado de inscripción expedido por la secretaría del Tribunal de commerce, en los quince días siguientes a esta inscripción, bajo pena de nulidad con relación a terceros, de las ventas, cesiones, pignoraciones relativas a las patentes de invento y a las licencias, a las marcas de fábrica y de comercio, a los dibujos y modelos industriales.
Las patentes de inventos incluidas en la cesión de un fondo de comercio serán sometidas para su transmisión a las reglas promulgadas en los artículos L. 613-8 y siguientes del Código de la Propiedad Intelectual.
Artículo L143-18 Si el título del que resultara el privilegio inscrito estuviera a la orden, la negociación por vía de endoso conllevará la
transferencia del privilegio.
Artículo L143-19 La inscripción conservará el privilegio durante diez años a partir del día de su fecha. Su efecto terminará si no
hubiera sido renovada antes de la expiración de dicho plazo. La inscripción garantizará dos años de interés a la misma tasa que el principal.
Artículo L143-20 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 3 Diario Oficial de 5 de agosto de 2003)
Las inscripciones serán suprimidas, o bien por consentimiento de las partes interesadas y que tuvieran capacidad para ello, o bien en virtud de la sentencia con valor de cosa juzgada.
Si no hubiera sentencia, la baja total o parcial no podrá ser realizada por el secretario si no se hubiera depositado una escritura pública, o un documento privado debidamente registrado, de consentimiento de baja otorgada por el acreedor o su cesionario debidamente subrogado y que justificara sus derechos.
La baja total o parcial de la inscripción realizada en el Instituto Nacional de la Propiedad Industrial será efectuada por la presentación del certificado de baja expedido por el Secretario del Tribunal de commerce.
Sección III De los intermediarios y del reparto del precio Artículos L143-21 a
L143-23
Artículo L143-21 Todo tercero, que detente el precio de la adquisición de un fondo de comercio por haber sido domiciliatario, deberá
hacer el reparto del mismo en los tres meses posteriores a la fecha del acto de compraventa. Cuando este plazo expire, la parte más diligente podrá recurrir a través de un procedimiento sumario ante la
jurisdicción competente del lugar de la elección del domicilio, la cual decidirá el depósito del precio en la Caja de depósitos y consignación, o bien el nombramiento de un depositario repartidor.
Artículo L143-22 Cuando se decida la confiscación de un fondo de comercio por una jurisdicción penal, en aplicación de los artículos
225-16, 225-19 y 225-22 del Código Penal y 706-39 del Código de Proceso Penal, el Estado deberá proceder a la puesta en venta del establecimiento confiscado según las formas previstas por el presente título en un plazo de un año, salvo prórroga excepcional de dicho plazo por resolución del presidente del Tribunal de grande instance. Sólo estará obligado con relación a los acreedores hasta el importe del precio de venta de este fondo de comercio.
Esta puesta en venta deberá ser realizada en forma de un anuncio legal hecho al menos cuarenta y cinco días antes de la venta, tanto si ésta tuviera lugar por adjudicación como en forma amistosa.
Las garantías inscritas tras la fecha de la anotación de la apertura del sumario por una de las infracciones citadas en el primer apartado serán nulas de pleno derecho salvo decisión en contrario del Tribunal.
La autoridad administrativa podrá, en todo momento, solicitar que se determine el precio del alquiler con relación al índice correspondiente al valor de arrendamiento de los locales.
Cuando el propietario del fondo de comercio confiscado fuera al mismo tiempo propietario de los locales en los que se explotara el fondo, se deberá establecer un contrato de arrendamiento cuyas condiciones serán fijadas, si no hubiera acuerdo amistoso, por el presidente del Tribunal de grande instance, quien resolverá en las formas previstas para los arrendamientos de inmuebles o locales de uso comercial, industrial o artesanal.
Artículo L143-23 Un decreto adoptado en Conseil d'Etat determinará las medidas de ejecución de los capítulos I y II anteriores y del
presente capítulo, especialmente los emolumentos que serán asignados a los secretarios de los Tribunaux de
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CÓDIGO DE COMERCIO commerce, las condiciones en las que se efectuarán las inscripciones, bajas y expediciones de actas o certificados negativos que afecten a las ventas, cesiones o pignoraciones de los fondos de comercio que incluyan patentes de inventos o licencias, marcas de fábrica o comerciales, dibujos y modelos industriales, en el Instituto Nacional de la Propiedad Industrial.
Determinará, además, los derechos que percibirá el Conservatorio de artes y oficios, para el servicio del Instituto Nacional de la Propiedad Industrial, sobre las inscripciones y menciones de anterioridad, de subrogación y de baja, los estados de inscripción o certificados de que no existe ninguna de ellas.
CAPITULO IV Del arrendamiento de negocio Artículos L144-1 a
L144-13
Artículo L144-1 Salvo cláusula en contrario, todo contrato o acuerdo por el que el propietario o el que explota un fondo comercial o
un establecimiento artesanal, concediera total o parcialmente el arrendamiento a un gerente que lo explote por su cuenta y riesgo, deberá regirse por las disposiciones del presente capítulo.
Artículo L144-2 El arrendatario-gerente ostentará la condición de comerciante. Tendrá que someterse a las obligaciones que
deriven de ello. Cuando el fondo de comercio fuera un establecimiento artesanal, el arrendatario-gerente deberá estar inscrito en el
Registro central de artesanos y someterse a las obligaciones que deriven de ello.
Artículo L144-3 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 10 Diario Oficial de 27 de marzo de 2004)
Las personas físicas o jurídicas que concedan un arrendamiento de negocio deberán haber explotado durante al menos dos años el fondo de comercio o el establecimiento artesanal cedido en gerencia.
Artículo L144-4 El plazo previsto por el artículo L. 144-3 podrá ser suprimido o reducido por resolución del presidente del Tribunal
de grande instance dictada por simple requerimiento del interesado, previo dictamen del Ministerio Público, especialmente cuando éste justifique que se ve en la imposibilidad de explotar su fondo de comercio personalmente o por medio de encargados.
Artículo L144-5 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 10 Diario Oficial de 27 de marzo de 2004)
No será aplicable el artículo L. 144-3: 1º Al Estado; 2º A las entidades territoriales; 3° A los establecimientos de crédito; 4° A los mayores de edad que fueran objeto de una medida de protección legal o a las personas hospitalizadas por
causa de problemas mentales en las condiciones fijadas por los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud Pública, en lo que se refiera al fondo de comercio del que fueran propietarios antes de la medida de protección legal o antes de producirse la hospitalización;
5° A los herederos o los legatarios de un comerciante o de un artesano fallecido, así como a derechohabientes de un ascendiente, en lo que se refiere al fondo de comercio;
6° A la entidad pública creada por el artículo L. 325-1 del Código de Urbanismo; 7º Al cónyuge adjudicatario del fondo de comercio o del fondo artesanal, tras la disolución del régimen matrimonial,
cuando dicho cónyuge hubiera participado en su explotación durante al menos dos años antes de la disolución del régimen matrimonial o de su partición; ;
8° Al arrendador del fondo de comercio, cuando el arrendamiento tenga como finalidad principal garantizar, por contrato de exclusividad, la comercialización al detalle de los productos fabricados o distribuidos por él mismo;
9° A los arrendadores de establecimientos dedicados a cine, teatro y espectáculos musicales.
Artículo L144-6 En el momento del arrendamiento de negocio, las deudas del arrendador del comercio correspondientes a la
explotación del comercio podrán ser declaradas inmediatamente exigibles por el Tribunal de commerce de la circunscripción del fondo de comercio, si estimase que el arrendamiento de negocio pondría en peligro su cobro.
La acción deberá ser iniciada, bajo pena de preclusión, en el plazo de tres meses desde la fecha de la publicación del contrato de gerencia en un periódico autorizado para publicar anuncios legales.
Artículo L144-7 Hasta la publicación del contrato de arrendamiento de negocio y durante un plazo de seis meses a contar desde la
fecha de dicha publicación, el arrendador del fondo de comercio será solidariamente responsable con el arrendatario gerente de las deudas contraídas por éste durante la explotación del fondo.
Artículo L144-8 Las disposiciones de los artículos L. 144-3, L. 144-4 y L. 144-7 no se aplicarán a los contratos de arrendamiento de
negocio realizados por administradores judiciales, encargados, a cualquier título, de la administración de un comercio, a
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CÓDIGO DE COMERCIO condición de que hayan sido autorizados a los fines de dichos contratos por la autoridad a la que representan y que hayan cumplido las medidas de publicidad previstas.
Artículo L144-9 La finalización del arrendamiento del fondo de comercio hará exigibles inmediatamente las deudas derivadas de la
explotación del fondo de comercio o del establecimiento artesanal, contraídas por el arrendatario gerente durante la etapa de su gerencia.
Artículo L144-10 Todo contrato de arrendamiento de negocio o cualquier otro acuerdo que conlleve cláusulas análogas, concedido
por el propietario o el que explote el fondo comercial que no cumpla las condiciones previstas por los artículos anteriores, será declarado nulo. Sin embargo los cocontratantes no podrán alegar esta nulidad frente a terceros.
La nulidad prevista en el apartado anterior conllevará, con relación a los cocontratantes, la caducidad de los derechos que eventualmente pudieran poseer en virtud de las disposiciones del capítulo V del presente título que regula las relaciones entre arrendadores y arrendatarios en lo referente a la renovación de los contratos de arrendamientos de inmuebles o de locales de uso comercial, industrial o artesanal.
Artículo L144-11 Si el contrato de arrendamiento constara de una cláusula de revisión-actualización, la revisión del contrato de
arrendamiento podrá, no obstante cualquier acuerdo en contrario, ser solicitada cada vez que, por ejecución de esta cláusula, este contrato de arrendamiento se vea aumentado o disminuido en más de una cuarta parte con relación al precio anteriormente fijado contractualmente o por decisión judicial.
Si uno de los elementos considerados para el cálculo de la cláusula de revisión-actualización desapareciera, la revisión sólo podrá ser solicitada y reclamada en justicia si las condiciones económicas se vieran modificadas hasta tal punto que conllevasen una variación de más de un cuarto del valor del arrendamiento del fondo de comercio.
Artículo L144-12 La parte que desee solicitar la revisión deberá notificarlo a la otra parte por carta certificada con acuse de recibo o
por documento extrajudicial. En ausencia de acuerdo amistoso, la instancia será presentada y juzgada en conformidad con las disposiciones
previstas en materia de revisión de precios de alquiler de inmuebles o de locales de uso comercial o industrial. El juez deberá adaptar el juego de la cláusula de revisión actualización al valor del alquiler del día de la notificación,
teniendo en cuenta todos los elementos de apreciación. El nuevo precio será aplicable a partir de esta misma fecha, a menos que las partes se hayan puesto de acuerdo antes o durante la instancia en una fecha anterior o más reciente.
Artículo L144-13 Las disposiciones de los artículos L. 144-11 y L. 144-12 no serán aplicables a las operaciones de leasing en
materia de fondos de comercio o establecimientos artesanales mencionados en el apartado 3 del artículo 1º de la Ley nº 66-455 de 2 de julio de 1966 relativa a las empresas que emplean el leasing.
Las disposiciones del artículo L. 144-9 no serán aplicables cuando el arrendatario del comercio que haya suscrito un contrato de arrendamiento por leasing de un fondo de comercio o de un establecimiento artesanal renunciara a la opción de compra.
CAPITULO V Del contrato de arrendamiento del local comercial Artículos L145-1 a
L145-60
Sección I Del ámbito de aplicación Artículos L145-1 a
L145-3
Artículo L145-1 I. - Las disposiciones del presente capítulo se aplicarán a los arrendamientos de inmuebles o locales en los que se
explota un fondo comercial, en los casos en que este negocio pertenezca a un comerciante, a un industrial inscrito en el Registro de Comercio y de Sociedades, o a un directivo de una empresa inscrito en el Registro central de artesanos, los cuales pudieran realizar o no actos de comercio, y además:
1º A los arrendamientos de locales o inmuebles accesorios a la explotación de un fondo de comercio cuando la privación de los mismos comprometiera la explotación del comercio y pertenezca al propietario del local o del inmueble en el que esté situado el establecimiento principal. En caso de pluralidad de propietarios, los locales accesorios deberán haber sido alquilados con conocimiento del arrendador para su utilización conjunta;
2º En los arrendamientos de los solares en los que se hayan edificado - antes o después del arrendamiento - construcciones para uso comercial, industrial o artesanal, a condición de que esas construcciones hayan sido realizadas o explotadas con el consentimiento expreso del propietario.
II. - Si el fondo de comercio fuera explotado bajo la forma de arrendamiento de negocio en aplicación del capítulo IV del presente título, el propietario del fondo de comercio se beneficiará sin embargo de las presentes disposiciones sin tener que justificar su inscripción en el Registro de Comercio y de Sociedades o en el Registro central de artesanos.
Artículo L145-3
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CÓDIGO DE COMERCIO Las disposiciones del presente capítulo no serán aplicables a los arrendamientos enfitéuticos, salvo en lo que
concierne a la revisión del precio del alquiler. Sin embargo serán aplicables en los casos previstos en los artículos L. 145-1 y L. 145-2, a los arrendamientos realizados por enfiteutas, con la salvedad de que la duración de la renovación concedida a sus subarrendatarios no tenga por efecto prolongar la ocupación de los locales más allá de la fecha de expiración del arrendamiento enfitéutico.
Sección II De la duración Artículos L145-4 a
L145-7
Artículo L145-4 La duración del contrato de arrendamiento no podrá ser inferior a nueve años. Sin embargo, si no se acuerda lo contrario, el arrendatario tendrá la facultad de cesar en el alquiler al expirar un
período trienal, en las formas y plazo del artículo L.145-9. El arrendador tendrá la misma facultad si pretendiese alegar las disposiciones de los artículos L. 145-18, L. 145-21
y L. 145-24 para construir, reconstruir, aumentar la altura del inmueble existente o efectuar obras requeridas o autorizadas en el marco de una operación de restauración inmobiliaria.
El arrendatario que haya solicitado el beneficio de sus derechos de jubilación del régimen social al que estaba afiliado o que haya sido autorizado a beneficiarse de una pensión de invalidez atribuida en el marco de este régimen social, tendrá la facultad de cesar en el arrendamiento en las formas y plazos del artículo L. 145-9.
Las disposiciones del párrafo anterior serán aplicables al socio único de una empresa unipersonal de responsabilidad limitada, o al gerente mayoritario desde un período al menos igual a dos años de una sociedad de responsabilidad limitada, cuando ésta sea la titular del arrendamiento.
Artículo L145-5 Las partes, en el momento de la entrada en el local del arrendatario, podrán no aplicar excepcionalmente las
disposiciones del presente capítulo a condición de que el contrato de arrendamiento sea firmado por una duración máxima de dos años.
Si al expirar este plazo, el arrendatario se quedase y se mantuviese en su posesión, se realizará un nuevo contrato de arrendamiento cuyo efecto será regulado por las disposiciones del presente capítulo.
Lo mismo sucederá en caso de renovación expresa del contrato de arrendamiento o de firma, entre las mismas partes, de un nuevo contrato de arrendamiento para el mismo local.
Las disposiciones de los dos apartados anteriores no serán aplicables si se tratara de un alquiler de carácter estacional.
Artículo L145-6 El arrendador de un local de uso comercial, industrial o artesanal podrá, en el transcurso de la duración del
contrato originario o de un contrato renovado, retomar la posesión de los lugares, en todo o en parte, para ejecutar obras que precisen la evacuación del local incluido en un sector o perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo y autorizadas o prescritas en las condiciones previstas en dichos artículos, si ofreciera trasladar el contrato de arrendamiento a un local equivalente en el mismo inmueble o en otro. Esta oferta deberá precisar las características del local ofrecido, que permitirá la continuidad del ejercicio de la actividad anterior del arrendatario. Esta oferta tendrá que ser notificada un año por adelantado.
El arrendatario deberá, en un plazo de dos meses, o bien dar a conocer su aceptación, o bien interponer ante la jurisdicción competente los motivos de su rechazo, si no lo hiciera se considerará que ha aceptado el ofrecimiento.
Artículo L145-7 El arrendatario cuyo contrato de arrendamiento sea trasladado a otro local tendrá derecho a una indemnización por
desposesión que incluirá la compensación por los perjuicios ocasionados por la privación temporal del uso del local, considerando, si procede, la instalación provisional realizada a cuenta del arrendador y el reembolso de los gastos normales de mudanza y reinstalación.
Cuando la oferta haya sido aceptada o reconocida como válida por la jurisdicción competente, y, tras la expiración del plazo de un año, a contar desde la ratificación de la oferta, el arrendatario deberá abandonar el lugar, en cuanto tenga a su disposición efectiva el local ofrecido y el pago de una indemnización provisional cuyo importe será determinado en las formas previstas en el artículo L. 145-19.
El importe y las condiciones accesorias del arrendamiento podrán ser modificadas a petición de la parte más diligente.
Sección III De la renovación Artículos L145-8 a
L145-13
Artículo L145-8 El derecho a la renovación del contrato de arrendamiento sólo podrá ser invocado por el propietario del fondo de
comercio que se explote en esos locales. El comercio transformado, llegado el caso, en las condiciones previstas en la sección 8 del presente capítulo,
deberá, salvo motivos legítimos, haber sido objeto de una explotación efectiva en el transcurso de los tres años
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CÓDIGO DE COMERCIO anteriores a la fecha de la expiración del contrato de arrendamiento o de su reconducción, tal y como está previsto en el artículo L.145-9, siendo esta última fecha la de denuncia, o si se hubiera hecho una solicitud de renovación, el plazo habitual que siga a esta solicitud.
Artículo L145-9 Por excepción a lo dispuesto en los artículos 1736 y 1737 del Código Civil, los arrendamientos de los locales sujeto
a las disposiciones del presente capítulo sólo cesarán por efecto de una rescisión formulada de acuerdo a los usos y costumbres locales y al menos seis meses por adelantado.
A falta de denuncia, el contrato de arrendamiento realizado por escrito continuará por tácita reconducción más allá del término fijado por el contrato, en conformidad con el artículo 1738 del Código Civil y no obstante lo previsto en el apartado anterior.
El contrato de arrendamiento que esté subordinado a un acontecimiento cuya realización autorice al arrendador a solicitar la rescisión no expirará, más allá de la duración de nueve años, salvo por efecto de una notificación hecha seis meses antes y para un cese de uso. Esta notificación deberá mencionar que se ha producido el acontecimiento previsto en el contrato.
En el caso de un arrendamiento que incluya varios períodos, si el arrendador denunciara el arrendamiento al final de los nueve primeros años o en el momento de la expiración de uno de los períodos siguientes, se rescindirá dicho arrendamiento en los plazos previstos en el párrafo primero.
La denuncia deberá ser notificada por documento extrajudicial. Deberá, bajo pena de nulidad, precisar los motivos por los que se produce e indicar que el arrendatario que pretenda, o bien recurrir dicha rescisión o solicitar el pago de una indemnización por evicción, deberá, bajo pena de preclusión, recurrir al Tribunal antes del plazo de dos años a partir de la fecha en la que se haya determinado dicha denuncia.
Artículo L145-10 A falta de denuncia, el arrendatario que quiera obtener la renovación de su contrato de arrendamiento deberá
solicitarlo en los seis meses que precedan a la expiración del contrato de arrendamiento, o, llegado el caso, en todo momento en el transcurso de su reconducción.
La solicitud de renovación deberá ser comunicada al arrendador por documento extrajudicial. Salvo estipulaciones o notificaciones en contrario por parte de éste, podrá ser válidamente dirigida, del mismo modo que a él, a la persona gerente a quien se considere con capacidad legal para recibirla. Si hay varios propietarios, la demanda dirigida a uno de ellos, será válida, con respecto a todos, salvo estipulaciones o notificaciones en contrario.
Deberá, bajo pena de nulidad, reproducir los términos del apartado siguiente. En los tres meses siguientes a la demanda de renovación, el arrendador, deberá, en las mismas formas, dar a
conocer al demandante si rechaza la renovación, precisando los motivos de su rechazo. Si no hubiera dado a conocer sus intenciones en ese plazo, se considerará que el arrendador ha aceptado el principio de renovación del contrato de arrendamiento anterior.
El documento extrajudicial que notifique la denegación de la renovación deberá, bajo pena de nulidad, indicar que el arrendatario que pretenda recurrir esta denegación de renovación, o bien solicitar el pago de una indemnización de evicción, deberá, bajo pena de preclusión, acudir al Tribunal antes de la expiración de un plazo de dos años, contados a partir de la fecha en la que le haya sido notificada la denegación de la renovación.
Artículo L145-11 El arrendador que, sin oponerse al principio de renovación, desee obtener una modificación del precio del
arrendamiento, deberá, en la notificación de denuncia prevista en el artículo L. 145-9 o en la respuesta a la solicitud de renovación prevista en el artículo L.145-10, dar a conocer el nuevo precio del arrendamiento que propone; si no lo hiciera, el nuevo precio no será efectivo hasta la solicitud que se haga ulteriormente, según las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Artículo L145-12 La duración del contrato de arrendamiento renovado será de nueve años salvo que haya acuerdo de las partes
para una mayor duración. Las disposiciones del párrafo segundo y tercero del artículo L.145-4 serán aplicables en el transcurso del contrato
de arrendamiento renovado. El nuevo contrato de arrendamiento será efectivo a partir de la expiración del contrato anterior, o, llegado el caso,
de su reconducción. Esta última fecha será la de la notificación del desalojo, o bien - en el caso de haberse solicitado la renovación - el último día del plazo usual dicha solicitud.
Sin embargo, cuando el arrendador haya notificado, por medio de una denuncia o por una denegación de renovación, su intención de no renovar el contrato de arrendamiento, y si, posteriormente, decide la renovación, el nuevo contrato empezará a tener efecto el día en que esta aceptación haya sido notificada al arrendatario por documento extrajudicial.
Artículo L145-13 No obstante lo dispuesto por la Ley de 28 de mayo de 1943, relativa a la aplicación a los extranjeros de las leyes
en materia de contratos de arrendamientos urbanos y rústicos, las disposiciones de la presente sección no podrán ser alegadas por comerciantes, industriales o personas inscritas en el Registro central de artesanos, de nacionalidad extranjera, actuando directamente o por persona interpuesta, a menos que, durante las guerras de 1914 y de 1939, hayan combatido en el ejército francés o en el bando aliado, o que tengan hijos ciudadanos franceses.
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CÓDIGO DE COMERCIO El apartado anterior no será aplicable a los ciudadanos de un Estado miembro de la Comunidad Europea o de un
Estado parte en el Acuerdo sobre el Espacio Económico Europeo.
Sección IV De la denegación de la renovación Artículos L145-14 a
L145-30
Artículo L145-14 El arrendador podrá denegar la renovación del contrato de arrendamiento. Sin embargo, el arrendador deberá,
salvo las excepciones previstas en los artículos L. 145-17 y siguientes, pagar al arrendatario desalojado la llamada indemnización por evicción equivalente al perjuicio causado por la denegación de renovación.
Esta indemnización incluirá en particular el valor de mercado del fondo de comercio, determinado de acuerdo a la práctica profesional, aumentado eventualmente por los gastos normales de mudanza y de reinstalación, así como los gastos y derechos de traslado a un local del mismo valor, salvo en el caso en el que el propietario aporte pruebas de que el perjuicio es menor.
Artículo L145-15 Serán nulas de pleno derecho, cualquiera que sea su forma, las cláusulas, estipulaciones y arreglos que tengan
por efecto imposibilitar el ejercicio del derecho de renovación instituido por el presente capítulo o las disposiciones de los artículos L. 145-4, L. 145-37 a L. 145-41, del primer apartado del artículo L. 145-42 y de los artículos L. 145-47 a L. 145-54.
Artículo L145-16 Serán igualmente nulos de pleno derecho, cualquiera que sea su forma, los acuerdos susceptibles de prohibir al
arrendatario la cesión de su contrato de arrendamiento o de los derechos derivados del presente capítulo al comprador de su fondo comercial o de su empresa.
En caso de fusión de sociedades o de aportación de una parte del activo de una sociedad realizada en las condiciones previstas en el artículo L. 236-22, la sociedad nacida de la fusión o la sociedad beneficiaria de la aportación sustituirá, salvo estipulación en contrario, a aquélla en provecho de la cual se concedió el contrato de arrendamiento con todos los derechos y obligaciones que se derivaban de él.
En caso de cesión, de fusión o de aportación, si la obligación de garantía no pudiera ser asegurada en los términos del acuerdo, el Tribunal podrá sustituirlas por las que juzgue suficientes.
Artículo L145-17 I. - El arrendador podrá rechazar la renovación del contrato de arrendamiento sin estar obligado al pago de ninguna
indemnización. 1º Si justificara un motivo grave y legítimo en contra del arrendatario que debe abandonar el fondo. Sin embargo, si
se trata o bien de la no ejecución de una obligación, o bien del cese, sin razón seria y legítima de la explotación del fondo de comercio, considerando las disposiciones del artículo L. 145-8, la infracción cometida por el arrendatario sólo podrá ser alegada si es continuada y renovada más de un mes después de habérsele requerido por parte del arrendador a cesar en ella. Este requerimiento deberá, bajo pena de nulidad, ser efectuado por documento extrajudicial, precisar el motivo alegado y reproducir les términos del presente apartado;
2º Si se decidiera que el inmueble debe ser total o parcialmente demolido por estar en estado de insalubridad reconocido por la autoridad administrativa o se considerase que ya no puede ser ocupado sin riesgo a causa de su estado.
II. - En caso de reconstrucción por parte del propietario o de su derechohabiente de un nuevo inmueble que incluya locales comerciales, el arrendatario tendrá derecho de prioridad para su ocupación, en el inmueble reconstruido, en las condiciones previstas por los artículos L. 145-19 y L. 145-20.
Artículo L145-18 El arrendador tendrá derecho a rechazar la renovación del contrato cuando quiera construir o reconstruir el
inmueble existente, encargándose de pagar al arrendatario desalojado, la indemnización por evicción prevista en el artículo L. 145-14.
Asimismo, tendrá dicho derecho cuando quiera efectuar obras que necesiten la evacuación de los locales incluidos en un sector o perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo y autorizadas o prescritas en las condiciones previstas en dichos artículos.
Sin embargo el arrendador podrá sustraerse al pago de esta indemnización ofreciendo al arrendatario desalojado un local que corresponda a sus necesidades y posibilidades, situado en un emplazamiento equivalente.
Llegado el caso, el arrendatario percibirá una indemnización que compense la privación temporal del uso y la depreciación de su fondo de comercio. Será así mismo reembolsado por sus gastos normales de mudanza y reinstalación.
Cuando el arrendador invoque el beneficio del presente artículo, deberá, en el acta de denegación de la renovación o en la notificación de rescisión, citar las disposiciones del apartado 3 y precisar las nuevas condiciones de arrendamiento. El arrendatario deberá, en un plazo de tres meses, o bien, dar a conocer por documento extrajudicial su aceptación, o bien acudir a la jurisdicción competente en las condiciones previstas en el artículo L. 145-58.
Si las partes estuvieran solamente en desacuerdo sobre las condiciones del nuevo contrato de arrendamiento, éstas serán fijadas de acuerdo al procedimiento previsto en el artículo L. 145-56.
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CÓDIGO DE COMERCIO Artículo L145-19
Para beneficiarse del derecho de prioridad previsto en el artículo L. 145-17, el arrendatario deberá, al abandonar el local o, como máximo, en los tres meses siguientes, notificar su voluntad de hacer uso de él al propietario, por documento extrajudicial, dándole a conocer su nuevo domicilio. Deberá notificar del mismo modo, bajo pena de caducidad, todo nuevo cambio de domicilio.
El propietario que haya recibido tal notificación deberá, antes de arrendar u ocupar él mismo un nuevo local, notificar del mismo modo al arrendatario que está dispuesto a concluir un nuevo contrato de arrendamiento. A falta de acuerdo entre las partes sobre las condiciones de este contrato de arrendamiento, éstas serán determinadas según el procedimiento previsto en el artículo L. 145-56.
El arrendatario tendrá un plazo de tres meses para pronunciarse o recurrir a la jurisdicción competente. Este plazo deberá ser indicado, bajo pena de nulidad, en la notificación citada en el apartado anterior. Pasado este plazo, el propietario podrá disponer del local.
El propietario que no se plegara a las disposiciones de los apartados anteriores estará sujeto, por demanda de su arrendatario, al pago de la indemnización por daños y perjuicios en beneficio de este último.
Artículo L145-20 Cuando el inmueble reconstruido, en las condiciones previstas en el artículo L. 145-17, posea una superficie
superior a la del inmueble primitivo, el derecho de prioridad se limitará a locales que posean una superficie equivalente a la de los locales ocupados anteriormente o susceptibles de satisfacer las mismas necesidades comerciales que éstos últimos.
Cuando el inmueble reconstruido no permita la reinstalación de todos los ocupantes, la preferencia será concedida a los arrendatarios titulares de los arrendamientos más antiguos que hayan dado a conocer su intención de ocupar los locales.
Artículo L145-21 El propietario podrá igualmente diferir durante una duración máxima de tres años la renovación del contrato de
arrendamiento, si se propusiera aumentar la altura del inmueble y si esta obra hiciera necesaria la evicción temporal del arrendatario. Éste tendrá derecho en este caso a una indemnización igual al perjuicio causado sin poder exceder de los tres años de alquiler.
Artículo L145-22 El arrendador podrá denegar la renovación del contrato de alquiler exclusivamente sobre la parte que afecte a los
locales de vivienda accesorios a los locales comerciales para vivir él mismo o para que los habiten su cónyuge, sus ascendientes, sus descendientes, o los de su cónyuge, a condición de que el beneficiario de la recuperación del local no disponga de una vivienda que se adapte a sus necesidades normales y a las de los miembros de su familia que vivan habitualmente o estén domiciliados con él.
Sin embargo, la recuperación en las condiciones anteriormente indicadas no podrá ser ejercida en locales que se dediquen al uso de hotel o de alquiler de apartamentos amueblados, ni en locales de uso hospitalario o de enseñanza.
Del mismo modo, la recuperación no podrá ser ejercida cuando el arrendatario aporte la prueba de que la privación del uso de los locales de vivienda perturbaría gravemente la explotación del fondo o cuando los locales comerciales y los locales de vivienda formaran un todo indivisible.
Cuando el inmueble haya sido adquirido a título oneroso, el arrendador sólo podrá beneficiarse de las disposiciones del presente artículo si la fecha cierta de su acta de adquisición fuera anterior en al menos seis años a la denegación de la renovación.
El beneficiario del derecho de recuperación estará obligado a poner a disposición del arrendatario del cuál retoma el local, la vivienda que, llegado el caso, podría haber quedado vacía por el ejercicio de este derecho.
En el caso de recuperación parcial previsto en el presente artículo, el precio del contrato de arrendamiento renovado tendrá en cuenta el perjuicio causado al arrendatario o a su derechohabiente en el ejercicio de su actividad.
Salvo si existiera un motivo legítimo, el beneficiario de la recuperación deberá ocupar personalmente los locales en un plazo de seis meses a partir de la marcha del arrendatario desalojado y durante una duración mínima de seis años; de no ser así, el arrendatario desalojado tendrá derecho a una indemnización por evicción en relación a la importancia de los locales recuperados.
Artículo L145-23 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Las disposiciones del artículo L. 145-22 no serán aplicables a los arrendadores de nacionalidad extranjera, que actúen directamente o por persona interpuesta, a menos que hayan combatido en el ejército francés o en el del bando aliado durante las guerras de 1914 o 1939, o que tengan hijos ciudadanos Franceses.
El apartado anterior no será aplicable a los ciudadanos de un Estado miembro de la Comunidad Europea o de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo.
Artículo L145-24 El derecho de renovación no será oponible al propietario que haya obtenido su permiso para construir un local de
vivienda sobre todo o parte de uno de los terrenos citados en el 2º del artículo L. 145-1. El derecho de recuperación sólo podrá ejercerse, de todos modos, sobre la parte del terreno indispensable para la
construcción. Si tuviera por efecto el cese obligatorio de la explotación comercial, industrial o artesanal, serán aplicables las disposiciones del artículo L.145-18.
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CÓDIGO DE COMERCIO Artículo L145-25
El propietario o el arrendatario principal que sea, al mismo tiempo, arrendador de los locales, y vendedor del fondo de comercio explotado en ellos y que haya recibido el precio íntegro por él, sólo podrá rechazar la renovación si accediera pagar la indemnización de evicción prevista en el artículo L. 145-14, salvo que presentara pruebas de un motivo reconocido como grave y legítimo en contra del arrendatario.
Artículo L145-26 La renovación de los contratos de arrendamiento que afecten a los inmuebles que pertenezcan al Estado, a los
departamentos, a los municipios y a las entidades públicas no podrá ser denegada sin que la entidad propietaria se vea obligada al pago de la indemnización por evicción prevista en el artículo L. 145-14, aunque su denegación tenga una justificación por una razón de utilidad pública.
Artículo L145-27 En el caso en que se demostrase que el arrendador sólo ha ejercido los derechos que le son conferidos en los
artículos L. 145-17 y siguientes para perjudicar fraudulentamente los derechos del arrendatario, en particular por operaciones de alquiler y reventa, tanto si estas operaciones tuvieran un carácter civil o comercial, el arrendatario tendrá derecho a una indemnización equivalente al importe del perjuicio sufrido.
Artículo L145-28 Ningún arrendatario que pueda aspirar a obtener una indemnización por evicción, podrá ser obligado a dejar los
locales hasta haberla recibido. Hasta el pago de la indemnización, tendrá derecho a mantenerse en el local en las mismas condiciones y cláusulas del contrato de arrendamiento expirado. Sin embargo, la indemnización de ocupación será determinada de acuerdo a las disposiciones de las secciones 6 y 7, teniéndose en cuenta todos los elementos de apreciación.
Por excepción al párrafo anterior en el único caso previsto en el segundo párrafo del artículo L. 145-18, el arrendatario deberá abandonar el local en cuanto reciba el pago de una indemnización provisional fijada por el presidente del Tribunal de grande instance, el cual resolverá a la vista de un peritaje previo ordenado en las formas fijadas por decreto adoptado en Conseil d'Etat, en aplicación del artículo L. 145-56.
Artículo L145-29 En caso de evicción, los locales deberán ser entregados al arrendador el primer día del plazo habitual de disfrute
que siga a la expiración del plazo de quince días a contar desde el pago de la indemnización al arrendatario mismo, en propias manos, o, eventualmente, a un depositario. Si no existiera acuerdo entre las partes, el depositario será nombrado por la resolución judicial que haya decidido la condena al pago de la indemnización o, en su defecto, por simple providencia ante requerimiento.
La indemnización será pagada por el depositario al arrendatario contra un simple recibo, si no hay oposición de los acreedores y contra la entrega de las llaves del local vacío, con el documento justificativo de haber pagado los impuestos, los pagos de los alquileres y a la espera de realizar las posibles reparaciones ordinarias a cargo del arrendatario.
Artículo L145-30 En caso de que no se entregaran las llaves en la fecha fijada y tras su requerimiento, el depositario retendrá un 1%
por cada día de retraso sobre el importe de la indemnización y devolverá esta retención al arrendador contra un simple recibo.
Cuando el plazo de quince días previsto en el artículo L. 145-58 haya finalizado sin que el arrendador haya hecho uso de su derecho al arrepentimiento, la indemnización de evicción deberá ser pagada al arrendatario o, eventualmente, a un depositario, en un plazo de tres meses a contar desde la fecha de una orden emitida por documento extrajudicial que deberá reproducir el presente párrafo, bajo pena de nulidad.
Sección V Del subarriendo Artículos L145-31 a
L145-32
Artículo L145-31 Salvo estipulación en contrario en el contrato de arrendamiento o salvo acuerdo del arrendador, estará prohibido
todo subarriendo, total o parcial,. En caso de subarriendo autorizado, el propietario será citado a acudir a la firma del contrato. Cuando el precio del subarriendo sea superior al precio del alquiler principal, el propietario tendrá la facultad de
exigir un aumento proporcional sobre el precio del alquiler principal, aumento que, si no hubiera acuerdo entre las partes, se determinará según un procedimiento fijado por decreto adoptado en Conseil d'Etat, en aplicación de las disposiciones del artículo L. 145-56.
El arrendatario deberá dar a conocer al propietario su intención de subarrendar por documento extrajudicial o por carta certificada con acuse de recibo. Dentro de los quince días siguientes a la recepción de este aviso o notificación, el propietario deberá dar a conocer si prevé acudir a la firma del contrato. Si, a pesar de la autorización prevista en el primer apartado, el arrendador se negara o si no respondiera, se hará caso omiso de él.
Artículo L145-32 El subarrendatario podrá solicitar la renovación de su contrato de arrendamiento al arrendatario principal en la
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CÓDIGO DE COMERCIO medida de los derechos que este último posea con relación al propietario. El arrendador será citado a acudir a la firma del contrato, como se prevé en el artículo L. 145-31.
En el momento de expiración del contrato del arrendamiento principal, el propietario sólo estará obligado a la renovación si hubiera autorizado o aceptado, expresa o tácitamente, el subarriendo y si, en caso de subarriendo parcial, los locales que sean objeto del arrendamiento principal no forman un todo materialmente indivisible o por acuerdo entre las partes.
Sección VI Del importe del alquiler Artículos L145-33 a
L145-40
Artículo L.145-33 (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 33 V Diario Oficial de 12 de diciembre de 2001)
El importe de los alquileres de los contratos de arrendamiento renovados o actualizados deberá corresponder al valor real del arrendamiento.
En ausencia de acuerdo, este valor será determinado por: 1 Las características del local considerado; 2 El destino de los lugares; 3 Las obligaciones respectivas de las partes; 4 Los factores locales de comercialidad; 5 Los precios habituales propuestos en la zona; Un decreto adoptado en Conseil d'Etat precisará la magnitud de estos elementos.
Artículo L.145-34 (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 33 VI Diario Oficial de 12 de diciembre de 2001)
Salvo que hubiera una modificación notable de los elementos mencionados en los apartados 1° a 4° del artículo L.145-33, el índice de variación del alquiler aplicable en el momento de renovar el contrato, siempre que su duración no fuera superior a nueve años, no podrá exceder de la variación sufrida por el índice nacional trimestral del coste de la construcción publicado por el Instituto Nacional de Estadística y de Estudios Económicos desde la determinación inicial del importe del alquiler en el contrato de arrendamiento expirado. Si no existiese cláusula contractual que fijara el trimestre de referencia de este índice, se tomará como referencia la variación del índice nacional trimestral del coste de la construcción, la cual se calculará por el periodo de nueve años anteriores al último índice publicado.
En caso de renovación posterior a la fecha inicialmente prevista para la expiración del contrato, esta variación será calculada a partir del último índice publicado, por un periodo de igual duración a la que hubiera transcurrido entre la fecha inicial del arrendamiento y la fecha de su renovación efectiva.
Las disposiciones del apartado anterior ya no serán aplicables cuando, por efecto de una tácita reconducción, la duración del arrendamiento sobrepase los doce años.
Artículo L145-35 Los litigios surgidos por la aplicación del artículo L. 145-34 serán sometidos a una comisión departamental de
conciliación, compuesta en igual número de arrendadores y arrendatarios y de personas cualificadas. La comisión se esforzará por conciliar a las partes y emitirá su dictamen.
Si el Juez entrara a conocer paralelamente a la comisión competente por una u otra de las partes, no podrá decidir hasta que la comisión no haya dado su opinión.
La comisión será declarada incompetente cuando no haya dado su opinión en un plazo de tres meses. La composición de la comisión, el modo de nombramiento de sus miembros y sus normas de funcionamiento serán
fijados por decreto.
Artículo L145-36 Los elementos que permitirán determinar el precio de los arrendamientos de terrenos, locales construidos para una
determinada utilización y locales de uso exclusivo de oficinas serán fijados por decreto adoptado en Conseil d'Etat.
Artículo L145-37 Los precios de los alquileres de inmuebles o locales regidos por las disposiciones del presente capítulo, renovados
o no, podrán ser actualizados por demanda de una u otra de las partes, no obstante lo previsto en los artículos L. 145-38 y L. 145-39 y en las condiciones fijadas por decreto adoptado en Conseil d'Etat.
Artículo L.145-38 (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 26 Diario Oficial de 12 de diciembre de 2001)
La demanda de revisión sólo podrá presentarse después de transcurridos tres años desde el comienzo del disfrute del arrendatario o desde la fecha de entrada en vigor del contrato renovado.
Se podrán formular nuevas demandas cada tres años a contar desde el día en que el nuevo precio sea aplicable. Por excepción a lo dispuesto en el artículo L.145-3 y a menos que sea aportada la prueba de una modificación
material de los factores locales de comercialidad que haya conllevado por sí misma una variación de más del 10% del valor del alquiler, el aumento o la disminución del precio del alquiler consecutivos a una revisión trienal no podrá exceder de la variación del índice trimestral del coste de la construcción sufrida desde la última determinación amistosa o judicial del importe del alquiler.
En ningún caso se tendrán en cuenta, para el cálculo del valor del alquiler, inversiones del arrendatario ni
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CÓDIGO DE COMERCIO plusvalías o depreciaciones derivadas de su gestión durante el contrato de arrendamiento en curso.
Artículo L145-39 Además, no obstante lo dispuesto en el artículo L. 145-38, si el contrato de alquiler incluyera una cláusula de
revisión-actualización, la revisión podrá ser solicitada cada vez que, por el efecto de esta cláusula, el importe del alquiler se vea aumentado o disminuido en más de una cuarta parte con relación al precio fijado anteriormente de modo contractual o por decisión judicial.
Artículo L145-40 Los alquileres pagados por adelantado, sea cual fuere su forma, e incluso a título de garantía, devengarán
intereses a favor del arrendatario, al tipo aplicado por el Banco de Francia para los prestamos con garantía bursátil, en las sumas que sobrepasen a la correspondiente al precio del alquiler de más de dos mensualidades.
Sección VII De la rescisión Artículos L145-41 a
L145-46
Artículo L145-41 Toda cláusula incluida en el contrato de arrendamiento que prevea la rescisión de pleno derecho, no producirá
efecto hasta un mes después de todo tipo de requerimiento que haya quedado sin respuesta. La orden deberá, bajo pena de nulidad, mencionar este plazo.
Los jueces competentes en una demanda presentada en las formas y condiciones previstas en los artículos 1244-1 al 1244-3 del Código Civil podrán, concediendo plazos, suspender la realización y los efectos de las cláusulas de rescisión, cuando la rescisión no haya sido constatada u ordenada por una decisión judicial que haya adquirido el valor de cosa juzgada. La cláusula resolutoria no tendrá efecto si el arrendatario se liberase en las condiciones fijadas por el Juez competente.
Artículo L145-42 Las cláusulas de rescisión de pleno derecho por cese de la actividad, dejarán de tener efecto durante el tiempo
necesario para la realización de las transformaciones hechas en aplicación de las disposiciones de la sección 8. Este plazo no podrá sobrepasar los seis meses a contar desde el acuerdo sobre el cambio de la actividad
comercial o de la decisión judicial que lo autorice.
Artículo L145-43 Estarán dispensados de la obligación de explotar comercialmente, durante la duración de su curso formativo, los
comerciantes y personas inscritas en el Registro central de artesanos, arrendatarios del local en el que está situado su fondo de comercio, que sean admitidos a realizar un curso de readaptación profesional o un curso de cualificación de acuerdo con el artículo L. 900-2 (3º y 5º) del Código de Trabajo, cuya duración mínima será fijada por resolución y cuya duración máxima no podrá exceder de un año, salvo si se tratara de un curso llamado de "promoción" que se beneficie de la autorización prevista en el artículo L. 961-3 de dicho Código.
Artículo L145-44 En el caso de que, al finalizar uno de los cursos previstos en el artículo L. 145-43, el comerciante o el artesano
dejara el local que arrienda para reconvertir su actividad, transfiriéndola a otro local o para iniciar una actividad asalariada, la rescisión del contrato se producirá de pleno derecho, sin indemnización, al expirar un plazo de tres meses a partir del día en que haya sido comunicada al arrendador.
Artículo L145-45 La suspensión de pagos o la liquidación judicial no conllevarán de pleno derecho la rescisión del contrato de
arrendamiento de los inmuebles correspondientes a la industria, al comercio o al la empresa de artesanía del deudor, incluidos los locales que dependan de estos inmuebles y sirvan de vivienda para él o su familia. Toda estipulación en contrario se tendrá por no puesta.
Artículo L145-46 Cuando el arrendador sea a la vez propietario del local y del fondo de comercio que se explote en él y el contrato
de arrendamiento se refiera a ambos, deberá pagar al arrendatario, cuando éste abandone la explotación del local, una indemnización que sea proporcional al beneficio que el propietario pueda obtener gracias a la plusvalía aportada por el arrendatario, ya sea al fondo de comercio, ya sea al valor de alquiler del inmueble en razón de las mejoras materiales efectuadas por el arrendatario con el acuerdo expreso del propietario.
Sección VIII Del cambio de actividad en el local comercial Artículos L145-47 a
L145-55
Artículo L145-47 El arrendatario podrá añadir a la actividad prevista en el contrato de arrendamiento actividades afines o
complementarias. Para ello, deberá dar a conocer su intención al propietario por medio de documento extrajudicial, indicando las
actividades que prevea ejercer. Este acto formal tiene el valor de requerimiento al propietario para que dé a conocer en
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CÓDIGO DE COMERCIO un plazo de dos meses, bajo pena de caducidad, si recurre el carácter conexo o complementario de estas actividades. En caso de recurso, el Tribunal de grande instance que conozca a instancia de la parte más diligente se pronunciará, fundamentalmente, en función de la evolución de los usos y costumbres comerciales.
En la primera revisión trienal después de la notificación citada en el apartado anterior, se podrá, no obstante lo dispuesto en el artículo L. 145-38, tener en cuenta para la fijación del importe del alquiler, las actividades comerciales añadidas, si éstas hubieran conllevado por sí mismas una modificación del valor de arrendamiento de los locales alquilados.
Artículo L145-48 El arrendatario podrá a petición propia, ser autorizado a ejercer en los locales alquilados una o varias actividades
diferentes a las previstas en el contrato de arrendamiento, considerando la coyuntura económica y las necesidades de la organización racional de la distribución, cuando sus actividades sean compatibles con el destino, las características y la situación del inmueble o del conjunto inmobiliario.
Sin embargo, el primer arrendatario de un local incluido en un conjunto que constituya una unidad comercial definida por un programa de construcción no podrá prevalerse en esta facultad durante un plazo de nueve años a contar desde la fecha del comienzo de su uso y disfrute.
Artículo L145-49 La petición al arrendador deberá, bajo pena de nulidad, incluir la indicación de las actividades que prevea ejercer.
Tendrá la forma de documento extrajudicial y será comunicada, en la misma forma a los acreedores inscritos sobre el fondo de comercio. Estos últimos podrán solicitar que el cambio de actividad se subordine a condiciones susceptibles de salvaguardar sus intereses.
El arrendador deberá, dentro del mes siguiente a esta demanda, comunicarla en la misma forma, a aquéllos de sus arrendatarios con los que estuviera comprometido a no alquilar para el ejercicio de actividades similares a las citadas en la demanda. Éstos deberán, bajo pena de preclusión, dar a conocer su postura dentro del mes siguiente a la notificación.
Si el arrendador, en los tres meses siguientes a la demanda, no hubiera comunicado su denegación, su aceptación o incluso las condiciones a las que subordina su acuerdo, se considerará que ha aceptado la demanda. Esta aceptación no será obstáculo para el ejercicio de los derechos previstos en el artículo L. 145-50.
Artículo L145-50 El cambio de actividad podrá motivar el pago, a cargo del arrendatario, de una indemnización igual al importe del
perjuicio cuya existencia determine el arrendador. Éste último podrá, además, como contrapartida de la ventaja obtenida, solicitar en el momento de la transformación
la modificación del precio del alquiler sin que haya que aplicar las disposiciones de los artículos L. 145-37 a L. 145-39. Los derechos de los acreedores inscritos sobre el fondo de comercio transformado se ejercerán con el orden de
prelación anterior,
Artículo L145-51 Cuando el arrendatario que hubiera solicitado beneficiarse de sus derechos de jubilación o que hubiera sido
autorizado a beneficiarse de una pensión de invalidez atribuida por el régimen de seguros de invalidez-fallecimiento de los profesionales de la artesanía o de los profesionales industriales y comerciales, comunique a su propietario y a los acreedores inscritos sobre el fondo comercial su intención de ceder su contrato de arrendamiento, precisando la naturaleza de las actividades proyectadas, así como el precio propuesto, el arrendador, en un plazo de dos meses, tendrá derecho de tanteo en las condiciones determinadas en la comunicación. Si el arrendador no hiciera uso de este derecho, su acuerdo se considerará admitido si, en el mismo plazo de dos meses, no recurriera al Tribunal de grande instance.
La naturaleza de las actividades cuyo ejercicio se prevea tendrá que ser compatible con el destino, las características y la situación del inmueble.
Las disposiciones del presente artículo serán aplicables al socio único de una empresa unipersonal de responsabilidad limitada, o al gerente mayoritario desde al menos dos años antes de una sociedad de responsabilidad limitada, cuando ésta sea titular del contrato de arrendamiento.
Artículo L145-52 El Tribunal de grande instance podrá autorizar la transformación total o parcial, a pesar de la denegación del
arrendador, si esta denegación no estuviera justificada por un motivo grave y legítimo. Si el desacuerdo se centrara solamente en el precio del alquiler, éste será fijado en conformidad con las
disposiciones reglamentarias previstas para la determinación del precio de los alquileres revisados. En los demás casos, el asunto se llevará ante el Tribunal.
Artículo L145-53 La denegación de la transformación estará suficientemente motivada si el arrendador justificara que prevé retomar
el local cuando expire el período trienal en curso, bien en aplicación de los artículos L. 145-18 a L. 145-24, bien con vistas a ejecutar obras prescritas o autorizadas en el marco de una operación de renovación urbana o de restauración inmobiliaria.
El arrendador que haya alegado falsamente uno de los motivos previstos en el apartado anterior o que no haya cumplido las condiciones por las que el arrendatario ha rechazado la demanda, no podrá oponerse a una nueva demanda de transformación de actividad, salvo por motivos graves y legítimos, a menos que la no ejecución no le sea
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CÓDIGO DE COMERCIO imputable. Podrá, además, ser condenado a pagar al arrendatario una indemnización en razón del perjuicio sufrido por este último.
Artículo L145-54 No se tendrá en cuenta la plusvalía conferida al fondo de comercio por la transformación prevista en el artículo L.
145-48, cuando el inmueble en el que se explote el fondo de comercio deba ser demolido o restaurado, o cuando el fondo deba ser expropiado en el marco de una operación de renovación o de restauración inmobiliaria decidida menos de tres años después de la demanda prevista en el apartado 1 de dicho artículo.
Artículo L145-55 En cualquier momento y hasta la expiración de un plazo de quince días a contar desde la fecha en la que la
decisión judicial haya tomado valor de cosa juzgada, el arrendatario que haya formulado una demanda de conformidad con los artículos L. 145-47, L. 145-48 o L. 145-49 podrá renunciar a ello previa notificación al arrendador por documento extrajudicial y, en tal caso pagará las costas de la instancia.
Sección IX Del procedimiento Artículos L145-56 a
L145-60
Artículo L145-56 Las reglas de competencia y de procedimiento de los conflictos relativos al arrendamiento serán determinados por
decreto adoptado en Conseil d'Etat.
Artículo L145-57 Durante el transcurso de la instancia relativa a la determinación del precio del alquiler actualizado o renovado, el
arrendatario estará obligado a continuar pagando las mensualidades vencidas al precio antiguo o, llegado el caso, al precio que, en cualquier caso, podrá fijar a título provisional la jurisdicción que conozca, salvo acuerdo sobre las cuentas entre el arrendador y el arrendatario, tras la fijación definitiva del precio del alquiler.
En el plazo de un mes tras la comunicación de la decisión definitiva, las partes firmarán un nuevo contrato en las condiciones fijadas judicialmente, a menos que el arrendatario renuncie a la renovación o que el arrendador la rechace, soportando las costas la parte que haya mostrado el desacuerdo. Si el arrendador no hubiera enviado en este plazo dado para la firma del arrendatario el proyecto del contrato conforme a la decisión anteriormente citada o, si no hubiera acuerdo en el mes siguiente a este envío, la resolución que fija el precio o las condiciones del nuevo contrato tendrá la validez de contrato.
Artículo L145-58 El propietario, hasta la expiración de un plazo de quince días contados a partir de la fecha en la que la decisión
adquiriese el valor de cosa juzgada, podrá sustraerse al pago de la indemnización, si soporta los gastos de la instancia y concede la renovación del contrato cuyas condiciones, en caso de desacuerdo, serán fijadas de conformidad con las disposiciones reglamentarias tomadas a este efecto. Este derecho sólo podrá ser ejercido si el arrendatario está aún en el local y no ha alquilado o comprado ya otro inmueble destinado a su reinstalación.
Artículo L145-59 La decisión del propietario de rechazar la renovación del contrato del alquiler, en aplicación del último apartado del
artículo L. 145-57, o de sustraerse al pago de la indemnización, en las condiciones previstas en el último apartado del artículo L. 145-58, será irrevocable
Artículo L145-60 Todas las acciones ejercidas en virtud del presente capítulo prescribirán a los dos años.
CAPITULO VI De los gerentes-mandatarios Artículos L146-1 a
L146-4
Artículo L.146-1 (introducido por la Ley nº 2005-882 de 2 de agosto de 2005 art. 19 Diario Oficial de 3 de agosto de 2005)
Las personas físicas o jurídicas que gestionen un fondo de comercio o un fondo artesanal, a cambio del pago de una comisión proporcional a la cifra de negocios del fondo, recibirán la denominación de "gerentes-mandatarios" cuando suscriban un contrato con el mandante por cuenta del cual estas gestionen el fondo, eventualmente a través de una agrupación, y cuando en virtud de dicho contrato, en el que el mandante sigue siendo el propietario del fondo y soporta los riesgos derivados de su explotación, se les atribuya la misión -dentro de los límites previamente establecidos- de determinar libremente sus propias condiciones laborales, contratar personal y encontrarse sustitutos para reemplazarlos en el ejercicio de sus funciones con cargo a ellos mismos y bajo su entera responsabilidad.
El gerente-mandatario estará inscrito en el Registro de Comercio y de Sociedades y, en su caso, en el Registro Central de Artesanos. El contrato será mencionado en el Registro correspondiente y será publicado en un periódico autorizado para publicar anuncios legales.
Lo dispuesto en el presente capítulo no será de aplicación a las profesiones reguladas por el capítulo II del título VIII del libro VII del Código de Trabajo.
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CÓDIGO DE COMERCIO Artículo L.146-2 (introducido por la Ley nº 2005-882 de 2 de agosto de 2005 art. 19 Diario Oficial de 3 de agosto de 2005)
Antes de la firma del contrato, el mandante entregará al gerente-mandatario toda la información necesaria para el desempeño de su misión, de conformidad con lo establecido por decreto, permitiendo de esta forma que el mismo pueda comprometerse con conocimiento de causa.
Artículo L.146-3 (introducido por la Ley nº 2005-882 de 2 de agosto de 2005 art. 19 Diario Oficial de 3 de agosto de 2005)
Mediante convenio marco suscrito entre el mandante y sus gerentes-mandatarios, o los representantes de los mismos, se fijará el importe de la comisión mínima garantizada en todos los contratos de gerencia-mandato suscritos por dicho mandante. Esta comisión mínima tendrá en cuenta la magnitud del establecimiento en cuestión y las modalidades de explotación del mismo.
En ausencia de convenio marco, el Ministro competente en materia de pequeñas y medianas empresas fijará dicha comisión mínima.
Artículo L.146-4 (introducido por la Ley nº 2005-882 de 2 de agosto de 2005 art. 19 Diario Oficial de 3 de agosto de 2005)
El contrato entre el mandante y el gerente-mandatario podrá rescindirse en cualquier momento con arreglo a las condiciones establecidas por las partes. No obstante, en caso de rescisión del contrato por parte del mandante, salvo que el gerente-mandatario hubiera cometido una falta grave, el mandante deberá abonarle una indemnización que, en ausencia de condiciones más favorables establecidas por las partes, será igual al importe de las comisiones cobradas, o a la comisión mínima garantizada mencionada en el artículo L.146-3, durante los seis meses anteriores a la rescisión del contrato, o durante el periodo de ejecución del contrato si este fuera inferior a seis meses.
LIBRO II DE LAS SOCIEDADES MERCANTILES Y DE LAS AGRUPACIONES DE INTERÉS ECONÓMICO
Artículos L210-1 a L252-13
TITULO I DISPOSICIONES PRELIMINARES Artículos L210-1 a
L210-9
Artículo L210-1 El carácter mercantil de una sociedad viene dado por su forma o por su objeto. Serán mercantiles en razón de su forma y sea cual fuere su finalidad, las sociedades colectivas, las sociedades
comanditarias simples, las sociedades de responsabilidad limitada y las sociedades por acciones.
Artículo L210-2 La forma, la duración que no podrá exceder de noventa y nueve años, la denominación social, la sede social, el
objeto social y el importe del capital social se fijarán en los estatutos de la sociedad.
Artículo L210-3 Las sociedades cuya sede social esté situada en territorio francés se someterán a la Ley francesa. Los terceros podrán hacer valer la sede estatutaria, pero la sociedad no podrá alegarla frente a terceros, si su sede
real está situada en otro lugar.
Artículo L210-4 Las requisitos formales de publicidad exigidos en la constitución de la sociedad o para los actos y deliberaciones
posteriores, se fijarán por decreto adoptado en Conseil d'Etat.
Artículo L210-5 En lo que se refiera a las operaciones de las sociedades de responsabilidad limitada y de las sociedades por
acciones realizadas antes del décimo sexto día de la publicación en el Boletín Oficial de anuncios civiles y comerciales, cuyas actas e indicaciones deban someterse a esta publicidad, no podrán ser alegadas frente a terceros que prueben que les ha sido imposible tener conocimiento de ellas.
Si en la publicidad de las actas e indicaciones que se refieran a las sociedades de responsabilidad limitada y a las sociedades por acciones, se produjera discordancia entre el texto depositado en el Registro de Comercio y de Sociedades y el texto publicado en el Boletín oficial de anuncios civiles y comerciales, éste último no podrá oponerse frente a terceros; éstos, sin embargo sí podrán ampararse en él, a no ser que la sociedad pruebe que tuvieron conocimiento del texto depositado en el Registro de Comercio y de Sociedades.
Artículo L210-6 Las sociedades mercantiles gozarán de personalidad jurídica desde la fecha de su inscripción en el Registro de
Comercio y de Sociedades. La transformación legal de una sociedad no conllevará la creación de una nueva persona jurídica. Lo mismo sucederá en caso de prórroga de la misma.
Las personas que hayan actuado en nombre de una sociedad en fase de constitución antes de que haya adquirido personalidad jurídica, estarán personal y solidariamente obligadas por los actos realizados, a menos que la sociedad asuma los compromisos suscritos tras haber sido válidamente constituida e inscrita. Se considerará entonces que estos compromisos han sido suscritos desde el inicio por la sociedad.
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CÓDIGO DE COMERCIO Artículo L210-7
Se procederá a la inscripción de la sociedad tras la comprobación de la validez de su constitución en las condiciones previstas por las disposiciones legislativas y reglamentarias relativas al Registro de Comercio y de Sociedades, por parte del Secretario del Tribunal competente.
Si los estatutos no contuvieran todas las declaraciones exigidas por la Ley y los reglamentos, o si una formalidad prescrita por éstos para la constitución de la sociedad hubiera sido omitida o irregularmente realizada, todo interesado podrá demandar judicialmente que se ordene la regularización de su constitución, bajo pena de multa. El Ministerio Público también estará legitimado para actuar con este fin.
Se aplicarán las disposiciones de los apartados anteriores en el supuesto de modificación de los estatutos. La acción prevista en el segundo apartado prescribirá a los tres años a partir de la fecha de su inscripción en el
Registro de Comercio y de Sociedades, o de la de la inscripción modificativa en dicho registro y de su depósito, en anexo de dicho registro, de los actos que modifiquen los estatutos.
Artículo L210-8 Los fundadores de la sociedad, así como los primeros miembros de los órganos de gestión, de administración, de
dirección y de supervisión, serán solidariamente responsables del perjuicio causado por la falta de alguna anotación obligatoria en los estatutos, así como por la omisión o cumplimiento irregular de algún acto formal prescrito por la Ley y los reglamentos para la constitución de la sociedad.
Las disposiciones del párrafo anterior serán aplicables, en caso de modificación de los estatutos, a los miembros de los órganos de gestión, de administración, de dirección, de supervisión y de control, que estén en activo en el momento de dicha modificación.
La acción prescribirá a los diez años a partir de la realización de uno u otro, según el caso, de las requisitos formales citadas en el párrafo cuarto del artículo L. 210-7.
Artículo L210-9 Ni la sociedad ni los terceros podrán ampararse, para sustraerse a sus obligaciones, en una irregularidad en la
designación de las personas encargadas de gestionar, administrar o dirigir la sociedad, cuando esta designación haya sido publicada debidamente.
La sociedad no podrá alegar frente a terceros, las designaciones o les ceses en sus funciones de las personas citadas anteriormente, en tanto que no hayan sido publicados válidamente.
TITULO II DISPOSICIONES PARTICULARES RELATIVAS A LAS DIVERSAS SOCIEDADES
MERCANTILES Artículos L221-1 a L229-15
CAPITULO I De las sociedades colectivas Artículos L221-1 a
L221-17
Artículo L221-1 Todos los socios colectivos tendrán la condición de comerciantes y responderán personal y solidariamente de las
deudas sociales con todos sus bienes. Los acreedores de la sociedad únicamente podrán reclamar judicialmente el pago de las deudas sociales a un
socio después de haber requerido de pago sin resultado a la sociedad por documento extrajudicial.
Artículo L221-2 La sociedad colectiva será identificada por una denominación social, a la que se podrá incorporar el nombre de uno
o varios socios y deberá ser inmediatamente precedida o seguida de la designación "sociedad colectiva".
Artículo L221-3 Todos los socios serán gerentes, salvo estipulación contraria en los estatutos, los cuales podrán designar uno o
varios gerentes, socios o no, o prever su designación en un acto ulterior. Si el gerente fuera una persona jurídica, sus dirigentes estarán sometidos a las mismas condiciones y obligaciones
e incurrirán en las mismas responsabilidades civil y penal que si fueran gerentes como persona física, sin perjuicio de la responsabilidad solidaria de la persona jurídica que dirijan.
Artículo L221-4 En las relaciones entre socios, y si sus poderes no estuvieran delimitados por los estatutos, el gerente podrá
realizar cualquier acto de gestión en beneficio de la sociedad. En caso de pluralidad de gerentes, éstos ostentarán por separado los poderes previstos en el párrafo anterior, con
la excepción del derecho de cada uno a oponerse a cualquier operación antes de que sea concluida.
Artículo L221-5 En las relaciones con terceros, el gerente comprometerá a la sociedad en aquellos actos que formen parte de su
objeto social. En caso de pluralidad de gerentes, éstos detentarán por separado los poderes previstos en el párrafo anterior. La
oposición presentada por un gerente frente a los actos de otro gerente no tendrán efecto frente a terceros, a menos que se demuestre que éstos tuvieron conocimiento de ella.
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CÓDIGO DE COMERCIO Las cláusulas estatutarias que limiten los poderes de los gerentes derivadas del presente artículo no serán
oponibles frente a terceros.
Artículo L221-6 Los acuerdos que sobrepasen las atribuciones otorgadas a los gerentes serán tomadas por unanimidad de los
socios. Sin embargo, los estatutos podrán prever que algunos acuerdos puedan ser tomados por una mayoría que dichos estatutos determinen.
Los estatutos podrán así mismo prever que las decisiones sean tomadas por medio de consulta escrita, si ningún socio hubiera solicitado la reunión de la junta.
Artículo L221-7 (Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 6 Diario Oficial de 22 de diciembre de 2004)
El informe de gestión, el inventario y las cuentas anuales realizadas por los gerentes serán sometidos a la aprobación de la junta de socios en el plazo de seis meses a partir del cierre de dicho ejercicio.
Para ello, los documentos citados en el párrafo anterior, el texto de las resoluciones propuestas así como, en su caso, el informe de los Auditores de cuentas, las cuentas consolidadas y el informe sobre la gestión del grupo serán presentados a los socios en las condiciones y en los plazos fijados por decreto adoptado en Conseil d'Etat . Todo acuerdo que infrinja las disposiciones del presente párrafo y del decreto en el que se basa para su aplicación, podrá ser anulado.
Toda cláusula en contrario a las disposiciones del presente artículo y al decreto adoptado para su aplicación se tendrá por no puesta.
Los apartados tercero a sexto del artículo L. 225-100 y el artículo L. 225-100-1 se aplicarán al informe de gestión cuando el conjunto de las participaciones sean poseídas por personas que dispongan de las siguientes formas jurídicas: sociedad anónima, sociedad comanditaria por acciones sociedad de responsabilidad limitada.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L221-8 Los socios no gerentes tendrán derecho a que les sean mostrados los libros y los documentos de la sociedad y a
plantear por escrito preguntas sobre la gestión social, de las que deberán recibir respuesta igualmente por escrito dos veces al año.
Artículo L221-9 Los socios podrán nombrar a uno o varios auditores de cuentas en las formas previstas por el artículo L. 221-6. Las sociedades que sobrepasen, al cierre del ejercicio social, las cifras fijadas por decreto adoptado en Conseil
d'Etat para dos de los siguientes criterios: el total de su balance, la suma total, sin incluir impuestos, de su volumen de negocio o el número medio de empleados en el transcurso de un ejercicio.
Aunque no se alcancen estos niveles, cualquier socio podrá solicitar judicialmente el nombramiento de un auditor de cuentas.
Artículo L221-10 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 112, Artículo 116 Diario Oficial de 2 de agosto de 2003)
I. - Los auditores de cuentas, que deberán ser escogidos de entre la lista citada en el artículo L.822-1, serán nombrados para un período de seis ejercicios.
II. y III. - Párrafos derogados. IV. - Serán nulos los acuerdos tomados sin que haya habido designación regular de auditores de cuentas o
basados en informes de auditores de cuentas nombrados o requeridos para la función infringiendo las disposiciones del presente artículo. La acción de nulidad se extinguirá si dichos acuerdos fueran expresamente confirmados en una junta, sobre la base de un informe de auditores designados válidamente.
Artículo L221-11 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 116 Diario Oficial de 2 de agosto de 2003)
Las disposiciones correspondientes a las facultades, las incompatibilidades citadas en el artículo L. 822-3, las funciones, las obligaciones, la responsabilidad, la substitución, la recusación, la revocación, la remuneración de los Auditores de cuentas de las sociedades anónimas serán aplicables a las sociedades colectivas, sin perjuicio de lo dispuesto por sus propias normas.
Las juntas o las consultas se le notificarán al auditor de cuentas al mismo tiempo, como mínimo, que a los socios. Éste tendrá acceso a las juntas.
Los documentos citados en el primer apartado del artículo L.221-7 serán puestos a disposición del auditor de cuentas en las condiciones y en los plazos determinados por decreto adoptado en Conseil d'Etat .
Artículo L221-12 Si todos los socios fueran gerentes o si en los estatutos fueran nombrados uno o varios gerentes elegidos entre los
socios, la revocación en sus funciones de uno de ellos sólo podrá ser decidida por unanimidad de los demás socios. Dicha revocación conllevaría la disolución de la sociedad, a menos que su continuidad estuviera prevista en los estatutos o que los demás socios la decidieran por unanimidad. El gerente revocado podrá entonces decidir retirarse de la sociedad, solicitando el reembolso de sus derechos sociales, cuyo valor será determinado en conformidad con el artículo 1843-4 del Código Civil. Cualquier cláusula en contrario al artículo 1843-4 de dicho código se tendrá por no
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CÓDIGO DE COMERCIO puesta.
Si uno o varios socios fueran gerentes y no fueran designados por los estatutos, cada uno de ellos podrá ser relevado de sus funciones, en las condiciones previstas por los estatutos o, en su defecto, por la decisión unánime de todos los demás socios, gerentes o no.
El gerente no socio podrá ser revocado en las condiciones previstas por los estatutos o, en su defecto por una decisión de los socios tomada por mayoría.
Si la revocación se decidiera sin motivo justificado, podrá dar lugar a indemnización por daños y perjuicios.
Artículo L221-13 Las participaciones sociales no podrán ser representadas por títulos negociables. No podrán ser cedidas si no es
con el consentimiento de todos los socios. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L221-14 Se tendrá que dar constancia por escrito de la cesión de participaciones sociales. De este modo será oponible
frente a la sociedad, en las formas previstas en el artículo 1690 del Código Civil. Sin embargo, la notificación podrá ser sustituida por el depósito de un original del acta de cesión en la sede social con entrega, por parte del gerente, de un certificado de tal depósito.
Sólo será oponible frente a terceros tras el cumplimiento de estos requisitos formales además de su publicidad en el Registro de Comercio y de Sociedades.
Artículo L221-15 La sociedad quedará disuelta por el fallecimiento de uno de los socios, no obstante lo dispuesto en el presente
artículo. Si se ha estipulado que, en caso de fallecimiento de uno de sus socios, la sociedad continuaría con su heredero o
solamente con los socios supervivientes, se seguirán estas disposiciones, salvo si se previera que para ser socio, el heredero necesitara contar con la aceptación de la sociedad.
Lo mismo sucederá si se ha estipulado que la sociedad continuara, o bien con el cónyuge superviviente, o bien con uno o varios de los herederos, o bien con cualquier otra persona designada por los estatutos o, si éstos lo permitieran, por disposiciones testamentarias.
Cuando la sociedad continúe con los socios supervivientes, el heredero solamente será acreedor de la sociedad y únicamente tendrá derecho al valor de los derechos sociales de su causante. El heredero tendrá igualmente derecho a este valor si, habiéndose estipulado que para ser socio necesita la autorización de la sociedad, ésta le hubiera sido denegada.
Cuando la sociedad continuara en las condiciones previstas en el párrafo tercero anterior, los beneficiarios de la estipulación al tenor de esta cláusula adeudarán a los sucesores el valor de los derechos sociales que les hayan sido atribuidos.
En todos los casos previstos en el presente artículo, el valor de los derechos sociales será el correspondiente al día del fallecimiento en conformidad con el artículo 1843-4 del Código Civil.
En caso de continuidad y si uno o varios de los herederos del socio fueran menores no emancipados, éstos sólo responderán de las deudas sociales hasta el valor del activo de la herencia de su causante. Además, la sociedad deberá ser transformada, en el plazo de un año, a partir del día del fallecimiento, en sociedad comanditaria en la que el menor se convertirá en comanditario. Si esto no se cumpliera, la sociedad quedaría disuelta.
Artículo L.221-16 (Ley nº 2005-845 de 26 de julio de 2005 art. 162 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando se dictara una resolución judicial firme por la que se estableciera una liquidación judicial, o un plan de cesión total, o se dispusiera una medida de inhabilitación para ejercer una profesión comercial o una medida de incapacidad con relación a uno de los socios, la sociedad quedará disuelta, a menos que se previera su mantenimiento en los estatutos o que los demás socios lo decidieran por unanimidad.
En el caso de mantenimiento, el valor de los derechos sociales que se debiera reembolsar al socio que perdiera dicha condición será determinado de conformidad con lo dispuesto en el artículo 1843-4 del Código CiviL.Cualquier cláusula en contrario al artículo 1843-4 de dicho Código se tendrá por no puesta.
Artículo L221-17 Las sociedades colectivas que, a día 1 de abril de 1967, utilizaran en su razón social el nombre de uno o varios
socios fundadores fallecidos, podrán ser autorizadas, como excepción a lo establecido en las disposiciones de los artículos L.221-2 y L. 222-3, a conservar ese nombre en su denominación social.
Un decreto adoptado en Conseil d'Etat determinará las condiciones a las que se subordinará esta autorización. Este decreto fijará además las condiciones en las que terceros podrán formular su oposición ante las jurisdicciones
competentes.
CAPITULO II De las sociedades en comandita simple Artículos L222-1 a
L222-12
Artículo L222-1
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CÓDIGO DE COMERCIO Los socios colectivos tendrán el estatuto de socios en nombre colectivo. Los socios comanditarios responderán de las deudas sociales solamente hasta el importe de su aportación. Ésta
no podrá ser industrial.
Artículo L222-2 Las disposiciones relativas a las sociedades colectivas serán aplicables a las sociedades comanditarias simples,
no obstante lo dispuesto por las normas previstas en el presente capítulo.
Artículo L222-3 La sociedad comanditaria simple será designada por una denominación social a la que puede ser incorporado el
nombre de uno o varios socios y que deberá ir inmediatamente precedida o seguida de las palabras: "sociedad comanditaria simple".
Artículo L222-4 Los estatutos de la sociedad deberán contener las siguientes menciones: 1º El importe o el valor de las aportaciones de todos sus socios; 2º La parte en ese importe o ese valor de cada socio colectivo o comanditario; 3° La parte global de los socios colectivos y la parte de cada socio comanditario en el reparto de los beneficios y en
el superávit fruto de la liquidación.
Artículo L222-5 Las decisiones serán tomadas en las condiciones establecidas por los estatutos. Sin embargo, se convocará por
derecho una junta de todos los socios, si se fuera solicitada por parte de un colectivo, o por un cuarto en número y en capital de los comanditarios.
Artículo L222-6 El socio comanditario no podrá realizar ningún acto de gestión externa, ni siquiera actuando como apoderado. En caso de infracción a la prohibición prevista por el párrafo anterior, el socio comanditario será considerado
solidariamente responsable con los socios colectivos de las obligaciones contraídas por la sociedad resultantes de estas operaciones prohibidas. Según el número o la importancia de éstas, podría ser declarado solidariamente responsable de todas las obligaciones de la sociedad o sólo de algunas.
Artículo L222-7 Los socios comanditarios, dos veces al año, tendrán derecho a que les sean mostrados los libros y los documentos
sociales y a formular por escrito preguntas sobre la gestión social, a las cuales deberán recibir igualmente contestación por escrito.
Artículo L222-8 I. - Las participaciones de un socio no podrán ser cedidas si no es con el consentimiento de los demás socios. II. - Sin embargo, los estatutos podrán estipular: 1º Que las participaciones de los socios comanditarios sean libremente cedibles entre socios; 2º Que las participaciones de los socios comanditarios puedan ser cedidas a personas ajenas a la sociedad con el
consentimiento de todos los socios colectivos y de la mayoría en número y en capital de los comanditarios; 3º Que un socio colectivo pueda ceder un porcentaje de sus participaciones a un comanditario o a un tercero, ajeno
a la sociedad, en las condiciones previstas en el párrafo 2º de este artículo.
Artículo L222-9 Los socios no podrán, si no es por unanimidad, cambiar la nacionalidad de la sociedad. Cualquier otra modificación de los estatutos podrá ser decidida con el consentimiento de todos los socios colectivos
y de la mayoría en número y en capital de los comanditarios. Las cláusulas que estipulen condiciones de mayoría más estrictas se tendrán por no puestas.
Artículo L222-10 La sociedad continuará a pesar del fallecimiento de un comanditario. Si estuviera estipulado que a pesar del fallecimiento de uno de los socios colectivos, la sociedad continuase con
sus herederos, éstos se convertirían en comanditarios cuando fueran menores no emancipados. Si el socio difunto fuera el único socio colectivo y si sus herederos fueran todos menores no emancipados, se procedería a su sustitución por un nuevo socio colectivo o a la transformación de la sociedad, en el plazo de un año a partir de este fallecimiento. Si no se hiciera, la sociedad quedaría disuelta de pleno derecho al finalizar dicho plazo.
Artículo L222-11 En caso de declaraciones judiciales de suspensión de pagos o de liquidación de uno de los socios colectivos, de
inhabilitación para ejercer una profesión comercial o de incapacidad, que afecte a uno de los socios colectivos, la sociedad será disuelta, a menos que, si hubiera uno o varios socios colectivos más, los estatutos prevean la continuidad de la sociedad o que los socios lo decidieran por unanimidad. En ese caso, se aplicarán las disposiciones del párrafo segundo del artículo L.221-16.
Artículo L222-12 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Se aplicarán las disposiciones del artículo L. 221-17 a las sociedades comanditarias simples.
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CÓDIGO DE COMERCIO CAPITULO III De las sociedades de responsabilidad limitada Artículos L223-2 a
L223-43
Artículo L223-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 1 I Diario Oficial de 5 de agosto de 2003)
El importe del capital social estará fijado por los estatutos. Se dividirá en participaciones sociales iguales.
Artículo L223-3 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 11 Diario Oficial de 27 de marzo de 2004)
El número de socios de una sociedad de responsabilidad limitada no podrá ser superior a cien. Si la sociedad llegara a tener más de cien socios, quedaría disuelta al término de un plazo de un año, a menos que durante dicho plazo el número de socios hubiera disminuido hasta una cifra igual o inferior a cien o que la sociedad hubiera sido objeto de una transformación.
Artículo L223-4 En caso de reunión en una sola persona de todas las participaciones de una sociedad de responsabilidad limitada,
no serán de aplicación las disposiciones del artículo 1844-5 del Código Civil relativas a la disolución judicial.
Artículo L223-5 Una sociedad de responsabilidad limitada no podrá tener como socio único a otra sociedad de responsabilidad
limitada compuesta de una única persona. En caso de infracción de las disposiciones del párrafo anterior, cualquier interesado podrá instar judicialmente la
disolución de las sociedades irregularmente constituidas. Cuando la irregularidad proviene de la concentración en una sola mano de todas las participaciones de una sociedad que tenga más de una socio, la solicitud de disolución no podrá realizarse antes de un año tras la reunión de las aportaciones. En cualquier caso, el Tribunal podrá conceder un plazo máximo de seis meses para regularizar la situación y no podrá decidir su disolución si se produjera su regularización con anterioridad al día en que resolviera sobre el fondo.
Artículo L223-6 Todos los socios deberán intervenir en el acto constitutivo de la sociedad, en persona o representados por un
mandatario provisto de un poder especial.
Artículo L223-7 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 124 I Diario Oficial de 16 de mayo de 2001)
Las participaciones sociales deberán ser suscritas por los socios en su totalidad. Estas participaciones deberán estar totalmente desembolsadas cuando representen aportaciones en especie. Las participaciones que representen aportaciones en metálico tendrán que ser desembolsadas al menos en una quinta parte de su importe total. El desembolso del excedente se producirá en una o varias veces, según decida el gerente, en un plazo que no podrá exceder de cinco años a partir de la inscripción de la sociedad en el Registro de Comercio y de Sociedades. Sin embargo, el capital social deberá ser íntegramente desembolsado antes de toda suscripción de nuevas participaciones sociales que hubiera que desembolsar en metálico, bajo pena de nulidad de la operación.
En su caso, los estatutos definirán las condiciones según las cuales podrán ser suscritas las participaciones sociales industriales.
Los estatutos deberán mencionar la distribución de las participaciones sociales. Los fondos que provengan del desembolso de las participaciones sociales serán depositados en las condiciones y
plazos definidos por decreto adoptado en Conseil d'Etat.
Artículo L223-8 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 15 Diario Oficial de 27 de marzo de 2004)
El mandatario de la sociedad no podrá efectuar la retirada de los capitales que provengan del desembolso de las participaciones sociales antes de la inscripción de ésta en el Registro de Comercio y de Sociedades.
Si la sociedad no estuviera constituida en el plazo de seis meses a contar desde el primer depósito de fondos, o si no estuviera inscrita en el Registro de Comercio y de Sociedades en el mismo plazo, los partícipes podrán de manera individual solicitar judicialmente la autorización para retirar el importe de sus aportaciones. En los mismos casos, cualquier mandatario que represente a todos los partícipes podrá solicitar al depositario la retirada de los fondos.
Si los partícipes decidieran posteriormente constituir la sociedad, tendrán que proceder a un nuevo depósito de fondos.
Artículo L223-9 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Los estatutos deberán incluir la valoración de cada aportación en especie. Para ello se elaborará un informe anexo a los estatutos y realizado bajo su responsabilidad, por un auditor de aportaciones, designado por unanimidad por los futuros socios o, en su defecto, por una decisión judicial a petición del futuro socio más diligente.
Sin embargo, los futuros socios podrán decidir por unanimidad que no sea necesario acudir a un auditor de
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CÓDIGO DE COMERCIO aportaciones, cuando el valor de ninguna aportación en especie excediera de los 7.500 euros y si el valor total del conjunto de las aportaciones en especie no sometidas a la valoración de un auditor no superara la mitad del capital.
Cuando la sociedad esté constituida por una sola persona, el auditor de aportaciones será designado por el socio único. Sin embargo, el recurso a un auditor de cuentas no será obligatorio si se cumplen las condiciones previstas en el párrafo anterior.
Cuando no hubiera habido auditor de aportaciones o cuando el valor de tasación hubiera sido diferente del propuesto por el auditor de aportaciones, los socios serán solidariamente responsables durante cinco años, frente a terceros, del valor atribuido a las aportaciones en especie en el momento de la constitución de la sociedad.
Artículo L223-10 Los primeros gerentes y los socios a los que se pueda imputar la nulidad de la sociedad, serán solidariamente
responsables, frente a los demás socios y frente a terceros del perjuicio resultante de la anulación. La acción prescribirá en el plazo previsto en el párrafo primero del artículo L. 235-13.
Artículo L223-11 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 12 Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XV Diario Oficial de 10 de diciembre de 2004)
La sociedad de responsabilidad limitada que, con arreglo al artículo L. 223-35, esté sujeta a la obligación de designar a un auditor de cuentas y cuyas cuentas de los últimos tres ejercicios de doce meses hayan sido válidamente aprobadas por los socios podrá, emitir obligaciones nominativas, sin necesidad de hacer un llamamiento público al ahorro.
La emisión de obligaciones será decidida por la junta de socios de conformidad con las disposiciones aplicables a las juntas generales de socios. Estos títulos estarán sujetos a las disposiciones aplicables a las obligaciones emitidas por las sociedades por acciones, con exclusión de las previstas por los artículos L. 228-39 a L. 228-43 y L. 228-51.
En cada emisión de obligaciones por una sociedad que cumpla las condiciones del apartado primero, la sociedad deberá poner a disposición de los suscriptores una reseña relativa a las condiciones de la emisión y un documento informativo con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Estará igualmente prohibido para una sociedad de responsabilidad limitada garantizar una emisión de valores mobiliarios, bajo pena de nulidad de la garantía, salvo si la emisión la realizara una sociedad de desarrollo regional o si se tratara de una emisión de obligaciones que se beneficiara de la garantía subsidiaria del Estado.
Artículo L223-12 Las participaciones sociales no podrán ser representadas por títulos negociables.
Artículo L223-13 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 13 Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XV Diario Oficial de 10 de diciembre de 2004)
Las participaciones sociales serán libremente transmisibles por vía de sucesión o en caso de liquidación de la comunidad de bienes entre esposos y libremente cedibles entre cónyuges y entre ascendientes y descendientes.
No obstante, los estatutos podrán estipular que el cónyuge, un heredero, un ascendiente o un descendiente sólo puede ser socio tras haber obtenido la autorización en las condiciones previstas en el artículo L. 223-14. Bajo pena de nulidad de la cláusula, los plazos concedidos a la sociedad para decidir la aceptación no podrán ser más largos que los previstos en el artículo L.223-14, y la mayoría exigida no podrá ser superior a la prevista en dicho artículo. En caso de denegación de la autorización, se aplicarán las disposiciones de los párrafos tercero y cuarto del artículo L 223-14. Si, en los plazos concedidos, no se diera ninguna de las soluciones previstas en estos párrafos se considerará efectuada la aceptación.
Los estatutos podrán estipular que en caso de fallecimiento de uno de los socios, la sociedad continuará con su heredero o solamente con los socios supervivientes. Cuando la sociedad continúe con los socios supervivientes solamente, o cuando se le hubiera denegado la autorización al heredero, éste tendrá derecho al valor de los derechos sociales de su causante.
Podrá igualmente estipularse que la sociedad continuará, o bien con el cónyuge superviviente, o bien con uno o varios de los herederos, o bien con cualquier otra persona designada por los estatutos o, si éstos lo permitieran, por disposiciones testamentarias.
En los casos previstos en el presente artículo, el valor de los derechos sociales será el correspondiente al día del fallecimiento de conformidad con el artículo 1843-4 del Código Civil.
Artículo L223-14 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 1 III Diario Oficial de 5 de agosto de 2003) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 14 Diario Oficial de 27 de marzo de 2004)
Las participaciones sociales no podrán ser transmitidas a terceros ajenos a la sociedad sin el consentimiento de una mayoría de los socios que representen al menos la mitad del capital social, salvo que los estatutos prevean una mayoría más amplia.
Cuando la sociedad tuviese más de un socio, el proyecto de cesión será notificado a la sociedad y a cada uno de los socios. Si la sociedad no diese a conocer su decisión en el plazo de tres meses, a partir de la última de las notificaciones previstas en el presente párrafo, se considerará que la cesión ha sido consentida.
Si la sociedad rechazase la cesión, los socios estarán obligados, en el plazo de tres meses a partir de esta denegación, a adquirir o a hacer adquirir las participaciones a un precio determinado en las condiciones previstas en el
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CÓDIGO DE COMERCIO artículo 1843-4 del Código Civil, a menos que el cedente renuncie a la cesión de sus participaciones. Los gastos relativos al dictamen pericial correrán a cargo de la sociedad. A petición del gerente, este plazo podrá ser prorrogado por resolución judicial sin que esta prórroga pueda sobrepasar los seis meses.
La sociedad también podrá decidir, con el consentimiento del socio cedente, en el mismo plazo, reducir su capital por el importe del valor nominal de las participaciones de este socio y comprárselas por el precio fijado en las condiciones previstas anteriormente. Una resolución judicial podrá conceder a la sociedad, cuando exista motivo justificado, un plazo de pago que no podrá exceder de los dos años. Las cantidades adeudadas devengarán los intereses legales en materia comercial.
Si, tras la expiración del plazo concedido, no se hubiera dado ninguno de los casos previstos en el tercer y cuarto párrafo anteriores, el socio podrá realizar la cesión inicialmente prevista.
Salvo en los casos de sucesión, de liquidación de la comunidad de bienes entre esposos, o de donación en beneficio del cónyuge, de un ascendiente o descendiente, el socio cedente no podrá ampararse en las disposiciones de los párrafos tercero y quinto anteriores si no poseyera sus participaciones desde al menos dos años antes.
Cualquier cláusula en contrario a los dispuesto en el presente artículo se tendrá por no puesta.
Artículo L223-15 Si la sociedad hubiese dado su consentimiento a un proyecto de pignoración de participaciones sociales según las
condiciones previstas en el primer y segundo párrafo del artículo L.223-14, este consentimiento conllevará la autorización del cesionario en caso de realización forzosa de las participaciones sociales pignoradas, según las disposiciones del primer párrafo del artículo 2078 del Código Civil, a menos que la sociedad prefiriera, tras la cesión, comprar de nuevo y de forma inmediata las participaciones con el fin de reducir su capital.
Artículo L223-16 Las participaciones serán libremente cedibles entre los socios. Si los estatutos contuvieran una cláusula que limitara la transmisibilidad, se aplicarán las disposiciones del artículo
L. 223-14. No obstante, los estatutos podrán reducir en tal caso la mayoría necesaria o reducir los plazos previstos en dicho artículo.
Artículo L223-17 La cesión de las participaciones sociales estará sujeta a las disposiciones del artículo L. 221-14.
Artículo L223-19 El gerente o, si lo hubiera, el auditor de cuentas, presentará a la junta o añadirá a los documentos mostrados a los
socios, en caso de consulta escrita, un informe sobre los contratos concluidos, directamente o por personas interpuestas, entre la sociedad y uno de sus gerentes o socios. La junta decidirá en base a este informe. El gerente o el socio interesado no podrá tomar parte en la votación y sus participaciones no serán tenidas en cuenta para el cálculo del quórum y de la mayoría.
Sin embargo, a falta de auditor de cuentas, los contratos concluidos por un gerente no socio tendrán que ser sometidos a la aprobación previa de la junta.
Por excepción a lo establecido en las disposiciones del primer párrafo, cuando la sociedad sólo poseyera un socio y el contrato se hubiera concertado con éste, sólo se hará mención de ello en el registro de acuerdos.
Aunque no se hayan aprobado los contratos, éstos producirán sus efectos a cargo del gerente y, si procede, del socio contratante, que deberán soportar individual o solidariamente, según los casos, las consecuencias perjudiciales del contrato para la sociedad.
Las disposiciones del presente artículo se aplicarán también a los contratos realizados con una sociedad en la que un socio responsable ilimitadamente, gerente, administrador, director general, miembro del directorio o miembro del consejo de supervisión, fuera simultáneamente gerente o socio de la sociedad de responsabilidad limitada.
Artículo L223-20 Las disposiciones del artículo L. 223-19 no serán aplicables a los contratos que consistan en operaciones
corrientes y concertadas en condiciones normales.
Artículo L223-21 Bajo pena de nulidad del contrato, se prohibirá a los gerentes o socios que no sean personas jurídicas, que pidan
créditos a la sociedad, en la forma que sea, que ésta les cubra un descubierto en cuenta corriente o de otro modo, así como que garantice o avale sus obligaciones frente a terceros. Esta prohibición se aplicará a los representantes legales de las personas jurídicas socias.
Esta prohibición se aplicará igualmente al cónyuge, a los ascendientes o descendientes de las personas citadas en el párrafo anterior así como a toda persona interpuesta.
Sin embargo, si la sociedad explotara un establecimiento financiero, esta prohibición no se aplicará a las operaciones corrientes de este tipo de establecimiento realizadas en condiciones normales.
Artículo L223-22 Los gerentes serán responsables, individual o solidariamente, según los casos, frente a la sociedad o a terceros,
de las infracciones a las disposiciones legislativas o reglamentarias aplicables a las sociedades de responsabilidad limitada, de las violaciones a los estatutos, y de los fallos cometidos en su gestión.
Si varios gerentes hubieran cooperado en los mismos hechos, el Tribunal determinará la parte que corresponda a cada uno en la reparación del daño.
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CÓDIGO DE COMERCIO Además del procedimiento iniciado para compensación del perjuicio sufrido personalmente, los socios podrán
ejercer la acción social de resarcimiento por responsabilidad civil contra los gerentes, individualmente o en grupo, en las condiciones fijadas por decreto adoptado en Conseil d'Etat . Los demandantes estarán habilitados para reclamar la reparación íntegra del daño causado a la sociedad, a la cual se le abonará, en su caso, una indemnización por daños y perjuicios.
Se tendrá por no puesta toda cláusula de los estatutos que tuviera por efecto subordinar el ejercicio de la acción social al previo dictamen o autorización de la junta, o que conllevara por adelantado la renuncia a ejercer esta acción,.
Ninguna decisión de la junta podrá tener por efecto extinguir un procedimiento de resarcimiento por responsabilidad civil contra los gerentes por falta cometida en el cumplimiento de su mandato.
Artículo L223-23 Las acciones de responsabilidad civil previstas en los artículos L. 223-19 y L. 223-22 prescribirán a los tres años a
partir del hecho perjudicial o, si éste ha sido ocultado, de su descubrimiento. Sin embargo, cuando el hecho hubiera sido calificado como delito la acción prescribirá a los diez años.
Artículo L223-24 En caso de apertura de un procedimiento de suspensión de pagos o de liquidación judicial en aplicación de las
disposiciones del libro VI, título II, las personas citadas en estas disposiciones podrán ser consideradas responsables del pasivo social y ser sometidas a las privaciones de derechos e inhabilitaciones en las condiciones previstas por dichas disposiciones.
Artículo L223-25 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 17 Diario Oficial de 27 de marzo de 2004)
El gerente podrá ser revocado por decisión de los socios en las condiciones del artículo L. 223-29, salvo que los estatutos previeran una mayoría más amplia. Si la revocación se decidiera sin motivo justificado, podrá dar lugar a indemnización por daños y perjuicios.
Además, el gerente podrá ser revocado por los Tribunales a petición de cualquiera de los socios si mediase causa legítima.
Como excepción a lo establecido en el primer párrafo, el gerente de una sociedad de responsabilidad limitada que explote una empresa de prensa en el sentido del artículo 2 de la Ley no 86-897 de 1 de agosto de 1986 relativo a la reforma del régimen jurídico de la prensa, sólo será revocable por una decisión de los socios que representen, al menos, tres cuartas partes del capital social.
Artículo L223-26 (Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 5 Diario Oficial de 22 de diciembre de 2004)
El informe de gestión, el inventario y las cuentas anuales presentadas por los gerentes se someterán a la aprobación de los socios reunidos en junta en el plazo de seis meses a partir del cierre del ejercicio.
Con este fin, los documentos citados en el párrafo anterior, el texto de las resoluciones propuestas así como, en su caso, el informe de los auditores de cuentas, las cuentas consolidadas y el informe sobre la gestión del grupo serán presentados a los socios en las condiciones y plazos determinados por decreto adoptado en Conseil d'Etat . Todo acuerdo que infrinja las disposiciones del presente párrafo y del decreto en el que se basa para su aplicación, podrá ser anulado.
A partir de la presentación de documentos prevista en el párrafo anterior, todo socio podrá formular por escrito preguntas, a las que el gerente estará obligado a responder en el transcurso de la junta.
El socio podrá, además y en todo momento, tener acceso, en las condiciones fijadas por decreto adoptado en Conseil d'Etat , a los documentos sociales determinados por dicho decreto y relativos a los tres últimos ejercicios.
Cualquier cláusula en contrario a las disposiciones del presente artículo y del decreto en el que se basa para su aplicación, se tendrá por no puesta.
Los apartados tercero a sexto del artículo L. 225-100 y el artículo L. 225-100-1 se aplicarán al informe de gestión. En su caso, el artículo L. 225-100-2 se aplicará al informe consolidado de gestión.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L223-27 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 18 Diario Oficial de 27 de marzo de 2004)
Los acuerdos serán tomados en la junta. Sin embargo, los estatutos podrán estipular que, exceptuando los previstos en el primer párrafo del artículo L.223-26, todos los acuerdos o algunos de ellos podrán ser tomados por consulta escrita de los socios o podrán derivar del consentimiento de todos los socios expresado en un acta.
Los socios serán convocados a las juntas en las formas y plazos previstos por decreto adoptado en Conseil d'Etat . La convocatoria será realizada por el gerente, o en su defecto, por el auditor de cuentas, si lo hubiese. La junta no podrá celebrarse antes de la expiración del plazo de comunicación de los documentos mencionados en el artículo L. 223-26.
Uno o varios socios que ostenten la mitad de las participaciones sociales o que posean un cuarto de las participaciones sociales, siempre y cuando representen al menos una cuarta parte de los socios, podrán solicitar la convocatoria de una junta. Cualquier cláusula en contrario se tendrá por no puesta.
Cualquier socio podrá solicitar judicialmente la designación de un mandatario encargado de convocar la junta y de
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CÓDIGO DE COMERCIO fijar el orden del día.
En caso de fallecimiento del gerente único, el auditor de cuentas o cualquier socio convocará a la junta de socios con el único objetivo de proceder a la sustitución del gerente. Dicha convocatoria se hará en las formas y plazos previstos por decreto adoptado en Conseil d'Etat .
Podrá ser anulada toda junta irregularmente convocada. Sin embargo, la acción de nulidad correspondiente no será admisible cuando todos los socios hayan estado presentes o representados.
Artículo L223-28 Cada socio tendrá derecho a participar en la toma de acuerdos y dispondrá de un número de votos igual al de las
participaciones sociales que posea. Un socio podrá ser representado por su cónyuge a menos que la sociedad esté formada sólo por los dos esposos.
Un socio podrá ser representado por otro socio, salvo en el caso de que los socios sean sólo dos. Un socio podrá hacerse representar por otra persona siempre que los estatutos lo permitan. No podrá nombrar a un mandatario para votar utilizando el poder conferido por una porción de sus participaciones
y votar personalmente utilizando el de la otra porción. Cualquier cláusula en contrario a las disposiciones de los párrafos 1º, 2º y 4º anteriores se tendrá por no puesta.
Artículo L223-29 En las juntas o en las consultas escritas, los acuerdos se tomarán por uno o varios socios que representen más de
la mitad de las participaciones sociales. Si no se obtuviera la mayoría y salvo estipulación contraria de los estatutos, los socios serán convocados o
consultados por segunda vez según los casos, y las decisiones serán tomadas por mayoría de votos emitidos, sea cual fuere el número de votantes.
Artículo L223-32 En caso de ampliación de capital por suscripción de participaciones sociales en metálico, serán aplicables las
disposiciones del último párrafo del artículo L.223-7. La retirada de fondos procedentes de suscripciones podrá ser efectuada por un mandatario de la sociedad tras la
comprobación del certificado del depositario. Si no se realizara la ampliación de capital en el plazo de seis meses a partir del primer depósito de fondos, se
podrán aplicar las disposiciones del segundo párrafo del artículo L. 223-8.
Artículo L223-33 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Si se realizara la ampliación de capital con aportaciones en especie, en su totalidad o en parte, se aplicarán las disposiciones del primer párrafo del artículo L. 223-9. Sin embargo, se nombrará por resolución judicial a un auditor encargado de las aportaciones si un gerente lo solicitase.
Cuando no hubiese intervenido un auditor de aportaciones o cuando el valor declarado fuera diferente del propuesto por el auditor de aportaciones, los gerentes de la sociedad y las personas que hayan suscrito la ampliación de capital serán solidariamente responsables durante cinco años, frente a terceros, del valor atribuido a dichas aportaciones.
Artículo L223-34 La reducción del capital será autorizada por la junta de socios que decidirá dentro de las condiciones exigidas para
la modificación de los estatutos. En ningún caso, podrá vulnerarse la igualdad de los socios. Si intervinieren auditores de cuentas, el proyecto de reducción de capital les será comunicado en el plazo fijado por
decreto adoptado en Conseil d'Etat. Ellos darán a conocer a la junta su apreciación sobre las causas y condiciones de la reducción.
Cuando la junta apruebe un proyecto de reducción de capital no motivado por pérdidas, los acreedores cuyo crédito sea anterior a la fecha del depósito en Secretaría del acta de deliberación podrán oponerse a la reducción en el plazo fijado por decreto adoptado en Conseil d'Etat. Una resolución judicial desestimará esta oposición o bien ordenará el reembolso de los créditos o la constitución de garantías, si la sociedad las ofreciese y fueran juzgadas suficientes. Las operaciones de reducción del capital no podrán empezar durante el plazo dado para formular oposición.
Está prohibida la compra por parte de una sociedad de sus propias participaciones. Sin embargo, la junta que haya decidido una reducción del capital no motivada por pérdidas podrá autorizar al gerente a comprar un número determinado de participaciones sociales para anularlas.
Artículo L223-35 Los socios podrán nombrar a uno o a varios auditores de cuentas en las condiciones previstas en el artículo L.
223-29. Estarán obligadas a nombrar al menos un auditor de cuentas las sociedades de responsabilidad limitada que
sobrepasen, al cierre de un ejercicio social, las cifras fijadas por decreto adoptado en Conseil d'Etat en cuanto a dos de los siguientes criterios: el total de su balance, la suma total, sin incluir impuestos, de su volumen de negocio o el número medio de empleados en el transcurso de un ejercicio.
Aún cuando no se alcanzaran estos límites, uno o varios socios que representen al menos una décima parte del capital podrán presentar demanda judicial para que se designe un auditor de cuentas.
Artículo L223-36
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CÓDIGO DE COMERCIO Todo socio que no sea gerente podrá, dos veces por cada ejercicio, plantear por escrito preguntas al gerente sobre
cualquier hecho que pueda comprometer la continuidad de la explotación. La respuesta del gerente será notificada al auditor de cuentas.
Artículo L223-37 Uno o varios socios que representen al menos una décima parte del capital social podrán, o bien individualmente, o
bien agrupándose bajo cualquier forma, presentar una demanda judicial para el nombramiento de uno o varios contables encargados de presentar un informe sobre una o varias operaciones de gestión.
El Ministerio Público y el comité de empresa estarán habilitados para actuar con estos mismos fines. Si se admite la solicitud, la resolución judicial determinará la extensión de la tarea y de los poderes de los expertos.
Podrá fijar los honorarios a cargo de la sociedad. El informe será dirigido al demandante, al Ministerio Público, al comité de empresa, al auditor de cuentas así como
al gerente. Este informe deberá, además, ir en anexo al realizado por el elaborado por el auditor de cuentas para ser presentado en la siguiente junta general y recibir la misma publicidad.
Artículo L223-38 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 112 Diario Oficial de 2 de agosto de 2003)
I. - Los auditores de cuentas, que deberán ser elegidos de entre los miembros de la lista mencionada en el artículo L. 822-1, serán nombrados por los socios por un período de seis ejercicios.
II. y III. - Párrafos derogados. IV. - Serán nulos los acuerdos tomados sin que se haya producido un nombramiento regular de auditores de
cuentas o basados en un informe de auditores de cuentas nombrados o que hayan permanecido en sus funciones infringiendo las disposiciones del presente artículo. Se pondrá fin a la acción de nulidad si estos acuerdos fueran expresamente confirmados por una junta, basándose en el informe de los auditores de cuentas válidamente designados.
Artículo L223-39 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 116 Diario Oficial de 2 de agosto de 2003)
Las disposiciones correspondientes a los poderes, las incompatibilidades citadas en el artículo L.822-3, las funciones, las obligaciones, la responsabilidad, la suplencia, la recusación, la revocación y la remuneración de los auditores de cuentas de las sociedades anónimas serán aplicables a las sociedades de responsabilidad limitada, siempre que se atengan a las normas propias de éstas.
Los auditores de cuentas recibirán notificación como mínimo al mismo tiempo que los socios, de las celebración de las juntas o de las consultas. Tendrán derecho a participar en las juntas.
Los documentos citados en el primer párrafo del artículo L.223-26 serán puestos a disposición de los Auditores de cuentas en las condiciones fijadas por decreto adoptado en Conseil d'Etat.
Artículo L223-40 Se podrá exigir la restitución de los dividendos a los socios que los hayan percibido siempre que no correspondan
a beneficios realmente obtenidos. La acción restitutoria prescribirá en el plazo de tres años a partir del inicio del reparto de los dividendos.
Artículo L223-41 La sociedad de responsabilidad limitada no será disuelta cuando se haya dictado una resolución judicial de
liquidación, quiebra, inhabilitación para la gestión prevista por el artículo L.625-8 o una medida de incapacitación con relación a uno de los socios.
Tampoco será disuelta por fallecimiento de uno de los socios, salvo que así se prevea en los estatutos.
Artículo L223-42 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 1 IV Diario Oficial de 5 de agosto de 2003)
Si a causa de la constatación de pérdidas en los documentos contables, los fondos propios de la sociedad se hicieran inferiores a la mitad del capital social, los socios decidirán, en los cuatro meses siguientes a la aprobación de las cuentas en las que se haya detectado esta pérdida, si procederá la disolución anticipada de la sociedad.
Si no se decidiera la disolución por la mayoría exigida para la modificación de los estatutos, la sociedad estará obligada, al cierre del segundo ejercicio siguiente al de la constatación de las pérdidas, a reducir su capital a una suma al menos igual a la de las pérdidas que no puedan ser imputadas a las reservas, si, en este plazo, los fondos propios no hubieran sido restituidos hasta por lo menos el valor de la mitad del capital social.
En ambos casos, la resolución adoptada por los socios será publicada con los requisitos formales previstos en decreto adoptado en Conseil d'Etat.
Si el gerente o el auditor de cuentas no hubiese tomado una decisión o si los socios no hubiesen podido decidir de manera válida, todo interesado podrá presentar una demanda judicial para la disolución de la sociedad. Lo mismo ocurrirá si las disposiciones del párrafo segundo anterior no hubieran sido aplicadas. En cualquier caso, el Tribunal podrá conceder a la sociedad un plazo máximo de seis meses para regularizar su situación. No podrá decretar la disolución si se produjera dicha regularización antes de la fecha en la que el tribunal resuelva sobre el fondo.
Las disposiciones del presente artículo no serán aplicables a las sociedades que se encuentren en situación de suspensión de pagos ordenada judicialmente, o que se beneficien de un plan de continuidad.
Artículo L223-43
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CÓDIGO DE COMERCIO (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
La transformación de una sociedad de responsabilidad limitada en sociedad colectiva, en comandita simple o en comandita por acciones, exigirá el acuerdo unánime de los socios.
La transformación en sociedad anónima será decidida por la mayoría requerida para la modificación de los estatutos. Sin embargo, podrá ser decidida por socios que representen la mayoría de las cuotas sociales si los fondos propios que figuran en el último balance sobrepasaran los 750.000 Euros.
La decisión estará precedida de un informe del auditor de cuentas, sobre la situación de la sociedad. Toda transformación efectuada contraviniendo las normas del presente artículo será nula.
CAPITULO IV Disposiciones generales aplicables a las sociedades por acciones Artículos L224-1 a
L224-3
Artículo L224-1 La sociedad por acciones será identificada por una denominación social, que tendrá que estar precedida o seguida
de la fórmula que indique la forma de la sociedad y el importe del capital social. Los nombres de uno o varios socios podrán ser incluidos en la denominación social. Sin embargo, en la sociedad
en comandita por acciones, el nombre de los socios comanditarios no podrá figurar en ella.
Artículo L224-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
El capital social tendrá que ser al menos de 225.000 euros si la sociedad hiciera un llamamiento público al ahorro y de 37.500 euros al menos en caso contrario.
La reducción del capital social a una cantidad inferior sólo podrá ser decidida con la condición suspensiva de una ampliación de capital destinado a reconducir éste a un importe al menos igual al previsto en el párrafo anterior, a menos que la sociedad tome otra forma. En caso de incumplimiento de las disposiciones del presente párrafo, todo interesado podrá presentar una demanda judicial de disolución de la sociedad. Esta disolución no podrá ser acordada si, con anterioridad al día en que el Tribunal resolviera sobre el fondo, se produjera la regularización.
Por excepción a lo establecido en el primer párrafo, el capital de las sociedades de redactores de prensa será de 300 euros al menos cuando dichas sociedades se hubieran constituido bajo la forma de sociedad anónima.
Artículo L224-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 100 Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 98 Diario Oficial de 2 de agosto de 2003)
Cuando una sociedad que no tenga auditor encargado de la transformación, cualquiera que sea su forma, se transforme en una sociedad por acciones, se nombrará - salvo que haya acuerdo unánime de los socios sobre este punto, por resolución judicial dictada ante la demanda de los dirigentes sociales o de uno de ellos - uno o varios auditores parar la transformación, encargados de evaluar, bajo su responsabilidad, el valor de los bienes que compusieran el activo social y los beneficios especiales. Los auditores encargados de las transformaciones podrán ser encargados de la elaboración del informe sobre la situación de la sociedad mencionado en párrafo 3º del artículo L. 223-43. En ese caso se redactará un solo informe. Esos auditores estarán sometidos a las incompatibilidades previstas en el artículo L.225-224. El auditor de cuentas de la sociedad podrá ser nombrado auditor para la transformación. El informe tendrá que mantenerse a disposición de los socios.
Los socios decidirán sobre la valoración de los bienes y la concesión de beneficios especiales. Sólo por unanimidad podrán ser reducidos.
En ausencia de aprobación expresa de los socios, mencionada en el acta, la transformación se considerará nula.
CAPITULO V De las sociedades anónimas Artículos L225-2 a
L225-1
Artículo L225-1 La sociedad anónima es la sociedad cuyo capital está dividido en acciones y que está constituida por socios que
únicamente responderán de las deudas hasta el importe de sus aportaciones. El número de socios no podrá ser inferior a siete.
Sección I De la constitución de las sociedades anónimas Artículos L225-2 a
L225-16
Subsección 1 De la constitución con oferta pública de acciones al ahorro Artículos L225-2 a
L225-11
Artículo L225-2
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CÓDIGO DE COMERCIO Se elaborará el proyecto de los estatutos sociales y será firmado por uno o varios de los fundadores, que
depositarán un ejemplar en la Secretaría del Tribunal de commerce del lugar de su sede social. Los fundadores publicarán una nota de la inscripción en las condiciones determinadas por decreto adoptado en
Conseil d'Etat. No podrá ser admitida ninguna suscripción si no se observaran las requisitos formales previstos en el primer y
segundo párrafo anteriores. Las personas inhabilitadas para administrar o gestionar una sociedad o las que estén privadas del derecho de
ejercer estas funciones, no podrán ser fundadoras.
Artículo L225-3 El capital social tendrá que estar íntegramente suscrito. Las acciones por suscripción dineraria deberán estar desembolsadas por la mitad al menos de su valor nominal en
el momento de la suscripción. El desembolso del excedente se producirá en una o varias veces por decisión del consejo de administración o del directorio según los casos, en un plazo que no podrá sobrepasar los cinco años a partir de la inscripción de la sociedad en el Registro de Comercio y de Sociedades.
Las acciones suscritas por aportaciones no dinerarias serán íntegramente desembolsadas en el momento de su emisión.
Las acciones no podrán representar aportaciones industriales.
Artículo L225-4 Un resguardo emitido en las condiciones establecidas por decreto adoptado en Conseil d'Etat dará constancia de
las suscripciones de acciones dinerarias.
Artículo L225-5 Los fondos que provengan de aportaciones dinerarias y la lista de suscriptores con la indicación de las cantidades
pagadas por cada uno de ellos serán objeto de un depósito hecho en las condiciones determinadas por decreto adoptado en Conseil d'Etat, éste fijará también las condiciones en las que se tendrá derecho a la notificación de esta lista.
A excepción de los depositarios citados en el decreto previsto en el párrafo anterior, nadie podrá retener más de ocho días las sumas recogidas a cuenta de una sociedad en formación.
Artículo L225-6 Las suscripciones y los pagos deberán hacerse constar por un certificado del depositario tras la presentación de los
boletines de suscripción, extendido en el momento del depósito de los fondos.
Artículo L225-7 Tras la entrega del certificado del depositario, los fundadores convocarán a los suscriptores a una junta general
constituyente en las formas y plazos previstos por decreto adoptado en Conseil d'Etat. Esta junta dará constancia de que el capital está íntegramente suscrito y que las acciones están desembolsadas
por la cantidad exigible. Se pronunciará sobre la adopción de los estatutos que no podrán modificarse si no es por unanimidad de todos los suscriptores, nombrará a los primeros administradores o miembros del consejo de supervisión, designará uno o varios auditores de cuentas. El acta de la sesión de la junta dará constancia, si procede, de la aceptación de sus funciones por parte de los administradores o miembros del consejo de supervisión y de los auditores de cuentas.
Artículo L225-8 En caso de aportaciones en especie, como en el caso de asignación de beneficios especiales a favor de personas
socias o no, uno o varios auditores de aportaciones serán designados por decisión judicial, por demanda de los fundadores o de uno de ellos. Serán sometidos a las incompatibilidades previstas en el artículo L. 225-224.
Los auditores estimarán, bajo su responsabilidad, el valor de las aportaciones en especie y de los beneficios especiales. El informe depositado en la Secretaría, con el proyecto de los estatutos, será mantenido a disposición de los suscriptores en las condiciones determinadas por decreto adoptado en Conseil d'Etat.
La junta general constitutiva se pronunciará sobre la valoración de las aportaciones en especie y la concesión de beneficios especiales. Sólo podrá reducirlas por unanimidad de todos los suscriptores.
Si los aportantes y beneficiarios de derechos especiales no dieran su aprobación expresa, y ésta no constara en el acta, la sociedad se considerará no constituida.
Artículo L225-9 Los suscriptores de acciones tomarán parte en la votación o serán representados en las condiciones previstas en
los artículos L. 225-106, L. 225-110 y L. 225-113. La junta constitutiva deliberará en las condiciones de quórum y mayoría previstas para las juntas extraordinarias.
Artículo L225-10 Cuando la junta delibere sobre la aprobación de una aportación en especie o la concesión de un beneficio especial,
las acciones del aportante o del beneficiario no serán tenidas en cuenta para el cálculo de la mayoría. El aportante o el beneficiario no tendrá derecho al voto ni para sí mismo ni como mandatario.
Artículo L225-11 El mandatario de la sociedad no podrá efectuar la retirada de fondos procedentes de suscripciones en metálico
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CÓDIGO DE COMERCIO antes de la inscripción de ésta en el Registro de Comercio y de Sociedades.
Si la sociedad no estuviera constituida en el plazo de seis meses a partir del depósito del proyecto de estatutos en la Secretaría, todo suscriptor podrá solicitar judicialmente el nombramiento de un mandatario encargado de retirar los fondos para restituirlos a los suscriptores, con la deducción correspondiente a los gastos de reparto.
Si el o los fundadores decidieran posteriormente constituir la sociedad, habrá que proceder nuevamente al depósito de fondos y a la declaración previstos en los artículos L.225-5 y L.225-6.
Subsección 2 De la constitución sin oferta pública de acciones al ahorro Artículos L225-12 a
L225-16
Artículo L225-12 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Cuando no haya una oferta pública de suscripción de acciones al ahorro, serán aplicables las disposiciones de la subsección 1, exceptuando los artículos L. 225-2, L. 225-4, L. 225-7, los párrafos 2º, 3º y 4º del artículo L. 225-8 y los artículos L. 225-9 y L. 225-10.
Artículo L225-13 Se dará constancia de los pagos por un certificado del depositario expedido, en el momento del depósito de
fondos, previa presentación de la lista de accionistas en la que se especifique las sumas pagadas por cada uno de ellos.
Artículo L225-14 Los estatutos contendrán la valoración de las aportaciones en especie. Se procederá a ello a la vista del informe
anexo a los estatutos y elaborado por un auditor de aportaciones, bajo su responsabilidad. Si se hubieran estipulado beneficios especiales, se seguirá el mismo procedimiento.
Artículo L225-15 Los estatutos estarán firmados por los accionistas, bien en persona, bien por medio de un mandatario que presente
un justificante representativo de un poder especial, tras la expedición del certificado del depositario y tras la puesta a disposición de los accionistas del informe previsto en el artículo L. 225-14, en las condiciones y plazos determinados por decreto adoptado en Conseil d'Etat.
Artículo L225-16 Los primeros administradores o los primeros miembros del consejo de supervisión y los primeros Auditores de
cuentas serán designados en los estatutos.
Sección II De la dirección y de la administración de las sociedades anónimas Artículos L225-17 a
L225-95-1
Subsección 1 Del consejo de administración y de la dirección general Artículos L225-17 a
L225-42-1
Artículo L225-17 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 104 1° y Artículo 105 Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 128 Diario Oficial de 2 de agosto de 2003)
La sociedad anónima será administrada por un consejo de administración compuesto de al menos tres miembros. Los estatutos determinarán el número máximo de miembros del consejo, que no podrá sobrepasar los dieciocho.
Sin embargo, en caso de fallecimiento, dimisión o revocación del presidente del consejo de administración y si el consejo no hubiera podido sustituirlo por uno de sus miembros, podrá designar, no obstante las disposiciones del artículo L.225-24, a un administrador suplente que ejercerá las funciones de presidente.
Artículo L225-18 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los administradores serán nombrados por la junta general constituyente o por la junta general ordinaria. En el caso previsto en el artículo L.225-16, serán designados por los estatutos. La duración de sus funciones será determinada por los estatutos sin que pueda exceder de seis años en caso de designación por las juntas generales y de tres años en caso de designación en los estatutos. Sin embargo, en caso de fusión o de escisión, el nombramiento podrá efectuarse por la junta general ordinaria.
Los administradores podrán ser reelegidos, salvo estipulación contraria de los estatutos. Podrán ser revocados en todo momento por la junta general ordinaria.
Cualquier nombramiento que se produzca contraviniendo las disposiciones anteriores será nulo, exceptuando aquéllos a los que se proceda en las condiciones previstas en el artículo L. 225-24.
Artículo L225-19 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los estatutos deberán prever, para el ejercicio de las funciones de administrador, un límite de edad que se aplicará
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CÓDIGO DE COMERCIO bien al conjunto de los administradores, o bien a un porcentaje determinado de ellos.
Si no existiera ninguna disposición expresa en los estatutos, el número de administradores que haya sobrepasado la edad de setenta años no podrá ser superior al tercio de los administradores en funciones.
Cualquier nombramiento realizado contraviniendo las disposiciones del párrafo anterior será nulo. Si no existiese una disposición expresa en los estatutos que prevea otro procedimiento, cuando el límite estatutario
o legal determinado para la edad de los administradores se haya sobrepasado, el administrador de más edad será considerado dimisionario de oficio.
Artículo L225-20 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Podrá ser nombrada administradora una persona jurídica. En el momento de su nombramiento, estará obligada a designar a un representante permanente que se someterá a las mismas condiciones y obligaciones y que será igualmente responsable civil y penal que si fuera administrador en nombre propio, sin perjuicio de la responsabilidad solidaria de la persona jurídica a la que representa.
Cuando la personalidad jurídica revoque a su representante, estará obligada a nombrar al mismo tiempo un sustituto.
Artículo L225-21 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 1001 1° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 I Diario Oficial de 30 de octubre de 2002)
Una persona física no podrá ejercer simultáneamente más de cinco mandatos de administrador de sociedades anónimas que tengan su sede en el territorio francés.
Por excepción a lo establecido por las disposiciones del párrafo primero, no serán tenidos en cuenta los mandatos de administrador o de miembro del consejo de supervisión ejercidos por esta persona en las sociedades que estén controladas, en el sentido del artículo L.233-16, por la sociedad de la que la misma sea el administrador.
Para la aplicación de las disposiciones del presente artículo, los mandatos de administrador de las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado y de las sociedades que estén controladas en el sentido del artículo L. 233-16 por una misma sociedad, equivaldrán a un solo mandato, siempre que el número de mandatos acumulados no exceda de cinco.
Cualquier persona física que infrinja las disposiciones del presente artículo deberá dimitir de uno de sus mandatos dentro de los tres meses siguientes a su nombramiento o del mandato en cuestión en los tres meses posteriores al hecho que haya conllevado la desaparición de una de las condiciones determinadas en el párrafo anterior. Tras la expiración de este plazo, será considerada destituida, según el caso, o bien de su nuevo mandato, o bien del mandato que ya no responda a las condiciones fijadas en el párrafo anterior, y deberá restituir las remuneraciones percibidas, sin que sea, por ello, cuestionada la validez de los acuerdos en los que haya tomado parte.
Artículo L.225-22 (Ley nº 2001-420 de 15 de mayo de 2001 art. 105 Diario Oficial de 16 de mayo de 2001) (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 33 II Diario Oficial de 12 de diciembre de 2001)
Un asalariado de la sociedad solamente podrá ser nombrado administrador cuando su contrato laboral corresponda a un empleo efectivo. No perderá por ello el beneficio de dicho contrato laboraL.Cualquier nombramiento realizado contraviniendo las disposiciones del presente párrafo será nulo. Esta nulidad no conllevará la de los acuerdos tomados por el administrador nombrado irregularmente.
El número de administradores vinculados a la sociedad por un contrato laboral no podrá sobrepasar el tercio de los administradores en funciones.
Sin embargo, no se tendrán en cuenta para el cómputo del número de administradores vinculados a la sociedad por el contrato laboral mencionado en el párrafo anterior, a los administradores elegidos por los trabajadores, a los administradores que representen a los trabajadores accionistas o al fondo de inversión colectiva de la empresa en aplicación del artículo L.225-23 y, en las sociedades anónimas laborales, a los representantes de la sociedad cooperativa de mano de obra.
En caso de fusión o escisión, el contrato laboral podrá ser el firmado con una de las sociedades fusionadas o con la sociedad escindida.
Artículo L225-23 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 24 1° y Artículo 25 I Diario Oficial de 20 de febrero de 2001) (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-73 de 17 de enero de 2002 Artículo 217 1° y 2º Diario Oficial de 18 de enero de 2002)
Cuando el informe presentado por el consejo de administración con ocasión de la junta general en aplicación del artículo L. 225-102 estableciese que las acciones detentadas por el personal de la sociedad así como por el personal de las sociedades que están vinculadas a ella en el sentido del artículo L. 225-180, representen más del 3% del capital social de la sociedad, uno o varios administradores deben ser nombrados por la junta general de accionistas a propuesta de los accionistas citados en el artículo L. 225-102, en las condiciones determinadas por decreto. Estos administradores deberán ser designados entre los trabajadores accionistas o, llegado el caso, entre los asalariados miembros del consejo de supervisión de un fondo de inversión colectiva de la empresa que posea acciones de la sociedad. Estos administradores no serán tenidos en cuenta para la determinación del número mínimo y del número máximo de administradores previstos en el artículo L.225-17.
Si la junta general extraordinaria no se hubiera reunido en el plazo de dieciocho meses a partir de la presentación
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CÓDIGO DE COMERCIO del informe, todo asalariado accionista podrá solicitar al presidente del Tribunal que resuelva en juicio sumario para que requiera, bajo pena de multa, al consejo de administración que convoque una junta general extraordinaria y que someta a ésta los proyectos de resoluciones que pretendan modificar los estatutos en el sentido del párrafo anterior y en el último párrafo del presente artículo.
Cuando se admita a trámite la demanda, la sanción y los gastos de procedimiento correrán a cargo de los administradores.
No estarán comprometidas a las obligaciones previstas en el primer párrafo las sociedades cuyo consejo de administración incluya a uno o a varios administradores nombrados entre los miembros del consejo de supervisión de los fondos de inversión colectiva de la empresa que representen a los trabajadores, o a uno o a varios empleados elegidos en aplicación de las disposiciones del artículo L225-27.
Cuando se convoque la junta general extraordinaria en aplicación del primer párrafo, se pronunciará igualmente sobre un proyecto de resolución que prevea la elección de uno o varios administradores por parte del personal de la sociedad y de las filiales directas o indirectas cuya sede social esté fijada en Francia. Llegado el caso, estos representantes serán designados en las condiciones previstas en el artículo L.225-27.
Artículo L225-24 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
En caso de vacante por fallecimiento o por dimisión de uno o varios puestos de administrador, el consejo de administración podrá, entre dos juntas generales proceder a nombramientos a título provisional.
Cuando el número de administradores sea inferior al mínimo legal, los administradores restantes deberán convocar inmediatamente la junta general ordinaria para completar el efectivo del consejo.
Cuando el número de administradores llegara a ser inferior al mínimo estatutario, sin ser inferior, sin embargo, al mínimo legal, el consejo de administración deberá proceder a nombramientos a título provisional para completar su efectivo en el plazo de tres meses a partir del día en que se haya producido la vacante.
Los nombramientos efectuados por el consejo en virtud del primero y tercero de los párrafos anteriores serán sometidos a ratificación en la siguiente junta general ordinaria. A falta de ratificación, no por ello perderán validez los acuerdos y los actos realizados anteriormente por el consejo.
Cuando el consejo no proceda a realizar los nombramientos requeridos o no convoque la junta, todo interesado podrá demandar judicialmente la designación de un mandatario encargado de convocar la junta general para proceder a los nombramientos o para ratificar los nombramientos previstos en el tercer párrafo.
Artículo L225-25 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 115 3° Diario Oficial de 16 de mayo de 2001)
Cada administrador deberá ser propietario de un número de acciones de la sociedad fijado en los estatutos. Si, en el día de su nombramiento, un administrador no fuera propietario del número de acciones requerido o si, en
el curso del mandato, dejara de ser propietario de ellas, se considerará dimisionario de oficio si no regularizara su situación en el plazo de tres meses.
Las disposiciones del párrafo 1º no se aplicarán a los accionistas asalariados nombrados administradores en aplicación del artículo L.225-23.
Artículo L225-26 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los auditores de cuentas velarán, bajo su responsabilidad, por la observancia del cumplimiento de las disposiciones previstas en el artículo L.225-25 y denunciarán cualquier infracción de ellas en su informe a la junta general anual.
Artículo L225-27 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Podrá ser estipulado en los estatutos que el consejo de administración incluya, además de los administradores cuyo número y modo de designación estén previstos en los artículos L.225-17 y L. 225-18, administradores elegidos o bien por el personal de la sociedad, o bien por el personal de la sociedad y el de sus filiales directas o indirectas cuya sede social esté en territorio francés. El número de estos administradores no podrá ser superior a cuatro o, en las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado, a cinco, ni exceder del tercio del número de los demás administradores. Cuando el número de los administradores elegidos por los asalariados sea igual o superior a dos, los ingenieros, directivos y asimilados tendrán al menos un puesto.
Los administradores elegidos por los empleados no serán tenidos en cuenta para la determinación del número mínimo y del número máximo de administradores previstos en el artículo L. 225-17.
Artículo L225-28 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los administradores elegidos por los trabajadores deberán ser titulares de un contrato laboral con la sociedad o con una de sus filiales directas o indirectas cuya sede social esté en el territorio francés, establecido al menos dos años antes de su nombramiento y correspondiente a un empleo efectivo. Sin embargo, la condición de antigüedad no será requerida cuando el día del nombramiento la sociedad haya sido constituida menos de dos años antes.
Todos los empleados de la sociedad y eventualmente de sus filiales directas o indirectas con sede social en territorio francés cuyo contrato de trabajo supere los tres meses en la fecha de la elección serán electores. El voto será secreto.
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CÓDIGO DE COMERCIO Cuando al menos un puesto esté reservado a los ingenieros, directivos o asimilados, los trabajadores serán
divididos en dos colegios que votarán por separado. El primer colegio incluirá a los ingenieros, directivos y asimilados, el segundo a los demás empleados. Los estatutos determinarán la distribución de puestos por colegio en función de la estructura del personal.
Los candidatos o listas de candidatos podrán presentarse o bien por una o por varias organizaciones sindicales representativas en el sentido del artículo L.423-2 del Código de Trabajo, o bien por la veinteava parte de los electores o, si el número de éstos es superior a dos mil, por cien de ellos.
Cuando haya un solo puesto para cubrir para el conjunto del cuerpo electoral, la elección tendrá lugar por votación mayoritaria en dos vueltas. Cuando haya un solo puesto para cubrir en un colegio electoral, la elección se realizará por votación mayoritaria en dos vueltas en ese colegio. Cada candidatura deberá incluir, además del nombre del candidato, el de su substituto eventual. Saldrá elegido el candidato que haya obtenido en la primera vuelta la mayoría absoluta de los votos emitidos, en la segunda vuelta, la mayoría simple.
En los demás casos, la elección será realizada entre listas cerradas, por representación proporcional, sumando el resto obtenido a la de mayor cociente electoral. Cada lista tendrá que incluir el doble de candidatos que el número de puestos que se deban cubrir.
En caso de igualdad de votos, los candidatos cuyo contrato de trabajo sea el más antiguo, se considerarán electos. Las demás modalidades de votación deberán ser determinadas por los estatutos. Los conflictos relativos al electorado, a la elegibilidad y a la regularidad de las operaciones electorales serán
presentados ante el juez competente que decidirá al respecto en última instancia según las condiciones previstas por el primer párrafo del artículo L.433-11 del Código de Trabajo.
Artículo L225-29 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
La duración del mandato de administrador elegido por los empleados será determinado por los estatutos, sin que pueda exceder de seis años. El mandato será renovable, salvo estipulación contraria de los estatutos.
Cualquier nombramiento realizado infringiendo los artículos L.225-27, L.225-28 y el presente artículo será nulo. Esta nulidad no conllevará la de los acuerdos tomados por el administrador nombrado irregularmente.
Artículo L225-30 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
El mandato de administrador elegido por los trabajadores será incompatible con cualquier mandato de delegado sindical, de miembro del comité de empresa, de delegado del personal o de miembro del comité de higiene, de seguridad y de las condiciones laborales de la sociedad. El administrador que, en el momento de su elección, fuera titular de uno o varios de estos mandatos deberá dimitir de ellos en ocho días. Si no lo hace, se considerará que renuncia a su mandato de administrador.
Artículo L225-31 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los administradores elegidos por los empleados no perderán las prestaciones correspondientes a su contrato laboral. Su remuneración, en tanto que empleado, no podrá ser reducida por el hecho del ejercicio de su mandato.
Artículo L225-32 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
La ruptura del contrato de trabajo pondrá fin al mandato de administrador elegido por los empleados. Los administradores elegidos por los empleados sólo podrán ser revocados por una falta cometida en el ejercicio
de su mandato, por resolución en forma sumaria del presidente del Tribunal de grande instance otorgada en respuesta a la demanda presentada por la mayoría de los miembros del consejo de administración. Esta resolución conllevará ejecución provisional.
Artículo L225-33 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Salvo en el caso de rescisión por iniciativa del trabajador, la ruptura del contrato laboral de un administrador elegido por los asalariados sólo podrá ser efectuada por la Sala de decisión del Conseil des prud'hommes que resolverá en forma sumaria. Esta resolución conllevará ejecución provisional.
Artículo L225-34 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
I. - En caso de vacante, por fallecimiento, dimisión, revocación, ruptura de contrato laboral o por cualquier otra causa, de un puesto de administrador elegido por los empleados, el puesto vacante será cubierto del siguiente modo:
1º Por su sustituto cuando la elección se haya efectuado por votación por mayoría en dos vueltas; 2º Por el candidato que figure inmediatamente detrás del último candidato elegido en una lista, cuando la elección
se haya realizado por votación a dicha lista. II. - El mandato de administrador así designado finalizará al concluir la candidatura normal de los otros
administradores elegidos por los empleados.
Artículo L225-35 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 106 1° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 129 Diario Oficial de 2 de agosto de 2003)
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CÓDIGO DE COMERCIO El consejo de administración determinará las orientaciones de la actividad de la sociedad y velará por que se lleve
a cabo su implantación. No obstante los poderes expresamente atribuidos en las juntas de accionistas y limitándose al objeto social. Se hará cargo de cualquier cuestión relacionada con la buena marcha de la sociedad y regulará, mediante sus acuerdos, los asuntos que le afecten.
En las relaciones con terceros, la sociedad contraerá obligaciones incluso por aquellos actos del consejo de administración no relacionados con el objeto social, a menos que pueda probar que el tercero sabía que el acto sobrepasaba este objeto o que no podía ignorarlo teniendo en cuenta las circunstancias, excluyendo que la simple publicación de los estatutos baste para probarlo.
El consejo de administración procederá a los controles y verificaciones que juzgue oportunos. El presidente o el director general de la sociedad estará obligado a remitir a cada administrador todos los documentos necesarios para el cumplimiento de su misión.
Las fianzas, avales y garantías dadas por sociedades que no sean establecimientos bancarios o financieros serán objeto de una autorización del consejo en las condiciones determinadas por decreto adoptado en Conseil d'Etat . Este decreto determinará igualmente las condiciones en las que en caso de excederse de esta autorización se pueda oponer frente a terceros.
Artículo L225-36 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
El consejo de administración podrá decidir el traslado de la sede social dentro del mismo departamento o a un departamento limítrofe, no obstante la ratificación de este acuerdo en la siguiente junta general ordinaria.
Artículo L225-36-1 (Introducido por la Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y 106 2° Diario Oficial de 16 de mayo de 2001)
Los estatutos de la sociedad determinarán las normas relativas a la convocatoria y a la toma de acuerdos por parte del consejo de administración.
Cuando no se haya reunido desde hace más de dos meses, un tercio, como mínimo, de los miembros del consejo de administración podrá solicitar al presidente que lo convoque con un orden del día determinado.
El director general podrá igualmente solicitar al presidente que convoque el consejo de administración para un orden del día determinado.
El presidente estará obligado a atender las solicitudes que le sean dirigidas en virtud de los párrafos anteriores.
Artículo L.225-37 (Ley nº 2001-420 de 15 de mayo de 2001 art. 105 y art. 109 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 art. 117 1 1º, II Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-842 de 26 de julio de 2005 art. 5 I, art. 7 I Diario Oficial de 27 de julio de 2005)
El consejo de administración sólo deliberará de forma válida cuando estén presentes al menos la mitad de sus miembros. Cualquier cláusula en contrario se tendrá por no puesta.
Salvo que los estatutos previeran un mayoría más amplia, los acuerdos serán tomados por mayoría simple de los miembros que estén presentes o representados.
Salvo que el consejo se reuniera para proceder a las operaciones citadas en los artículos L.232-1 y L.233-16, y salvo disposición en contrario de los estatutos, el reglamento interno podrá prever que sean considerados presentes, para el cálculo del quórum y de la mayoría, los administradores que participen en la reunión del consejo utilizando medios de videoconferencia o telecomunicación que permitan su identificación y garanticen su participación efectiva, y cuya naturaleza y condiciones de aplicación serán determinadas por decreto adoptado en Conseil d'Etat. Los estatutos podrán limitar la naturaleza de los acuerdos tomados en tales reuniones y contemplar un derecho de impugnación de dichos acuerdos en beneficio de un determinado número de administradores.
Salvo disposición en contrario de los estatutos, en caso de empate en la votación, el presidente tendrá voto de calidad.
Los administradores, así como toda persona convocada para asistir a las reuniones del consejo de administración, estarán obligados a mantener discreción con relación a las informaciones que presenten un carácter confidencial y sean consideradas como tales por el presidente del consejo de administración.
En las sociedades que realicen llamamiento público al ahorro, el presidente del consejo de administración rendirá cuentas, en un informe que añadirá al informe mencionado en los artículos L.225-100, L.225-102, L.225-102-1 y L.233-26, sobre las condiciones de preparación y la organización de los trabajos del consejo, así como sobre los procedimientos de control interno previstos por la sociedad. Sin perjuicio de las disposiciones del artículo L.225-56, el informe indicará igualmente las limitaciones eventuales que el consejo de administración imponga a las facultades del director general.
Artículo L225-38 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 1° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 6° Diario Oficial de 2 de agosto de 2003)
Cualquier contrato concluido directamente o por persona interpuesta entre la sociedad y su director general, uno de sus directores generales delegados, uno de sus administradores, uno de sus accionistas que disponga de una fracción de derechos de voto superior al 10 % o, si se trata de una sociedad accionista, la sociedad que la controle en el sentido del artículo L.233-3, deberá ser sometido a la autorización previa del consejo de administración.
Lo mismo ocurrirá con los contratos en los que una de las personas citadas en el párrafo anterior esté indirectamente interesada.
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CÓDIGO DE COMERCIO Estarán igualmente sometidos a autorización previa los contratos concluidos entre una sociedad y una empresa, si
el director general, uno de los directores generales delegados o uno de los administradores de la sociedad fuera propietario, socio ilimitadamente responsable, gerente, administrador, miembro del consejo de supervisión o, de modo general, dirigente de dicha empresa.
Artículo L225-39 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 5° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 1° Diario Oficial de 2 de agosto de 2003)
Las disposiciones del artículo L. 225-38 no serán aplicables a los contratos que consistan en operaciones corrientes y concertadas en condiciones normales.
No obstante, dichos contratos deberán ser comunicados por el interesado al presidente del consejo de administración, salvo si debido a su objeto o a sus implicaciones financieras, éstos no fueran significativos para ninguna de las partes. La lista y el objeto de dichos contratos serán comunicados por el presidente a los miembros del consejo de administración y a los auditores de cuentas.
Artículo L225-40 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 8° Diario Oficial de 16 de mayo de 2001)
El interesado estará obligado a informar al consejo, en cuanto tenga conocimiento de un acuerdo en el que sea aplicable el artículo L.225-38. No podrá tomar parte en la votación tras solicitar la autorización.
El presidente del consejo de administración presentará a los auditores de cuentas todos los contratos autorizados y los someterá a la aprobación de la junta general.
Los auditores de cuentas presentarán sobre estos contratos un informe especial a la junta, la cual decidirá basándose en él.
El interesado no podrá tomar parte en la votación y sus acciones no serán tenidas en cuenta para el cálculo del quórum y de la mayoría.
Artículo L225-41 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 10° Diario Oficial de 16 de mayo de 2001)
Los contratos aprobados por la junta, así como los que ésta rechace, producirán sus efectos con relación a terceros, salvo cuando resulten anulados en caso de fraude.
Incluso en ausencia de fraude, las consecuencias perjudiciales para la sociedad de los contratos no aprobados podrán ser consideradas responsabilidad del administrador o del director general interesado y, eventualmente, de los otros miembros del consejo de administración.
Artículo L225-42 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 10° Diario Oficial de 16 de mayo de 2001)
Sin perjuicio de la responsabilidad del interesado, los contratos citados en el artículo L.225-38 y concluidos sin autorización previa del consejo de administración podrán ser anulados si hubiesen tenido consecuencias perjudiciales para la sociedad.
La acción de nulidad prescribirá a los tres años, contados a partir de la fecha del contrato. Sin embargo, si el contrato hubiera sido ocultado, el plazo de la prescripción empezará a contar desde el día en que se haya tenido conocimiento de éste.
La nulidad podrá ser convalidada por un voto de la junta general en base al informe especial de los auditores de cuentas en que se expongan las circunstancias por las cuales no se ha seguido el procedimiento de autorización. Serán de aplicación las disposiciones del párrafo 4º del artículo L. 225-40.
Artículo L225-43 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 11° Diario Oficial de 16 de mayo de 2001)
Bajo pena de nulidad del contrato, se prohibirá a los administradores que no sean personas jurídicas suscribir préstamos de la sociedad, sea cual fuere su forma, ni hacerse cubrir por ella un descubierto, en cuenta corriente o en otra forma, así como hacerla garantizar o avalar sus obligaciones frente a terceros.
Sin embargo, si la sociedad explotara una entidad bancaria o financiera, esta prohibición no afectará a las operaciones corrientes de este tipo de comercio concertadas en condiciones normales.
La misma prohibición se aplicará al director general, a los directores generales delegados y a los representantes permanentes de las entidades con personalidad jurídica que ejerzan de administradoras. Ésta se aplicará igualmente a los cónyuges, ascendientes y descendientes de las personas citadas en el presente artículo así como a toda persona interpuesta.
Esta prohibición no se aplicará a los préstamos que fueran concedidos por la sociedad en aplicación de las disposiciones del artículo L.313-1 del Código de la Construcción y la Vivienda a los administradores elegidos por los trabajadores.
Artículo L225-44 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
No obstante lo dispuesto en el artículo L 225-22 y en el artículo L. 225-27, los administradores no podrán percibir de la sociedad remuneración alguna, permanente o no, exceptuando lo previsto en los artículos L. 225-45, L. 225-46, L. 225-47 y L. 225-53.
Toda cláusula estatutaria contraria se tendrá por no puesta y todo acuerdo contrario será nulo.
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CÓDIGO DE COMERCIO Artículo L225-45 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 117 I Diario Oficial de 16 de mayo de 2001)
La junta general podrá pagar a sus administradores como remuneración por su actividad, a título de dietas de asistencia, una suma fija anual que esta junta determinará sin estar vinculada por disposiciones estatutarias o por decisiones anteriores. Esta suma será con cargo a los gastos de explotación. Su distribución entre los administradores será determinada por el consejo de administración.
Artículo L225-46 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
El consejo de administración podrá conceder remuneraciones excepcionales, para las misiones o mandatos confiados a administradores. En ese caso, estas remuneraciones, con cargo a los gastos de explotación estarán sujetas a las disposiciones de los L. 225-38 à L. 225-42.
Artículo L225-47 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
El consejo de administración elegirá de entre sus miembros a un presidente que deberá ser una persona física, bajo pena de nulidad del nombramiento. El mismo consejo determinará su remuneración.
El presidente será designado por un período que no podrá ser superior al de su mandato de administrador. Podrá ser reelegido.
El consejo de administración podrá revocarlo en todo momento. Cualquier disposición contraria se tendrá por no puesta.
Artículo L225-48 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los estatutos deberán prever para el ejercicio de las funciones del presidente del consejo de administración un límite de edad, que a falta de disposición expresa, se fijará en setenta y cinco años.
Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo. Cuando un presidente de un consejo de administración alcance este límite de edad, será considerado dimisionario
de oficio.
Artículo L225-50 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
En caso de incapacidad temporal o de fallecimiento del presidente, el consejo de administración podrá delegar las funciones de presidente en un administrador.
En caso de incapacidad temporal, esta delegación será otorgada por un plazo limitado. Podrá ser renovada. En caso de fallecimiento, tendrá validez hasta la elección del nuevo presidente.
Artículo L225-51 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 106 3° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 117 I 3° Diario Oficial de 2 de agosto de 2003)
El presidente del consejo de administración organizará y dirigirá las labores de éste, de las que dará cuenta a la junta general. Velará por el buen funcionamiento de los órganos de la sociedad y se asegurará, en concreto, de que los administradores sean capaces de cumplir con su misión.
Artículo L225-51-1 (Introducido por la Ley nº 2001-420 de 1 de agosto de 2001 Artículo 105 y Artículo 106 4° Diario Oficial de 16 de mayo de 2001)
La dirección general de la sociedad será asumida, bajo su responsabilidad, bien por el presidente del consejo de administración, bien por otra persona física nombrada por el consejo de administración, la cual ostentará el título de director general.
En las condiciones definidas por los estatutos, el consejo de administración escogerá entre las dos modalidades de ejercicio de la dirección general citadas en el párrafo 1º. Los accionistas y terceros serán informados de esta elección en las condiciones definidas por decreto adoptado en Conseil d'Etat .
Cuando la dirección general de la sociedad sea asumida por el presidente del consejo de administración, serán aplicables las disposiciones de la presente subsección relativas al director general.
Artículo L225-52 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
En caso de apertura de un procedimiento de suspensión de pagos o de liquidación judicial en aplicación del título II del libro VI, las personas mencionadas por estas disposiciones podrán ser consideradas responsables del pasivo social y serán sometidas a inhabilitaciones y privaciones de derechos en las condiciones previstas por dichas disposiciones.
Artículo L225-53 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 107 1° Diario Oficial de 16 de mayo de 2001)
Previa proposición del director general, el consejo de administración podrá nombrar a una o varias personas físicas encargadas de asistir al director general, con el título de director general delegado.
Los estatutos fijarán el número máximo de directores generales delegados, que no podrá pasar de cinco. El consejo de administración determinará la remuneración del director general y de los directores generales
delegados.
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CÓDIGO DE COMERCIO Artículo L225-54 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 107 2° Diario Oficial de 16 de mayo de 2001)
Los estatutos deberán prever para el ejercicio de las funciones de director general o de director general delegado un límite de edad que, a falta de disposición expresa, será fijado en sesenta y cinco años.
Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo. Cuando un director general o un director general delegado alcance el límite de edad, será considerado dimisionario
de oficio.
Artículo L225-54-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 110 3° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 II Diario Oficial de 30 de octubre de 2002)
Una persona física no podrá ejercer simultáneamente más de un mandato de director general de sociedades anónimas que tengan su sede en territorio francés.
Por excepción a lo establecido por las disposiciones del párrafo primero: - una persona física podrá ejercer un segundo mandato de director general o un mandato de miembro del
directorio o de director general único en una sociedad controlada en el sentido del artículo L.233-16 por la sociedad de la que es director general;
- una persona física que ejerza un mandato de director general en una sociedad también podrá ejercer un mandato de director general, de miembro del directorio o de director general único en una sociedad, siempre que los títulos de éstas no estén admitidos a negociación en un mercado regulado.
Cualquier persona física que infrinja las disposiciones del presente artículo deberá dimitir de uno de sus mandatos dentro de los tres meses siguientes a su nombramiento o del mandato en cuestión en los tres meses posteriores al hecho que haya conllevado la desaparición de una de las condiciones determinadas en el párrafo anterior. Tras la expiración de este plazo, será considerada destituida, según el caso, o bien de su nuevo mandato, o bien del mandato que ya no responda a las condiciones fijadas en el párrafo anterior, y deberá restituir las remuneraciones percibidas, sin que sea, por ello, cuestionada la validez de los acuerdos en los que haya tomado parte.
Artículo L225-55 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 107 3° Diario Oficial de 16 de mayo de 2001)
El cargo de director general será revocable en todo momento por el consejo de administración. Lo mismo sucederá, por proposición del director general, de los directores generales delegados. Si se decidiera la revocación sin un motivo justificado, ésta podrá dar lugar a responsabilidad por daños y perjuicios, salvo cuando el director general asuma las funciones de presidente del consejo de administración.
Cuando el director general cese en sus funciones o sea incapaz de ejercerlas, los directores generales delegados conservarán sus funciones y sus atribuciones, salvo decisión contraria del consejo, hasta que sea nombrado el nuevo director general.
Artículo L225-56 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 107 4° Diario Oficial de 16 de mayo de 2001)
I. - El director general tendrá los más amplios poderes para actuar en toda circunstancia en nombre de la sociedad. Ejercerá estos poderes con el límite del objeto social y ateniéndose a los que la Ley atribuye expresamente a las juntas de accionistas y al consejo de administración.
Representará a la sociedad en sus relaciones con terceros. La sociedad será responsable incluso de los actos del director general que no correspondan al objeto social, a no ser que pruebe que el tercero sabía que el acto lo sobrepasaba o que no podía ignorarlo dadas las circunstancias, sin que la mera publicación baste como prueba.
Las disposiciones de los estatutos o las decisiones del consejo de administración que limiten los poderes del director general no serán oponibles frente a terceros.
II. - De acuerdo con el director general, el consejo de administración determinará la amplitud y la duración de los poderes otorgados a los directores generales delegados.
Los directores generales delegados dispondrán, con relación a terceros, de los mismos poderes que el director general.
Artículo L.225-22-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 8 I Diario Oficial de 27 de julio de 2005)
En las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado, en caso de nombramiento en las funciones de presidente, director general o director general delegado de una persona vinculada por contrato laboral a la sociedad o a cualquier sociedad controlada o que la controle en el sentido de los puntos II y III del artículo L.223-16, estarán sujetas a lo dispuesto en los artículos L.225-38 y L.225-40 a L.225-42 las cláusulas de dicho contrato relativas a la remuneración, las indemnizaciones o las ventajas que fueran adeudadas en razón del cese o cambio en las funciones.
NOTA: Ley n° 2005-842 de 26 de julio de 2005 art. 8 II: lo dispuesto en el artículo 8 I será de aplicación a los convenios suscritos a partir de 1 de mayo de 2005.
Artículo L.225-42-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 8 I Diario Oficial de 27 de julio de 2005)
En las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado, estarán sujetos a lo dispuesto en los artículos L.225-38 y L.225-40 a L.225-42 los compromisos que hubieran sido adoptados en beneficio
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CÓDIGO DE COMERCIO de sus presidentes, directores generales o directores generales delegados por la propia sociedad o por cualquier sociedad controlada o que la controle en el sentido de los puntos II y III del artículo L.223-16, y fueran relativos a la remuneración, las indemnizaciones o las ventajas que les fueran adeudadas en razón del cese o cambio en las funciones, o posteriormente a las mismas.
NOTA: Ley n° 2005-842 de 26 de julio de 2005 art. 8 II: lo dispuesto en el artículo 8 I será de aplicación a los convenios suscritos a partir de 1 de mayo de 2005.
Subsección 2 Del directorio y del consejo de supervisión Artículos L225-57 a
L225-90-1
Artículo L225-57 Los estatutos de cualquier sociedad anónima podrán estipular que ésta se rija por las disposiciones de la presente
subsección. En este caso, la sociedad quedará sometida al conjunto de las reglas aplicables a las sociedades anónimas, con exclusión de las previstas en los artículos L.225-17 a L.225-56.
La introducción en los estatutos de esta cláusula, o su supresión, podrá ser decidida en el transcurso de la existencia de la sociedad.
Artículo L225-58 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
La sociedad anónima será dirigida por un directorio compuesto por un máximo de cinco miembros. Cuando las acciones de la sociedad estén admitidas a negociación en un mercado regulado, ese número podrá ser ampliado por los estatutos a siete.
En las sociedades anónimas cuyo capital sea inferior a 150.000 euros, las funciones reservadas al directorio podrán ser ejercidas por una sola persona.
El directorio ejercerá sus funciones bajo el control de un consejo de supervisión.
Artículo L225-59 Los miembros del directorio serán nombrados por el consejo de supervisión que otorgará a uno de ellos la
condición de presidente. Cuando una sola persona ejerza las funciones destinadas al directorio, adoptará el título de director general único. Los miembros del directorio o el director general único serán personas físicas, bajo pena de nulidad del
nombramiento. Podrán ser escogidos para tales cargos personas no accionistas.
Artículo L225-60 Los estatutos deberán prever para el ejercicio de las funciones de miembro del directorio o de director general
único un límite de edad que, a falta de disposición expresa, se fijará en los sesenta y cinco años. Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo. Cuando un miembro del directorio o el director general único alcance el límite de edad, será considerado
dimisionario de oficio.
Artículo L225-61 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 108 Diario Oficial de 16 de mayo de 2001)
Los miembros del directorio o el director general único podrán ser revocados por la junta general y, si los estatutos lo previeran, por el consejo de supervsión. Si la revocación se decidiera sin motivo justificado, podrá dar lugar a indemnización por daños y perjuicios.
En el caso en que el interesado hubiera concertado con la sociedad un contrato laboral, la revocación de sus funciones de miembro del directorio no tendrá por efecto la rescisión de dicho contrato.
Artículo L225-62 Los estatutos determinarán la duración del mandato del directorio entre los límites comprendidos entre dos y seis
años. Si no se precisase en los estatutos, la duración del mandato será de cuatro años. En caso de vacante, el substituto será nombrado por el tiempo que falte para la renovación del directorio.
Artículo L225-63 El acta de nombramiento fijará el modo y el importe de la remuneración de cada uno de los miembros del
directorio.
Artículo L225-64 El directorio estará investido de los poderes más amplios para actuar en cualquier circunstancia en nombre de la
sociedad. Los ejercerá en el límite del objeto social y ateniéndose a los expresamente atribuidos por la Ley al consejo de supervisión y a las juntas de accionistas.
En las relaciones con terceros, la sociedad será responsable incluso por los actos del directorio que no se refieran al objeto social, a menos que pruebe que el tercero sabía que el acto sobrepasaba este objeto o que no podía ignorarlo teniendo en cuenta las circunstancias, quedando excluido que la simple publicación de los estatutos baste para probarlo.
Las disposiciones de los estatutos que limiten los poderes del directorio no podrán oponerse frente a terceros. El directorio deliberará y tomará sus decisiones en las condiciones determinadas por los estatutos.
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CÓDIGO DE COMERCIO Artículo L225-65
El consejo de supervisión podrá decidir el traslado de la sede social en el mismo departamento o a un departamento limítrofe, condicionado a la ratificación de esta decisión por la siguiente junta general ordinaria.
Artículo L225-66 El presidente del directorio o, en su caso, el director general único representará a la sociedad en sus relaciones
frente a terceros. Sin embargo, los estatutos podrán habilitar al consejo de supervisión para atribuir el mismo poder de
representación a uno o a varios de los demás miembros del directorio, que llevarán entonces el título de director general.
Las disposiciones de los estatutos que limiten el poder de representación de la sociedad no serán oponibles frente a terceros.
Artículo L225-67 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 110 4° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 III Diario Oficial de 30 de octubre de 2003)
Una persona física no podrá ejercer más de un mandato de miembro del directorio o de director general único de sociedades anónimas que tengan su sede social en territorio francés.
Por excepción a lo establecido por las disposiciones del párrafo primero: - una persona física puede ejercer un segundo mandato de director general o un mandato de miembro del
directorio o de director general único en una sociedad controlada en el sentido del artículo L.233-16 por la sociedad de la que es director general;
- una persona física que ejerza un mandato de director general en una sociedad también puede ejercer un mandato de director general, de miembro del directorio o de director general único en una sociedad, siempre que los títulos de éstas no estén admitidos a negociación en un mercado regulado.
Cualquier persona física que infrinja las disposiciones del presente artículo deberá dimitir de uno de sus mandatos dentro de los tres meses siguientes a su nombramiento o del mandato en cuestión en los tres meses posteriores al hecho que haya conllevado la desaparición de una de las condiciones determinadas en el párrafo anterior. Tras la expiración de este plazo, será considerada destituida, según el caso, o bien de su nuevo mandato, o bien del mandato que ya no responda a las condiciones fijadas en el párrafo anterior, y deberá restituir las remuneraciones percibidas, sin que sea, por ello, cuestionada la validez de los acuerdos en los que haya tomado parte.
Artículo L.225-68 (Ley nº 2003-706 de 1 de agosto de 2003 art. 117 I 2º Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-842 de 26 de julio de 2005 art. 7 II, art. 11 II Diario Oficial de 27 de julio de 2005)
El consejo de supervisión ejercerá el control permanente de la gestión de la sociedad que realice el directorio. Los estatutos podrán subordinar a la autorización previa del consejo de supervisión la conclusión de las
operaciones que enumeren. Sin embargo, la cesión de bienes inmuebles por naturaleza, la cesión total o parcial de participaciones, la constitución de garantías, fianzas y avales, salvo en las sociedades que gestionen una entidad bancaria o financiera, serán objeto de una autorización del consejo de supervisión en las condiciones determinadas por decreto adoptado en Conseil d'Etat. Dicho decreto determinará igualmente las condiciones en las que, en caso de excederse esta autorización, sea posible la oponibilidad frente a terceros.
El consejo de supervisión podrá realizar en cualquier momento las verificaciones y controles que juzgue oportunos y podrá solicitar que le sean mostrados los documentos que estime necesarios para el cumplimiento de su misión.
El directorio presentará un informe al consejo de supervisión al menos una vez por trimestre. Tras el cierre de cada ejercicio y en el plazo fijado por decreto adoptado en Conseil d'Etat, el directorio le
presentará, a efectos de verificación y control, los documentos citados en el segundo párrafo del artículo L.225-100. El consejo de supervisión presentará a la junta general prevista en el artículo L.225-100 sus observaciones sobre el
informe del directorio y las cuentas del ejercicio. En las sociedades que realicen llamamiento público al ahorro, el presidente del consejo de supervisión rendirá
cuentas a la junta general, en un informe que añadirá al informe mencionado en el párrafo anterior y en el artículo L.233-26, sobre las condiciones de preparación y organización de los trabajos del consejo, así como sobre los procedimientos de control interno previstos por la sociedad.
Artículo L225-69 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 104 2° Diario Oficial de 16 de mayo de 2001)
El consejo de supervisión estará compuesto de al menos tres miembros. Los estatutos determinarán el número máximo de los miembros del consejo, que está limitado a dieciocho.
Artículo L225-70 Los estatutos deberán prever para el ejercicio de las funciones de miembro del consejo de supervisión un límite de
edad que se aplicará, bien al conjunto de los miembros del consejo de supervisión, o bien a un porcentaje determinado de ellos.
Si no hubiera disposición expresa en los estatutos, el número de miembros del consejo de supervisión que hayan alcanzado la edad de setenta años no podrá ser superior a un tercio de los miembros del consejo de supervisión en funciones.
Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo.
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CÓDIGO DE COMERCIO Si no existiese una disposición expresa en los estatutos que prevea otro procedimiento, cuando el límite estatutario
o legal determinado para la edad de los administradores se haya sobrepasado, el administrador de más edad será considerado dimisionario de oficio.
Artículo L225-71 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 24 3° y 4° y Artículo 25 II Diario Oficial de 20 de febrero de 2001) (Ley nº 2001-1168 de 11 de diciembre de 2001 Artículo 33 III Diario Oficial de 12 de diciembre de 2003) (Ley nº 2002-73 de 17 de enero de 2002 Artículo 217 3° y 4º Diario Oficial de 18 de enero de 2002)
Cuando el informe presentado por el consejo de administración con ocasión de la junta general en aplicación del artículo L. 225-102 estableciese que las acciones detentadas por el personal de la sociedad así como por el personal de las sociedades que están vinculadas a ella en el sentido del artículo L. 225-180, representen más del 3% del capital social de la sociedad, uno o varios miembros del consejo de supervisión deberán ser nombrados por la junta general de accionistas a propuesta de los accionistas citados en el artículo L. 225-102, en las condiciones determinadas por decreto. Estos miembros deberán ser designados entre los trabajadores accionistas o, llegado el caso, entre los asalariados miembros del consejo de supervisión de un fondo de inversión colectiva de la empresa que posea acciones de la sociedad. Estos miembros serán tomados en cuenta para la determinación del número mínimo y del número máximo de miembros del consejo de supervisión previstos en el artículo L.225-69.
Si la junta general extraordinaria no se hubiera reunido en un plazo de dieciocho meses contando desde la presentación del informe, todo trabajador accionista podrá solicitar al presidente del Tribunal que resuelva en procedimiento de urgencia, para que requiera, bajo pena de multa, al directorio la convocatoria de una junta general extraordinaria y someta a ésta los proyectos de resoluciones que busquen la modificación de los estatutos en el sentido previsto en el párrafo anterior y en el último párrafo del presente artículo.
Cuando se haya admitido a trámite la demanda, la sanción y los gastos de procedimiento correrán a cargo de los miembros del directorio.
Las sociedades cuyo consejo de supervisión incluya uno o varios miembros nombrados entre los miembros del consejo de supervisión de los fondos colectivos de inversión de valores de empresa que representen a los trabajadores, o uno o varios empleados elegidos en aplicación de las disposiciones del artículo L. 225-79, no estarán sujetas a las obligaciones previstas en el primer párrafo.
Cuando la junta general extraordinaria sea convocada en aplicación del primer párrafo, se pronunciará igualmente sobre un proyecto de resolución que prevea la elección de uno o varios miembros del consejo de supervisión por el personal de la sociedad y de las filiales directas o indirectas cuyas sedes sociales estén en Francia. Llegado el caso, estos representantes serán designados en las condiciones previstas en el artículo L.225-79.
Artículo L225-72 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 115 4° Diario Oficial de 16 de mayo de 2001)
Cada miembro del consejo de supervisión deberá ser propietario de un número de acciones de la sociedad determinado por los estatutos.
Si, el día de su nombramiento, un miembro del consejo de supervisión no fuera propietario del número de acciones necesario o si, en el transcurso del mandato, deja de ser propietario de ellas, será considerado dimisionario de oficio si no hubiera regularizado su situación en el plazo de tres meses.
Las disposiciones del primer párrafo no se aplicarán a los accionistas trabajadores nombrados miembros del consejo de supervisión en aplicación del artículo L.225-71.
Artículo L225-73 Los auditores de cuentas velarán, bajo su responsabilidad, por la observancia del cumplimiento de las
disposiciones previstas en el artículo L.225-72 y denunciarán cualquier infracción de ellas en su informe a la junta general anual.
Artículo L225-74 Ningún miembro del consejo de supervisión podrá formar parte del directorio.
Artículo L225-75 Los miembros del consejo de supervisión serán nombrados por la junta general constitutiva o por la junta general
ordinaria. En el caso previsto en el artículo L.225-16, serán designados por los estatutos. La duración de sus funciones será determinada por los estatutos, sin que pueda exceder de los seis años en caso de nombramiento por las juntas generales y de tres años en caso de nombramiento en los estatutos. Sin embargo, en caso de fusión o de escisión, el nombramiento podrá efectuarse por la junta general ordinaria.
Podrán volver a ser elegibles, salvo estipulación contraria de los estatutos. Podrán ser revocados en todo momento por la junta general ordinaria.
Cualquier nombramiento producido realizado en contra de las disposiciones anteriores será nulo con excepción de aquéllos a los que se pueda proceder en las condiciones previstas en el artículo L.225-78.
Artículo L225-76 Una persona jurídica podrá ser designada para formar parte del consejo de supervisión. En el momento de su
nombramiento estará obligada a designar un representante permanente que estará sometido a las mismas condiciones y obligaciones y que incurrirá en las mismas responsabilidades civil y penal que si fuese miembro del consejo en su propio nombre, sin perjuicio de la responsabilidad solidaria de la personalidad jurídica a la que representa.
Cuando la personalidad jurídica revoque a su representante, estará obligada a nombrar al mismo tiempo un
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CÓDIGO DE COMERCIO sustituto.
Artículo L225-77 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 110 5° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 IV Diario Oficial de 30 de octubre de 2002)
Una persona física no podrá ejercer simultáneamente más de cinco mandatos de miembro del consejo de supervisión de sociedades anónimas que tengan su sede social en el territorio francés.
Por excepción a lo establecido por las disposiciones del párrafo primero, no serán tenidos en cuenta los mandatos miembro del consejo de supervisión o de administrador ejercidos por esta persona en las sociedades que estén controladas, en el sentido del artículo L.233-16, por la sociedad de cuyo consejo de supervisión ya sea miembro.
Para la aplicación de las disposiciones del presente artículo, los mandatos de miembro del consejo de supervisión de las sociedades cuyos títulos no estén admitidos a negociación en un mercado regulado y de las sociedades que estén controladas en el sentido del artículo L. 233-16 por una misma sociedad, equivaldrán a un solo un mandato, siempre que el número de mandatos acumulados no exceda de cinco.
Cualquier persona física que infrinja las disposiciones del presente artículo deberá dimitir de uno de sus mandatos dentro de los tres meses siguientes a su nombramiento o del mandato en cuestión en los tres meses posteriores al hecho que haya conllevado la desaparición de una de las condiciones determinadas en el párrafo anterior. Tras la expiración de este plazo, será considerada destituida, según el caso, o bien de su nuevo mandato, o bien del mandato que ya no responda a las condiciones fijadas en el párrafo anterior, y deberá restituir las remuneraciones percibidas, sin que sea, por ello, cuestionada la validez de los acuerdos en los que haya tomado parte.
Artículo L225-78 En caso de vacante por fallecimiento o por dimisión de uno o varios miembros del consejo de supervisión, este
consejo podrá proceder a nombramientos de forma provisional en el período que media entre dos juntas generales. Cuando el número de miembros del consejo de supervisión llegue a ser inferior al mínimo legal, el directorio deberá
convocar inmediatamente la junta general ordinaria para cubrir todas las vacantes del consejo de supervisión. Cuando el número de miembros del consejo de supervisión llega a ser inferior al mínimo estatutario, sin ser no
obstante inferior al mínimo legal, el consejo de supervisión deberá proceder a nombramientos a título provisional para completar la totalidad de miembros en el plazo de tres meses a partir del día en que se produzca la vacante.
Los nombramientos efectuados por el consejo, en virtud de los párrafos 1º y 3º anteriores, serán sometidos a la ratificación de la siguiente junta general ordinaria. A falta de ratificación, no por ello perderán validez los acuerdos y los actos realizados anteriormente por el consejo.
Cuando el consejo no procediese a efectuar los nombramientos requeridos o si la junta no fuese convocada, cualquier interesado podrá demandar judicialmente la designación de un mandatario encargado de convocar la junta general, para proceder a los nombramientos o ratificar los nombramientos previstos en el párrafo 3º.
Artículo L225-79 Podrá establecerse en los estatutos que el consejo de supervisión, además de los miembros cuyo número y modo
de designación estén previstos en los artículos L.225-69 y L.225-75, incluya miembros elegidos o bien por el personal de la sociedad, o bien por el personal de la sociedad y el de sus filiales directas o indirectas cuya sede social esté en territorio francés.
El número de miembros del consejo de supervisión elegidos por los trabajadores no podrá ser superior a cuatro ni exceder de un tercio del número de los demás miembros. Cuando el número de los miembros elegidos por los empleados fuera igual o superior a dos, los ingenieros, directivos y asimilados tendrán al menos un puesto.
Los miembros del consejo de supervisión elegidos por los empleados no serán tenidos en cuenta para la determinación del número mínimo y del número máximo de los miembros previstos en el artículo L. 225-69.
Artículo L225-80 Las condiciones relativas a la elegibilidad, al electorado, a la composición de los colegios, a las modalidades de la
votación, a las impugnaciones, a la duración y a las condiciones del ejercicio del mandato, a la revocación, a la protección del contrato laboral y a la sustitución de los miembros del consejo de supervisión elegidos por los empleados serán determinadas por las normas de los artículos L. 225-28 a L. 225-34.
Artículo L225-81 El consejo de supervisión elegirá en su seno a un presidente y a un vicepresidente que estarán encargados de
convocar el consejo y de dirigir sus debates. Determinará, si lo considerase oportuno, su remuneración. Bajo pena de la nulidad de su nombramiento, el presidente y el vicepresidente del consejo de supervisión serán
personas físicas. Ejercerán sus funciones mientras dure el mandato del consejo de supervisión.
Artículo L.225-82 (Ley nº 2001-420 de 15 de mayo de 2001 art. 109 2º Diario Oficial de 16 de mayo de 2001) (Ley nº 2005-842 de 26 de julio de 2005 art. 5 II Diario Oficial de 27 de julio de 2005)
El consejo de supervisión sólo deliberará de forma válida cuando estén presentes al menos la mitad de sus miembros.
Salvo que los estatutos previeran un mayoría más amplia, los acuerdos serán tomados por mayoría simple de los miembros que estén presentes o representados.
Salvo que el consejo se reuniera para proceder a las operaciones citadas en el párrafo quinto del artículo L.225-68, y salvo disposición en contrario de los estatutos, el reglamento interno podrá prever que sean considerados presentes,
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CÓDIGO DE COMERCIO para el cálculo del quórum y de la mayoría, los miembros del consejo de supervisión que participen en la reunión utilizando medios de videoconferencia o telecomunicación que permitan su identificación y garanticen su participación efectiva, y cuya naturaleza y condiciones de aplicación serán determinadas por decreto adoptado en Conseil d'Etat. Los estatutos podrán limitar la naturaleza de los acuerdos tomados en tales reuniones y contemplar un derecho de impugnación de dichos acuerdos en beneficio de un determinado número de miembros del consejo de supervisión.
Salvo disposición en contrario de los estatutos, en caso de empate en la votación, el presidente tendrá voto de calidad.
Artículo L225-83 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 117 II Diario Oficial de 16 de mayo de 2001)
La junta general podrá abonar a los miembros del consejo de supervisión, como remuneración por su actividad, en concepto de dietas de asistencia, una suma fija anual que esta junta determinará sin estar vinculada a las disposiciones estatutarias o decisiones anteriores. Esta suma será con cargo a los gastos de explotación. Su distribución entre los miembros del consejo de supervisión será determinada por él mismo.
Artículo L225-84 El consejo de supervisión podrá conceder excepcionalmente remuneraciones para las misiones o mandatos
confiados a miembros de este consejo. En ese caso, estas remuneraciones que se incluirán en los gastos de explotación, estarán sujetas a las disposiciones de los artículos L.225-86 a L.225-90.
Artículo L225-85 Los miembros del consejo de supervisión no podrán recibir de la sociedad remuneraciones, permanentes o no, que
no sean las previstas en los artículos L.225-81, L. 225-83 y L. 225-84 y, en su caso, las debidas en concepto del contrato laboral correspondiente a un empleo efectivo.
El número de miembros del consejo de supervisión vinculados a la sociedad por una relación laboral no podrá exceder de un tercio de los miembros en funciones. Sin embargo, los miembros del consejo de supervisión elegidos en conformidad a los artículos L. 225-79 y L. 225-80 y los nombrados de conformidad con el artículo L.225-71 no serán tenidos en cuenta para el cómputo de este número.
Toda cláusula estatutaria contraria se tendrá por no puesta y todo acuerdo contrario será nulo.
Artículo L225-86 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 6° Diario Oficial de 2 de agosto de 2003)
Todo contrato realizado directamente o por persona interpuesta entre la sociedad y uno de los miembros del directorio o del consejo de supervisión, un accionista que disponga de una fracción de los derechos de voto superior al 10 % o, si se tratase de una sociedad accionista, la sociedad que la controla en el sentido del artículo L.233-3, deberá ser sometido a la autorización previa del consejo de supervisión.
Lo mismo ocurrirá con los contratos en los que una de las personas citadas en el párrafo anterior esté indirectamente interesada.
Serán igualmente sometidas a la autorización previa los contratos realizados entre la sociedad y una empresa, si uno de los miembros del directorio, o del consejo de supervisión de la sociedad fuera propietario, socio ilimitadamente responsable, gerente, administrador, miembro del consejo de supervisión o, de modo general, dirigente de esta empresa.
Artículo L225-87 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 7° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 2° Diario Oficial de 2 de agosto de 2003)
Las disposiciones del artículo L. 225-86 no serán aplicables a los contratos que consistan en operaciones corrientes y concertadas en condiciones normales.
No obstante, dichos contratos deberán ser comunicados por el interesado al presidente del consejo de supervisión, salvo si debido a su objeto o a sus implicaciones financieras, éstos no fueran significativos para ninguna de las partes. La lista y el objeto serán comunicados por el presidente a los miembros del consejo de supervisión y a los auditores de cuentas.
Artículo L225-88 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 9° Diario Oficial de 16 de mayo de 2001)
El interesado estará obligado a informar al consejo de supervisión, en cuanto tenga conocimiento de un acuerdo en el que sea aplicable el artículo L. 225-86. Si forma parte del consejo de supervisión, no podrá tomar parte en la votación tras solicitar la autorización.
El presidente del consejo de supervisión presentará a los auditores de cuentas todos los contratos autorizados y someterá éstos a la aprobación de la junta general.
Los auditores de cuentas presentarán sobre estos contratos un informe especial a la junta, la cual decidirá basándose en él.
El interesado no podrá tomar parte en la votación y sus acciones no serán tenidas en cuenta para el cálculo del quórum y de la mayoría.
Artículo L225-89 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 12° Diario Oficial de 16 de mayo de 2001)
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CÓDIGO DE COMERCIO Los contratos aprobados por la junta, así como los que ésta rechace, producirán sus efectos con relación a
terceros, salvo cuando resulten anulados en caso de fraude. Incluso en ausencia de fraude, las consecuencias perjudiciales para la sociedad de los contratos no aprobados
podrán ser consideradas responsabilidad del interesado y, eventualmente, de los demás miembros del directorio.
Artículo L225-90 Sin perjuicio de la responsabilidad en que incurra el interesado, los contratos citados en el artículo L.225-86 y
concluidos sin la previa autorización del consejo de supervisión podrán anularse si hubieran tenido consecuencias perjudiciales para la sociedad.
La acción de nulidad prescribirá a los tres años contando desde la fecha del contrato. Sin embargo, si el contrato hubiera sido ocultado, el plazo de prescripción empezaría a contar desde el día en que éste haya sido conocido.
La nulidad podrá ser convalidada por un voto de la junta general en base al informe especial de los auditores de cuentas en que se expongan las circunstancias por las cuales no se ha seguido el procedimiento de autorización. Será aplicable el párrafo cuarto del artículo L.225-88.
Artículo L225-91 Bajo pena de nulidad del contrato, quedará prohibido a los miembros del directorio y a los miembros del consejo de
supervisión que no sean personas jurídicas, suscribir, en la forma que sea, préstamos a la sociedad, hacerse cubrir por ella un descubierto, en cuenta corriente o de cualquier otra forma, así como hacerle garantizar o avalar sus obligaciones frente a terceros.
La prohibición se aplicará a los representantes permanentes de las personas jurídicas miembros del consejo de supervisión. Se aplicará igualmente al cónyuge, a los ascendientes y descendientes de las personas citadas en el presente artículo, así como a toda persona interpuesta.
Sin embargo, si la sociedad explotase un establecimiento bancario o financiero, la prohibición no se aplicará a las operaciones corrientes de este tipo de comercio concertadas en las condiciones normales.
La prohibición no se aplicará a los préstamos que sean concedidos por la sociedad en aplicación de las disposiciones del artículo L.313-1 del Código de la Construcción y de la Vivienda a los miembros del consejo de supervisión elegidos por los trabajadores.
Artículo L225-92 Los miembros del directorio y del consejo de supervisión, así como toda persona llamada a asistir a las reuniones
de estos órganos, estarán obligadas a guardar discreción con relación a las informaciones que tengan un carácter confidencial y consideradas como tales por el presidente.
Artículo L225-93 En caso de apertura de un procedimiento de suspensión de pagos o de liquidación judicial en aplicación del título II
del libro VI, las personas mencionadas por estas disposiciones podrán ser consideradas responsables del pasivo social y serán sometidas a inhabilitaciones y privaciones de derechos en las condiciones previstas por dichas disposiciones.
Artículo L.225-79-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 8 I Diario Oficial de 27 de julio de 2005)
En las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado, en caso de nombramiento en las funciones de miembro del directorio de una persona vinculada por contrato laboral a la sociedad o a cualquier sociedad controlada o que la controle en el sentido de los puntos II y III del artículo L.225-16, estarán sujetas a lo dispuesto en los artículos L.225-86 y L.225-40 a L.225-90 las cláusulas de dicho contrato relativas a la remuneración, las indemnizaciones o las ventajas que fueran adeudadas en razón del cese o cambio en las funciones, o posteriormente a las mismas.
NOTA: Ley n° 2005-842 de 26 de julio de 2005 art. 8 II: lo dispuesto en el artículo 8 I será de aplicación a los convenios suscritos a partir de 1 de mayo de 2005.
Artículo L.225-90-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 8 I Diario Oficial de 27 de julio de 2005)
En las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado, estarán sujetos a lo dispuesto en los artículos L.225-86 y L.225-40 a L.225-90 los compromisos que hubieran sido adoptados en beneficio de un miembro del directorio por la propia sociedad o por cualquier sociedad controlada o que la controle en el sentido de los puntos II y III del artículo L.223-16, y fueran relativos a la remuneración, las indemnizaciones o las ventajas que le fueran adeudadas en razón del cese o cambio en las funciones, o posteriormente a las mismas.
NOTA: Ley n° 2005-842 de 26 de julio de 2005 art. 8 II: lo dispuesto en el artículo 8 I será de aplicación a los convenios suscritos a partir de 1 de mayo de 2005.
Subsección 3 Disposiciones comunes a los mandatarios sociales de las sociedades Artículos L225-94 a
anónimas L225-95-1
Artículo L225-94 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 110 6° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 V Diario Oficial de 30 de octubre de 2002)
El número máximo de puestos de administrador o de miembro del consejo de supervisión que podrán ser ocupados
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CÓDIGO DE COMERCIO simultáneamente por una misma persona física, en virtud de los artículos L.225-21 y L. 225-77, será aplicable a la acumulación de puestos de administrador y de miembro del consejo de supervisión.
Para la aplicación de los artículos L. 225-54-1 y L. 225-67, se autorizará que una persona física ejerza simultáneamente el mandato de director general en una sociedad y en otra sociedad que la misma controle en el sentido del artículo L. 233-16.
Artículo L225-94-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 110 7° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 VI Diario Oficial de 30 de octubre de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 131 1° Diario Oficial de 2 de agosto de 2003)
Sin perjuicio de las disposiciones de los artículos L.225-21, L. 225-54-1, L.225-67, L.225-77 y L. 225-94, una persona física no podrá ejercer simultáneamente más de cinco mandatos de director general, de miembro del directorio, de director general único, de administrador o de miembro del consejo de supervisión de sociedades anónimas que tengan su sede en territorio francés. Para la aplicación de estas disposiciones, el ejercicio de la dirección general por parte de un administrador contará como un solo mandato.
Por excepción a lo establecido anteriormente, no se serán tenidos en cuenta los mandatos de administrador o de miembro del consejo de supervisión en las sociedades que estén controladas, en el sentido del artículo L. 223-16, por la sociedad en la que se ejerza un mandato en concepto del primer párrafo. (1)
Cualquier persona física que infrinja las disposiciones del presente artículo deberá dimitir de uno de sus mandatos dentro de los tres meses siguientes a su nombramiento o del mandato en cuestión en los tres meses posteriores al hecho que haya conllevado la desaparición de una de las condiciones determinadas en el párrafo anterior. Tras la expiración de este plazo, será considerada destituida, según el caso, o bien de su nuevo mandato, o bien del mandato que ya no responda a las condiciones fijadas en el párrafo anterior, y deberá restituir las remuneraciones percibidas, sin que sea, por ello, cuestionada la validez de los acuerdos en los que haya tomado parte.
Nota (1): Estas disposiciones entrarán en vigor el 16 de noviembre de 2002.
Artículo L225-95 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 104 3° Diario Oficial de 16 de mayo de 2001)
En caso de fusión de sociedades anónimas, el número de miembros del consejo de administración o del consejo de supervisión, según el caso, podrá sobrepasar el número de dieciocho previsto en los artículos L.225-17 y L.225-69, durante un plazo de tres años desde la fecha de la fusión fijada en el artículo L.236-4, sin que pueda llegar a ser superior a veinticuatro.
Artículo L.225-95-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 110 8º Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 art. 2 Diario Oficial de 30 de octubre de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 art. 63 V Diario Oficial de 2 de agosto de 2003)
Por excepción a lo dispuesto en los artículos L.225-21, L.225-77 y L.225-94-1 no serán tomados en cuenta los mandatos de representante permanente de una sociedad de capital riesgo mencionada en el artículo primero de la Ley nº 85-695 de 11 de julio de 1985 que incluye diferentes disposiciones de orden económico y financiero, de una sociedad financiera de innovación mencionada en el punto III (B) del artículo 4 de la Ley nº 72-650 de 11 de julio de 1972 que incluye diversas disposiciones de orden económico y financiero o de una sociedad de gestión habilitada para gestionar los fondos de inversión colectiva regidos por el párrafo 1 de la subsección 6 de la sección 1 del capítulo IV del título I del libro II y los artículos L.214-36 y L.214-41 del Código Monetario y Financiero.
Desde el momento en que las condiciones previstas en el presente artículo no se cumplan, cualquier persona física deberá dimitir de los mandatos que no respondan a las disposiciones de los artículos L.225-21, L.225-77 y L.225-94-1 en un plazo de tres meses. Tras la expiración de este plazo, no será considerada como representante de la persona jurídica, y deberá restituir las remuneraciones percibidas, sin que sea por ello cuestionada la validez de los acuerdos en los que haya tomado parte.
Por excepción a lo dispuesto en los artículos L.225-21, L.225-77 y L.225-94-1 no serán tomados en cuenta para la aplicación de las normas relativas a la acumulación de mandatos sociales, los mandatos de presidente, de director general, de director general único, de miembro del directorio o de administrador de una sociedad de economía mixta local cuando estos estén ejercidos por un representante de una entidad territorial o de una agrupación de entidades territoriales.
Sección III De las juntas de accionistas Artículos L225-96 a
L228-37
Artículo L.225-96 (Ley nº 2005-842 de 26 de julio de 2005 art. 6 I Diario Oficial de 27 de julio de 2005)
La junta general extraordinaria será la única habilitada para modificar los estatutos en cualquiera de sus disposiciones. Cualquier cláusula en contrario se tendrá por no puesta. No obstante, no podrá aumentar los compromisos de los accionistas, excepto en las operaciones que sean el resultado de una reagrupación de acciones efectuada de forma regular.
La junta sólo deliberará de forma válida cuando los accionistas presentes o representados posean al menos, en la primera convocatoria, un cuarta parte de las acciones y, en la segunda convocatoria, una quinta parte de las acciones
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CÓDIGO DE COMERCIO con derecho a voto. En su defecto, la segunda junta podrá ser aplazada a una fecha posterior, como máximo dos meses después de la fecha en que hubiera sido convocada. En las sociedades que no realicen llamamiento público al ahorro, los estatutos podrán prever quórums más elevados.
Las decisiones de la junta se tomarán por mayoría de dos tercios de los votos de los que dispongan los accionistas que estén presentes o representados.
Artículo L225-97 La junta general extraordinaria podrá cambiar la nacionalidad de la sociedad, a condición de que el país de acogida
haya firmado con Francia un contrato especial que permita la adquisición de su nacionalidad y el traslado de la sede social a su territorio, manteniendo la sociedad su personalidad jurídica.
Artículo L.225-98 (Ley nº 2005-842 de 26 de julio de 2005 art. 6 II Diario Oficial de 27 de julio de 2005)
La junta general ordinaria estará facultada para tomar todo tipo de acuerdos, con excepción de los citados en los artículos L.225-96 y L.225-97.
Sólo deliberará de forma válida en la primera convocatoria cuando los accionistas presentes o representados posean al menos la quinta parte de las acciones con derecho a voto. En las sociedades que no realicen llamamiento público al ahorro, los estatutos podrán prever un quórum más elevado. En la segunda convocatoria, no se requerirá ningún quórum.
Las decisiones de la junta se tomarán por mayoría de votos de los accionistas presentes o representados.
Artículo L.225-99 (Ley nº 2005-842 de 26 de julio de 2005 art. 6 III Diario Oficial de 27 de julio de 2005)
Las juntas especiales reunirán a una determinada categoría de titulares acciones. La decisión de una junta general de modificar los derechos relativos a una categoría de acciones no será definitiva
hasta la aprobación por la junta especial de los accionistas de dicha categoría. Las juntas especiales sólo deliberarán de forma válida cuando los accionistas presentes o representados posean al
menos, en la primera convocatoria, la tercera parte de las acciones con derecho a voto y, en la segunda convocatoria, la quinta parte de las acciones con derecho a voto y cuyos derechos se prevea modificar. En su defecto, la segunda junta podrá ser aplazada a una fecha posterior, como máximo dos meses después de la fecha en que hubiera sido convocada. En las sociedades que no realicen llamamiento público al ahorro, los estatutos podrán prever quórums más elevados.
Las decisiones de las juntas especiales se tomarán con arreglo a las condiciones previstas el párrafo tercero del artículo L.225-96.
Artículo L225-100 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 118 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 Diario Oficial de 26 de junio de 2004) (Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 3 Diario Oficial de 22 de diciembre de 2004)
La junta general ordinaria se reunirá al menos una vez por año, en los seis meses siguientes al cierre del ejercicio, sin perjuicio de la prórroga a este plazo que pueda conceder una resolución judicial.
El consejo de administración o el directorio presentará a la junta su informe así como las cuentas anuales y, eventualmente, las cuentas consolidadas con el informe de gestión correspondiente.
Dicho informe incluirá un análisis objetivo y exhaustivo de la evolución de los negocios, de los resultados y de la situación financiera de la sociedad, especialmente de su nivel de endeudamiento en relación con el volumen y la complejidad de sus negocios. Siempre que sea necesario para la comprensión de la evolución de los negocios, de los resultados o de la situación de la sociedad e independientemente de los indicadores clave de rendimiento financiero que deban figurar en el informe en virtud de otras disposiciones del presente Código, el análisis incluirá en su caso los indicadores clave de rendimiento no financiero relacionados con la actividad específica de la sociedad, y en especial informaciones relativas a los temas de medio ambiente y de personal.
El informe incluirá igualmente una descripción de los principales riesgos e incertidumbres a los que se enfrenta la sociedad.
El análisis mencionado en el párrafo tercero podrá remitir, en caso de necesidad, a las cantidades indicadas en las cuentas anuales así como a las explicaciones suplementarias correspondientes.
Dicho informe indicará además los instrumentos financieros utilizados por la empresa, cuando esta información sea necesaria para evaluar su activo y su pasivo, su situación financiera y sus pérdidas y ganancias. Esta información se referirá a los objetivos y políticas de gestión del riesgo financiero de la sociedad, incluida la política aplicada para cubrir cada tipo significativo de transacción prevista para la que se utilice la contabilidad de cobertura. Se referirá igualmente a la exposición de la sociedad al riesgo de precio, riesgo de crédito, riesgo de liquidez y riesgo de flujo de caja.
Se adjuntará a dicho informe un cuadro completo que detalle las delegaciones en periodo de validez concedidas por la junta general de socios al consejo de administración o al directorio en lo referente a las ampliaciones de capital en virtud de los artículos L. 225-129-1 y L. 225-129-2. El cuadro mencionará la utilización de dichas delegaciones en el transcurso del ejercicio.
Los Auditores de cuentas referirán en su informe, el cumplimiento de la misión que les corresponde en virtud del artículo L.225-235.
La junta deliberará y decidirá sobre todas las cuestiones relativas a las cuentas anuales, y, llegado el caso, a las cuentas consolidadas del ejercicio transcurrido.
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CÓDIGO DE COMERCIO Ejercerá los poderes que le hayan sido otorgados en particular por el artículo L.225-18, el cuarto párrafo del
artículo L.225-24, el tercer párrafo del artículo L.225-40, el tercer párrafo del artículo L.225-42 y por el artículo L.225-45, o, eventualmente por el artículo L.225-75, el cuarto párrafo del artículo L.225-78, el artículo 225-83, el tercer párrafo del artículo L.225-88 y el tercer párrafo del artículo L.225-90.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L225-100-1 (Introducido por la Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 4 Diario Oficial de 22 de diciembre de 2004)
Los apartados tercero a sexto del artículo L. 225-100 no se aplicarán a las sociedades que al cierre del ejercicio no sobrepasen las cifras fijadas por decreto en los dos criterios siguientes: el total de su balance, el importe neto de su volumen de negocios o el número medio de personas empleadas permanentemente a lo largo del ejercicio. El presente párrafo no se aplicará a las sociedades cuyos instrumentos financieros mencionados en el párrafo 1 o 2 del punto I del artículo L. 221-1 del Código Monetario y Financiero estén admitidos a negociación en un mercado regulado.
No estarán obligadas a proporcionar las informaciones de tipo no financiero mencionadas en la última frase del artículo L.225-1000 las sociedades que al cierre del ejercicio no sobrepasen las cifras fijadas por decreto en los dos criterios siguientes: el total de su balance, el importe neto de su volumen de negocios o el número medio de personas empleadas permanentemente a lo largo del ejercicio. El presente párrafo no se aplicará a las sociedades cuyos instrumentos financieros mencionados en el párrafo 1 o 2 del punto I del artículo L. 221-1 del Código Monetario y Financiero estén admitidos a negociación en un mercado regulado.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L225-100-2 (Introducido por la Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 4 Diario Oficial de 22 de diciembre de 2004)
Cuando la sociedad presente las cuentas consolidadas en aplicación del artículo L. 233-16, el informe consolidado de gestión incluirá un análisis objetivo y exhaustivo de la evolución de los negocios, de los resultados y de la situación financiera del conjunto de las empresas incluidas en la consolidación, y especialmente de su nivel de endeudamiento en relación con el volumen y la complejidad de sus negocios. Siempre que sea necesario para la comprensión de la evolución de los negocios, de los resultados o de la situación de las empresas, el análisis incluirá los indicadores clave de rendimiento financiero y, en su caso, no financiero, relacionados con la actividad específica de las empresas, y en especial informaciones relativas a los temas de medio ambiente y de personal.
El informe incluirá igualmente una descripción de los principales riesgos e incertidumbres a los que se enfrenta el conjunto de las empresas incluidas en la consolidación.
El análisis mencionado en el párrafo primero podrá remitir, en caso de necesidad, a las cantidades indicadas en las cuentas consolidadas así como a las explicaciones suplementarias correspondientes.
Dicho informe indicará además los instrumentos financieros utilizados por la empresa, cuando esta información sea necesaria para evaluar su activo y su pasivo, su situación financiera y sus pérdidas y ganancias. Esta información se referirá a los objetivos y políticas de gestión del riesgo financiero de la sociedad, incluida la política aplicada para cubrir cada tipo significativo de transacción prevista para la que se utilice la contabilidad de cobertura. Se referirá igualmente a la exposición de la sociedad al riesgo de precio, riesgo de crédito, riesgo de liquidez y riesgo de flujo de caja.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L225-101 Cuando la sociedad, en los dos años siguientes a su inscripción, adquiera un bien que pertenezca a un accionista y
cuyo valor sea al menos igual a una décima parte del capital social, se designará a un auditor encargado de evaluar, bajo su responsabilidad, el valor de este bien, por decisión judicial a petición del presidente del consejo de administración o del directorio, según el caso. Este auditor estará sometido a las incompatibilidades previstas en el artículo L.225-224.
El informe del auditor se pondrá a disposición de los accionistas. La junta general ordinaria decidirá sobre la valoración del bien, bajo pena de nulidad de la adquisición. El vendedor no tendrá ni voz ni voto, ni por sí mismo, ni como mandatario.
Las disposiciones del presente artículo no serán aplicables cuando la adquisición sea realizada en bolsa, bajo el control de una autoridad judicial o en el marco de las operaciones corrientes de la sociedad y concertada en condiciones normales.
Artículo L225-102 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 26 Diario Oficial de 20 de febrero de 2001)
El informe presentado por el consejo de administración o el directorio, según el caso, en la junta general, dará cuenta anualmente del estado de la participación de los empleados en el capital social al último día del ejercicio y determinará la proporción del capital que representen la acciones detentadas por el personal de la sociedad y por el personal de las sociedades que estén vinculadas a ella en el sentido del artículo L.225-180, en el marco del plan de ahorro empresarial previsto por los artículos L. 443-1 a L.443-9 del Código de Trabajo, y por los empleados y antiguos empleados, en el marco de los fondos de inversión colectiva de la empresa regidos por el capítulo III de la Ley nº
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CÓDIGO DE COMERCIO 88-1201 de 23 de diciembre de 1988 relativa a los organismos de inversión colectiva en valores mobiliarios y que incluye la creación de fondos de inversión colectiva en créditos. Serán igualmente tomadas en consideración las acciones detentadas directamente por los trabajadores durante los períodos de intransferibilidad previstos en los artículos L.225-194 y L.225-197, en el artículo 11 de la Ley nº 86-912 de 6 de agosto de 1986 relativa a las modalidades de privatizaciones y en el artículo L.442-7 del Código de Trabajo.
Los títulos adquiridos por los trabajadores, en el marco de una operación de rescate de la empresa por sus empleados prevista por la Ley nº 84-578 de 9 de julio de 1984 sobre el desarrollo de la iniciativa económica, así como por asalariados de una sociedad cooperativa de trabajadores de producción en el sentido de la Ley nº 78-763 de 19 de julio de 1978 sobre el Estatuto de Sociedades Cooperativas Obreras de Producción, no serán tenidos en cuenta para la evaluación de la proporción del capital prevista en el párrafo anterior.
Cuando el informe anual no incluya las anotaciones previstas en el primer párrafo, cualquier persona interesada podrá solicitar al presidente del Tribunal que resuelva en procedimiento sumario para que haga un requerimiento, bajo pena de multa, al consejo de administración o al directorio, según el caso, con el fin de que facilite estas informaciones.
Cuando se admita la demanda, la sanción y los gastos de procedimiento correrán a cargo de las administradores o de los miembros del directorio, según el caso.
Artículo L.225-102-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 116 I Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 art. 138 Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 art. 51 II Diario Oficial de 26 de junio de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 9 I Diario Oficial de 27 de julio de 2005)
El informe mencionado en el artículo L.225-102 dará cuenta de la remuneración total y de las ventajas de todo tipo pagadas durante el ejercicio a cada mandatario social, incluso en forma de adjudicación de títulos de capital, de títulos de créditos que dan acceso al capital o a la adjudicación de títulos de créditos de la sociedad o las sociedades mencionadas en los artículos L.228-13 y L.228-93.
Indicará igualmente el importe de las remuneraciones y de las ventajas de todo tipo que cada uno de estos mandatarios hubiera recibido durante el ejercicio por parte de las sociedades controladas en el sentido del artículo L.233-16 o de la sociedad que controla, en el sentido del mismo artículo, la sociedad en la que el mandato fuera ejercido.
Dicho informe presentará separadamente los elementos fijos, variables y excepcionales que componen estas remuneraciones y ventajas, así como los criterios con arreglo a los cuales las mismas han sido calculadas o las circunstancias en las que han sido establecidas. Indicará asimismo los compromisos de cualquier tipo que hubieran sido adoptados por la sociedad en beneficio de sus mandatarios sociales, relativos a la remuneración, las indemnizaciones o las ventajas que les fueran adeudadas en razón de la participación, cese, o cambio en las funciones, o posteriormente a las mismas. La información proporcionada deberá precisar las modalidades de determinación de dichos compromisos. Excepto en los casos de buena fe, los pagos realizados y los compromisos adoptados infringiendo lo dispuesto en el presente párrafo podrán ser anulados.
El informa incluirá también la lista del conjunto de mandatos y funciones ejercidas en cualquier otra sociedad por cada uno de estos mandatarios durante el ejercicio.
Incluirá asimismo documentos de información, cuya lista será determinada por decreto adoptado en Conseil d'Etat, sobre la manera en que la sociedad tiene en cuenta las consecuencias sociales y medioambientales de su actividad. El presente párrafo no se aplicará a las sociedades cuyos títulos no estén admitidos a negociación en un mercado regulado.
Lo dispuesto en los dos últimos párrafos del artículo L.225-102 será de aplicación a la información citada en el presente artículo.
Lo dispuesto en los párrafos primero a tercero no serán de aplicación a las sociedades cuyos títulos no estén admitidos a negociación en un mercado regulado y a las sociedades que no estén controladas, en el sentido del artículo L.233-16 por una sociedad cuyos títulos estén admitidos a negociación en un mercado regulado. Dichas disposiciones tampoco serán de aplicación a los mandatarios sociales que no posean ningún mandato en una sociedad cuyos títulos estén admitidos a negociación en un mercado regulado.
Artículo L225-102-2 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 Artículo 23 Diario Oficial de 31 de julio de 2003)
Para las sociedades que exploten como mínimo una instalación que figure en la lista prevista en el punto IV del artículo L. 515-8 del Código de Medio Ambiente, el informe mencionado en el artículo L. 225-102 del presente Código:
- informará sobre la política de prevención de la sociedad contra el peligro de accidente tecnológico; - certificará la capacidad de la sociedad para cubrir su responsabilidad civil en relación con los bienes y las
personas en el marco de la explotación de dichas instalaciones; - precisará los medios previstos por la sociedad para garantizar la gestión de la indemnización de las víctimas si se
produjera un accidente tecnológico en el que se estableciera su responsabilidad.
Artículo L225-103 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 2° Diario Oficial de 16 de mayo de 2001)
I.- La junta general será convocada por el consejo de administración o el directorio, según el caso. II. - En su defecto, la junta general también podrá ser convocada: 1º Por los auditores de cuentas;
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CÓDIGO DE COMERCIO 2º Por un mandatario, designado judicialmente, a petición, ya sea de cualquier interesado en caso de urgencia, o
bien por uno o varios accionistas que reúnan al menos un 5% del capital social, o bien de una asociación de accionistas que respondan a las condiciones determinadas por el artículo L. 225-120;
3º Por los liquidadores; 4ºPor los accionistas mayoritarios en capital o en derechos de voto tras una oferta pública de compra o de
intercambio o tras una cesión de un bloque de control. III. - En las sociedades sujetas a los artículos L.225-57 a L.225-93, la junta general podrá ser convocada por el
consejo de supervisión. IV. - Las disposiciones que preceden serán aplicables a las juntas especiales. Los accionistas que actúen para que
sea nombrado judicialmente un mandatario deberán reunir al menos una décima parte de las acciones de la categoría interesada.
V.- Salvo cláusula en contrario de los estatutos, las juntas de accionistas se reunirán en la sede social o en cualquier otro lugar del mismo departamento.
Artículo L225-104 La convocatoria de las juntas de accionistas será realizada en las formas y plazos fijados por decreto adoptado en
Conseil d'Etat. Podrá ser anulada toda junta irregularmente convocada. Sin embargo, la acción de nulidad no será admisible
cuando todos los accionistas hubiesen estado presentes o representados.
Artículo L225-105 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 119 Diario Oficial de 2 de agosto de 2003)
El orden del día de las juntas será fijado por el autor de la convocatoria. Sin embargo, uno o varios accionistas que representen al menos un 5% del capital o una agrupación de accionistas
que responda a las condiciones determinadas en el artículo L.225-120 tendrán la facultad de requerir la inclusión de proyectos de resolución en el orden del día. Estos proyectos de resolución serán incluidos en el orden del día de la junta y se pondrán a conocimiento de los accionistas en las condiciones determinadas por decreto adoptado en Conseil d'Etat. Éste podrá reducir el porcentaje exigido por el presente párrafo cuando el capital social exceda una suma determinada por ese mismo decreto.
La junta no podrá deliberar sobre una cuestión que no esté incluida en el orden del día. Sin embargo, podrá, en cualquier circunstancia, revocar a uno a o varios administradores o miembros del consejo de supervisión y proceder a su sustitución.
El orden del día de la junta no podrá ser modificado en segunda convocatoria. Cuando la junta sea citada para deliberar sobre modificaciones de la organización económica o jurídica de la
empresa a propósito de las cuales el comité de empresa haya sido consultado en aplicación del artículo L. 432-1 del Código de Trabajo, se le comunicará la opinión de dicho comité.
Artículo L225-106 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 27 Diario Oficial de 20 de febrero de 2001)
Un accionista podrá ser representado por otro accionista o su cónyuge. Todo accionista podrá recibir los poderes dados por otros accionistas para ser representados en una junta, sin
otras limitaciones que las que resulten de las disposiciones legales o estatutarias que determinen el número máximo de votos de los que podrá disponer una misma persona, tanto en su propio nombre como actuando de mandatario.
Antes de cada reunión de la junta general de accionistas, el presidente del consejo de administración o el directorio, según el caso, podrá organizar la consulta de los accionistas mencionados en el artículo L.225-102 con el fin de permitirles que designen uno o varios mandatarios para que los representen en la junta general de conformidad con las disposiciones del presente artículo.
Esta consulta será obligatoria cuando, habiendo sido modificados los estatutos en aplicación del artículo L.225-23 o del artículo L.225-71, la junta general ordinaria deba nombrar en el consejo de administración o en el consejo de supervisión, según el caso, uno o varios trabajadores accionistas o miembros de los consejos de supervisión de los fondos de inversión colectiva de la empresa que posean acciones de la sociedad.
Esta consulta será igualmente obligatoria cuando la junta general extraordinaria deba pronunciarse sobre una modificación de los estatutos en aplicación del artículo L.225-23 o del artículo L.225-71.
Las cláusulas contrarias a las disposiciones de los párrafos anteriores se tendrán por no puestas. Para todo poder de un accionista sin indicación de mandatario, el presidente de la junta general emitirá un voto
favorable en la adopción de los proyectos de resolución presentados o autorizados por el consejo de administración o el directorio, según el caso, y un voto desfavorable en la adopción de todos los demás proyectos de resolución. Para emitir cualquier otro voto, el accionista deberá haber elegido un mandatario que acepte votar en el sentido indicado por el mandante.
Artículo L225-107 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 115 1° Diario Oficial de 16 de mayo de 2001)
I.- Todo accionista podrá votar por correspondencia, por medio de un formulario cuyo contenido será definido por decreto adoptado en Conseil d'Etat . Las disposiciones contrarias de los estatutos se tendrán por no puestas.
Para el cálculo del quórum, sólo se tendrán en cuenta los formularios que hayan sido recibidos por la sociedad con antelación a la celebración de la junta, en las condiciones de plazo definidas por decreto adoptado en Conseil d'Etat. Los formularios que no indiquen un sentido determinado para el voto o que expresen una abstención serán
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CÓDIGO DE COMERCIO considerados como votos negativos.
II. Si los estatutos lo previeran, serán considerados presentes para el cálculo del quórum y de la mayoría los accionistas que participen en la junta por medio de videoconferencia o por medios de telecomunicación que permitan su identificación y cuya naturaleza y condiciones de aplicación sean determinados por decreto adoptado en Conseil d'Etat.
Artículo L225-107-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 1° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 III Diario Oficial de 26 de junio de 2004)
Los propietarios de los títulos mencionados en el séptimo párrafo del artículo L.228-1 podrán ser representados en las condiciones previstas en dicho artículo por un intermediario inscrito.
Artículo L225-108 El consejo de administración o el directorio, según los casos, deberá dirigir o poner a disposición de los accionistas
los documentos necesarios para permitir a éstos pronunciarse con conocimiento de causa y emitir un juicio razonado sobre la gestión y la marcha de los asuntos de la sociedad.
La naturaleza de estos documentos y las condiciones de su envío o de su disponibilidad para los accionistas se determinarán por decreto adoptado en Conseil d'Etat.
A partir de la comunicación prevista en el primer párrafo, todo accionista tendrá la facultad de plantear por escrito preguntas a las que, tanto el consejo de administración como el directorio, según los casos, estarán obligados a responder en el transcurso de la junta.
Artículo L225-109 El presidente, los directores generales, los miembros del directorio de una sociedad, las personas físicas o jurídicas
que ejerzan en esta sociedad las funciones de administrador o de miembro del consejo de supervisión así como los representantes permanentes de las personas jurídicas que ejerzan estas funciones estarán obligados, en las condiciones determinadas por el Conseil d'Etat , a inscribir en forma nominativa o a declarar las acciones que les pertenezcan a ellos mismos o a sus hijos menores no emancipados y que hayan sido emitidas por la sociedad por sí misma, por sus filiales, por la sociedad de la que ésta es filial o por las otras filiales de esta última sociedad, cuando estas acciones estén admitidas a negociación en un mercado regulado.
La misma obligación afectará a los cónyuges no separados legalmente de las personas mencionadas en el párrafo anterior.
Artículo L225-110 El derecho de voto vinculado a la acción pertenecerá al usufructuario en las juntas generales ordinarias y al nudo
propietario en las juntas generales extraordinarias. Los copropietarios de acciones indivisas serán representados en las juntas generales por uno de ellos o por un
mandatario único. En caso de desacuerdo, el mandatario será designado judicialmente a petición del copropietario más diligente.
El derecho de voto será ejercido por el propietario de los títulos pignorados. Para ello, el acreedor pignoraticio declarará, a petición de su deudor, las acciones que detentase en garantía, en las condiciones y plazos fijados por decreto adoptado en Conseil d'Etat.
Los estatutos podrán permitir la no aplicación de las disposiciones del primer párrafo.
Artículo L225-111 La sociedad no podrá votar válidamente con acciones suscritas por ella, compradas o tomadas en garantía. No se
tendrán en cuenta estas acciones para el cálculo del quórum.
Artículo L225-113 Cualquier accionista podrá participar en la juntas generales extraordinarias y cualquier accionista que posea
acciones de las mencionadas en el artículo L. 225-99 podrá participar en las juntas especiales. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L225-114 En cada junta, se confeccionará una lista de asistentes cuyo contenido será determinado por decreto adoptado en
Conseil d'Etat.
Artículo L225-115 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 6° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 3° Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 VI Diario Oficial de 26 de junio de 2004)
Todo accionista tendrá derecho, en las condiciones y plazos determinados por decreto adoptado en Conseil d'Etat, a obtener información sobre:
1º El inventario, las cuentas anuales y la lista de los administradores o de los miembros del directorio y del consejo de supervisión y, cuando proceda, las cuentas consolidadas;
2º Los informes del consejo de administración, o del directorio y del consejo de supervisión, según el caso, y de los auditores de cuentas que se sometan a la junta;
3º Si procediera, el texto y la exposición de motivos de las resoluciones propuestas, así como informaciones concernientes a los candidatos al consejo de administración o al consejo de supervisión, según el caso;
4º La suma global, certificada como exacta por los auditores de cuentas, de las remuneraciones abonadas a las
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CÓDIGO DE COMERCIO personas mejor pagadas, siendo el número de estas personas de diez o de cinco según sea la plantilla superior o inferior a doscientos empleados;
5º La suma global, certificada como exacta por los auditores de cuentas de los pagos realizados según lo dispuesto en los apartados 1 y 4 del artículo 238 bis del Código General de Impuestos así como la lista de las acciones nominativas de padrinazgo, de mecenazgo;
6º La lista y el objeto de los contratos correspondientes a operaciones corrientes realizadas en condiciones normales, establecidos de conformidad con los artículos L. 225-39 y L. 225-87.
Artículo L225-116 Antes de la reunión de cualquier junta general, todo accionista tendrá derecho a obtener una relación de
accionistas, en las condiciones y los plazos que se fije por decreto adoptado en Conseil d'Etat.
Artículo L225-117 Todo accionista tendrá derecho, en todo momento, a obtener información de los documentos citados en el artículo
L.225-115 y concernientes a los tres últimos ejercicios, así como de las actas y relaciones de asistentes de las juntas celebradas en el transcurso de los tres últimos ejercicios.
Artículo L225-118 El derecho a la información sobre los documentos previsto en los artículos L.225-115, L.225-116 y L.225-117, lo
poseerán también cada uno de los copropietarios de acciones indivisas, el nudo propietario y el usufructuario de acciones.
Artículo L225-120 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y 19 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
I.- En las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado, los accionistas que presenten una inscripción nominativa desde al menos dos años antes y que posean en conjunto al menos un 5% de los derechos de voto podrán reagruparse en asociaciones destinadas a representar sus intereses en el seno de la sociedad. Para ejercer los derechos que se les reconocen en los artículos L.225-103, L.225-105, L.225-230, L225-231, L225-232 , L.25-233 y L.225-252, estas asociaciones deberán haber presentado su estatuto a la sociedad y a la Comisión de Operaciones Bursátiles.
II. - Sin embargo, cuando el capital de la sociedad sea superior a 750.000 euros, la parte de los derechos de voto que deberá ser representado, en aplicación del párrafo anterior, será reducida, según la importancia de los derechos de votos correspondientes al capital, del modo siguiente:
1º 4% entre 750.000 euros y hasta 4.500.000 euros; 2º 3% entre 4.500.000 euros y 7.500.000 euros; 3º 3% entre 7.500.000 euros y 15.000.000 euros; 4º 1% por encima de 15.000.000 euros. Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L225-121 Los acuerdos tomados por las juntas infringiendo los artículos L.225-96, L.225-97, L. 225-98, el párrafo tercero y
cuarto del artículo L. 225-99, el párrafo segundo del artículo L.225-100 y de los artículos L.225-105 y L.225-114 serán nulos.
En caso de infracción de las disposiciones de los artículos L.225-115 y L.225-116 o del decreto que regula su aplicación, la junta podrá ser anulada.
Artículo L225-122 I. - No obstante las disposiciones de los artículos L. 225-10, L.225-123, L. 225-124 y L.225-125 y L.225-126, el
derecho de voto vinculado a las acciones de capital o bonos de disfrute será proporcional a la porción de capital que representen y cada acción dará derecho al menos a un voto. Cualquier cláusula en contrario se tendrá por no puesta.
II. - En las sociedades por acciones cuyo capital sea, por un motivo de interés general, en parte propiedad del Estado, de los departamentos, de los municipios o de entidades públicas, y en las que tengan por objeto explotaciones concedidas por las autoridades administrativas competentes fuera de Francia metropolitana, el derecho de voto será regulado por los estatutos vigentes al 1 de abril de 1967.
Artículo L225-123 Podrá atribuirse un derecho de voto doble al conferido a las demás acciones, considerando la proporción del
capital social que representen, por medio de los estatutos o una junta general extraordinaria ulterior, a todas las acciones totalmente desembolsadas para las que se presente una inscripción nominativa de al menos dos años de antigüedad a nombre del mismo accionista.
Además, en caso de ampliación de capital por incorporación de reservas, beneficios o primas de emisión, el derecho de voto doble podrá ser conferido, desde su emisión, a las acciones nominativas adjudicadas gratuitamente a
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CÓDIGO DE COMERCIO un accionista en razón a acciones antiguas que se beneficiaran de este derecho.
El derecho de voto previsto en los párrafos primero y segundo anteriores podrá ser reservado a los accionistas de nacionalidad francesa, a los naturales de un Estado miembro de la Comunidad europea, o de un Estado parte en el Acuerdo sobre el Espacio económico europeo.
Artículo L225-124 Toda acción convertida en título al portador o transferida en propiedad perderá el derecho de voto doble otorgado
en aplicación del artículo L.225-123. No obstante la transferencia a consecuencia de una sucesión, de una liquidación de una comunidad de bienes matrimoniales, o de donación "inter vivos" a favor de un cónyuge o de un pariente en grado de sucesión, no dará lugar a la pérdida del derecho adquirido y no interrumpirá los plazos previstos en dicho artículo.
La fusión o la escisión de la sociedad quedará sin efecto sobre el derecho de voto doble que podrá ser ejercido en el seno de la o de las sociedades beneficiarias, si los estatutos así lo previeran.
Artículo L225-125 Los estatutos podrán limitar el número de votos de los que disponga cada accionista en las juntas, a condición de
que esta limitación sea impuesta a todas las acciones sin distinción de categoría, con excepción de las acciones con dividendo preferente sin derecho de voto.
Artículo L228-36 (Ley nº 2001-624 de 17 de julio de 2001 Artículo 36 VI Diario Oficial de 18 de julio de 2001)
Las sociedades por acciones que pertenezcan al sector público y las sociedades cooperativas constituidas bajo la forma de sociedad anónima o de sociedad de responsabilidad limitada podrán emitir títulos participativos. Estos títulos no podrán ser reembolsables si no es en caso de liquidación de la sociedad o, por su iniciativa, tras la expiración de un plazo que no podrá ser inferior a siete años y en las condiciones previstas en el contrato de emisión.
Su remuneración se compondrá de una parte fija y una parte variable calculada por referencia a elementos relativos a la actividad o a los resultados de la sociedad y basada en el nominal del título. Un decreto adoptado en Conseil d'Etat determinará las condiciones en las que se limitará la base de la parte variable de la remuneración.
Los títulos participativos serán negociables. Para la aplicación del artículo 26 de la nº 78-741 de 13 de julio de 1978 relativa a la orientación del ahorro hacia la
financiación de empresas, los préstamos participativos sólo serán reembolsados después del resarcimiento completo de todos los demás acreedores privilegiados o no privilegiados con exclusión de los propietarios de títulos participativos.
Artículo L228-37 La emisión y el reembolso de los títulos participativos deberán ser autorizados en las condiciones previstas por el
párrafo quinto del artículo L.225-100 y los artículos L.228-40 a L.228-44. Los tenedores de títulos participativos de una misma emisión se asociarán de pleno derecho para la defensa de
sus intereses comunes en una entidad que gozará de personalidad civil. Se someterán a las disposiciones de los artículos L.228-47 a L.228-71, L.228-73 y L.228-76 a L.228-90.
Además, el sindicato se reunirá al menos una vez al año para examinar el informe de los dirigentes sociales sobre la situación y la actividad de la sociedad en el curso del ejercicio transcurrido y el informe de los auditores de cuentas sobre las cuentas del ejercicio y sobre los elementos que le sirvan para la determinación de la remuneración de los títulos participativos.
Los representantes del sindicato asistirán a las juntas de accionistas o poseedores de participaciones. Serán consultados sobre todas las cuestiones incluidas en el orden del día, con excepción de las relativas a la designación o la revocación de los miembros de los órganos sociales. Podrán intervenir en cualquier momento en el transcurso de la junta.
Los tenedores de títulos participativos podrán tener acceso a los documentos sociales en las mismas condiciones que los accionistas.
En las empresas públicas que no se reúnan en junta general, el consejo de administración ejercerá las competencias reservadas a la junta general ordinaria en cuanto a la emisión de los títulos participativos. El párrafo cuarto del presente artículo no será aplicable.
Sección IV De las modificaciones del capital social y del accionariado de los trabajadores Artículos L225-127 a
L225-217
Subsección 1 Del aumento de capital Artículos L225-127 a
L225-149-3
Artículo L225-127 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 2 Diario Oficial de 26 de junio de 2004)
La ampliación del capital social podrá realizarse, bien por la emisión de acciones ordinarias o de acciones preferentes, bien por incremento del valor nominal de los títulos de capital ya existentes.
Dicha ampliación también podrá realizarse por el ejercicio de los derechos vinculados a valores mobiliarios que dan
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CÓDIGO DE COMERCIO acceso al capital, en las condiciones previstas en los artículos L. 225-149 y L. 225-177.
Artículo L225-128 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 3 Diario Oficial de 26 de junio de 2004)
Los nuevos títulos de capital serán emitidos, bien por su valor nominal, bien por dicho valor aumentado por una prima de emisión.
Serán desembolsados, bien por aportaciones dinerarias, incluyendo la compensación con créditos líquidos y exigibles a la sociedad, bien por aportación en especie, bien por incorporación de reservas, beneficios o primas de emisión, bien como consecuencia de una fusión o de una escisión.
Podrán asimismo ser desembolsados como consecuencia del ejercicio de un derecho vinculado a valores mobiliarios que dan acceso al capital comprendiendo, en su caso, el pago de las cantidades correspondientes.
Artículo L225-129 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 29 1° Diario Oficial de 20 de febrero de 2001) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 132 Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 4 Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria será la única competente para decidir una ampliación de capital inmediata o diferida, tras examinar el informe del consejo de administración o del directorio. Podrá delegar esta competencia en el consejo de administración o en el directorio, en las condiciones establecidas en el artículo L. 225-129-2.
La ampliación de capital deberá realizarse en el plazo de cinco años a partir de esta decisión o de esta delegación, sin perjuicio de lo dispuesto en los artículos L. 225-129-2 y L. 225-138. Este plazo no se aplicará a las ampliaciones de capital realizadas tras el ejercicio de un derecho vinculado a un valor mobiliario que dé acceso al capital o tras las contrataciones de opciones contempladas en el artículo L. 225-177.
Artículo L225-129-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 5 Diario Oficial de 26 de junio de 2004)
Cuando la junta general extraordinaria decida la ampliación de capital, podrá delegar en el consejo de administración o en el directorio la facultad de fijar las modalidades de emisión de los títulos.
Artículo L225-129-2 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 5 Diario Oficial de 26 de junio de 2004) (Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I b Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
Cuando la junta general extraordinaria delegue en el consejo de administración o en el directorio su competencia para decidir sobre la ampliación de capital, fijará el plazo, que no podrá exceder de veintiséis meses, durante el cual esta delegación podrá ser utilizada, así como el límite global de dicha ampliación.
Esta delegación dejará sin efecto cualquier delegación anterior que tenga el mismo objeto. Las emisiones mencionadas en los artículos L. 225-135 a L. 225-138-1 y L. 225-177 a L. 225-186, L. 225-197-1 a
L. 225-197-3, así como las emisiones de acciones preferentes mencionadas en los artículos L. 228-11 a L. 228-20 deberán ser objeto de resoluciones específicas.
Dentro de los límites de la delegación conferida por la junta general, el consejo de administración o el directorio dispondrá de las competencias necesarias para establecer las condiciones de emisión, comprobar la realización de las ampliaciones de capital que derivan de ellas y proceder a la modificación correlativa de los estatutos.
Artículo L225-129-3 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 5 Diario Oficial de 26 de junio de 2004)
Cualquier delegación de la junta general será suspendida durante el periodo de oferta pública de compra o de canje de los títulos de la sociedad, salvo que la misma se inscribiera en el curso normal de la actividad de la sociedad y su aplicación no fuera susceptible de hacer fracasar la oferta.
Artículo L225-129-4 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 5 Diario Oficial de 26 de junio de 2004)
En las sociedades anónimas cuyos títulos estén admitidos a negociación en un mercado regulado: a) El consejo de administración, dentro de los límites que fije previamente, podrá delegar en el director general o,
de común acuerdo con este último, en uno o varios directores generales delegados, las competencias necesarias para decidir la realización de la emisión, o para suspenderla;
b) El directorio podrá delegar en su presidente o, de común acuerdo con éste, en uno de sus miembros, las competencias para decidir la realización de la emisión, o para suspenderla.
Las personas designadas deberán rendir cuentas ante el consejo de administración o el directorio de la utilización que hayan hecho de estas competencias en las condiciones previstas por ellos.
Artículo L225-129-5 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 5 Diario Oficial de 26 de junio de 2004)
Cuando se haga uso de las delegaciones previstas en los artículos L. 225-129-1 y L. 225-129-2, el consejo de administración o el directorio hará un informe complementario en la junta general ordinaria siguiente, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
NOTA: Resolución 2004-604 24 de junio de 2004 art. 64: Las disposiciones del artículo L. 225-129-5 del Código de
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CÓDIGO DE COMERCIO Comercio entrarán en vigor para los ejercicios que comiencen a partir de 1 de enero de 2004.
Artículo L.225-129-6 (Disposición nº 2004-604 de 24 de junio de 2004 art. 5 Diario Oficial de 26 de junio de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XXVII Diario Oficial de 10 de diciembre de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 42 Diario Oficial de 27 de julio de 2005)
En toda decisión de ampliación de capital por aportación dineraria, salvo que esta fuera el resultado de une emisión anterior de valores mobiliarios que dan acceso al capital, la junta general extraordinaria deberá pronunciarse sobre un proyecto de resolución dirigido a realizar una ampliación de capital efectuada en las condiciones previstas en el artículo L.443-5 del Código de Trabajo. No obstante, la junta general extraordinaria se pronunciará sobre este proyecto de resolución cuando delegue su competencia para realizar la ampliación de capital de conformidad con el artículo L.225-129-2.
Cada tres años se convocará una junta general extraordinaria para que se pronuncie sobre un proyecto de resolución dirigido a realizar una ampliación de capital en las condiciones previstas en el artículo L.443-5 del Código de Trabajo si, tras el análisis del informe presentado a la junta general por el consejo de administración o el directorio en aplicación del artículo L.225-102, las acciones detentadas por el personal de la sociedad y de las sociedades vinculadas a ella en los términos del artículo L.225-180 representan menos del 3% del capital.
Artículo L225-130 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 6 Diario Oficial de 26 de junio de 2004)
Cuando la ampliación de capital, bien por emisión de títulos de capital nuevos, bien por incremento del importe nominal de los títulos de capital ya existentes, se realizara por incorporación de reservas, beneficios o primas de emisión, la junta general, por excepción a lo dispuesto en el artículo L.225-96, decidirá en las condiciones de quórum y de mayoría previstas en el artículo L. 225-98. En este caso, la junta general podrá decidir, en las mismas condiciones de quórum y de mayoría, que los derechos sobrantes del cociente exacto entre antiguos y nuevos títulos, no sean negociables ni cedibles y que por tanto los títulos de capital correspondientes puedan ser vendidos. Las cantidades que provengan de esta venta serán abonadas a los titulares de los derechos en de un plazo fijado por decreto adoptado en Conseil d'Etat.
La ampliación de capital por incremento del importe nominal de los títulos de capital, fuera de los casos previstos en el párrafo anterior, sólo podrá ser decidida con el consentimiento unánime de los accionistas.
Artículo L225-131 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IV Diario Oficial de 26 de junio de 2004)
El capital deberá estar íntegramente desembolsado antes de cualquier emisión de nuevas acciones para desembolsar por aportación dineraria.
Además, la ampliación de capital por llamamiento público al ahorro, realizada antes de los dos años posteriores a la constitución de una sociedad según los artículos L.225-12 a L.225-16, deberá ser precedida, en las condiciones establecidas en los artículos L.225-8 a L.225-10, de una comprobación del activo y del pasivo así como, eventualmente, de los beneficios especiales concedidos.
Artículo L225-132 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 7, Artículo 51 V Diario Oficial de 26 de junio de 2004)
Las acciones conllevarán un derecho de suscripción preferente en las ampliaciones de capital. Los accionistas tendrán, en proporción al importe de sus acciones, un derecho preferente en la suscripción de
acciones por aportación dineraria, emitidas para realizar una ampliación de capital. Durante el período de la suscripción, este derecho será negociable cuando sea independiente de las propias
acciones, negociables en sí mismas. En el caso contrario, será transmisible en las mismas condiciones que la propia acción.
Los accionistas podrán renunciar individualmente a su derecho preferente. La decisión relativa a la conversión de las acciones preferentes conllevará la renuncia de los accionistas al derecho
de suscripción preferente en las acciones derivadas de la conversión. La decisión de emisión de valores mobiliarios que dan acceso al capital conllevará igualmente la renuncia de los
accionistas a su derecho de suscripción preferente en los títulos de capital a los que den derecho los valores mobiliarios emitidos.
Artículo L225-133 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 8 Diario Oficial de 26 de junio de 2004)
Si la junta general o, en el caso de la delegación contemplada en el artículo L. 225-129, el consejo de administración o el directorio, lo hubiera decidido expresamente, los títulos de capital no suscritos con carácter preferente serán atribuidos a los accionistas que hayan suscrito un número de acciones superior al que podían suscribir por su derecho preferente, proporcionalmente a los derechos de suscripción de los que dispongan y, en cualquier caso, hasta el límite de sus peticiones.
Artículo L225-134 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 9 Diario Oficial de 26 de junio de 2004)
I. - Si las suscripciones con carácter preferente y, en su caso, en suscripción libre, no hubieran absorbido la totalidad de la ampliación de capital:
1º El importe de la ampliación de capital podrá limitarse al importe de las suscripciones, salvo decisión en contrario
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CÓDIGO DE COMERCIO de la junta general. En ningún caso, el importe de la ampliación de capital podrá ser inferior a las tres cuartas partes de la ampliación decidida;
2º Las acciones no suscritas podrán ser libremente distribuidas, total o parcialmente, salvo que la junta haya decidido de otro modo;
3º Las acciones no suscritas podrán ser ofrecidas al público, total o parcialmente, cuando la junta haya autorizado expresamente esta posibilidad.
II. - El consejo de administración o el directorio podrá utilizar, en el orden que determine, las facultades previstas anteriormente o solamente algunas de ellas. La ampliación de capital no se realizará cuando, tras el ejercicio de estas facultades, el importe de las suscripciones recibidas no alcance la totalidad de la ampliación de capital o las tres cuartas partes de esta ampliación en el caso previsto en el párrafo 1º del punto I.
III. - Sin embargo, el consejo de administración o el directorio podrá, de oficio y en cualquier caso, limitar la ampliación de capital al importe alcanzado cuando las acciones no suscritas representen menos del 3% de el aumento del capital. Cualquier acuerdo en contrario será considerado como no escrito.
Artículo L225-135 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 10 Diario Oficial de 26 de junio de 2004)
La junta que decida o autorice una ampliación de capital podrá suprimir el derecho de suscripción preferente para la totalidad o para una parte de dicha ampliación. Resolverá tras examinar el informe del consejo de administración o del directorio. Cuando decida la ampliación del capital, resolverá igualmente en base al informe de los auditores de cuentas. Cuando el consejo de administración o el directorio proceda a emisiones en aplicación de una autorización por parte de la junta general, el auditor de cuentas remitirá un informe al consejo de administración o en el directorio.
En las sociedades cuyos títulos de capital estén admitidos a negociación en un mercado regulado, la junta podrá prever que la ampliación de capital que decida o autorice incluya un plazo de prioridad de suscripción en favor de los accionistas, cuya duración máxima será fijada por decreto adoptado en Conseil d'Etat. Podrá igualmente delegar en el consejo de administración o en el directorio la facultad de valorar si procede prever tal plazo y de fijar eventualmente dicho plazo en las mismas condiciones.
Un decreto adoptado en Conseil d'Etat precisará las condiciones en las que se realizarán los informes de los auditores de cuentas previstos en el presente artículo.
Artículo L225-135-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 11 Diario Oficial de 26 de junio de 2004)
En caso de ampliación de capital con o sin derecho de suscripción preferente, la junta podrá prever que el número de títulos pueda ser aumentado durante un plazo fijado por decreto adoptado en Conseil d'Etat, hasta el límite de una fracción de la emisión inicial determinada por el mismo decreto y al mismo precio que el decidido para la emisión inicial. El límite previsto en el párrafo 1º del punto I del artículo L. 225-134 se aumentará en tal caso en las misma proporciones.
Artículo L225-136 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 12 Diario Oficial de 26 de junio de 2004)
La emisión por llamamiento público al ahorro, sin derecho preferente de suscripción, de títulos de capital estará sujeta a las siguientes condiciones:
1º Para las sociedades cuyos títulos de capital estén admitidos a negociación en un mercado regulado y en la medida en que los valores mobiliarios a emitir de manera inmediata o diferida les sean asimilables, el precio de emisión deberá fijarse según las modalidades establecidas por decreto adoptado en Conseil d'Etat previa consulta con la Autoridad de Mercados Financieros.
No obstante, hasta el límite de 10 del capital social por año, la junta general extraordinaria podrá autorizar al consejo de administración o al directorio para que fije el precio de emisión según las modalidades que determine y tras considerar un informe del consejo de administración o del directorio y un informe especial del auditor de cuentas. Cuando se haga uso de esta autorización, el consejo de administración o el directorio elaborará un informe, certificado por el auditor de cuentas, en el que se describan las condiciones definitivas de la operación y se presenten los elementos de apreciación de la incidencia efectiva de dicha operación sobre la situación del accionista.
2° En los demás casos, el precio de emisión o las condiciones de determinación de este precio serán fijados por la junta general extraordinaria tras considerar el informe del consejo de administración o del directorio y el informe especial del auditor de cuentas.
Artículo L225-138 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 1° III, Artículo 17 VII, Artículo 29 2° Diario Oficial de 20 de febrero de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 124 Diario Oficial de 2 de agosto de 2003) (Ley nº 2003-775 de 21 de agosto de 2003 Artículo 109 III 3 Diario Oficial de 22 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 13 Diario Oficial de 26 de junio de 2004)
I. - La junta general que decida la ampliación de capital podrá reservarla a una o varias personas designadas nominalmente o a categorías de personas que cumplan determinados criterios. Con este fin, podrá suprimir el derecho de suscripción preferente. Las personas designadas nominalmente como beneficiarias de esta disposición no podrán tomar parte en la votación. El quórum y la mayoría necesarios serán calculados tras la deducción de las acciones que éstas posean. No será de aplicación el procedimiento previsto en el artículo L. 225-147.
Cuando la junta general extraordinaria suprima el derecho de suscripción preferente en favor de una o varias
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CÓDIGO DE COMERCIO categorías de personas que cumpla los criterios determinados por ella, podrá delegar en el consejo de administración o en el directorio la tarea de elaborar la lista de beneficiarios dentro de esta o estas categorías y el número de títulos a adjudicar a cada uno de ellos, dentro de los límites máximos previstos en el primer párrafo del artículo L. 225-129-2. Cuando se haga uso de esta delegación, el consejo de administración o el directorio presentará un informe complementario en la próxima junta general ordinaria, certificado por el auditor de cuentas, en el que se describan las condiciones definitivas de la operación.
II. - El precio de emisión o las condiciones de determinación de este precio serán fijados por la junta general extraordinaria tras considerar el informe del consejo de administración o del directorio y el informe especial del auditor de cuentas.
III. - La emisión deberá efectuarse en un plazo de dieciocho meses desde la junta general que la haya decidido o que haya votado la delegación contemplada en el artículo L. 225-129.
Artículo L225-138-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 13, Artículo 14 Diario Oficial de 26 de junio de 2004)
Para la aplicación del párrafo primero del artículo L.443-5 del Código de Trabajo relativo a las ampliaciones de capital reservadas a las personas que se hayan adherido a un plan de ahorro empresarial, cuando la junta general haya suprimido el derecho de suscripción preferente en favor de los trabajadores de la sociedad o de las sociedades vinculadas a ella en virtud del artículo L.225-180, será de aplicación lo dispuesto en los puntos I y II del artículo L. 225-38 y:
1º El precio de suscripción seguirá determinado en las condiciones definidas en el artículo L.443-5 del Código de Trabajo;
2º La ampliación de capital sólo será realizada hasta el importe de los títulos de capital suscritos por los trabajadores individualmente o por mediación de un fondo de inversión colectivo o de los títulos emitidos por sociedades de inversión de capital variable reguladas por el artículo L.214-40-1 del Código Monetario y Financiero . No serán necesarios los requisitos formales previstos en los artículos L.225-142, L.225-144 y L.225-146;
3º (suprimido) 4º El plazo que se podrá conceder a los suscriptores para el desembolso de sus títulos no podrá ser superior a tres
años; 5º Los títulos de capital o valores mobiliarios que dan acceso al capital podrán ser desembolsados, a petición de la
sociedad o del suscriptor por pagos periódicos o por deducciones idénticas y periódicas en el salario del suscriptor; 6º Los títulos de capital o valores mobiliarios que den acceso al capital suscrito de esta forma y que hayan sido
expedidos antes de la expiración del plazo de cinco años previsto en el artículo L. 443-6 del Código de Trabajo solamente serán negociables después de su desembolso íntegro;
7º Los títulos de capital o valores mobiliarios que den acceso al capital y estén reservados a las personas que se hayan adherido a los planes de ahorro mencionados en el artículo L.443-1 del Código de Trabajo podrán, como excepción a lo establecido en las disposiciones del párrafo primero del artículo L.225-131, ser emitidas aunque el capital social no haya sido íntegramente desembolsado.
El hecho de que los títulos mencionados en el párrafo anterior no hayan sido íntegramente desembolsados no impedirá la emisión de títulos de capital para desembolsar por aportación dineraria.
Los participantes en el plan de ahorro empresarial previsto en el artículo L.443-1 del Código de Trabajo podrán obtener la rescisión o la reducción de sus compromisos de suscripción o de posesión de títulos de capital o de valores mobiliarios que den acceso al capital y hayan sido emitidos por la empresa en el caso y las condiciones fijados por los decretos adoptados en Conseil d'Etat previstos en el artículo L.442-7 de dicho Código.
Artículo L225-139 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 15 Diario Oficial de 26 de junio de 2004)
Un decreto adoptado en Conseil d'Etat determinará las menciones que deberán figurar en los informes previstos en los artículos L. 225-129, L. 225-135, L. 225-136 y L. 225-138, así como en los informes previstos en caso de emisión de acciones preferentes o valores mobiliarios que dan acceso al capital.
Artículo L225-140 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 16 Diario Oficial de 26 de junio de 2004)
Cuando los títulos de capital estén gravados con un usufructo, el derecho de suscripción preferente vinculado a ellos pertenecerá al nudo propietario. Si éste vendiera los derechos de suscripción, las cantidades que provengan de esa cesión o los bienes que adquiera por medio de esas cantidades estarán sometidos al usufructo. Si el nudo propietario por negligencia no ejerciese su derecho, el usufructuario podrá sustituirlo para suscribir nuevos títulos o para vender los derechos. En este último caso, el nudo propietario podrá exigir el reembolso de las cantidades que provengan de tal cesión. Los bienes así adquiridos estarán sometidos al usufructo.
Los nuevos títulos pertenecerán al nudo propietario para la nuda propiedad y al usufructuario para el usufructo. Sin embargo, en caso de pago de fondos efectuado por el nudo propietario o el usufructuario para realizar o completar una suscripción, las acciones nuevas sólo pertenecerán al nudo propietario y al usufructuario hasta el límite del valor de los derechos de suscripción. El excedente de las nuevas acciones pertenecerá en plena propiedad al que haya aportado los fondos.
Un decreto adoptado en Conseil d'Etat fijará las condiciones de aplicación del presente artículo cuyas disposiciones serán igualmente aplicables en caso de adjudicación de títulos gratuitos.
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CÓDIGO DE COMERCIO Las disposiciones del presente artículo se aplicarán en caso de silencio de las partes.
Artículo L225-141 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 17 Diario Oficial de 26 de junio de 2004)
El plazo concedido a los accionistas para el ejercicio del derecho de suscripción no podrá ser inferior a cinco días bursátiles a contar desde la apertura de la suscripción.
Este plazo se cerrará anticipadamente en cuanto todos los derechos de suscripción con carácter preferente hayan sido ejercidos o en cuanto la ampliación de capital haya sido íntegramente suscrita tras la renuncia individual a sus derechos de suscripción de los accionistas que no hayan suscrito.
Artículo L225-142 La sociedad realizará, antes de la apertura de la suscripción, los requisitos formales de publicidad cuyas
condiciones serán determinadas por un decreto adoptado en Conseil d'Etat.
Artículo L225-143 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 18 Diario Oficial de 26 de junio de 2004)
Se hará constar el contrato de suscripción a títulos de capital o a valores mobiliarios que dan acceso al capital, por medio de un boletín de suscripción, extendido en las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Sin embargo, el resguardo de suscripción no será exigido por los establecimientos de crédito ni por los proveedores de servicios de inversión que reciban la orden de efectuar una suscripción quedando a cargo de estos mandatarios la presentación del justificante de su mandato.
Artículo L225-144 Las acciones suscritas por aportación dineraria tendrán que estar desembolsadas obligatoriamente en el momento
de la suscripción por, al menos, un cuarto de su valor nominal y, eventualmente, por la totalidad de la prima de emisión. El desembolso del resto deberá producirse, en una o varias veces, en el plazo de cinco años contados a partir del día en que la ampliación de capital sea definitiva.
Se aplicarán las disposiciones del párrafo primero del artículo L.225-5, con excepción de las relativas a la lista de suscriptores. La retirada de los fondos que provengan de las suscripciones por aportación dineraria podrá ser efectuada por un mandatario de la sociedad tras la expedición del certificado por parte del depositario.
Si la ampliación de capital no se realizara en el plazo de seis meses desde la apertura de la suscripción, podrán ser aplicadas las disposiciones del párrafo segundo del artículo L.225-11.
Artículo L.225-145 (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 27 II Diario Oficial de 12 de diciembre de 2001)
En las sociedades que hagan, para la venta de sus acciones, oferta pública de ahorro, se considerará realizado la ampliación de capital cuando uno o varios proveedores de servicios de inversión autorizados para proporcionar el servicio de inversión mencionado en el apartado 6° del artículo L.321-1 del Código Monetario y Financiero, o personas mencionadas en el artículo L.532-18 de dicho Código y autorizadas a suministrar el mismo servicio en el territorio de su Estado de origen, hayan garantizado de manera irrevocable su buen fin. El pago de la fracción liberada del valor nominal y de la totalidad de la prima de emisión deberá realizarse el día trigésimo quinto, como máximo, a partir del cierre del plazo de suscripción.
Artículo L225-146 Las suscripciones y los pagos deberán hacerse constar por un certificado del depositario tras la presentación de los
boletines de suscripción, extendido en el momento del depósito de los fondos. Los desembolsos de acciones por compensación de créditos líquidos y exigibles contra la sociedad serán
constatados por un certificado del notario o del auditor de cuentas. Este certificado equivaldrá al certificado del depositario.
Artículo L225-147 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 19 Diario Oficial de 26 de junio de 2004)
En caso de aportaciones en especie o de estipulación de beneficios especiales, uno o varios auditores de aportaciones serán designados judicialmente. Serán sometidos a las incompatibilidades previstas en el artículo L. 822-11.
Estos auditores evaluarán, bajo su responsabilidad, el valor de las aportaciones en especie y los beneficios especiales. Un decreto adoptado en Conseil d'Etat establecerá las menciones especiales de su informe, el plazo en que éste deba remitirse y las condiciones en las que deba ponerse a disposición de los accionistas. Las disposiciones de los artículos L.225-10 serán aplicables a la junta general extraordinaria.
Si la junta aprobara la valoración de las aportaciones y la concesión de beneficios especiales, hará constar la realización de la ampliación de capital.
Si la junta redujera la valoración de las aportaciones y la concesión de los beneficios especiales, se requerirá la aprobación expresa de las modificaciones por parte de los aportantes, los beneficiarios o sus mandatarios debidamente autorizados a este efecto. En su defecto, no se producirá la ampliación de capital.
Los títulos de capital emitidos como remuneración de una aportación en especie serán íntegramente desembolsados en el momento de su emisión.
La junta general extraordinaria de una sociedad cuyos títulos estén admitidos a negociación en un mercado regulado podrá delegar en el consejo de administración o en el directorio y por un plazo máximo de veintiséis meses,
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CÓDIGO DE COMERCIO las competencias necesarias para proceder a una ampliación de capital, hasta el límite del 10% de su capital social, con vistas a remunerar las aportaciones en especie efectuadas a la sociedad y constituidas por títulos de capital o valores mobiliarios que dan acceso al capital, siempre que no sean aplicables las disposiciones del artículo L. 225-148. El consejo de administración o el directorio resolverá de conformidad con los párrafos tercero o cuarto del presente artículo, tras examinar el informe del o de los auditores de cuentas mencionados en los párrafos primero y segundo del presente artículo.
Artículo L225-148 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 VIII Diario Oficial de 26 de junio de 2004)
Las disposiciones del artículo L.225-147 no serán aplicables en el caso de que una sociedad cuyas acciones estén admitidas a negociación en un mercado regulado proceda a una ampliación de capital para remunerar títulos aportados a una oferta pública de canje por títulos de una sociedad cuyas acciones estén admitidas a negociación en un mercado regulado de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo o sea miembro de la Organización de Cooperación y de Desarrollo Económico.
La ampliación de capital se producirá en las condiciones previstas en el artículo L.225-129. Sin embargo, los auditores de cuentas deberán dar su opinión sobre las condiciones y las consecuencias de la emisión en el programa difundido en el momento de su realización y en su informe en la primera junta general ordinaria reunida tras la emisión.
Artículo L225-149 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 20 Diario Oficial de 26 de junio de 2004)
La ampliación de capital que se derive del ejercicio de los derechos vinculados a los valores mobiliarios que dan acceso al capital no estará sujeta a los requisitos formales previstos en el artículo L. 225-142, en el párrafo segundo del artículo L. 225-144 y en el artículo L. 225-146. Cuando el titular de un valor mobiliario emitido en aplicación del artículo L. 225-149-2 no pueda optar a un número entero, la fracción excedente del cociente exacto del reparto será objeto de un abono en metálico según las modalidades de cálculo determinadas por decreto adoptado en Conseil d'Etat.
La ampliación de capital se considerará definitivamente realizada por el simple hecho del ejercicio de los derechos y, en su caso, de los pagos correspondientes.
En todo momento durante el ejercicio en curso y a más tardar en la primera reunión siguiente al cierre de éste, el consejo de administración o el directorio de la sociedad hará constar, si procede, el número y el importe nominal de las acciones creadas en beneficio de los titulares de los derechos del ejercicio transcurrido y realizará las modificaciones necesarias a las cláusulas de los estatutos relativas al importe del capital social y al número de títulos que lo componen.
El presidente del directorio o el director general, por delegación del directorio o del consejo de administración, podrá proceder a estas operaciones en cualquier momentos durante el ejercicio y a más tardar en una fecha límite fijada por decreto adoptado en Conseil d'Etat.
Artículo L225-149-1 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 IV Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 21 Diario Oficial de 26 de junio de 2004) (Disposición nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XXVII Diario Oficial de 10 de diciembre de 2004)
En caso de emisión de nuevos títulos de capital o de nuevos valores mobiliarios que dan acceso al capital, así como en caso de fusión o de escisión de la sociedad que fuera a emitir dichos títulos, el consejo de administración o el directorio podrá suspender, durante un plazo cuya duración máxima será determinada por decreto adoptado en Conseil d'Etat, la posibilidad de obtener la adjudicación de títulos de capital mediante el ejercicio del derecho mencionado en el artículo L. 225-149 o en el artículo L. 225-178.
Salvo disposición en contrario del contrato de emisión, los títulos de capital obtenidos, tras finalizar el periodo de suspensión, mediante el ejercicio de los derechos vinculados a los valores mobiliarios darán derecho a los dividendos pagados en concepto del ejercicio durante el cual hubieran sido emitidos.
Artículo L225-149-2 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 22 Diario Oficial de 26 de junio de 2004)
Los derechos vinculados a los títulos que den acceso al capital y que hubieran sido adquiridos por la sociedad emisora o por la sociedad que fuera a emitir nuevos títulos de capital serán anulados por la sociedad emisora.
Artículo L225-149-3 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 22 Diario Oficial de 26 de junio de 2004)
Las decisiones tomadas en virtud del párrafo segundo del artículo L. 225-129-6 o relativas a los informes complementarios contemplados en el artículo L. 225-129-5, en el párrafo segundo del apartado 1° del artículo L. 225-136 y en el párrafo segundo del punto I del artículo L. 225-138 podrán dar lugar a una intimación para su cumplimiento según las modalidades definidas en los artículos L. 238-1 y L. 238-6.
Podrán anularse los acuerdos tomados infringiendo los artículos L.225-129 y L.225-142. Serán nulos los acuerdos tomados infringiendo las disposiciones de la presente subsección distintas a las
mencionadas en el presente artículo.
Subsección 2 De las obligaciones con bonos de suscripción de acciones
Subsección 3
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CÓDIGO DE COMERCIO De las obligaciones convertibles en acciones
Subsección 4 De las obligaciones canjeables por acciones
Subsección 5 De la suscripción y de la compra de acciones por parte de los empleados Artículos L225-177 a
L225-197-5
Artículo L225-177 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 132 I Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria, tras el examen del informe del consejo de administración o del directorio, según el caso, y tras el examen del informe de los auditores de cuentas, podrá autorizar al consejo de administración o al directorio a que conceda, en beneficio de los trabajadores de la sociedad o de algunos de ellos, opciones que les den derecho a la suscripción de acciones. La junta general extraordinaria determinará el plazo durante el cual esta autorización podrá ser utilizada por el consejo de administración o el directorio, el cual no podrá ser superior a treinta y ocho meses. Sin embargo, las autorizaciones anteriores a la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001 relativa a las nuevas regulaciones económicas serán válidas hasta el fin de su mandato.
El consejo de administración o el directorio determinará las condiciones en las que serán otorgadas dichas opciones. Estas condiciones podrán incluir cláusulas de prohibición de reventa inmediata de todo o parte de las acciones sin que el plazo impuesto para la conservación de los títulos pueda exceder de tres años a partir de la contratación del derecho de opción.
Las opciones podrán ser otorgadas o contratadas aunque el capital social no haya sido íntegramente desembolsado.
El precio de suscripción será establecido el día en que la opción haya sido otorgada por el consejo de administración o el directorio según las modalidades determinadas por la junta general extraordinaria, tras el examen del informe de los auditores de cuentas. Si las acciones de la sociedad no son admitidas a negociación en un mercado regulado, el precio de suscripción será determinado por métodos objetivos establecidos para la evaluación de acciones teniendo en cuenta, según una ponderación apropiada para cada caso, la situación neta contable, la rentabilidad y las perspectivas de actividad de la empresa. Estos criterios serán apreciados eventualmente sobre una base consolidada o, en su defecto, teniendo en cuenta los elementos financieros provenientes de las filiales significativas. En su defecto, el precio de suscripción será determinado por medio de la división del importe del activo neto reevaluado, calculado según el balance más reciente, entre el número de títulos existentes. Un decreto establecerá las condiciones de cálculo del precio de suscripción. Si las acciones de la sociedad fueran admitidas a negociación en un mercado regulado, el precio de suscripción no podrá ser inferior al 80% de la media de las cotizaciones en las veinte sesiones bursátiles anteriores a ese día, ninguna opción podrá ser concedida hasta que no hayan transcurrido veinte sesiones bursátiles desde el corte de las acciones de un cupón que da derecho a un dividendo o a una ampliación de capital.
En una sociedad cuyos títulos estén admitidos a negociación en un mercado regulado, las opciones no podrán ser concedidas:
1º En el plazo de diez sesiones de bolsa inmediatamente anteriores o posteriores a la fecha en la que las cuentas consolidadas, o, en su defecto, las cuentas anuales, hayan sido presentadas públicamente;
2º En el plazo comprendido entre la fecha en la que los órganos sociales de la sociedad hayan tenido conocimiento de una información que, si se hubiese hecho pública, habría podido tener una incidencia significativa en la cotización de los títulos de la sociedad, y diez sesiones bursátiles después del día en que esta información se haya hecho pública.
Las opciones que den derecho a la suscripción de títulos que no estén admitidos a negociación en un mercado regulado sólo podrán ser concedidas a los trabajadores de la sociedad que adjudicará estas opciones o los de las sociedades mencionadas en el párrafo 1º del artículo L. 225-180.
Artículo L225-178 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La autorización dada por la junta general extraordinaria conllevará, a favor de los beneficiarios, la renuncia expresa de los accionistas a su derecho de suscripción preferente de las acciones que sean emitidas a medida que se vayan contratando opciones.
La ampliación de capital que resulte de estas contrataciones de opciones no exigirá los requisitos formales previstos en el artículo L.225-142, en el párrafo segundo del artículo L. 225-144 y en el artículo L.225-146. Será definitivamente realizada con el simple hecho de la declaración del ejercicio del derecho de opción, acompañada del boletín de suscripción y del pago en efectivo o por compensación con créditos, de la cantidad correspondiente.
En la primera reunión que siga al cierre de cada ejercicio, el consejo de administración o el directorio, según el caso, hará constar, si procede, el número y el importe de las acciones emitidas durante el período del ejercicio como consecuencia del contrato de los derechos de opciones y aportará las modificaciones necesarias a las cláusulas de los estatutos relativas al importe del capital social y al número de acciones que lo representan. El presidente podrá proceder a estas operaciones, por delegación del consejo de administración o del directorio, en el mes siguiente al cierre del ejercicio. El consejo de administración o el directorio, o el presidente en caso de delegación, podrán proceder igualmente en todo momento a esta constatación para el ejercicio en curso y añadir a los estatutos las modificaciones correspondientes.
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CÓDIGO DE COMERCIO Artículo L225-179 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 132 II Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria podrá autorizar también al consejo de administración o al directorio, según el caso, a conceder, en beneficio de los miembros del personal trabajador de la sociedad o a algunos de ellos, opciones que den derecho a compra de acciones que provengan de un rescate efectuado, previamente a la apertura de la opción, por la propia sociedad en las condiciones definidas en los artículos L.225-208 o L.225-209. La junta general extraordinaria fijará el plazo durante el cual esta autorización podrá ser utilizada por el consejo de administración o por el directorio, no pudiendo ser superior a treinta y ocho meses. Sin embargo, las autorizaciones anteriores a la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001 relativa a las nuevas regulaciones económicas serán válidas hasta el fin de su mandato.
En ese caso, se aplicarán las disposiciones del párrafos segundo y cuarto del artículo L.225-177. Además, el precio de la acción, en el día en que la opción sea concedida, no podrá ser inferior al 80% de la cotización media de compra de las acciones poseídas por la sociedad en concepto de los artículos L.225-208 y L.225-209.
Las opciones que den derecho a la compra de títulos que no estén admitidos a negociación en un mercado regulado sólo podrán ser concedidas a los trabajadores de la sociedad que adjudique estas opciones o los de las sociedades mencionadas en el párrafo 1º del artículo L. 225-180.
Artículo L225-180 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 32 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
I. - Las opciones podrán ser concedidas, en las mismas condiciones que en los artículos L.225-177 a L. 225-179 anteriores:
1º Bien, en beneficio de los miembros del personal asalariado de las sociedades o de las agrupaciones de interés económico en las que al menos del 10% del capital o de los derechos de voto sean detentados, directa o indirectamente por la sociedad que concede las opciones;
2º Bien, en beneficio de los miembros del personal asalariado de las sociedades o agrupaciones de interés económico que detenten, directa o indirectamente, al menos un 10% del capital o de los derechos de voto de la sociedad que conceda las opciones;
3º Bien, en beneficio de los miembros del personal asalariado de las sociedades o agrupaciones de interés económico en las que al menos un 50% del capital o de los derechos de voto sean detentados, directa o indirectamente, por un sociedad que posea por si misma, directa o indirectamente, al menos un 50% del capital de la sociedad que concede las opciones.
II. - La junta general ordinaria de la sociedad que controle mayoritariamente, directa o indirectamente, a la que concede las opciones, será informada en las condiciones previstas en el artículo L.225-184.
Podrán igualmente ser concedidas opciones en las mismas condiciones que en los artículos L.225-177 a L.225-179 por una empresa controlada, directa o indirectamente, exclusiva o conjuntamente, por un órgano central o los establecimientos de crédito afiliados a ella en el sentido de los artículos L.511-30 a L.511-32 del Código Monetario y Financiero a los empleados de dichas sociedades así como a los de las entidades cuyo capital sea detentado en más del 50%, por dicho órgano central o por establecimientos afiliados, directa o indirectamente, exclusiva o conjuntamente.
Artículo L225-181 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX, X Diario Oficial de 26 de junio de 2004)
El precio establecido para la suscripción o la compra de las acciones no podrá ser modificado durante el período de validez de la opción.
No obstante, cuando la sociedad realice una amortización o una reducción del capital, una modificación del reparto de los beneficios, una adjudicación gratuita de acciones, una incorporación al capital de reservas, beneficios o primas de emisión, una adjudicación de reservas o cualquier emisión de títulos de capital o de títulos que den derecho a la adjudicación de títulos de capital que incluya un derecho de suscripción reservado a los accionistas, deberá adoptar las medidas necesarias para proteger los intereses de los beneficiarios de las opciones en las condiciones previstas en el artículo L. 228-99.
Artículo L225-182 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
El número total de las opciones abiertas y aún no contratadas no podrá dar derecho a suscribir un número de acciones que exceda de una fracción del capital social que será determinada por un decreto adoptado en Conseil d'Etat.
No podrán ser concedidas opciones a los empleados y a los mandatarios sociales que posean más del 10% del capital social.
Artículo L225-183 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria fijará el plazo durante el cual deberán ser ejercidos los derechos de opciones. Los derechos que resulten de las opciones concedidas no serán transmisibles hasta que la opción haya sido
ejercida. En caso de fallecimiento del beneficiario, sus herederos podrán ejercer la opción en un plazo de seis meses
contados a partir de la fecha del fallecimiento.
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CÓDIGO DE COMERCIO Artículo L225-184 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 132 III Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Un informe especial comunicará cada año a la junta general ordinaria las operaciones realizadas en virtud de las disposiciones previstas en los artículos L.225-177 al 225-186.
Este informe también dará cuenta: - Del número, de las fechas de vencimiento y del precio de las opciones de suscripción o de adquisición de
acciones que, durante el año y en razón de los mandatos y funciones ejercidos en la sociedad, hayan sido concedidas a cada uno de estos mandatarios por la sociedad y por aquéllas que estén vinculadas a ella en las condiciones previstas en el artículo L.225-180;
- Del número, de las fechas de vencimiento y del precio de las opciones de suscripción o de compra de acciones que hayan sido concedidas durante el año a cada uno de estos mandatarios, en razón de los mandatos y funciones que ejercieran en ellas en representación de las sociedades controladas en el sentido del artículo L. 233-16
- Del número y del precio de las acciones suscritas o compradas durante el ejercicio por los mandatarios sociales de la sociedad al ejercer el derecho sobre una o varias de las opciones detentadas en las sociedades citadas en los dos párrafos anteriores.
Este informe indicará igualmente: - El número, el precio y las fechas de vencimiento de las opciones de suscripción o de compra de acciones
concedidas durante el año por la sociedad y por las sociedades o agrupaciones vinculadas a ella en las condiciones previstas en el artículo L.225-180, a cada uno de los diez empleados de las sociedad que no fueran mandatarios sociales cuyo número de opciones concedidas de este modo sea mayor,
- El número y el precio de las acciones que, durante el año, hayan sido suscritas o compradas por cada uno de los diez empleados de la sociedad, que no siendo mandatarios sociales, al ejercer el derecho sobre una o varias de las opciones detentadas sobre las sociedades citadas en el párrafo anterior, hayan suscrito o adquirido el número más elevado de acciones.
Artículo L225-185 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 132 IV Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Podrán ser concedidas opciones con derecho a suscripción de acciones, durante un período de dos años a partir de la inscripción de la sociedad, a los mandatarios sociales personas físicas que participen con los empleados en la constitución de una sociedad.
Dichas opciones podrán igualmente ser concedidas, durante un período de dos años a partir del rescate, a los mandatarios sociales personas físicas de una sociedad que adquieran junto a los empleados la mayoría de los derechos de voto para asegurar la continuidad de la sociedad.
En caso de adjudicación de opciones, en un plazo de dos años tras la creación de una sociedad o el rescate de la mayoría del capital de una sociedad por sus empleados o sus mandatarios sociales, el máximo previsto en el último párrafo del artículo L.225-182 será modificado hasta llegar a un tercio del capital.
El presidente del consejo de administración, el director general, los directores generales delegados, los miembros del directorio o el gerente de una sociedad por acciones podrán recibir, por parte de la sociedad, opciones que den lugar a la suscripción o a la compra de acciones en las condiciones previstas en los artículos L.225-177 a L.225-184.
Podrán igualmente recibir opciones que den derecho a la suscripción o a la compra de acciones de una sociedad que esté vinculada en las condiciones previstas en le artículo L. 225-180, siempre y cuando las acciones de ésta última estén admitidas a negociación en un mercado regulado.
Artículo L225-186 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 31 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Los artículos L.225-177 a L.225-185 serán aplicables a los certificados de inversión, a los certificados de cooperativas de inversión y a los certificados de cooperativas de socios.
Artículo L225-187-1 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 29 5° Diario Oficial de 20 de febrero de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Los artículos L. 225-192 a L.225-194 y el artículo L.225-197 continuarán siendo aplicables con su redacción anterior a la publicación de la Ley nº 2001-152 de 19 de febrero de 2001 sobre el ahorro salarial hasta que finalice un plazo de cinco años contados a partir de esta publicación.
Artículo L225-197-1 (Introducido por la Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I a, Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
I. - La junta general extraordinaria, tras el examen del informe del consejo de administración o del directorio, según el caso, y tras el examen del informe de los auditores de cuentas, podrá autorizar al consejo de administración o al directorio a que proceda, en beneficio de los trabajadores de la sociedad o de algunas categorías de ellos, a una adjudicación gratuita de acciones existentes o a emitir.
La junta general extraordinaria fijará el porcentaje máximo del capital social que pueda ser adjudicado en las condiciones establecidas en el párrafo anterior. La adjudicación de las acciones a sus beneficiarios será definitiva al
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CÓDIGO DE COMERCIO finalizar un periodo de adquisición cuya duración máxima será determinada por la junta general extraordinaria y cuya duración mínima no podrá ser inferior a dos años. La junta general extraordinaria fijará asimismo la duración mínima de la obligación de conservación de las acciones por los beneficiarios. Este plazo empezará a contar a partir de la adjudicación definitiva de las acciones y no podrá ser inferior a dos años.
En una sociedad cuyos títulos estén admitidos a negociación en un mercado regulado, al finalizar el periodo de obligación de conservación, las opciones no podrán ser concedidas:
1º En el plazo de diez sesiones de Bolsa inmediatamente anteriores o posteriores a la fecha en la que las cuentas consolidadas, o, en su defecto, las cuentas anuales, hayan sido presentadas públicamente;
2º En el plazo comprendido entre la fecha en la que los órganos sociales de la sociedad hayan tenido conocimiento de una información que, si se hubiese hecho pública, habría podido tener una incidencia significativa en la cotización de los títulos de la sociedad, y diez sesiones bursátiles después del día en que esta información se haya hecho pública.
El consejo de administración o, en su caso, el directorio determinará la identidad de los beneficiarios de las adjudicaciones de acciones mencionadas en el primer párrafo. Establecerá las condiciones y, en su caso, los criterios de adjudicación de las acciones.
La junta general extraordinaria determinará el plazo durante el cual esta autorización podrá ser utilizada por el consejo de administración o el directorio. Dicho plazo no podrá ser superior a treinta y ocho meses.
El número total de acciones adjudicadas gratuitamente no podrá exceder del 10% del capital social. II. - El presidente del consejo de administración, el director general, los directores generales delegados, los
miembros del directorio o el gerente de una sociedad por acciones podrán recibir acciones de la sociedad en las mismas condiciones que los trabajadores de la sociedad.
Podrán igualmente recibir acciones de una sociedad que esté vinculada en las condiciones previstas en le artículo L. 225-197, siempre y cuando las acciones de ésta última estén admitidas a negociación en un mercado regulado.
No podrán ser adjudicadas acciones a los empleados y a los mandatarios sociales que posean más del 10% del capital social. Una adjudicación gratuita de acciones tampoco podrá tener como resultado que los empleados y los mandatarios sociales posean más del 10% del capital social cada uno.
Artículo L225-197-2 (Introducido por la Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I a, Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
I. - Las acciones podrán ser adjudicadas, en las mismas condiciones que las mencionadas en el artículo L.225-197-1:
1º En beneficio de los miembros del personal asalariado de las sociedades o de las agrupaciones de interés económico en las que al menos del 10% del capital o de los derechos de voto sean detentados, directa o indirectamente por la sociedad que adjudica las acciones;
2º En beneficio de los miembros del personal asalariado de las sociedades o grupos de interés económico que detenten, directa o indirectamente, al menos un 10% del capital o de los derechos de voto de la sociedad que adjudica las acciones;
3º O en beneficio de los miembros del personal asalariado de las sociedades o agrupaciones de interés económico en las que al menos un 50% del capital o de los derechos de voto sean detentados, directa o indirectamente, por un sociedad que posea por si misma, directa o indirectamente, al menos un 50% del capital de la sociedad que adjudica las acciones.
Las acciones no admitidas a negociación en un mercado regulado sólo podrán adjudicarse en las condiciones anteriormente indicadas a los empleados de la sociedad que procedan a esta adjudicación o a los mencionados en el apartado 1°.
II. - Podrán igualmente ser adjudicadas acciones en las mismas condiciones que las previstas en el artículo L.225-197-1 por una empresa controlada, directa o indirectamente, exclusiva o conjuntamente, por un órgano central o los establecimientos de crédito afiliados a ella en virtud y para la aplicación de los artículos L.511-30 a L.511-32 del Código Monetario y Financiero a los empleados de dichas sociedades así como a los de las entidades cuyo capital sea detentado en más del 50%, directa o indirectamente y exclusiva o conjuntamente, por dicho órgano central o por establecimientos de crédito.
Artículo L225-197-3 (Introducido por la Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I a, Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
Los derechos que se deriven de la adjudicación gratuita de acciones no serán transmisibles hasta finalizar el periodo de adquisición.
En caso de fallecimiento del beneficiario, sus herederos podrán solicitar la adjudicación de las acciones en un plazo de seis meses a partir de la fecha del fallecimiento.
Artículo L225-197-4 (Introducido por la Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I a, Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
Un informe especial comunicará cada año a la junta general ordinaria las operaciones realizadas en virtud de las disposiciones previstas en los artículos L.225-197-1 al 225-197-3.
Este informe también dará cuenta: - Del número y del valor de las acciones que, durante el año y en razón de los mandatos y funciones ejercidos en la
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CÓDIGO DE COMERCIO sociedad, hayan sido adjudicadas gratuitamente a cada uno de estos mandatarios por la sociedad y por aquéllas que estén vinculadas a ella en las condiciones previstas en el artículo L.225-197-2;
- Del número y del valor de las acciones que hayan sido adjudicadas gratuitamente durante el año a cada uno de estos mandatarios, en razón de los mandatos y funciones que ejercieran en ellas, por las sociedades controladas en el sentido del artículo L. 233-16
Dicho informe indicará igualmente el número y el valor de las acciones que, durante el año, hayan sido adjudicadas gratuitamente por la sociedad y por las sociedades o agrupaciones vinculadas a ella en las condiciones previstas en el artículo L. 225-197-2, a cada uno de los diez empleados de las sociedad que no fueran mandatarios sociales y cuyo número de acciones adjudicadas gratuitamente sea mayor.
Artículo L225-197-5 (Introducido por la Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I a, Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
La junta general ordinaria de la sociedad que controle mayoritariamente, directa o indirectamente, a la que adjudica gratuitamente las acciones, será informada en las condiciones previstas en el artículo L.225-197-4.
Subsección 6 De la amortización del capital Artículos L225-198 a
L225-203
Artículo L225-198 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La amortización del capital se efectuará en virtud de una estipulación estatutaria o de un acuerdo de la junta general extraordinaria y por medio de las cantidades distribuibles según el artículo L. 232-11. Esta amortización sólo se podrá realizar por vía de reembolso, igual para cada acción de una misma categoría y no conllevará reducción de capital.
Las acciones íntegramente amortizadas se denominarán bonos de disfrute.
Artículo L225-199 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Las acciones íntegra o parcialmente amortizadas perderán, hasta el importe debido, el derecho al primer dividendo previsto en el artículo L.232-19 y al reembolso del valor nominal. Conservará todos los demás derechos.
Artículo L225-200 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Cuando el capital esté dividido, bien en acciones de capital y en acciones total o parcialmente amortizadas, bien en acciones desigualmente amortizadas, la junta general de accionistas podrá decidir, en las condiciones requeridas para la modificación de los estatutos, la conversión de las acciones total o parcialmente amortizadas en acciones de capital.
Para ello, deberá prever que se efectúe una deducción obligatoria, hasta el importe amortizado de las acciones que se pretenda convertir, de la parte de los beneficios sociales de uno o varios ejercicios que repercutan sobre estas acciones, tras el pago, para las acciones parcialmente amortizadas, del primer dividendo o del interés estatutario que proceda.
Artículo L225-201 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Los accionistas podrán ser autorizados, en las mismas condiciones, a pagar a la sociedad el importe amortizado de sus acciones, aumentado, eventualmente, por el primer dividendo o por el interés estatutario producido en el período transcurrido del ejercicio en curso y, en su caso, durante el ejercicio anterior.
Artículo L225-202 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Las decisiones previstas en los artículos L. 225-200 y L. 225-201 serán sometidas a la ratificación de las juntas especiales de cada una de las categorías de accionistas que tengan los mismos derechos.
Artículo L225-203 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
El consejo de administración o el directorio, según el caso, aportará las modificaciones necesarias en las cláusulas de los estatutos, en la medida en que estas modificaciones correspondan materialmente a los resultados efectivos de las operaciones previstas en los artículos L. 225-200 y L.225-201.
Subsección 7 De la reducción de capital Artículos L225-204 a
L225-205
Artículo L225-204 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La reducción de capital será autorizada o decidida por la junta general extraordinaria, que podrá delegar en el consejo de administración o en el directorio, según el caso, todas las competencias para realizarla. En ningún caso, podrá vulnerar la igualdad entre los accionistas.
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CÓDIGO DE COMERCIO Un informe realizado por los auditores de cuentas sobre la operación prevista será presentado a los accionistas de
la sociedad en un plazo determinado por decreto adoptado en Conseil d'Etat. La junta decidirá tras el examen del informe de los auditores que darán a conocer su opinión sobre las causas y condiciones de la reducción a efectuar.
Cuando el consejo de administración o el directorio, según el caso, realice la operación, por delegación de la junta general, levantará un acta, publicada posteriormente, y procederá a la modificación correspondiente en los estatutos.
Artículo L225-205 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Cuando la junta apruebe un proyecto de reducción del capital no motivada por pérdidas, el representante del sindicato de los obligacionistas y los acreedores cuyo crédito sea anterior a la fecha del depósito del acta de deliberación en la secretaría, podrán impugnar la reducción, en el plazo fijado por decreto adoptado en Conseil d'Etat.
Una resolución judicial rechazará esta impugnación o, por el contrario, ordenará, o bien el reembolso de los créditos, o bien la constitución de garantías si la sociedad las ofrece y si son consideradas como suficientes.
Las operaciones de reducción de capital no podrán iniciarse durante el período de impugnación ni, en su caso, antes de que se haya resuelto en primera instancia sobre dicha impugnación.
Si el juez de primera instancia admitiese la impugnación, se interrumpirá inmediatamente el procedimiento de reducción de capital hasta la constitución de garantías suficientes o hasta el reembolso de los créditos. Si no la admitiese a trámite, podrán iniciarse las operaciones de reducción.
Subsección 8 De la suscripción, de la compra o de la aceptación en prenda por parte de Artículos L225-206 a
las sociedades de sus propias acciones L225-217
Artículo L225-206 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
I. - Estará prohibida la suscripción por parte de la sociedad de sus propias acciones, ya sea directamente o por medio de una persona que actúe en su propio nombre pero a cuenta de la sociedad.
Los fundadores, o en el caso de una ampliación de capital, los miembros del consejo de administración o del directorio, según corresponda, estarán obligados, en las condiciones previstas en el artículo L.225-251 y en el párrafo primero del artículo L.225-256, a desembolsar las acciones suscritas por la sociedad que infrinjan lo dispuesto en el párrafo primero.
Cuando las acciones hayan sido suscritas por una persona que actúe en su propio nombre pero a cuenta de la sociedad, esta persona estará obligada a desembolsar las acciones solidariamente con los fundadores o, según el caso, los miembros del consejo de administración o del directorio. Además, se considerará que esta persona habrá suscrito estas acciones por su propia cuenta.
II. - La compra por parte de una sociedad de sus propias acciones estará autorizada en las condiciones y de acuerdo a las modalidades previstas en los artículos L.225-207 a L.225-217.
Las adquisiciones de acciones por una persona que actúe por cuenta de la sociedad estarán prohibidas salvo si se trata de un proveedor de servicios de inversión o de un miembro del mercado regulado que actúe en las condiciones del punto I del artículo 43 de la Ley nº 96-597 de 2 de julio de 1996 de modernización de las actividades financieras.
Artículo L225-207 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La junta general que haya decidido una reducción del capital no motivado por pérdidas podrá autorizar al consejo de administración o al directorio, según el caso, a comprar un número determinado de acciones para anularlas.
Artículo L225-208 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004) (Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I b Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
Las sociedades que permitan a sus trabajadores participar en sus resultados por adjudicación de sus acciones, las que adjudiquen sus acciones en las condiciones previstas en los artículos L.225-197-1 a L. 225-197-3 y las que concedan opciones de compra de sus acciones en las condiciones previstas en los artículos L.225-177 y siguientes, podrán, con esta finalidad, rescatar sus propias acciones. Las acciones deberán ser adjudicadas o las opciones deberán ser concedidas en el plazo de un año a partir de su adquisición.
Artículo L.225-209 (Ley nº 2003-7 de 3 de enero de 2003 art. 50 II Diario Oficial de 4 de enero de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 art. 23, art. 51 IX Diario Oficial de 26 de junio de 2004) (Ley nº 2004-1484 de 30 de diciembre de 2004 art. 83 I b Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 27 Diario Oficial de 27 de julio de 2005)
La junta general de una sociedad cuyas acciones estén admitidas a negociación en un mercado regulado podrá autorizar al consejo de administración o al directorio, según corresponda, la compra de un número de acciones que representen hasta un 10% del capital de la sociedad. La junta general definirá los fines y las condiciones de la operación, así como su límite máximo. Esta autorización no podrá ser concedida para un periodo superior a los dieciocho meses. Se informará al comité de empresa sobre la resolución adoptada por la junta general.
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CÓDIGO DE COMERCIO Un informe especial informará anualmente a la junta general sobre la realización de operaciones de compra de
acciones que hubiera autorizado y precisará, para cada uno de los fines mencionados, el número y precio de las acciones adquiridas, el volumen de acciones destinadas a dichos fines y las eventuales reasignaciones a otros fines del que hubieran sido objeto.
El consejo de administración podrá delegar en el director general o, de común acuerdo con este último, en uno o varios directores generales delegados, las competencias necesarias para realizar esta operación. El directorio podrá delegar en su presidente o, de común acuerdo con este último, en uno o varios de sus miembros, las competencias necesarias para realizarla. Las personas designadas deberán rendir cuentas ante el consejo de administración o el directorio sobre la utilización que hayan hecho de estas competencias, con arreglo a las condiciones establecidas por los mismos.
La adquisición, la cesión o la transmisión de estas acciones podrá efectuarse por todos los medios. Estas acciones podrán ser anuladas hasta un límite del 10% del capital de la sociedad en periodos de veinticuatro meses. La sociedad informará cada mes al Consejo de mercados financieros, de las compras, cesiones, transmisiones y anulaciones así realizadas. El Consejo de mercados financieros dará a conocer públicamente esta información.
Las sociedades que permitan a sus trabajadores participar en los resultados de la empresa mediante la adjudicación de sus propias acciones, las que adjudiquen sus acciones en las condiciones previstas en los artículos L.225-197-1 a L.225-197-3 así como las que deseen conceder opciones de compra de acciones a sus trabajadores podrán utilizar con este fin todo o parte de las acciones adquiridas en las condiciones previstas anteriormente. Podrán igualmente proponer la adquisición de sus propias acciones en las condiciones previstas por el punto II del artículo L.225-196 y por los artículos L.443-1 y siguientes del Código de Trabajo.
El número de acciones adquiridas por la sociedad para su conservación y su ulterior pago o canje en el marco de una operación de fusión, de escisión o de aportación no podrá exceder del 5% de su capitaL.Estas disposiciones serán de aplicación a los programas de rescate sometidos a la aprobación de las juntas generales que se celebren a partir del 1 de enero de 2006.
En caso de anulación de las acciones adquiridas, se autorizará o decidirá la reducción de capital por la junta general extraordinaria quien podrá delegar en el consejo de administración o el directorio, según el caso, todas las competencias necesarias para realizarla. Se presentará a los accionistas de la sociedad un informe especial realizado por los auditores de cuentas sobre la operación prevista, en un plazo fijado por decreto adoptado en Conseil d'Etat.
Artículo L225-210 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La sociedad no podrá poseer, de forma directa o por mediación de una persona que actúe en su propio nombre pero por cuenta de la sociedad, más del 10% del total de sus propias acciones, ni más del 10% de una categoría determinada. Estas acciones deberán tener forma nominativa y estar totalmente desembolsadas en el momento de su adquisición. Si no lo estuvieran, los miembros del consejo de administración o del directorio, según el caso, estarán obligados a desembolsar las acciones, en las condiciones previstas en el artículo L.225-251 y en el párrafo primero del artículo L.225-256.
La adquisición de acciones de la sociedad no podrá tener por efecto la reducción de los fondos propios hasta un importe inferior al del capital aumentado con las reservas no distribuibles.
La sociedad deberá disponer de reservas, además de la reserva legal, por un importe al menos igual al valor del conjunto de las acciones que posea.
Las acciones poseídas por la sociedad no darán lugar a dividendos y estarán privadas del derecho de voto. En caso de ampliación de capital de acciones por suscripción dineraria, la sociedad no podrá ejercer por sí misma
el derecho de suscripción preferente. La junta general podrá decidir no tener en cuenta estas acciones para la determinación de los derechos de suscripción preferentes vinculados a las otras acciones. Si no existen tales derechos vinculados a las acciones poseídas por la sociedad deberán ser, antes del cierre del plazo de suscripción, o bien vendidas en bolsa, o bien distribuidas entre los accionistas proporcionalmente a los derechos que tenga cada uno.
Artículo L225-211 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La sociedad o la persona encargada del servicio de los títulos deberá llevar registros de las compras y de las ventas efectuadas, en aplicación de los artículos L.225-208 y L225-209, en las condiciones determinadas por decreto adoptado en Conseil d'Etat.
El consejo de administración o el directorio, según el caso, deberá indicar, en el informe previsto en el artículo L.225-100, el número de las acciones compradas y vendidas en el transcurso del ejercicio en aplicación de los artículos 225-208 y L.225-209, la cotización media de las compras y de las ventas, el importe de los gastos de negociación, el número de acciones inscritas a nombre de la sociedad al cierre del ejercicio y su valor de compra estimado, así como su valor nominal, las causas de las adquisiciones efectuadas y la fracción del capital que representan.
Artículo L225-212 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 I 1°, V 1° Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Las sociedades deberán declarar a la Autoridad de Mercados Financieros las operaciones que prevean efectuar en aplicación de las disposiciones del artículo L.225-209. Darán cuenta a la Autoridad de Mercados Financieros de las adquisiciones que hayan efectuado.
La Autoridad de Mercados Financieros podrá solicitarles todas las explicaciones que considere necesarias al
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CÓDIGO DE COMERCIO respecto.
Si no se cumplieran estas demandas o si constatara que estas transacciones infringen las disposiciones del artículo L.225-209, la Autoridad de Mercados Financieros podrá tomar todas las medidas necesarias para impedir la ejecución de las órdenes que estas sociedades transmitan directa o indirectamente.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles y al Consejo de disciplina de la gestión financiera serán
sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L225-213 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Las disposiciones de los artículos L.225-206 y L.225-209 no serán aplicables a las acciones íntegramente desembolsadas, adquiridas como consecuencia de una transmisión de patrimonio a título universal o por causa de una resolución judicial.
Sin embargo, las acciones deberán ser cedidas en un plazo de dos años contados desde la fecha de adquisición cuando la sociedad posea más del 10% de su capital. Tras la finalización de este plazo, deberán ser anuladas.
Artículo L225-214 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Las acciones que se posean contraviniendo los artículos L.225-206 a L.225-210 deberán ser cedidas en un plazo de un año a contar desde la fecha de su suscripción o de su adquisición. Tras la finalización de este plazo, deberán ser anuladas.
Artículo L225-215 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Estará prohibida la aceptación en garantía por parte de la sociedad de sus propias acciones, bien directamente o bien por mediación de una persona que actúe en su propio nombre, pero a cuenta de la sociedad.
Las acciones aceptadas en prenda por la sociedad deberán ser restituidas a su propietario en el plazo de un año. La restitución podrá realizarse en un plazo de dos años si la transmisión de la garantía a la sociedad proviene de una transmisión de patrimonio a título universal o de una resolución judicial. En su defecto, el contrato de la constitución de garantía será nulo de pleno derecho.
La prohibición prevista en el presente artículo no se aplicará a las operaciones corrientes que realicen los establecimientos de crédito.
Artículo L225-216 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 29 3° Diario Oficial de 20 de febrero de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Una sociedad no podrá adelantar sus fondos, conceder préstamos o conceder garantías a cambio de la suscripción o la compra de sus propias acciones por parte de un tercero.
Las disposiciones del presente artículo no se aplicarán ni a las operaciones corrientes de los establecimientos de crédito ni a las operaciones efectuadas para la adquisición por parte de los empleados de acciones de la sociedad, de una de sus filiales o de una sociedad incluida en el marco de un plan de ahorro de grupo previsto en el artículo L. 444-3 del Código de Trabajo.
Artículo L225-217 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Los artículos L. 225-206 a L. 225-216 serán aplicables a los certificados de inversión.
Sección V Del control de las sociedades anónimas Artículos L225-218 a
L225-242
Artículo L225-218 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 104 I Diario Oficial de 2 de agosto de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 104 I Diario Oficial de 2 de agosto de 2003)
El control será ejercido en cada sociedad por uno o varios auditores de cuentas.
Artículo L225-227 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 116 Diario Oficial de 2 de agosto de 2003)
Serán nulos los acuerdos tomados sin que se haya producido una designación válida de auditores de cuentas o tras el e examen del informe de un auditor de cuentas nombrado o mantenido en sus funciones contraviniendo las disposiciones de los artículos L.225-1 y L.225-224. El procedimiento de nulidad no surtirá efecto si estos acuerdos fueran confirmados expresamente por una junta general tras examinar un informe elaborado por auditores designados válidamente.
Artículo L225-228
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CÓDIGO DE COMERCIO (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 105 Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas serán propuestos para ser nombrados por la junta general mediante un proyecto de resolución que emane del consejo de administración, del consejo de supervisión o, en las condiciones definidas por la Sección 3 del presente capítulo, de los accionistas. Cuando la sociedad haga un llamamiento público al ahorro, el consejo de administración escogerá a los auditores de cuentas que prevea proponer, sin que tomen parte en la votación el director general ni el director general delegado.
Cuando el auditor de cuentas haya verificado, en el transcurso de los dos últimos ejercicios, las operaciones de aportación o de fusión de la sociedad o de las sociedades que ésta controla en el sentido de los puntos I y II del artículo L. 233-16, esta verificación deberá ser mencionada en el proyecto de resolución mencionado en el párrafo anterior.
Fuera de los casos previstos en los artículos L.225-7 y L.225-16, los auditores de cuentas serán designados por la junta general ordinaria.
La junta general ordinaria designará a uno o varios auditores de cuentas suplentes, convocados para sustituir a los titulares en caso de negarse éstos, o por impedimento, dimisión o fallecimiento. Las funciones del auditor de cuentas suplente designado para sustituir al titular finalizarán con la expiración del mandato confiado a éste último, a no ser que el impedimento sólo revista un carácter temporal. En este último caso, cuando cese el impedimento, el titular retomará sus funciones tras la siguiente junta general que apruebe las cuentas.
Las sociedades obligadas a publicar las cuentas consolidadas en aplicación de las disposiciones del presente libro estarán obligadas a designar al menos dos auditores de cuentas.
Los auditores de cuentas procederán en conjunto a un examen contradictorio de las condiciones y procedimientos de elaboración de las cuentas, según las prescripciones enunciadas por una norma de ejercicio profesional establecida de conformidad con el apartado sexto del artículo L. 821-1. Los principios de repartición de las diligencias que deberán ser aplicados por los auditores de cuentas también serán determinados por una norma de ejercicio profesional.
Artículo L225-229 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 107 Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas serán nombrados por un periodo de seis ejercicios. Pondrán término a sus funciones tras la reunión de la junta general ordinaria que decida sobre las cuentas del sexto ejercicio.
El auditor de cuentas nombrado por la junta para sustituir a otro sólo permanecerá en funciones hasta la expiración del mandato de su predecesor.
Si la junta omitiese realizar la elección de un auditor, todo accionista podrá solicitar judicialmente la designación de un auditor de cuentas, citando debidamente al presidente del consejo de administración o del directorio. El mandato así conferido finalizará cuando se haya procedido por parte de la junta general al nombramiento del o de los auditores.
Cuando una sociedad de auditores de cuentas fuera absorbida por otra sociedad de auditores de cuentas, la sociedad absorbente deberá hacerse cargo del mandato confiado a la sociedad absorbida hasta la fecha de su expiración.
No obstante, por excepción a lo establecido en el primer párrafo, la junta general de la sociedad controlada, en la primera reunión que siga a la absorción, podrá decidir sobre el mantenimiento del mandato, tras haber oído al auditor de cuentas.
Artículo L225-230 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 1° Diario Oficial de 16 de mayo de 2001)
Uno o varios accionistas que representen al menos un 5% del capital social, el comité de empresa, el ministerio público y, en las sociedades que hagan llamamiento público al ahorro, la Comisión de Operaciones Bursátiles, podrán, en el plazo y en las condiciones determinadas por decreto adoptado en Conseil d'Etat, solicitar judicialmente la destitución por motivo justificado de uno o varios auditores de cuentas designados por la junta general.
Esta petición podrá ser igualmente formulada por una asociación que reúna las condiciones fijadas en el artículo L.225-120.
Si se admite la petición, el juez designará a un nuevo auditor de cuentas. Se mantendrá en su puesto hasta la entrada en funciones del auditor de cuentas designado por la junta general.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L225-231 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 3° Diario Oficial de 16 de mayo de 2001)
Una asociación que reúna las condiciones fijadas en el artículo L.225-120, así como uno o varios accionistas que representen al menos un 5% del capital social, sea individualmente, sea asociándose en la forma que sea, podrán formular por escrito al presidente del consejo de administración o al directorio preguntas sobre una o varias operaciones de gestión de la sociedad, así como, llegado el caso, de las sociedades que ésta controle conforme al artículo L.233-3. En este último caso, la solicitud será evaluada bajo la óptica del interés del grupo. La respuesta tendrá que ser presentada a los auditores de cuentas.
A falta de respuesta en el plazo de un mes o si la respuesta presentada no fuese satisfactoria, estos accionistas podrán solicitar en procedimiento sumario la designación de uno o varios peritos encargados de presentar un informe
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CÓDIGO DE COMERCIO sobre una o varias operaciones de gestión.
El Ministerio Público, el comité de empresa y, en las empresas que hagan llamamiento público al ahorro, la Comisión de Operaciones Bursátiles también podrá solicitar en procedimiento sumario la designación de uno o varios peritos encargados de presentar un informe sobre una o varias operaciones de gestión.
Si se admite la solicitud, la resolución judicial determinará la extensión de la tarea y de las competencias de los expertos. Podrá fijar los honorarios a cargo de la sociedad.
El informe será dirigido al demandante, al ministerio público, al comité de empresa, al auditor de cuentas y, según el caso, al consejo de administración o al directorio y al consejo de supervisión así como, en las sociedades que hacen llamamiento público al ahorro, a la Comisión de Operaciones Bursátiles. Así mismo, el informe deberá ir anexo al emitido por los auditores de cuentas para ser presentado en la siguiente junta general y recibir la misma publicidad.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L225-232 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 1° Diario Oficial de 16 de mayo de 2001)
Uno o varios accionistas que representen al menos una décima parte del capital social o una asociación que reúna las condiciones definidas en el artículo L.225-120 podrán, dos veces en cada ejercicio, formular por escrito preguntas al presidente del consejo de administración o al directorio sobre cualquier hecho que pueda comprometer la continuidad de la actividad económica. La respuesta será presentada a los auditores de cuentas.
Artículo L225-233 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 1° Diario Oficial de 16 de mayo de 2001)
En caso de ausencia o de impedimento, los auditores de cuentas podrán ser relevados en sus funciones antes de la expiración normal de éstas, a petición del consejo de administración, del directorio, del comité de empresa, de uno o varios accionistas que representen al menos un 5% del capital social o de la junta general, por resolución judicial, en las condiciones definidas por decreto adoptado en Conseil d'Etat.
Esta solicitud podrá igualmente ser presentada por el ministerio público y, en las sociedades que hacen llamamiento público al ahorro, por la Comisión de operaciones bursátiles. Podrá también ser formulada por una asociación que responda a las condiciones establecidas en el artículo L.225-120.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L225-234 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 106 Diario Oficial de 2 de agosto de 2003)
Cuando, tras la expiración de las funciones de un auditor de cuentas, se propusiera a la junta que se le renueve en su puesto, el auditor de cuentas - si lo solicita - deberá ser oído por la junta general, sin perjuicio de las disposiciones del artículo L. 822-14.
Artículo L.225-235 (Ley nº 2003-706 de 1 de agosto de 2003 art. 112, art. 120 Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-842 de 26 de julio de 2005 art. 9 II Diario Oficial de 27 de julio de 2005) (Disposición nº 2005-1126 de 8 de septiembre de 2005 art. 20 III Diario Oficial de 9 de septiembre de 2005)
Los auditores de cuentas presentarán, en un informe que añadirán al informe mencionado en el segundo párrafo del artículo L.225-100, sus observaciones sobre el informe mencionado, según el caso, en el artículo L.225-37 o en el artículo L.225-68, para los procedimientos de control interno que sean relativos a la elaboración y al tratamiento de la información contable y financiera.
Artículo L225-236 En cualquier momento del ejercicio, los auditores de cuentas, en conjunto o separadamente, realizarán las
comprobaciones y todos los controles que juzguen oportunos y podrán exigir que se les proporcionen de inmediato todos los documentos que consideren útiles para el ejercicio de su función y, en particular, todos los contratos, libros, documentos contables y registros de actas.
Para realizar estos controles, los auditores de cuentas podrán, bajo su responsabilidad, solicitar la ayuda o la representación de expertos o colaboradores de su elección, cuyos nombres deberán ser indicados a la sociedad. Estos tendrán los mismos derechos en la investigación que los auditores.
Las investigaciones previstas en el presente artículo podrán ser realizadas tanto en la sociedad como en las sociedades matrices o filiales en el sentido del artículo L. 233-1.
Estas investigaciones podrán ser realizadas también en aplicación del párrafo segundo del artículo L.225-235 en el conjunto de empresas incluidas en la consolidación.
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CÓDIGO DE COMERCIO Los auditores de cuentas podrán igualmente recabar informaciones útiles en el ejercicio de su función entre
terceros que hayan concertado operaciones por cuenta de la sociedad. Sin embargo, este derecho de información no podrá extenderse al acceso a documentos, contratos ni comprobantes de cualquier tipo en posesión de terceros, a menos que tengan una autorización judicial para ello. El secreto profesional no podrá ser utilizado frente a los auditores de cuentas, salvo por el personal no juzgador de la administración de justicia.
Artículo L225-237 Los auditores de cuentas presentarán al consejo de administración o al directorio y al consejo de supervisión,
según el caso: 1º Los controles y comprobaciones que hayan efectuado así como las diferentes indagaciones realizadas; 2º Las partidas del balance y otros documentos contables en los que consideren que es necesario aportar algunas
modificaciones, haciendo cualquier tipo de observación útil sobre los métodos de evaluación utilizados para la realización de dichos documentos;
3º Las irregularidades e inexactitudes que hayan descubierto; 4º Las conclusiones a las que hayan llegado tras las observaciones y rectificaciones anteriores sobre los resultados
del ejercicio comparados con los del ejercicio anterior
Artículo L225-238 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 108 Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas serán convocados a todas las reuniones del consejo de administración o del directorio y del consejo de supervisión en que se examinen o presenten las cuentas del ejercicio transcurrido, así como a todas las juntas de accionistas.
Artículo L225-239 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 115 Diario Oficial de 2 de agosto de 2003)
Los honorarios de los auditores de cuentas correrán a cargo de la sociedad. Serán fijados de acuerdo con las modalidades establecidas por decreto adoptado en Conseil d'Etat.
La cámara regional de disciplina y, en segunda instancia o apelación, la cámara nacional de disciplina serán competentes para conocer de cualquier litigio surgido en relación con su remuneración.
Nota: Ley n° 2003-706 de 1 de agosto de 2003 Artículo 115: En todas las disposiciones legislativas y reglamentarias, las referencias a la Comisión Nacional de Inscripción de los auditores de cuentas y a la Cámara Nacional de Disciplina serán sustituidas por la referencia al Alto Consejo de Auditoría de Cuentas.
Artículo L225-240 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 112 Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas señalarán, en la siguiente junta general, las irregularidades e inexactitudes que hayan detectado a lo largo del cumplimiento de su labor.
Además, pondrán de manifiesto al Fiscal de la República los hechos delictivos de los que hayan tenido conocimiento, sin que su responsabilidad pueda verse comprometida por esta declaración.
Artículo L225-241 Los auditores de cuentas serán responsables, tanto frente a la sociedad como frente a terceros, de las
consecuencias perjudiciales, de las faltas o negligencias que hayan cometido en el ejercicio de sus funciones. Sin embargo, su responsabilidad no podrá verse comprometida por proceder a informaciones o divulgaciones de hechos en ejercicio de su misión, definida en los artículos L.234-1 y L.234-2.
No serán civilmente responsables de las infracciones cometidas por los administradores o los miembros del directorio, según el caso, salvo si, habiendo tenido conocimiento de ellas, no las hubieran puesto de manifiesto en su informe a la junta general.
Artículo L225-242 Las acciones de responsabilidad civil contra los auditores de cuentas prescribirán en las condiciones previstas en
el artículo L.225-254.
Sección VI De la transformación de las sociedades anónimas Artículos L225-243 a
L222-245-1
Artículo L225-243 Toda sociedad anónima podrá transformarse en sociedad de cualquier otro tipo si, en el momento de la
transformación, tuviera al menos dos años de existencia y si hubiera realizado y obtenido la aprobación por parte de los accionistas del balance de sus dos primeros ejercicios.
Artículo L225-244 La decisión de transformación será tomada tras el informe de los auditores de cuentas de la sociedad. El informe
certificará que los fondos propios son al menos iguales al capital social. La transformación será sometida, cuando proceda, a la aprobación de las juntas de obligacionistas y la junta de
poseedores de participaciones beneficiarias o de fundador. La decisión de transformación deberá ser sometida a publicidad, cuyas modalidades serán definidas por decreto
adoptado en Conseil d'Etat.
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CÓDIGO DE COMERCIO Artículo L225-245
Su transformación en sociedad colectiva precisará del acuerdo de todos los socios. En ese caso, no se exigirán los requisitos previstos en el artículo L.225-243 y en el párrafo primero del artículo L.225-244.
La transformación en sociedad comanditaria simple o por acciones será decidida en las condiciones previstas para la modificación de los estatutos y con el acuerdo de todos los socios que acepten ser socios colectivos.
La transformación en sociedad de responsabilidad limitada se decidirá en las condiciones previstas para la modificación de los estatutos de este tipo de sociedades.
Artículo L.222-245-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
En caso de transformación de una sociedad anónima en sociedad europea, no será de aplicación el párrafo primero del artículo L.225-244.
La sociedad elaborará un proyecto de transformación de la sociedad en sociedad europea. Este proyecto será depositado en la secretaría del Tribunal en cuya circunscripción esté registrada la sociedad y será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Uno o varios auditores para la transformación, nombrados por resolución judicial, elaborarán bajo su responsabilidad un informe destinado a los accionistas de la sociedad en transformación, en el que certifican que los fondos propios son al menos iguales al capital sociaL.Los mismos serán sometidos a las incompatibilidades previstas en el artículo L.822-11.
La transformación en sociedad europea se decidirá con arreglo a lo dispuesto en los artículos L.225-96 y L.225-99.
Sección VII De la disolución de las sociedades anónimas Artículos L225-246 a
L225-248
Artículo L225-246 La disolución anticipada de la sociedad será decidida por la junta general extraordinaria.
Artículo L225-247 El Tribunal de commerce podrá, a petición de cualquier interesado, acordar la disolución de la sociedad, si el
número de accionistas es menor de siete durante más de un año. Podrá conceder a la sociedad un plazo máximo de seis meses para regularizar su situación. No podrá acordar la
disolución si antes de que resolviera sobre el fondo se produjera esta regularización.
Artículo L225-248 Si a causa de las pérdidas constatadas en los documentos contables, los fondos propios de la sociedad llegaran a
ser inferiores a la mitad del capital social, el consejo de administración o el directorio, según el caso, estará obligado en los cuatro meses siguientes a la aprobación de las cuentas en que se hayan detectado estas pérdidas, a convocar la junta general extraordinaria para decidir si procederá la disolución anticipada de la sociedad.
Si se decidiera no disolver la sociedad, ésta estará obligada, como máximo en el momento del cierre del segundo ejercicio que siga a aquél en el que se hayan constatado las pérdidas y ateniéndose a las disposiciones del artículo L.224-2, a reducir su capital por un importe al menos igual al de las pérdidas que no hayan podido ser imputadas a las reservas, si, en ese plazo, los fondos propios no han sido reconstituidos hasta el valor al menos igual a la mitad del capital social.
En los dos casos, la resolución adoptada por la junta general será publicada según las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Si no hubiera reunión de la junta general, o en el caso de que esta junta no hubiera podido deliberar de modo válido en última convocatoria, todo interesado podrá solicitar judicialmente la disolución de la sociedad. Lo mismo ocurrirá si las disposiciones del párrafo segundo anterior no hubieran sido aplicadas. En estos casos, el tribunal podrá conceder a la sociedad un plazo máximo de seis meses para regularizar su situación. No podrá decretar la disolución si se produjera dicha regularización antes de la fecha en la que el tribunal resuelva sobre el fondo.
Las disposiciones del presente artículo no serán aplicables a las sociedades que se encuentren en situación de suspensión de pagos ordenada judicialmente, o que se beneficien de un plan de continuidad.
Sección VIII De la responsabilidad civil Artículos L225-249 a
L225-257
Artículo L225-249 Los fundadores de la sociedad a los que fuera imputable la nulidad y los administradores en funciones en el
momento en que ésta se produjera podrán ser declarados solidariamente responsables del perjuicio derivado de la anulación de la sociedad que afectara a los accionistas o a terceros.
Se podrá declarar solidariamente responsables a aquellos accionistas cuyas aportaciones o beneficios no hayan sido verificados y aprobados.
Artículo L225-250 La acción de resarcimiento por responsabilidad civil basada en la anulación de la sociedad prescribirá en las
condiciones previstas en el párrafo primero del artículo L.235-13.
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CÓDIGO DE COMERCIO Artículo L225-251 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 107 6° y 7º Diario Oficial de 16 de mayo de 2001)
Los administradores y el director general serán responsables individual o solidariamente según el caso, frente a la sociedad o frente a terceros, de las infracciones a las disposiciones legislativas o reglamentarias aplicables a las sociedades anónimas, de las contravenciones a los estatutos, o de las faltas cometidas en su gestión.
Si varios administradores o varios administradores y el director general hubieran colaborado en los mismos hechos, el tribunal determinará la parte contributiva de cada uno en la reparación del daño.
Artículo L225-252 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 107 8° Diario Oficial de 16 de mayo de 2001)
Además de la acción de reparación del perjuicio sufrido personalmente, los accionistas podrán, bien individualmente, bien por medio de una asociación que responda a las condiciones establecidas en el artículo L.225-120 bien agrupándose con las condiciones determinadas por decreto adoptado en Conseil d'Etat, entablar una acción social de resarcimiento por responsabilidad civil contra los administradores o el director general. Los demandantes estarán habilitados para reclamar la reparación íntegra del daño causado a la sociedad, a la cual se le abonará, en su caso, una indemnización por daños y perjuicios.
Artículo L225-253 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 107 9° Diario Oficial de 16 de mayo de 2001)
Se tendrá por no puesta cualquier cláusula de los estatutos que tenga por efecto subordinar el ejercicio de la acción social al acuerdo o a la autorización previa de la junta general, o que comporte la renuncia por adelantado al ejercicio de tal acción.
Ninguna decisión de la junta general podrá tener como efecto extinguir una acción de resarcimiento por responsabilidad civil contra los administradores o contra el director general por una falta cometida en el cumplimiento de su mandato.
Artículo L225-254 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 107 10° Diario Oficial de 16 de mayo de 2001)
La acción de resarcimiento contra los administradores o el director general, tanto social como individual, prescribirá a los tres años, a contar desde la fecha en que tuviera lugar el daño, o, si hubiese sido ocultado, a partir de su descubrimiento. Sin embargo, cuando el hecho hubiera sido calificado como delito la acción prescribirá a los diez años.
Artículo L225-255 En caso de apertura de un procedimiento de suspensión de pagos o de liquidación judicial en aplicación de las
disposiciones del título II del libro VI relativas a la suspensión de pagos y a la liquidación judicial de las empresas, las personas citadas por estas disposiciones podrán ser consideradas responsables del estado del pasivo social y ser sometidas a las privaciones de derechos e inhabilitaciones, en las condiciones previstas por éstas.
Artículo L225-256 Cuando la sociedad esté sujeta a las disposiciones de los artículos L.225-57 a L.225-93, los miembros del
directorio serán sometidos a la misma responsabilidad que los administradores en las condiciones previstas en los artículos L.225-249 a L.225-255.
En caso de apertura de un procedimiento de suspensión de pagos o de liquidación judicial en aplicación de las disposiciones del título II del libro VI relativas a la suspensión de pagos y a la liquidación judicial de las empresas, las personas citadas por estas disposiciones podrán ser consideradas responsables del estado del pasivo social y ser sometidas a las privaciones de derechos e inhabilitaciones, en las condiciones previstas por éstas.
Artículo L225-257 Los miembros del consejo de supervisión serán responsables de las faltas personales cometidas en la ejecución de
su mandato. No serán considerados responsables, en razón de los actos de gestión ni de su resultado. Podrán ser declarados civilmente responsables de los delitos cometidos por los miembros del directorio, si, habiendo tenido conocimiento de ellos, no los hubieran dado a conocer a la junta general.
Serán aplicables las disposiciones de los artículos L.225-253 y L.225-254.
Sección IX De las sociedades anónimas laborales Artículos L225-258 a
L225-270
Artículo L225-258 Podrá ser establecido por los estatutos de cualquier sociedad anónima que la sociedad sea "laboral". Las sociedades cuyos estatutos no contengan esta estipulación podrán transformarse en sociedades con
participación laboral, procediendo conforme lo establecido en el artículo L.225-96. Las sociedades laborales estarán sometidas, independientemente de las reglas generales aplicables a las
sociedades anónimas, a las disposiciones de la presente sección.
Artículo L225-259 Si la sociedad hace uso de su facultad para emitir acciones laborales, esta circunstancia deberá ser mencionada
en todas sus actas y documentos destinados a terceros añadiendo las palabras "laboral".
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CÓDIGO DE COMERCIO Artículo L225-260
Las acciones de la sociedad se compondrán: 1º De acciones o partes de acciones de capital; 2º De acciones denominadas "acciones de trabajo"
Artículo L225-261 Las acciones de trabajo serán propiedad colectiva del personal asalariado (operarios y empleados) constituido en
sociedad mercantil cooperativa de mano de obra. Esta sociedad de mano de obra incluirá obligatoria y exclusivamente a todos los empleados vinculados a la empresa desde al menos un año antes y que sean mayores de dieciocho años. La pérdida de la condición de trabajador asalariado privará al participante, sin derecho a indemnización, de todos sus derechos en la cooperativa de mano de obra. La liquidación de los derechos que hubieran sido adquiridos en la empresa por el interesado antes de su marcha, en el transcurso del último ejercicio se hará teniendo en cuenta el período transcurrido en dicho ejercicio y las disposiciones del artículo L.225-269.
Cuando una sociedad se constituya, desde su inicio, bajo la forma de sociedad anónima laboral, los estatutos de la sociedad anónima deberán prever la dotación en reserva, hasta el final de año, de las acciones de trabajo adjudicadas al colectivo de trabajadores. Al finalizar este plazo, las acciones serán devueltas a la cooperativa de mano de obra legalmente constituida.
Los dividendos atribuidos a los operarios y empleados que forman parte de la cooperativa obrera serán repartidos entre ellos siguiendo las reglas establecidas por los estatutos de la sociedad laboral y de acuerdo con las decisiones de sus juntas generales. Sin embargo, los estatutos de la sociedad anónima deberán disponer que, con anterioridad a cualquier distribución de dividendos, se deduzca de los beneficios, en favor de los tenedores de acciones de capital, una cantidad que corresponda a la que produzca el capital abonado, según el interés fijado.
En ningún caso las acciones de trabajo podrán ser adjudicadas individualmente a los trabajadores de la sociedad, miembros de la cooperativa de mano de obra.
Artículo L225-262 Las acciones de trabajo serán nominativas, inscritas a nombre de la sociedad cooperativa de mano de obra,
intransferibles mientras exista la sociedad laboral.
Artículo L225-263 Los participantes en la sociedad cooperativa de mano de obra estarán representados en las juntas generales de la
sociedad anónima por mandatarios elegidos por estos participantes, reunidos en junta general de la cooperativa. Los mandatarios elegidos deberán ser escogidos entre los participantes. Los estatutos de la sociedad anónima
determinarán su número. El número de votos de los que dispongan estos mandatarios en cada junta general de la sociedad anónima, se
establecerá en función del número de votos de que dispongan los demás accionistas asistentes o representados, respetando la proporción entre las acciones de trabajo y las acciones de capital resultante de la aplicación de los estatutos de la sociedad. Se fijará al inicio de cada junta según las indicaciones de la lista de asistencia.
Los mandatarios asistentes compartirán igualmente entre ellos los votos que les sean atribuidos, los de más edad se beneficiarán de los votos restantes.
La junta general de la cooperativa de mano de obra se reunirá cada año en un plazo determinado por los estatutos y, en ausencia de disposiciones estatutarias a este respecto, en un plazo de cuatro meses tras la celebración de la junta general de la sociedad anónima.
Artículo L225-264 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Cada participante dispondrá, en la junta general de la cooperativa de mano de obra, de un voto. No obstante, los estatutos podrán atribuir varios votos a los participantes, en función de la cuantía de su salario,
estableciéndose como límite máximo un número de votos igual al número de veces que el salario anual del interesado - tal y como figura en las cuentas anuales aprobadas del ejercicio anterior - incluya la cifra del salario más bajo atribuido por la sociedad a los empleados de más de dieciocho años.
Los estatutos podrán prever que los participantes se distribuyan en colegios que agrupen cada uno de ellos una categoría del personal, eligiendo cada colegio a su o sus mandatarios y que el acuerdo de cada colegio, según las mayorías que determinen los estatutos, sea necesario para la modificación de los estatutos de la cooperativa y de otras decisiones enumeradas en éstos.
Artículo L225-265 Los acuerdos de la junta general de la cooperativa de mano de obra sólo serán válidos si, en primera convocatoria,
los dos tercios al menos de los participantes de la cooperativa estuvieran presentes o representados. Los estatutos establecerán el quórum requerido para la junta que se reúna en segunda convocatoria. A falta de disposiciones estatutarias, este quórum será de la mitad de los participantes de la cooperativa, asistentes o representados.
La junta general decidirá por mayoría de votos emitidos. En el caso en que se proceda a una votación, no se tendrán en cuenta los votos en blanco.
Sin embargo, para la modificación de los estatutos de la cooperativa y para otras decisiones enumeradas por los estatutos, el quórum no podrá ser inferior a la mitad de los participantes de la cooperativa. Además, estas mismas decisiones serán tomadas por mayoría de dos tercios de los votos emitidos. En el caso en que se proceda a una votación, no se tendrán en cuenta los votos en blanco.
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CÓDIGO DE COMERCIO Artículo L225-266
En caso de procedimiento judicial, los mandatarios elegidos en la última junta general designarán a uno o a varios de ellos para representar a los participantes. Si no se hubiera efectuado aún ninguna elección, o si ninguno de los mandatarios elegidos formara parte de la cooperativa de mano de obra, se procederá a la elección de mandatarios especiales en las formas y condiciones previstas en el párrafo primero del artículo L.225-263 y en los artículos L.225-264 y L.225-265.
Artículo L225-267 Sin embargo, las juntas generales de las sociedades anónimas laborales que deliberen sobre las modificaciones a
efectuar en los estatutos o sobre las propuestas de continuidad de la sociedad más allá del plazo fijado para su duración o de disolución antes de cumplirse este plazo no se constituirán válidamente y no podrán tomar acuerdos válidos en tanto no incluyan un número de accionistas que representen las tres cuartas partes del capital. Los estatutos podrán prever que esto se efectúe de otro modo.
En el caso en que una decisión de la junta general conllevara una modificación en los derechos vinculados a las acciones de trabajo, esta decisión no será definitiva en tanto que no haya sido ratificada por una junta general de la cooperativa de mano de obra.
Artículo L225-268 El consejo de administración de la sociedad anónima laboral incluye a uno o varios representantes de la sociedad
cooperativa de mano de obra. Estos representantes serán elegidos por la junta general de accionistas y escogidos entre los mandatarios que representen a la cooperativa en esa junta general. Su número será determinado por la relación que exista entre las acciones de trabajo y las acciones de capital. Serán nombrados por el mismo período que los otros administradores y serán al igual que ellos reelegibles. Sin embargo, su mandato finalizará si dejan de ser asalariados de la sociedad y, por consiguiente, miembros de la misma. Si el consejo de administración sólo estuviese compuesto por tres miembros, deberá incluir al menos un representante de dicha sociedad cooperativa.
Artículo L225-269 En caso de disolución, el activo social no será repartido entre los accionistas hasta la total amortización de las
acciones de capital. La parte representativa de las acciones de trabajo, según las decisiones tomadas por la junta general de la
cooperativa obrera convocada con este objeto, se repartirá entonces entre los participantes y antiguos participantes que cuenten al menos con diez años consecutivos de servicios en los distintos emplazamientos de la sociedad, o por lo menos un período de servicios ininterrumpidos igual a la mitad de la duración de la sociedad, y que la hayan dejado por una de las razones siguientes: jubilación voluntaria o de oficio con derecho a pensión, enfermedad o invalidez que conlleve la incapacidad para el empleo ocupado con anterioridad, despido motivado por la supresión del empleo o una reducción de plantilla.
Sin embargo, los antiguos participantes que reúnan las condiciones previstas en el párrafo anterior sólo figurarán en el reparto por una parte correspondiente a la duración de sus servicios reducida en una décima parte de su importe total por cada año transcurrido desde el cese de sus servicios.
La disolución de la sociedad anónima conllevará la disolución de la cooperativa de mano de obra.
Artículo L225-270 I. - Cuando una sociedad anónima laboral se encuentre en la situación citada en el artículo L.225-248, y no se
haya acordado su disolución, la junta general extraordinaria podrá decidir, en el plazo determinado en el párrafo segundo del citado artículo, una modificación de los estatutos de la sociedad que conllevará la pérdida de la forma de sociedad anónima laboral y, con ello, la disolución de la sociedad cooperativa de mano de obra, a pesar de las disposiciones del párrafo segundo del artículo L.225-267 y de cualquier disposición estatutaria en contra.
Sin embargo, la aplicación de esta decisión estará subordinada a la existencia de un convenio colectivo de empresa firmado con una o varias organizaciones sindicales de empleados representativos en el sentido del artículo L.132-2 del Código de Trabajo y que prevea la disolución de la sociedad cooperativa de mano de obra. La existencia de un convenio colectivo empresarial, que persiga el mismo fin y firmado en las mismas condiciones, con anterioridad a la entrada en vigor de la Ley nº 94-679 de 8 de agosto de 1994 que prevé diversas disposiciones de orden económica y financiera, responderá a las disposiciones del presente párrafo.
II. - Si la sociedad cooperativa de mano de obra fuera disuelta en aplicación de las disposiciones del punto I anterior, se concederá una indemnización a los participantes y antiguos participantes mencionados en el párrafo segundo del artículo L.225-269.
El importe de esta indemnización, determinado sobre todo en función de la naturaleza y el alcance particular de los derechos vinculados a las acciones de trabajo, será establecido por la junta general extraordinaria de los accionistas de la sociedad anónima, tras la consulta con los mandatarios de la sociedad cooperativa de mano de obra y en consideración del informe pericial de un experto independiente que será nombrado en las condiciones previstas por decreto adoptado en Conseil d'Etat.
III. - Por decisión de la junta general extraordinaria de los accionistas de la sociedad anónima, la indemnización podrá tener la forma de una adjudicación de acciones en beneficio exclusivo de los participantes y antiguos participantes mencionados en el párrafo segundo del artículo L.225-269.
Estas acciones podrán ser creadas por deducción de las primas y reservas disponibles. Por excepción a lo dispuesto en el artículo L.225-206, la sociedad anónima podrá igualmente adquirir sus propias acciones para adjudicarlas, en el plazo de un año a partir de su adquisición, a los participantes y antiguos participantes mencionados
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CÓDIGO DE COMERCIO en el párrafo segundo del artículo L.225-269.
Las acciones así adjudicadas no podrán ser cedidas hasta que transcurran tres años a contar desde la fecha de la disolución de la sociedad cooperativa de mano de obra.
A pesar de las disposiciones del párrafo anterior, la junta general extraordinaria de accionistas de la sociedad anónima podrá decidir confiar la gestión de estas acciones a un fondo de inversión colectiva de la empresa, regulado por las disposiciones del artículo 21 de la Ley nº 88-1201 de 23 de diciembre de 1988 relativa a los organismos de inversión colectiva en valores mobiliarios y que incluyan la creación de fondos comunes de créditos, que sea constituido especial y exclusivamente con este fin como plazo máximo el día de la atribución de las acciones. En ese caso, las partes del fondo y las acciones que constituyan su activo no podrán ser cedidas hasta que finalice el plazo mencionado en el párrafo anterior. El reglamento de este fondo será aprobado por medio de un convenio colectivo de trabajo.
IV. - Para la aplicación de las disposiciones previstas por el presente artículo, las decisiones tomadas por la junta general de accionistas de la sociedad anónima se impondrán de pleno derecho a todo accionista y a todo poseedor o titular de títulos obligacionistas o que den, inmediatamente o al término del plazo, acceso al capital.
V. - La indemnización prevista en el punto II será repartida entre sus derechohabientes, teniendo en cuenta la duración de sus servicios en la sociedad, la antigüedad adquirida en la cooperativa de mano de obra y su nivel de remuneración.
Tras la disolución de la sociedad cooperativa de mano de obra, y en un plazo de seis meses tras el acuerdo de la junta general extraordinaria de los accionistas de la sociedad anónima que determine el importe y la forma de la indemnización, este reparto será efectuado en conformidad con las decisiones tomadas por la junta general de la sociedad cooperativa a propuesta de sus mandatarios. Si no se produjese el reparto en ese plazo de seis meses, éste se efectuará por un mandatario liquidador designado por el presidente del Tribunal de commerce de la circunscripción del domicilio social de la sociedad.
Las disposiciones del párrafo tercero del artículo L.225-269 serán aplicables en el caso citado en el presente punto V. VI.
- La indemnización prevista en el punto II o, en su caso, el valor de las acciones adjudicadas por este concepto no tendrán el carácter de salario para la aplicación de la legislación laboral y de seguridad social. No serán retenidas para el cálculo de la base para determinar los impuestos, tasas y deducciones basados en los salarios o en las rentas, no obstante las disposiciones del artículo 94A del Código General de Impuestos.
CAPITULO VI De las sociedades comanditarias por acciones Artículos L226-1 a
L226-14
Artículo L226-1 La sociedad comanditaria por acciones, cuyo capital esté dividido en acciones, estará constituida por uno o varios
socios colectivos que posean la condición de comerciantes y que responderán indefinida y solidariamente de las deudas sociales, y por comanditarios, que tendrán la condición de accionistas y sólo soportarán las pérdidas hasta el importe de sus aportaciones. El número de socios comanditarios no podrá ser inferior a tres.
En la medida en que éstas sean compatibles con las disposiciones particulares previstas por el presente capítulo, las normas concernientes a las sociedades comanditarias simples y a las sociedades anónimas, exceptuando los artículos L.225-17 a L.225-93, serán de aplicación a las sociedades comanditarias por acciones.
Artículo L226-2 El o los primeros gerentes serán designados en los estatutos. Cumplirán con los requisitos formales de constitución
de los que se encargarán los fundadores en las sociedades anónimas en función de los artículos L.225-2 a L.225-16. A lo largo de la existencia de la sociedad, salvo cláusula en contrario en los estatutos, el o los gerentes serán
designados por la junta general ordinaria con el acuerdo de todos los socios colectivos. El gerente, socio o no, será revocado en las condiciones previstas por los estatutos. Además, el gerente será revocable por el Tribunal de commerce por causa legítima, a petición de cualquier socio o
de la sociedad. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L226-3 Los estatutos deberán prever para el ejercicio de las funciones de gerente un límite de edad que, a falta de
disposición expresa, será fijada en sesenta y cinco años. Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo. Cuando un gerente alcance el límite de edad, será considerado dimisionario de oficio.
Artículo L226-4 La junta general ordinaria designará, en las condiciones fijadas por los estatutos, un consejo de supervisión,
compuesto por al menos tres accionistas. Bajo pena de nulidad de su nombramiento, un socio colectivo no podrá ser miembro del consejo de supervisión.
Los accionistas que tengan la condición de socios colectivos no podrán participar en la designación de los miembros de este consejo.
A falta de disposición estatutaria sobre ello, serán aplicables las normas que regulen la designación y la duración del mandato de los administradores de sociedades anónimas.
Artículo L226-5
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CÓDIGO DE COMERCIO (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Los estatutos deberán prever para el ejercicio de las funciones de miembro del consejo de supervisión un límite de edad que se aplicará, bien al conjunto de los miembros del consejo de supervisión, o bien a un porcentaje determinado de ellos.
Si no hubiera disposición expresa en los estatutos, el número de miembros del consejo de supervisión que hayan alcanzado la edad de setenta años no podrá ser superior a un tercio de los miembros del consejo de supervisión en funciones.
Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo. Si no existiese una disposición expresa en los estatutos que prevea otro procedimiento, cuando el límite estatutario
o legal determinado para la edad de los administradores se haya sobrepasado, el administrador de más edad será considerado dimisionario de oficio.
Artículo L226-6 La junta general ordinaria designará a uno o a varios auditores de cuentas.
Artículo L226-7 El gerente será investido de las más amplias facultades para actuar en cualquier circunstancia en nombre de la
sociedad. En las relaciones con terceros, la sociedad será responsable incluso por los actos del gerente que no estén
relacionados con el objeto social, a menos que pruebe que el tercero sabía que el acto sobrepasaba este objeto o que no podía ignorarlo dadas las circunstancias, sin que la simple publicación de los estatutos baste para constituir dicha prueba.
Las cláusulas estatutarias que limiten las competencias del gerente derivadas del presente artículo no serán oponibles frente a terceros.
En caso de pluralidad de gerentes, éstos detentarán por separado las competencias previstas en el presente artículo. La oposición presentada por un gerente frente a los actos de otro gerente no tendrán efecto frente a terceros, a menos que se demuestre que éstos tuvieron conocimiento de ella.
Sin perjuicio de las disposiciones del presente capítulo, el gerente tendrá las mismas obligaciones que el consejo de administración de una sociedad anónima.
Artículo L226-8 Sólo la junta general ordinaria podrá abonar al gerente otra remuneración distinta a la prevista por los estatutos.
Salvo cláusula en contrario, esto sólo será posible si los socios colectivos otorgasen su aprobación por unanimidad.
Artículo L226-9 El consejo de supervisión asumirá el control permanente de la gestión de la sociedad. Dispondrá, para ello, de las
mismas facultades que los otorgados a los auditores de cuentas. Presentará en la junta general ordinaria anual un informe en el que señalará, en particular, las irregularidades e
inexactitudes detectadas en las cuentas anuales y, eventualmente, las cuentas consolidadas del ejercicio. Tendrá acceso al mismo tiempo que los auditores de cuentas a los documentos puestos a disposición de éstos. Podrá convocar la junta general de accionistas.
Artículo L226-10 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 3° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 6° Diario Oficial de 2 de agosto de 2003)
Las disposiciones previstas en los artículos L.225-38 a L.225-43 serán aplicables a los contratos concertados directamente o por persona interpuesta entre una sociedad y uno de sus gerentes, uno de los miembros de su consejo de supervisión, uno de sus accionistas que posea un porcentaje de derechos de voto superior al 10 %, si se tratara de una sociedad accionista, la sociedad que la controlara en el sentido del artículo L.233-3. Igualmente, estas disposiciones serán aplicables a los contratos en los que una de estas personas esté indirectamente interesada.
Serán igualmente aplicables a los contratos concluidos entre una sociedad y una empresa si uno de los gerentes o uno de los miembros del consejo de supervisión de la sociedad fuera propietario, socio responsable ilimitadamente, gerente, administrador, director general, miembro del directorio o miembro del consejo de supervisión de la empresa.
La autorización prevista en el párrafo primero del artículo L.225-38 será concedida por el consejo de supervisión.
Artículo L226-11 La modificación de los estatutos exigirá, salvo cláusula en contrario, el acuerdo de todos los socios colectivos. La modificación de los estatutos resultante de una ampliación de capital será certificada por los gerentes.
Artículo L226-12 Serán de aplicación las disposiciones de los artículos L.225-109 y L.225-249 a los gerentes y miembros del consejo
de supervisión. Serán de aplicación las disposiciones de los artículos L. 225-52, L. 225-251 y L. 225-255 a los gerentes, incluso
aunque no sean socios.
Artículo L226-13 Los miembros del consejo de supervisión no tendrán que responder de los actos de su gestión ni de sus
resultados. Podrán ser declarados civilmente responsables de los delitos cometidos por los gerentes si, habiendo tenido
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CÓDIGO DE COMERCIO conocimiento de ellos, no los hubieran manifestado a la junta general. Serán responsables de las faltas personales cometidas en el ejercicio de su mandato.
Artículo L226-14 La transformación de la sociedad comanditaria por acciones en sociedad anónima o en sociedad de
responsabilidad limitada será decidida por la junta general extraordinaria de los accionistas, con el acuerdo favorable de la mayoría de los socios colectivos.
CAPITULO VII De las sociedades por acciones simples Artículos L227-1 a
L227-20
Artículo L227-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 101 Diario Oficial de 16 de mayo de 2001)
Una sociedad por acciones simple podrá ser constituida por una o varias personas que sólo responderán de las pérdidas hasta el importe de su aportación.
Cuando esta sociedad sólo esté formada por una persona, ésta será denominada socio único. El socio único ejercerá las competencias reservadas a los socios cuando el presente capítulo prevea una toma de decisión colectiva.
En la medida en que éstas sean compatibles con las disposiciones particulares previstas en el presente capítulo, las normas que regulen las sociedades anónimas, exceptuando los artículos L. 225-17 a L. 225-126 y L. 225-243, serán aplicables a la sociedad por acciones simples. Para la aplicación de estas normas, las atribuciones del consejo de administración o de su presidente serán ejercidas por el presidente de la sociedad por acciones simples o aquél o aquéllos de sus dirigentes a los que los estatutos hayan designado para ello.
Artículo L227-2 La sociedad por acciones simple no podrá hacer llamamiento público al ahorro.
Artículo L227-3 La decisión de transformación en sociedad por acciones simple tendrá que ser tomada por unanimidad de los
socios.
Artículo L227-4 En caso de reunión en una sola persona de todas las acciones de una sociedad por acciones simple, no serán de
aplicación las disposiciones del artículo 1844-5 del Código Civil relativas a la disolución judicial.
Artículo L227-5 Los estatutos determinarán las condiciones en las que la sociedad será dirigida.
Artículo L227-6 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 118 Diario Oficial de 2 de agosto de 2003)
La sociedad estará representada frente a terceros por un presidente designado en las condiciones previstas por los estatutos. El presidente será investido con los más amplios poderes para actuar en cualquier circunstancia en nombre de la sociedad hasta el límite que marque el propio objeto social.
En sus relaciones con terceros, la sociedad será responsable incluso de los actos del presidente que no tengan relación con el objeto social, a menos que pruebe que el tercero sabía que el acto sobrepasaba este objeto o que no podía ignorarlo considerando las circunstancias, sin que la mera publicación de los estatutos baste como prueba para ello.
Los estatutos podrán prever las condiciones en las que una o varias personas, que no sean el presidente y que lleven el título de director general o de director general delegado, puedan ejercer los poderes otorgados a este último por el presente artículo.
Las disposiciones estatutarias que limiten las facultades del presidente no serán oponibles frente a terceros.
Artículo L227-7 Cuando una persona jurídica sea nombrada presidente o dirigente de una sociedad por acciones simples, los
dirigentes de dicha persona jurídica estarán sometidos a las mismas condiciones y obligaciones e incurrirán en las mismas responsabilidades civiles y penales que si fuesen presidente o dirigente en su propio nombre, sin perjuicio de la responsabilidad solidaria de la persona jurídica que dirijan.
Artículo L227-8 Las normas que determinan la responsabilidad de los miembros del consejo de administración y del directorio de
las sociedades anónimas se aplicarán al presidente y a los dirigentes de la sociedad por acciones simple.
Artículo L227-9 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 125 Diario Oficial de 16 de mayo de 2001)
Los estatutos determinarán las decisiones que deberán ser tomadas colectivamente por los socios en las formas y condiciones que prevean.
Sin embargo, las atribuciones reservadas a las juntas generales extraordinarias y ordinarias de las sociedades anónimas, en materia de ampliación, de amortización o de reducción de capital, de fusión, de escisión, de disolución, de transformación en sociedad de otra forma, de nombramiento de auditores de cuentas, de cuentas anuales y de beneficios serán ejercidas colectivamente por los socios, en las condiciones previstas por los estatutos.
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CÓDIGO DE COMERCIO En las sociedades que tengan un único socio, el informe de gestión, las cuentas anuales y eventualmente las
cuentas consolidadas serán establecidas por el presidente. El socio único aprobará las cuentas, tras el informe del auditor de cuentas, en el plazo de seis meses contados a partir del cierre del ejercicio. El socio único no podrá delegar sus competencias. Sus decisiones serán inscritas en un registro.
Las decisiones tomadas infringiendo las disposiciones previstas en el presente artículo podrán ser anuladas a petición de cualquier interesado.
Artículo L227-10 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 4° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 6° Diario Oficial de 2 de agosto de 2003)
El auditor de cuentas presentará a los socios un informe sobre los contratos concertados directamente o por persona interpuesta entre la sociedad y su presidente o uno de sus dirigentes, uno de sus accionistas poseedores de una porción de derechos de voto superior al 10 % o, si se trata de una sociedad accionista, la sociedad que la controle en el sentido del artículo L.233-3.
Los socios resolverán de acuerdo a este informe. Los contratos no aprobados, producirán sin embargo sus efectos, siendo responsable de las consecuencias
perjudiciales para la sociedad la persona interesada y eventualmente el presidente y los demás dirigentes. Por excepción a lo establecido por las disposiciones del párrafo primero, cuando la sociedad sólo tenga un socio,
se hará solamente mención en el registro de las decisiones de los contratos realizados directamente o por personas interpuestas entre la sociedad y su dirigente.
Artículo L227-11 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 13° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 4° Diario Oficial de 2 de agosto de 2003)
Los contratos que consistan en operaciones corrientes y concertadas en condiciones normales, deberán ser comunicados al auditor de cuentas, salvo si debido a su objeto o a sus implicaciones financieras éstos no fueran significativos para ninguna de las partes. Todo socio tendrá derecho a obtener información sobre ellas.
Artículo L227-12 Las prohibiciones previstas en el artículo L.225-43 se aplicarán, en las condiciones determinadas por este artículo,
al presidente y a los dirigentes de la sociedad.
Artículo L227-13 Los estatutos de la sociedad podrán prever la intransferibilidad de las acciones por un período que no excederá de
los diez años.
Artículo L227-14 Los estatutos podrán someter cualquier transmisión de acciones a la autorización previa por parte de la sociedad.
Artículo L227-15 Cualquier transmisión efectuada infringiendo las cláusulas estatutarias será nula.
Artículo L227-16 En las condiciones determinadas por los estatutos éstos podrán prever que un socio pueda verse obligado a ceder
sus acciones. Podrán así mismo prever la suspensión de los derechos no dinerarios de este socio en tanto que éste no haya
procedido a esta transmisión.
Artículo L227-17 Los estatutos podrán prever que la sociedad asociada cuyo control sea modificado de conformidad con el artículo
L.233-3 deba, a partir de esta modificación, informar de ello a la sociedad por acciones simples. Ésta podrá decidir, en las condiciones establecidas por los estatutos, suspender el ejercicio de los derechos no dinerarios de este socio y excluirlo.
Las disposiciones del párrafo anterior podrán aplicarse, en las mismas condiciones, al socio que haya adquirido esta condición tras una operación de fusión, de escisión o de disolución.
Artículo L227-18 Si los estatutos no determinaran las modalidades del precio de transmisión de las acciones cuando la sociedad
instaure una cláusula introducida en aplicación de los artículos L.227-14, L.227-16 y L.227-17, este precio será determinado por acuerdo entre las partes o, en su defecto, determinado en las condiciones previstas en el artículo 1843-4 del Código Civil.
Cuando las acciones sean rescatadas por la sociedad, ésta estará obligada a enajenarlas en un plazo de seis meses o a anularlas.
Artículo L227-19 Las cláusulas estatutarias citadas en los artículos L.227-13, L.227-14, L.227-16 y L.227-17 sólo podrán ser
adoptadas o modificadas por unanimidad de los socios.
Artículo L227-20 Los artículos L 227-13 a L. 227-19 no serán de aplicación a las sociedades que sólo incluyan un socio.
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CÓDIGO DE COMERCIO CAPITULO VIII De los valores mobiliarios emitidos por las sociedades por acciones Artículos L228-1 a
L228-106
Sección I Disposiciones comunes a los valores mobiliarios Artículos L228-1 a
L228-6-3
Artículo L228-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 24 Diario Oficial de 26 de junio de 2004)
Las sociedades por acciones emitirán todo tipo de valores mobiliarios en las condiciones del presente libro. Los valores mobiliarios emitidos por las sociedades por acciones serán definidos en el artículo L. 211-2 del Código
Monetario y Financiero. Los valores mobiliarios emitidos por las sociedades por acciones revestirán la forma de títulos al portador o de
títulos nominativos, salvo en el caso de las sociedades para las que la Ley o los estatutos imponen exclusivamente la forma nominativa para la totalidad o parte del capital.
Salvo acuerdo en contrario, cualquier propietario cuyos títulos formen parte de una emisión que incluya simultáneamente títulos al portador y títulos nominativos tendrá la facultad de convertir sus títulos en la otra forma.
Sin embargo, la conversión de los títulos nominativos no será posible en el caso de las sociedades para las que a ley o los estatutos imponen la forma nominativa para la totalidad o parte del capital.
Estos valores mobiliarios, cualquiera que sea su forma, deberán ser inscritos en una cuenta a nombre de su propietario, en las condiciones previstas por el punto II del artículo 94 de la Ley de finanzas para 1982 (nº 81-1160 de 30 de diciembre de 1981).
Sin embargo, cuando los títulos de capital de la sociedad hayan cotizado en un mercado regulado y su propietario no tenga su domicilio en territorio francés, en el sentido del artículo 102 del Código Civil, cualquier intermediario podrá ser inscrito por cuenta de este propietario. Esta inscripción podrá ser realizada bajo la forma de una cuenta colectiva o de varias cuentas individuales correspondiendo, cada una, a un propietario.
El intermediario inscrito estará obligado, en el momento de la apertura de su cuenta ante, o bien la sociedad emisora, o bien el intermediario financiero habilitado para ser el depositario de la cuenta, a declarar, en las condiciones determinadas por decreto, su condición de intermediario depositario de títulos por cuenta ajena.
En caso de cesión de valores mobiliarios admitidos a negociación en un mercado regulado o de valores mobiliarios no admitidos a negociación en un mercado regulado pero contabilizados en la cuenta de un intermediario habilitado partícipe en un sistema de pagos y entrega mencionado en el artículo L. 330-1 del Código Monetario y Financiero, la transmisión de la propiedad se realizará en las condiciones previstas en el artículo L. 431-2 de dicho Código. En los demás casos, la transmisión de propiedad será el resultado de la anotación de los valores mobiliarios en la cuenta del comprador, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L228-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 125 1° Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 25 Diario Oficial de 26 de junio de 2004)
I. - Para identificar a los tenedores de los títulos al portador, los estatutos podrán prever que la sociedad emisora tenga derecho a solicitar en cualquier momento, a cambio de una remuneración a su cargo, a la central depositaria encargada de llevar la cuenta de emisión de sus títulos, según el caso, el nombre o la denominación, la nacionalidad, el año de nacimiento o el año de constitución y la dirección de los tenedores de los títulos que confieren inmediatamente o de manera diferida el derecho de voto en sus propias juntas de accionistas, así como la cantidad de títulos detentada por cada uno de ellos y, en su caso, las restricciones que puedan afectar a dichos títulos.
Estas informaciones serán recabadas por la central depositaria antes mencionada en los establecimientos depositarios de las cuentas que estén afiliados a él, los cuales se las comunicarán en un plazo fijado por decreto adoptado en Conseil d'Etat. Esta central depositaria presentará estas informaciones a la sociedad en los cinco días laborables siguientes a la recepción.
Cuando el plazo fijado por decreto no haya sido respetado, o cuando las informaciones dadas por el establecimiento depositario de las cuentas sean incompletas o erróneas, la central depositaria podrá requerir la obligación de comunicación, bajo pena de multa, al presidente del Tribunal de grande instance para que resuelva en procedimiento sumario.
II. - La sociedad emisora, tras haber seguido el procedimiento previsto en el punto I y considerando la lista presentada por la central depositaria anteriormente citada, tendrá la facultad de solicitar, a través de esta central depositaria o bien directamente, en las mismas condiciones y bajo las sanciones previstas en el artículo L.228-3-2, a las personas que figuren en esta lista y de las cuales la sociedad estime que podrían estar inscritas por cuenta de terceros, las informaciones relativas a los propietarios de los títulos previstas en el punto I.
Estas personas estarán obligadas, cuando tengan la condición de intermediario, a dar a conocer la identidad de los propietarios de esos títulos. La información será directamente presentada al intermediario financiero habilitado para ser depositario de la cuenta, que estará encargado de comunicarla, según el caso, a la sociedad emisora o a la central depositaria anteriormente mencionada.
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CÓDIGO DE COMERCIO III. - Las informaciones obtenidas por la sociedad no podrán ser cedidas por ésta, ni siquiera a título gratuito.
Cualquier infracción de esta disposición será castigada con las penas previstas en el artículo 226-13 del Código Penal.
Artículo L228-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XI Diario Oficial de 26 de junio de 2004)
Si se trata de títulos en forma nominativa, que den acceso al capital de forma inmediata o diferida, el intermediario inscrito en las condiciones previstas en el artículo L.228-1 estará obligado, en un plazo fijado por decreto adoptado en Conseil d'Etat, a dar a conocer la identidad de los propietarios de estos títulos así como la cantidad de títulos poseídos a petición de la sociedad emisora o de su mandatario, la cual podrá ser presentada en cualquier momento.
Los derechos especiales vinculados a las acciones nominativas, en particular los previstos en los artículos L.225-123 y L.232-14, sólo podrán ser ejercidos por un intermediario inscrito en las condiciones previstas en el artículo L. 228-1 si las informaciones que diera permitieran el control de las condiciones requeridas para el ejercicio de estos derechos.
Artículo L228-3-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XI Diario Oficial de 26 de junio de 2004)
I.- Cuando la sociedad emisora estime que algunos tenedores cuya identidad le haya sido comunicada lo son por cuenta de terceros propietarios de los títulos, tendrá derecho a solicitar a estos tenedores que den a conocer la identidad de los propietarios de esos títulos así como la cantidad de títulos poseídos por cada uno de ellos, en las condiciones previstas respectivamente en el párrafo primero del punto II del artículo L.228-2 para los títulos al portador y en el párrafo primero del artículo L.228-3 para los títulos nominativos.
II. - Tras estas operaciones, y sin perjuicio de las obligaciones de declaración de participaciones significativas impuestas por los artículos L.233-7, L.233-12 y L.233-13, la sociedad emisora podrá solicitar a cualquier persona jurídica propietaria de sus acciones y que posea participaciones que excedan de la cuarentava parte del capital o de los derechos de voto que dé a conocer la identidad de las personas que detenten directa o indirectamente más de un tercio del capital social de esta persona jurídica o de los derechos de voto que sean ejercidos en las juntas generales de ésta.
Artículo L228-3-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XII Diario Oficial de 26 de junio de 2004)
El intermediario que haya cumplido con las obligaciones previstas en los párrafos séptimo y octavo del artículo L.228-1 podrá, en virtud de un mandato general de gestión de los títulos, transmitir en una junta el voto o el poder de un propietario de acciones tal y como ha sido determinado en el párrafo tercero del mismo artículo.
Antes de transmitir poderes o votos en junta general, el intermediario inscrito de acuerdo al artículo L.228-1 estará obligado, a petición de la sociedad emisora o de su mandatario, a presentar la lista de propietarios, no residentes, de las acciones a las que esos derechos de voto estén vinculados así como la cantidad de acciones poseídas por cada uno de ellos. Esta lista será presentada en las condiciones previstas, según el caso, en los artículos L.228-2 o L.228-3.
El voto o el poder emitido por un intermediario que no se haya declarado como tal en virtud del párrafo octavo del artículo L.228-1 o del párrafo segundo del presente artículo, o no haya dado a conocer la identidad de los propietarios de los títulos en virtud de los artículos L.228-2 o L.228-3, no podrá ser tenido en cuenta.
Artículo L228-3-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XIII Diario Oficial de 26 de junio de 2004)
Cuando la persona que sea objeto de una petición en virtud de los artículos L.228-2 a L.228-3 no haya transmitido las informaciones en los plazos previstos en estos artículos o las haya transmitido de forma incompleta o errónea en relación con su condición, o con la de los propietarios de los títulos, o con la cantidad de títulos poseídos por cada uno de ellos, o con las acciones o los títulos que den acceso de forma inmediata o diferida al capital y para los que esta persona haya sido anotada en cuenta, estarán privados de los derechos de voto en toda junta de accionistas que se celebre hasta la fecha de regularización de la identificación, y el pago del dividendo correspondiente será diferido hasta esa fecha.
Además, en el caso de que la persona inscrita hiciese caso omiso de las disposiciones previstas en los artículos L.228-1 a L. 228-3-1, el tribunal en cuya circunscripción la sociedad tenga la sede social podrá, a instancia de la sociedad o de uno o varios accionistas que detenten al menos un 5% del capital, decretar por un período total que no exceda de cinco años la privación total o parcial de los derechos de voto vinculados a las acciones que hayan sido objeto de las pesquisas y, eventualmente y durante el mismo período, del dividendo correspondiente.
Artículo L228-3-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1°, art. 152 2° Diario Oficial de 2 de agosto de 2003)
Toda persona que participe en cualquier concepto en la dirección o en la gestión del depositario central de instrumentos financieros así como toda persona empleada por éste, por la sociedad emisora o por el intermediario inscrito, y que tenga conocimiento en el marco de su actividad profesional de las informaciones mencionadas en los artículos L.228-1 a L.228-3-2 estará obligada a guardar secreto profesional en las condiciones y bajo pena de las sanciones previstas en los artículos 226-13 y 226-14 del Código Penal. El secreto profesional no podrá ser alegado ni
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CÓDIGO DE COMERCIO ante la Autoridad de mercados financieros ni ante la autoridad judicial.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles y al Consejo de disciplina de la gestión financiera serán
sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L228-4 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 26 Diario Oficial de 26 de junio de 2004)
Estará prohibida, bajo pena de nulidad, la emisión de las partes beneficiarias o de fundador. Sin embargo, las partes beneficiarias o partes de fundador emitidas antes de 1 de abril de 1967 continuarán
reguladas por los textos relativos a ellas.
Artículo L228-5 Con relación a la sociedad, los títulos serán indivisibles, no obstante la aplicación de los artículos L.225-110 y
L.225-118.
Artículo L228-6 A pesar de las cláusulas estatutarias en contrario, las sociedades que hayan efectuado o bien canjes de títulos
consecutivos a una operación de fusión o de escisión, de reducción de capital, de reagrupación o de división y de conversión obligatoria de títulos al portador en títulos nominativos, o bien de repartos de títulos imputados a las reservas o vinculados a una reducción de capital, o bien de repartos o atribuciones de acciones gratuitas podrán, por simple decisión del consejo de administración, del directorio o de los gerentes, vender, según las modalidades determinadas por decreto adoptado en Conseil d'Etat los títulos de los que los derechohabientes no hayan solicitado la entrega, a condición de que hayan procedido, con una anterioridad de al menos dos años, a darles publicidad según las modalidades fijadas por dicho decreto.
A partir de esta venta, los antiguos títulos o los antiguos derechos a los repartos o atribuciones serán, en tanto sea necesario, anulados y sus titulares sólo podrán pedir el reparto en efectivo del producto neto de la venta de los títulos no reclamados.
Artículo L228-6-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 27 Diario Oficial de 26 de junio de 2004)
En las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado, la junta general extraordinaria de accionistas que haya autorizado una fusión o una escisión podrá decidir que al finalizar un periodo que no podrá ser superior a un límite fijado por decreto adoptado en Conseil d'Etat, a partir de la fecha de anotación en su cuenta del número entero de acciones adjudicadas, tendrá lugar una venta global de acciones no adjudicadas correspondientes a la fracción excedente del cociente exacto de la adjudicación, según las modalidades de cálculo determinadas por decreto adoptado en Conseil d'Etat, con vistas al reparto de los fondos entre los interesados.
Artículo L228-6-2 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 27 Diario Oficial de 26 de junio de 2004)
Los derechos no dinerarios vinculados a los valores mobiliarios anotados en una cuenta en participación serán ejercidos por uno u otro de los cotitulares en las condiciones determinadas por el acuerdo de apertura de la cuenta.
Artículo L228-6-3 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 27 Diario Oficial de 26 de junio de 2004)
Los títulos cuyos titulares, pese a que se respeten los requisitos formales de convocatoria a las juntas generales, no fueran conocidos por el depositario de la cuenta o no hubieran reaccionado a las convocatorias por un periodo de por lo menos diez años, podrán ser vendidos con arreglo al procedimiento previsto en el artículo L. 228-6. Esta venta se realizará tras la expiración de un plazo fijado por decreto adoptado en Conseil d'Etat, a partir de la publicidad prevista en dicho artículo, siempre y cuando el depositario de la cuenta haya realizado todas las gestiones necesarias durante dicho periodo, en las condiciones establecidas por el mismo decreto, para contactar con los titulares o sus derechohabientes.
Sección II De las acciones Artículos L228-7 a
L228-29-7
Artículo L228-7 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 28 Diario Oficial de 26 de junio de 2004)
Las acciones suscritas por aportaciones dinerarias serán aquéllas cuyo importe sea desembolsado en efectivo o por compensación, las que sean emitidas a consecuencia de una incorporación al capital de reservas, de beneficios o de primas de emisión, y aquéllas cuyo importe provenga, por una parte de una incorporación de reservas, de beneficios o de primas de emisión y por otra parte de un desembolso en efectivo. Estas últimas deberán ser íntegramente desembolsadas en el momento de su suscripción.
Sin perjuicio de las normas específicas aplicables a las acciones resultantes de una fusión o de una escisión, todas las demás acciones serán acciones por aportaciones no dinerarias.
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CÓDIGO DE COMERCIO Artículo L228-8
El importe nominal de las acciones o partes de acciones podrá ser determinado por los estatutos. Esta opción se aplicará entonces a todas las emisiones de acciones.
Artículo L228-9 La acción por aportación dineraria será nominativa hasta su total desembolso.
Artículo L228-10 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 29 Diario Oficial de 26 de junio de 2004)
Las acciones no serán negociables hasta que no se haya producido la inscripción de la sociedad en el Registro de Comercio y de Sociedades. En caso de ampliación de capital, las acciones serán negociables a partir de la realización de ésta.
Estará prohibida la negociación con promesas de acciones, a menos que se trate de acciones para las que se haya solicitado la admisión a un mercado regulado, o que se trate de acciones que se creen por una ampliación de capital de una sociedad cuyas antiguas acciones ya están admitidas en un mercado regulado. En ese caso, la negociación sólo será válida si se efectúa bajo condición suspensiva de la realización de la ampliación de capital. A falta de indicación expresa, esta condición se presumirá.
Artículo L228-11 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
En el momento de la constitución de la sociedad o durante su existencia se podrán crear acciones preferentes, con o sin derecho de voto, provistas de derechos particulares de todo tipo, a título temporal o permanente. Estos derechos estarán definidos por los estatutos en cumplimiento de lo dispuesto en los artículos L. 225-10 y L. 225-122 a L. 225-125.
El derecho de voto podrá ponderarse por un plazo determinado o determinable. Podrá ser suspendido por un plazo determinado o determinable, o podrá ser suprimido.
Las acciones preferentes sin derecho de voto no podrán representar más de la mitad del capital social, y en las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado, no podrán representar más de la cuarta parte del capital social.
Cualquier emisión que tuviera por efecto aumentar dicha proporción más allá de este límite podrá ser anulada.
Artículo L228-12 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria de accionistas será la única competente para decidir la emisión, el rescate y la conversión de las acciones preferentes tras el examen de un informe especial de los auditores de cuentas. Podrá delegar estos poderes en las condiciones determinadas por los artículos L. 225-129 a L. 225-129-6.
Las modalidades de rescate o de conversión de las acciones preferentes también podrán estar reguladas en los estatutos
En todo momento durante el ejercicio en curso y a más tardar en la primera reunión siguiente al cierre de éste, el consejo de administración o el directorio de la sociedad hará constar, si procede, el número y el importe nominal de las acciones derivadas de la conversión de las acciones preferentes en el ejercicio transcurrido y realizará las modificaciones necesarias a las cláusulas de los estatutos relativas al importe del capital social y al número de títulos que lo componen.
El presidente del directorio o el director general, por delegación del directorio o del consejo de administración, podrá proceder a estas operaciones en cualquier momentos durante el ejercicio y a más tardar en el plazo fijado por decreto adoptado en Conseil d'Etat.
Artículo L228-13 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004) (Disposición nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XXVII Diario Oficial de 10 de diciembre de 2004)
Los derechos particulares mencionados en el artículo L. 228-11 podrán ser ejercidos en la sociedad que posea directa o indirectamente más de la mitad del capital de la emisora o en la sociedad cuya emisora posea directa o indirectamente más de la mitad del capital.
La emisión deberá en tal caso ser autorizada por la junta general extraordinaria de la sociedad que vaya a emitir acciones preferentes y por la junta general extraordinaria de la sociedad en el seno de la cual se ejercen los derechos.
Los auditores de cuentas de las sociedades interesadas deberán elaborar un informe especial. NOTA: Estas disposiciones serán de aplicación en Mayotte, en Nueva Caledonia y en las islas Wallis y Futuna.
Artículo L228-14 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
Las acciones preferentes podrán ser convertidas en acciones ordinarias o preferentes de otra categoría. En caso de conversión de acciones preferentes en acciones que lleven a una reducción de capital no motivada por
pérdidas, los acreedores cuyo crédito sea anterior a la fecha del depósito en Secretaría del acta de deliberación de la junta general, o del consejo de administración o del directorio en caso de delegación, podrán oponerse a la conversión en el plazo y con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Las operaciones de conversión no podrán iniciarse durante el período de impugnación ni, en su caso, antes de que se haya resuelto en primera instancia sobre dicha impugnación.
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CÓDIGO DE COMERCIO Artículo L228-15 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
La creación de dichas acciones dará lugar a la aplicación de los artículos L. 225-8, L. 225-14, L. 225-147 y L. 225-148 relativos a los beneficios especiales cuando las acciones sean emitidas en beneficio de uno o varios accionistas designados nominalmente. En tal caso, el auditor de aportaciones previsto en estos artículos será un auditor de cuentas que no haya desempeñado en los últimos cinco años y ni esté desempeñando en ese momento ninguna función dentro de la sociedad.
Los titulares de acciones que deban ser convertidas en acciones preferentes de la categoría a crear no podrán tomar parte en la votación, bajo pena de nulidad, sobre la creación de dicha categoría, y las acciones que posean no serán tenidas en cuenta para calcular el quórum y la mayoría, a menos que el conjunto de las acciones sea objeto de una conversión en acciones preferentes.
Artículo L228-16 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
En caso de modificación o de amortización de capital, la junta general extraordinaria determinará las consecuencias de dichas operaciones sobre los derechos de los tenedores de acciones preferentes.
Estas consecuencias también podrán estar contempladas en los estatutos.
Artículo L228-17 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
En caso de fusión o de escisión, las acciones preferentes podrán ser canjeadas por acciones de las sociedades beneficiarias de la transferencia de patrimonio con derechos particulares equivalentes, o según una paridad de cambio específica que tenga en cuenta los derechos particulares abandonados.
Si no hubiera ningún canje por acciones que confirieran derechos particulares equivalentes, la fusión o la escisión estarán sometidas a la aprobación de la junta general especial prevista en el artículo L. 225-99.
Artículo L228-18 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
El dividendo que se distribuya, en su caso, a los titulares de acciones preferentes, podrá serlo en la forma de títulos de capital, según las modalidades establecidas por la junta general extraordinaria o por los estatutos.
Artículo L228-19 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
Los tenedores de acciones preferentes, reunidos en junta especial, podrán encomendar a un de los auditor de cuentas de la sociedad la misión de elaborar un informe especial que examine el cumplimiento, por parte de la sociedad, de los derechos particulares vinculados a las acciones preferentes. Dicho informe se remitirá a los tenedores en una junta especial.
Artículo L228-20 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
Cuando las acciones preferentes estén admitidas a negociación en un mercado regulado, podrán ser rescatadas o reembolsadas, por iniciativa de la sociedad o del tenedor, en caso de que el mercado no fuera líquido, en las condiciones previstas por los estatutos.
Artículo L228-21 Las acciones seguirán siendo negociables tras la disolución de la sociedad y hasta el cierre de la liquidación.
Artículo L228-22 La anulación de la sociedad o de una emisión de acciones no conllevará la nulidad de las negociaciones realizadas
con anterioridad a la decisión de anulación, siempre que los títulos sean formalmente válidos. Sin embargo, el comprador podrá ejercer una acción de garantía contra su vendedor.
Artículo L228-23 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 32 Diario Oficial de 26 de junio de 2004)
En una sociedad cuyos títulos de capital no estuvieran admitidos a negociación en un mercado regulado, la cesión de títulos de capital o de valores mobiliarios que den acceso al capital, por cualquier concepto que fuere, podrá estar sometida a la autorización de la sociedad por medio de una cláusula en los estatutos. Esta cláusula será descartada en caso de sucesión, de liquidación del régimen matrimonial o de cesión en beneficio de un cónyuge, de un ascendiente o de un descendiente.
Se podrá estipular una cláusula de autorización solamente si los títulos son nominativos en virtud de la Ley o de los estatutos.
Cuando los estatutos de una sociedad que no haga llamamiento público al ahorro reserven acciones a los empleados de la sociedad, podrá establecerse una cláusula de autorización contraria a las disposiciones del párrafo primero anterior, siempre que esta cláusula tenga por objeto evitar que dichas acciones sean destinadas o transmitidas personas que no tengan la condición de empleado de la sociedad.
Toda transmisión efectuada infringiendo una cláusula de autorización que figure en los estatutos será nula.
Artículo L228-24
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CÓDIGO DE COMERCIO (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 33 Diario Oficial de 26 de junio de 2004)
En caso de estipularse una cláusula de autorización, será notificada a la sociedad la solicitud de autorización con indicación de los apellidos, nombres y dirección del cesionario, del número de títulos de capital o valores mobiliarios que den acceso al capital cuya cesión se prevé y cuyo precio se ofrece. La autorización se obtendrá, o por una notificación, o por falta de respuesta en un plazo de tres meses contados a partir de la solicitud.
Si la sociedad no autorizara al cesionario propuesto, el consejo de administración, el directorio o los gerentes, según el caso y en el plazo de tres meses a partir de la notificación de la denegación, tendrán que obligar bien a que un accionista o un tercero adquieran los títulos de capital o los valores mobiliarios que den acceso al capital, bien a que con el consentimiento del cedente, la sociedad las adquiera con vistas a una reducción del capital. A falta de acuerdo entre las partes, el precio de los títulos de capital o valores mobiliarios que dan acceso al capital será determinado en las condiciones previstas por el artículo 1843-4 del Código Civil. El cedente podrá renunciar en cualquier momento a la cesión de sus títulos de capital o valores mobiliarios que dan acceso al capital. Cualquier cláusula en contrario al artículo 1843-4 de dicho código se tendrá por no puesta.
Si, tras la expiración del plazo previsto en el párrafo anterior, la compra no se hubiera realizado, se considerará concedida la autorización. Sin embargo, este plazo se podrá prolongar por resolución judicial si la sociedad lo solicitase.
Artículo L228-26 Si la sociedad hubiera dado su consentimiento a un proyecto de pignoración en las condiciones previstas en el
párrafo primero del artículo L.228-24, ese consentimiento conllevará la autorización del cesionario en caso de venta forzosa de las acciones pignoradas según las disposiciones del párrafo primero del artículo 2078 del Código Civil, a menos que la sociedad prefiera tras la cesión rescatar sin plazo las acciones, con el fin de reducir su capital.
Artículo L228-27 Si no se produjera por parte del accionista el desembolso en las fechas fijadas por el consejo de administración, el
directorio o los gerentes, según el caso, de las cantidades que queden por pagar sobre el importe total de las acciones suscritas por él, la sociedad le dirigirá un requerimiento de pago.
Transcurrido un mes desde el requerimiento sin respuesta, la sociedad procederá, sin necesidad de autorización judicial, a la venta de dichas acciones.
La venta de las acciones cotizables se efectuará en bolsa. La venta de las acciones no cotizables se realizará en subasta pública. El accionista que se encuentre en mora quedará como deudor o se beneficiará de la diferencia. Las condiciones de aplicación del presente párrafo serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L228-28 El accionista que se hallase en mora, los vendedores sucesivos y los suscriptores estarán obligados solidariamente
por el importe no desembolsado de la acción. La sociedad podrá actuar contra ellos, ya sea antes o después de la venta, o al mismo tiempo para obtener tanto la cantidad adeudada como el reembolso de los gastos realizados.
El que haya pagado a la sociedad dispondrá de una acción por el importe total contra los titulares sucesivos de la acción. La carga definitiva de la deuda corresponderá al último de ellos.
Dos años después de la transferencia de una cuenta de valores mobiliarios a otra cuenta, todo suscriptor o accionista que haya cedido su título dejará de estar obligado a los pagos aún no solicitados.
Artículo L228-29 Tras la expiración del plazo fijado por decreto adoptado en Conseil d'Etat, las acciones sobre cuyo importe no
hayan sido efectuados los pagos exigibles, dejarán de dar derecho a la admisión y a los votos en las juntas de accionistas y serán deducidas para el cálculo del quórum.
Serán suspendidos el derecho a los dividendos y el derecho de suscripción preferente en las ampliaciones de capital vinculados a estas acciones.
Tras el pago de las cantidades adeudadas, en capital y en intereses, el accionista podrá solicitar el pago de los dividendos no prescritos. Tras la expiración del plazo fijado para el ejercicio de este derecho no podrá ejercer una acción en razón del derecho de suscripción preferente en una ampliación de capital.
Artículo L228-29-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Las acciones que tengan un valor nominal inferior o igual a un importe fijado por decreto adoptado en Conseil d'Etat y no admitidas a negociación en un mercado regulado podrán ser reagrupadas, salvo disposición legal o estatutaria en contrario. Las reagrupaciones serán decididas por las juntas generales de accionistas que resolverán en las condiciones previstas para la modificación de estatutos y de conformidad con lo dispuesto en el artículo L. 228-29-2.
Artículo L228-29-2 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Las reagrupaciones de acciones previstas en el artículo L. 228-29-1 incluirán la obligación, para los accionistas, de proceder a las compras o cesiones de acciones necesarias para realizar la reagrupación.
El valor nominal de las acciones reagrupadas no podrá ser superior a un importe fijado por decreto adoptado en Conseil d'Etat.
Para facilitar estas operaciones y antes de la decisión de la junta general, la sociedad deberá obtener de uno o varios accionistas su compromiso para proponer durante un plazo de dos años y al precio fijado por la junta, tanto para la compra como para la venta, la contrapartida de las ofertas relativas a las fracciones que excedan del cociente exacto surgido del reparto o de las peticiones para completar el número de títulos pertenecientes a cada uno de los accionistas
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CÓDIGO DE COMERCIO interesados.
Artículo L228-29-3 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Tras la expiración del plazo fijado por el decreto previsto en el artículo L. 228-29-7, las acciones que no hayan sido presentadas para su reagrupación perderán su derecho de voto y se suspenderá su derecho a dividendo.
El decreto mencionado en el primer párrafo podrá conceder un plazo suplementario a los accionistas que se hayan comprometido de conformidad con lo dispuesto en el párrafo tercero del artículo L. 228-29-2.
Los dividendos cuyo pago hubiera sido suspendido en cumplimiento del párrafo primero serán abonados, en caso de reagrupación ulterior, a los propietarios de las antiguas acciones siempre y cuando no se les aplique la prescripción.
Artículo L228-29-4 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Cuando los propietarios de los títulos no dispongan de la libre administración de sus bienes, la solicitud de canje de los antiguos títulos y las compras o cesiones de las fracciones que excedan del cociente exacto del reparto y sean necesarios para realizar la reagrupación se asimilarán a actos de simple administración, salvo que los nuevos títulos se pidan al tenedor a cambio de títulos nominativos.
Artículo L228-29-5 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Los nuevos títulos tendrán las mismas características y conferirá de pleno derecho y sin necesidad de ningún requisito formal los mismos derechos reales o derechos de crédito que los títulos que sustituyen.
Los derechos reales y las pignoraciones serán trasladados de pleno derecho a los nuevos títulos adjudicados para sustituir los antiguos títulos que los tuvieran.
Artículo L228-29-6 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
En caso de incumplimiento, por parte de la sociedad, del artículo L. 228-29-1 o L. 228-29-2, o de las condiciones en que deben tomarse las decisiones de las juntas generales así como de los requisitos formales de publicidad establecidos por el decreto previsto en el artículo L. 228-29-7, la reagrupación seguirá siendo facultativa para los accionistas. Lo dispuesto en el artículo L. 228-29-3 no podrá aplicarse a los accionistas.
Si el o los accionistas que se hubieran comprometido de conformidad con el artículo L. 228-29-2 no cumplieran su compromiso, las operaciones de reagrupación podrán ser anuladas. En tal caso, las compras y las ventas de las fracciones excedentes del cociente exacto del reparto podrán ser anuladas previa petición de los accionistas que las hubieran realizado o de sus causahabientes, a excepción de los accionistas que se encuentren en mora.
Artículo L228-29-7 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Un decreto adoptado en Conseil d'Etat establecerá las modalidades de aplicación de los artículos L. 228-29-1 a L. 228-29-6, y en particular las condiciones no previstas en el artículo L. 228-29-1 en las que deban tomarse las decisiones de las juntas generales de accionistas y deban cumplirse los requisitos formales de publicidad de dichas decisiones.
Sección III Disposiciones aplicables a las categorías de títulos en vías de extinción Artículos L228-29-8 a
L228-35-11
Subsección 1 Disposiciones generales Artículos L228-29-8 a
L228-29-10
Artículo L228-29-8 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 Diario Oficial de 26 de junio de 2004)
Ningún título nuevo podrá emitirse según lo dispuesto en los artículos de la presente sección, con excepción de aquéllos que fueran emitidos en aplicación de las decisiones de las juntas generales anteriores a la entrada en vigor de la Disposición n° 2004-604 de 24 de junio de 2004 relativa a la reforma del régimen de valores mobiliarios emitidos por las sociedades comerciales y a la aplicación en los territorios de Ultramar de las disposiciones de modificación de la legislación comercial.
Artículo L228-29-9 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 Diario Oficial de 26 de junio de 2004)
Los tenedores de títulos regulados por la presente sección dispondrán, salvo en caso de aplicación del artículo L. 225-138, de un derecho de suscripción preferente de las acciones preferentes mencionadas en el artículo L. 228-11 cuando éstas confieran derechos equivalentes a los de los títulos que poseen.
Los tenedores de títulos regulados por la presente sección dispondrán, salvo en caso de aplicación del artículo L. 225-138, de un derecho de suscripción preferente de los valores mobiliarios mencionados en el artículo L. 228-91 cuando éstos confieran derechos equivalentes a los de los títulos que poseen.
Artículo L228-29-10
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CÓDIGO DE COMERCIO (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 Diario Oficial de 26 de junio de 2004)
Para el cálculo de las fracciones previstas en el artículo L. 228-11, se tendrán en cuenta las acciones con dividendo preferente sin derecho de voto y los certificados de inversión existentes.
No obstante, la aplicación de lo dispuesto en el párrafo anterior no impedirá el mantenimiento de los derechos de los propietarios de títulos existentes.
Subsección 2 De los certificados de inversión Artículos L228-30 a
L228-35
Artículo L228-30 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria de una sociedad por acciones, o en las sociedades que no estén dotadas de ella, el órgano que la sustituya, podrá decidir, tras el examen del informe del consejo de administración o del directorio, según el caso, y tras el de los auditores de cuentas, la creación, en una proporción que no podrá ser superior a un cuarto del capital social, de los certificados de inversión representativos del derecho de percepción de dividendos y de certificados de derecho de voto representativos de los otros derechos vinculados a las acciones emitidas con ocasión de una ampliación de capital o de un fraccionamiento de las acciones existentes.
En caso de ampliación de capital, los tenedores de acciones y, si existiesen, los tenedores de certificados de inversión, se beneficiarán de un derecho de suscripción preferencial en los certificados de inversión emitidos y el procedimiento a seguir será el de las ampliaciones de capital. Los tenedores de certificados de inversión renunciarán al derecho preferencial en junta especial convocada y decidirán según las normas de la junta general extraordinaria de accionistas. Los certificados de derecho de voto serán repartidos entre los tenedores de acciones y los tenedores de certificados de derecho de voto, si existiesen, a prorrata de sus derechos.
En caso de fraccionamiento, la oferta de creación de los certificados de inversión se efectuará al mismo tiempo y en proporción a su parte del capital a todos los tenedores de acciones. Al final de un plazo establecido por la junta general extraordinaria, el resto de las posibilidades de creación no atribuidas será repartido entre los tenedores de acciones que hayan solicitado beneficiarse de este reparto suplementario proporcionalmente a su parte del capital y, en cualquier caso, hasta el límite de sus solicitudes. Tras este reparto, el resto, si queda, será repartido por el consejo de administración o el directorio, según el caso.
El certificado de derecho de voto deberá revestir la forma nominativa. El certificado de inversión será negociable. Su valor nominal será igual al de las acciones. Cuando las acciones
estén divididas, los certificados de inversión también lo estarán. El certificado del derecho de voto no podrá ser vendido si no es acompañado de un certificado de inversión. Sin
embargo, podrá ser igualmente cedido al portador del certificado de inversión. La cesión conllevará de pleno derecho la reconstitución de la acción en ambos casos. La acción será igualmente reconstituida de pleno derecho en manos del tenedor de un certificado de inversión y de un certificado del derecho de voto. Éste lo declarará a la sociedad en los quince días siguientes. A falta de declaración, la acción se verá privada del derecho de voto hasta que no se proceda a su regularización y durante un plazo de un mes después de dicha regularización.
No podrá ser adjudicado ningún certificado que represente menos de un voto. La junta general determinará las modalidades de adjudicación de los certificados para los derechos que excedan de la cifra exacta en el cociente de la adjudicación.
En caso de fusión o de escisión, los certificados de inversión y los certificados de derecho de voto de una sociedad que desapareciera podrán ser canjeados por acciones de sociedades beneficiarias de la transferencia de patrimonio.
Artículo L228-31 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria de una sociedad cuyas acciones estén admitidas a negociación en un mercado regulado y cuyos certificados de inversión existentes representen un 1% como máximo del capital social podrá decidir, tras examinar el informe del consejo de administración, la reconstitución de los certificados existentes en acciones, y la de los certificados existentes provistos de beneficios especiales en acciones que confieran a sus titulares los mismos beneficios.
La junta general extraordinaria prevista en el párrafo anterior resolverá en las condiciones previstas por el artículo L.225-147 para la aprobación de los beneficios especiales, después de que una junta de titulares de certificados de derechos de voto, convocada y decidiendo según las normas de las juntas especiales de accionistas haya aprobado el proyecto por una mayoría de un 95% de los titulares asistentes o representados. La venta se operará entonces en la sociedad, por la no aplicación excepcional del párrafo sexto del artículo L.228-30, en el precio definido por la junta general extraordinaria mencionada en el párrafo primero del presente artículo.
El precio mencionado en el párrafo anterior será determinado según las modalidades enunciadas en el apartado segundo del artículo 283-1-1 de la Ley nº 66-537 de 24 de julio de 1966 sobre sociedades mercantiles.
Se consignará el importe de la indemnización que provenga de los tenedores no identificados. La reconstitución se operará por la cesión gratuita a los tenedores de certificados de inversión, de los certificados
de derecho de voto correspondientes. Para ello, la sociedad podrá solicitar la identificación de los tenedores de certificados, incluso en ausencia de
disposición estatutaria expresa, según las modalidades previstas por el artículo L.228-2.
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CÓDIGO DE COMERCIO Artículo L228-32 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I Diario Oficial de 26 de junio de 2004)
Los tenedores de certificados de inversión podrán hacer que les sean presentados los documentos sociales en las mismas condiciones que a los accionistas.
Artículo L228-33 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I, II Diario Oficial de 26 de junio de 2004)
En caso de distribución gratuita de acciones, se deberán crear nuevas acciones preferentes sin derecho de voto y provistas de los mismos derechos que los certificados de inversión, y se deberán entregar gratuitamente a los propietarios de antiguos certificados, en proporción al número de acciones nuevas adjudicadas a las acciones antiguas, salvo renuncia por su parte en beneficio del conjunto de los tenedores o de algunos de ellos.
Artículo L228-34 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I, III Diario Oficial de 26 de junio de 2004)
En caso de ampliación de capital en efectivo, con excepción de la ampliación reservada a los trabajadores de una sociedad según lo dispuesto en el artículo L. 225-138-1, se emitirán nuevas acciones preferentes sin derecho de voto y provistas de los mismos derechos que los certificados de inversión, de tal manera que se mantenga la antigua proporción entre acciones ordinarias y certificados de inversión, teniendo en cuenta estas acciones preferentes, tras la ampliación de capital y considerando que ésta se realizará por completo.
Los propietarios de los certificados de inversión tendrán, en proporción al número de títulos que posean, un derecho de preferencia en la suscripción con carácter preferente de las nuevas acciones preferentes. En el transcurso de una junta especial, convocada y decidiendo según las reglas de la junta general extraordinaria de los accionistas, los propietarios de los certificados de inversión podrán renunciar a ese derecho. Las acciones preferentes no suscritas serán repartidas por el consejo de administración o el directorio. La realización de la ampliación de capital se apreciará en la fracción correspondiente a la emisión de acciones. Sin embargo, por excepción a lo establecido en las disposiciones del párrafo primero anterior, cuando los propietarios de los certificados hayan renunciado a su derecho preferencial de suscripción, no se procederá a la emisión de nuevas acciones preferentes.
Artículo L228-35 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I, IV Diario Oficial de 26 de junio de 2004)
En caso de emisión de obligaciones convertibles en acciones, los tenedores de certificados de inversión tendrán, proporcionalmente al número de títulos que posean, un derecho de suscripción preferente. Su junta especial, convocada y resolviendo según las normas de la junta general extraordinaria de accionistas, podrá renunciar a ello.
Estas obligaciones sólo podrán ser convertidas en acciones preferentes sin derecho de voto y deberán disponer de los mismos derechos que los certificados de inversión.
Subsección 3 Las acciones privilegiadas Artículo L228-35-1
Artículo L228-35-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 I, Artículo 35 I, Artículo 37 Diario Oficial de 26 de junio de 2004)
En el momento de la constitución de la sociedad o a lo largo de su existencia, podrán crearse acciones privilegiadas que gocen de ventajas con relación a todas las demás, no obstante lo establecido en las disposiciones de los artículos L.225-122 a L.225-125.
Por excepción a lo dispuesto en el artículo L. 225-99, los estatutos o el contrato de emisión podrán prever que la decisión de conversión de las acciones privilegiadas en acciones ordinarias por la junta general extraordinaria no se imponga a los tenedores de dichas acciones.
Subsección 4 Las acciones con dividendo preferente sin derecho de voto Artículos L228-35-2 a
L228-35-11
Artículo L228-35-2 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 II, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
Se podrán así mismo crear acciones con dividendo preferente sin derecho de voto en las condiciones previstas en los artículos L.228-35-3 a L.228-35-sin perjuicio de las disposiciones de los artículos L.225-122 a L.225-126.
Artículo L228-35-3 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
Las acciones con dividendo preferente sin derecho de voto podrán ser creadas por ampliación de capital o por conversión de acciones ordinarias ya emitidas. Podrán ser convertidas en acciones ordinarias.
Las acciones con dividendo preferente sin derecho de voto no podrán representar más de un cuarto del importe total del capital social. Su valor nominal será igual al de las acciones ordinarias, o, eventualmente, de las acciones ordinarias de una de las categorías emitidas anteriormente por la sociedad.
Los titulares de acciones con dividendo preferente sin derecho de voto se beneficiarán de los derechos
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CÓDIGO DE COMERCIO reconocidos a los demás accionistas, salvo el derecho a participar y a votar basado en estas acciones, en las juntas generales de accionistas de la sociedad.
En caso de creación de acciones con dividendo preferente sin derecho de voto por conversión de acciones ordinarias ya emitidas o en caso de conversión de acciones de dividendo preferente sin derecho de voto en acciones ordinarias, la junta general extraordinaria determinará el importe máximo de acciones que se puedan convertir y determinará las condiciones de conversión tras examinar el informe especial del auditor de cuentas. Su decisión sólo será definitiva tras la aprobación por las juntas especiales previstas en los artículos L. 228-35-6 y L. 228-103.
La oferta de conversión será realizada al mismo tiempo y proporcionalmente a su parte en el capital social para todos los accionistas, con excepción de las personas mencionadas en el artículo L.228-35-8. La junta general extraordinaria determinará el plazo durante el cual los accionistas podrán aceptar la oferta de conversión.
Por excepción a lo dispuesto en el artículo L. 225-99, los estatutos o el contrato de emisión podrán prever que la decisión de conversión de las acciones con dividendo preferente sin derecho de voto en acciones ordinarias por la junta general extraordinaria no se imponga para los tenedores de dichas acciones.
Artículo L228-35-4 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
Las acciones con dividendo preferente sin derecho de voto darán derecho a un dividendo prioritario deducido del beneficio distribuible del ejercicio antes de cualquier otra asignación. Si el dividendo preferente no pudiese ser íntegramente abonado a causa de una insuficiencia del beneficio distribuible, éste deberá ser repartido hasta el importe debido entre los titulares de acciones con dividendo preferente sin derecho de voto. El derecho al pago del dividendo preferente que no haya sido íntegramente abonado por causa de insuficiencia de beneficios distribuibles será aplazado al ejercicio siguiente y, si procede, a los dos ejercicios posteriores o, si se estableciese en los estatutos, a los ejercicios ulteriores. Este derecho se ejercerá con prioridad al pago del dividendo preferente debido por el presente ejercicio.
El dividendo preferente no podrá ser inferior al primer dividendo citado en el artículo L.232-16 ni al 7,5% del importe desembolsado del capital representado por las acciones con dividendo preferente sin derecho de voto. Estas acciones no podrán dar derecho al primer dividendo.
Tras la deducción del dividendo preferente así como del primer dividendo, si los estatutos lo previeran, o de un dividendo del 5% en beneficio de todas las acciones ordinarias calculado en las condiciones previstas en el artículo L.232-16, las acciones con dividendo preferente sin derecho de voto tendrán proporcionalmente a su importe nominal los mismos derechos que las acciones ordinarias.
En el caso de que las acciones ordinarias sean divididas en categorías que den derechos desiguales al primer dividendo, se entenderá que el importe del primer dividendo previsto en el párrafo segundo del presente artículo es el primer dividendo mayor.
Artículo L228-35-5 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35, Artículo 38 Diario Oficial de 26 de junio de 2004)
Cuando los dividendos preferentes que se deban en concepto de tres ejercicios no hayan sido íntegramente abonados, los titulares de las acciones correspondientes adquirirán, proporcionalmente a la fracción del capital representado por esas acciones, un derecho de voto igual al de los otros accionistas.
El derecho de voto previsto en el párrafo anterior subsistirá hasta la finalización del ejercicio en el transcurso del cual el dividendo preferente haya sido íntegramente pagado, incluido el dividendo debido por ejercicios anteriores.
Artículo L228-35-6 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
Los titulares de acciones con dividendo preferente sin derecho de voto se reunirán en una junta especial en las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Todo accionista que posea acciones con dividendo preferente sin derecho de voto podrá participar en la junta especial. Cualquier cláusula en contrario se tendrá por no puesta.
La junta especial de accionistas con dividendo preferente sin derecho de voto podrá emitir su opinión antes de cualquier decisión de la junta general. Ésta resolverá entonces por mayoría de votos emitidos por los accionistas asistentes o representados. En el caso en que se proceda a una votación, no se tendrán en cuenta los votos en blanco. El dictamen será remitido a la sociedad. Se dará a conocer a la junta general y será consignado en acta.
La junta especial podrá designar a uno o, si los estatutos lo previeran, a varios mandatarios encargados de representar a los accionistas con dividendo preferente sin derecho de voto en la junta general de los accionistas y eventualmente de exponer allí su opinión antes de proceder a cualquier votación de esta última. Esta opinión será consignada en el acta de la junta general.
Sin perjuicio de lo dispuesto en el artículo L.228-35, toda decisión que modifique los derechos de los titulares de acciones con dividendo preferente sin derecho de voto no será definitiva hasta la aprobación por la junta especial citada en el párrafo primero del presente artículo, que resolverá según las condiciones de quórum y de mayoría previstas en el artículo L.225-99.
Si se obstaculizara la designación de los mandatarios encargados de representar a los accionistas con dividendo preferente sin derecho de voto en la junta general de accionistas, el presidente del Tribunal, resolviendo en procedimiento sumario, podrá designar a un mandatario encargado de esta función previa petición de cualquier
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CÓDIGO DE COMERCIO accionista.
Artículo L228-35-7 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
En caso de ampliación de capital por aportaciones dinerarias, los titulares de acciones con dividendo preferente sin derecho de voto se beneficiarán, en las mismas condiciones que los accionistas ordinarios, de un derecho de suscripción preferente. Sin embargo, la junta general extraordinaria podrá decidir, tras el dictamen de la junta especial prevista en el artículo L.228-35-6, que tendrán derecho preferencial a suscribir en las mismas condiciones nuevas acciones con dividendo preferente sin derecho de voto y provistas de los mismos derechos que las acciones con dividendo preferente sin derecho de voto que sean emitidas en la misma proporción.
La adjudicación gratuita de nuevas acciones, tras una ampliación de capital por incorporación de reservas, de beneficios o de primas de emisión, se aplicará a los titulares de acciones con dividendo preferente sin derecho de voto. Sin embargo, la junta general extraordinaria podrá decidir, tras el dictamen de la junta especial prevista en el artículo L. 228-35, que los titulares de acciones con dividendo preferente sin derecho de voto reciban, en lugar de acciones ordinarias, acciones preferentes sin derecho de voto y provistas de los mismos derechos que las acciones con dividendo preferente sin derecho de voto que sean emitidas en la misma proporción.
Cualquier incremento del importe nominal de las acciones existentes tras una ampliación de capital por incorporación de reservas, de beneficios o de primas de emisión, se aplicará a las acciones con dividendo preferente sin derecho de voto. El dividendo preferente previsto en el artículo L.228-35 será entonces calculado, a partir de la realización de la ampliación de capital, por el nuevo importe nominal al que se le añadirá, si procede, la prima de emisión abonada por la suscripción de antiguas acciones.
Artículo L228-35-8 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
El presidente y los miembros del consejo de administración, los directores generales, los miembros del directorio y del consejo de supervisión de una sociedad anónima, los gerentes de una sociedad comanditaria por acciones y sus cónyuges no separados legalmente, así como sus hijos menores no emancipados no podrán detentar, sea cual fuere la forma, acciones con dividendo preferente sin derecho de voto emitidas por esta sociedad.
Artículo L228-35-9 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35, Artículo 38 Diario Oficial de 26 de junio de 2004)
Se prohibirá amortizar su capital a la sociedad que haya emitido acciones con dividendo preferente sin derecho de voto.
En caso de reducción de capital no motivada por pérdidas, las acciones con dividendo preferente sin derecho de voto serán compradas, antes de las acciones ordinarias, en las condiciones previstas en los últimos párrafos del artículo L.228-35-10 y serán anuladas.
Sin embargo, estas disposiciones no serán aplicables a las reducciones de capital realizadas en aplicación del artículo L.225-209. En ese caso, las disposiciones del artículo L.225-99 no serán aplicables en el caso de que las acciones hayan sido adquiridas en un mercado regulado.
Las acciones con dividendo preferente sin derecho de voto tendrán, en proporción a su importe nominal, los mismos derechos que las otras acciones sobre las reservas distribuidas en el transcurso de la existencia de la sociedad.
Artículo L228-35-10 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
Los estatutos podrán otorgar a la sociedad la facultad de exigir el rescate, bien de la totalidad de sus propias acciones con dividendo preferente sin derecho de voto, bien de algunas categorías de ellas, siendo cada categoría determinada por la fecha de su emisión. El rescate de una categoría de acciones con dividendo preferente sin derecho de voto deberá afectar a la totalidad de las acciones de esta categoría. El rescate será decidido por la junta general, quien resolverá en las condiciones establecidas en el artículo L. 225-204. Será de aplicación lo dispuesto en el artículo L. 225-205. Las acciones rescatadas serán anuladas de conformidad con el artículo L. 225-207 y el capital será reducido de pleno derecho.
El rescate de acciones con dividendo preferente sin derecho de voto sólo podrá ser exigido por la sociedad cuando se haya incluido una estipulación especial para ello en los estatutos antes de producirse la emisión de estas acciones.
El valor de las acciones con dividendo preferente sin derecho de voto será determinado en el día del rescate de común acuerdo entre la sociedad y una junta especial de accionistas vendedores, resolviendo según las condiciones de quórum y de mayoría previstas en el artículo L.225-99. En caso de desacuerdo, se aplicará el artículo 1843-4 del Código Civil.
El rescate de acciones con dividendo preferente sin derecho de voto sólo podrá producirse si el dividendo preferente debido a los ejercicios anteriores y al ejercicio en curso hubiera sido abonado íntegramente.
Artículo L228-35-11
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CÓDIGO DE COMERCIO (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
No se tendrán en cuenta las acciones con dividendo preferente sin derecho de voto para la determinación del porcentaje previsto en el artículo L.233-1 o en el artículo L.232-2.
Sección IV De los títulos participativos
Sección V De las obligaciones Artículos L228-38 a
L228-90
Artículo L228-38 (Disposición nº 2000-1223 de 14 de diciembre de 2000 Artículo 3 Diario Oficial de 16 de diciembre de 2000, con entrada en vigor el 1 de enero de 2002)
Como se establece en el artículo L. 213-5 del Código Monetario Y Financiero: "Artículo L213-5 - Las obligaciones son títulos negociables que, en una misma emisión, conferirán los mismos
derechos de crédito para un mismo valor nominal."
Artículo L228-39 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 102 Diario Oficial de 16 de mayo de 2001)
La emisión de obligaciones por parte de una sociedad por acciones que no haya realizado dos balances válidamente aprobados por los accionistas deberá ser precedida de una comprobación del activo y del pasivo en las condiciones previstas en los artículos L.225-8 y L.225-10.
Se prohibirá la emisión de obligaciones a las sociedades cuyo capital no esté íntegramente desembolsado salvo si las acciones no desembolsadas hubieran sido reservadas a los empleados en aplicación del artículo L.225-187 o del artículo L. 443-5 del Código de Trabajo, y salvo que esté hecha con el fin de adjudicar a los trabajadores las obligaciones emitidas en concepto de participación de éstos en los beneficios de la expansión de la empresa.
Artículo L228-40 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 39 Diario Oficial de 26 de junio de 2004)
El consejo de administración, el directorio, o el o los gerentes tendrán la facultad de decidir o autorizar la emisión de obligaciones, salvo que los estatutos reservaran dicha facultad a la junta general o que ésta decidiera ejercerla.
El consejo de administración podrá delegar en uno o varios de sus miembros, en el director general o, de común acuerdo con este último, en uno o varios directores generales delegados, y en el caso de los establecimientos de crédito en cualquier persona de su elección, las competencias necesarias para realizar en un plazo de un año la emisión de obligaciones y para determinar las modalidades de dicha emisión.
El directorio podrá delegar en su presidente o, de común acuerdo con este último, en uno o varios de sus miembros, y en el caso de los establecimientos de crédito en cualquier persona de su elección, las competencias necesarias para realizar en el mismo plazo la emisión de obligaciones y para determinar las modalidades de dicha emisión.
Las personas designadas rendirán cuentas ante el consejo de administración o ante el directorio en las condiciones previstas por éste último.
Artículo L228-43 Si se hace un llamamiento público al ahorro, la sociedad realizará, antes de la apertura de la suscripción, los
requisitos formales de publicidad sobre las condiciones de emisión según las modalidades determinadas por decreto adoptado en Conseil d'Etat.
Artículo L228-44 La sociedad no podrá constituir ningún tipo de garantía sobre sus propias obligaciones.
Artículo L228-45 En el caso de que la sociedad emisora haya continuado pagando los intereses de obligaciones reembolsables a
consecuencia de un sorteo, estas cantidades no podrán ser objeto de repetición cuando estas obligaciones sean presentadas para su reembolso.
Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L228-46 Los tenedores de obligaciones de una misma emisión serán reagrupados de pleno derecho para la defensa de sus
intereses comunes, en un sindicato que gozará de personalidad civil. Sin embargo, en caso de emisiones sucesivas de obligaciones, la sociedad podrá, cuando una cláusula de cada
contrato de emisión lo prevea, agrupar en un único sindicato a los tenedores de obligaciones que tengan idénticos derechos.
Artículo L228-47 El sindicato estará representado por uno o varios mandatarios elegidos por la junta general de los obligacionistas.
Su número no podrá ser superior a tres. En caso de emisión por llamamiento público al ahorro, los representantes podrán ser designados en el contrato de emisión.
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CÓDIGO DE COMERCIO Artículo L228-48
El mandato de representación del sindicato sólo podrá ser confiado a personas de nacionalidad francesa o ciudadanos de un Estado miembro de la Unión Europea, domiciliadas en territorio francés, y a las sociedades y asociaciones que tengan aquí su sede.
Artículo L228-49 No podrán ser escogidas como representantes del sindicato: 1º La sociedad deudora; 2º Las sociedades que posean al menos la décima parte del capital de la sociedad deudora o de las cuales ésta
posea al menos una décima parte del capital; 3º Las sociedades garantes de todo o de parte de los compromisos de la sociedad deudora; 4º Los gerentes, administradores, miembros del directorio, del consejo de supervisión, directores generales,
auditores de cuentas o empleados de las sociedades citadas en los apartados 1º y 3º, así como sus cónyuges, ascendientes y descendientes;
5º Las personas a las que se les haya prohibido el ejercicio de la profesión de banquero o que hayan sido privadas del derecho de dirigir, administrar o gestionar una sociedad en cualquier concepto.
Artículo L228-50 En caso de urgencia, los representantes del sindicato podrán ser designados por resolución judicial a petición de
cualquier interesado.
Artículo L228-51 Cuando no hayan sido designados en el contrato de emisión, los representantes del sindicato de los tenedores de
obligaciones de un préstamo para el que la sociedad haya hecho llamamiento público al ahorro serán nombrados en el plazo de un año a partir de la apertura de la suscripción y como máximo un mes antes de la primera amortización prevista.
Será la junta general quien haga este nombramiento o, en su defecto, por una resolución judicial a petición de cualquier interesado.
Artículo L228-52 Los representantes del sindicato podrán ser relevados de sus funciones por la junta general de los obligacionistas.
Artículo L228-53 Los representantes del sindicato tendrán, salvo restricción decidida por la junta general de los obligacionistas, el
poder de realizar en nombre del sindicato todos los actos de gestión encaminados a la defensa de los intereses comunes de los obligacionistas.
Artículo L228-54 Los representantes del sindicato, debidamente autorizados por la junta general de obligacionistas, serán los únicos
competentes para ejercer, en nombre de éstos, las acciones de nulidad sobre la constitución de la sociedad o de los actos y acuerdos posteriores a su constitución, así como cualquier acción que tenga por objeto la defensa de los intereses comunes de los obligacionistas, y en especial requerir que se cumpla la medida prevista en el artículo L.237-14.
Los procedimientos judiciales dirigidos contra el conjunto de los obligacionistas de un mismo sindicato sólo podrán ser ejercidos contra el representante de este sindicato.
Cualquier procedimiento emprendido contrariamente a las disposiciones del presente artículo deberá ser declarado no admisible de oficio.
Artículo L228-55 Los representantes del sindicato no podrán inmiscuirse en la gestión de los asuntos sociales. Tendrán acceso a las
juntas generales de los accionistas, pero sin voz ni voto. Tendrán derecho a acceder a los documentos puestos a disposición de los accionistas en las mismas condiciones
que éstos.
Artículo L228-56 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 VI Diario Oficial de 2 de agosto de 2003)
La remuneración de los representantes del sindicato tal como haya sido determinada por la junta general o por el contrato de emisión correrá a cargo de la sociedad deudora.
Si no se hubiera fijado dicha remuneración, o si su importe hubiera sido impugnado por la sociedad, se decidirá por resolución judicial.
Sin perjuicio del procedimiento de resarcimiento por responsabilidad civil contra los mandatarios sociales o el representante del sindicato, cualquier decisión que conceda a este último una remuneración contraviniendo las disposiciones del presente artículo será nula.
Artículo L228-57 La junta general de los obligacionistas de un mismo sindicato podrá reunirse en cualquier momento.
Artículo L228-58 La junta general de obligacionistas será convocada por el consejo de administración, el directorio o los gerentes,
por los representantes del sindicato o por los liquidadores durante el período de liquidación.
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CÓDIGO DE COMERCIO Uno o varios obligacionistas, que reúnan al menos una treintava parte de los títulos de un sindicato, podrán dirigir
a la sociedad y al representante del sindicato una petición solicitando la convocatoria de la junta. Si la junta general no hubiese sido convocada en el plazo fijado por decreto adoptado en Conseil d'Etat, los que la
hayan solicitado podrán designar a uno de entre ellos para que inste judicialmente la designación de un mandatario que convoque la junta.
Artículo L228-59 La convocatoria de las juntas generales de obligacionistas será realizada en las mismas condiciones de forma y
plazo que la de las juntas de accionistas. Además, los avisos de convocatoria contendrán menciones especiales que serán determinadas por decreto adoptado en Conseil d'Etat.
Podrá ser anulada toda junta irregularmente convocada. Sin embargo, el procedimiento de nulidad no será admitido cuando todos los obligacionistas del sindicato interesado hayan asistido o hayan sido representados.
Artículo L228-60 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 41 Diario Oficial de 26 de junio de 2004)
El orden del día de las juntas será fijado por el autor de la convocatoria. Sin embargo, uno o varios obligacionistas tendrán la facultad, en las condiciones previstas en el párrafo segundo
del artículo L.228-58, de requerir que se incluya en el orden del día proyectos de resolución. Éstos serán incluidos en el orden del día y sometidos por el presidente de la sesión a votación de la junta.
La junta no podrá deliberar sobre una cuestión que no esté incluida en el orden del día. En segunda convocatoria, el orden del día de la junta no podrá ser modificado.
Artículo L228-60-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 4II Diario Oficial de 26 de junio de 2004)
Para cada junta será necesaria una lista de asistencia. Las decisiones que se adopten en cada junta deberán ser consignadas en acta, la cual será firmada por los
miembros y será conservada en el domicilio social, en un registro especial. Las menciones que deberán figurar en la lista de asistencia y en el acta serán determinadas por decreto adoptado
en Conseil d'Etat.
Artículo L228-61 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 42 Diario Oficial de 26 de junio de 2004)
Si existieran varios sindicatos de obligacionistas, no podrán en ningún caso deliberar en el seno de una junta común.
Todo obligacionista tendrá derecho a participar en la junta o a ser representado en ella por un mandatario de su elección.
Todo accionista podrá votar por correspondencia, por medio de un formulario cuyo contenido será definido por decreto adoptado en Conseil d'Etat . Las disposiciones contrarias de los estatutos se tendrán por no puestas.
Para el cálculo del quórum, sólo se tendrán en cuenta los formularios que hayan sido recibidos por la sociedad con antelación a la celebración de la junta, en las condiciones de plazo definidas por decreto adoptado en Conseil d'Etat. Los formularios que no indiquen un sentido determinado para el voto o que expresen una abstención serán considerados como votos negativos.
Si los estatutos lo previeran, serán considerados presentes para el cálculo del quórum y de la mayoría, los obligacionistas que participen en la junta por videoconferencia o por medios de comunicación que permitan su identificación. La naturaleza de los medios técnicos autorizados y las condiciones de aplicación de esta disposición serán determinadas por decreto adoptado en Conseil d'Etat.
Los tenedores de obligaciones amortizadas y no reembolsadas a causa de mora de la sociedad deudora o en razón de un litigio basado en las condiciones de reembolso, podrán participar en la junta.
La sociedad que detente al menos un 10% del capital de la sociedad deudora no podrá votar en la junta con las obligaciones que posee.
Artículo L228-62 No podrán representar a los obligacionistas en las juntas generales, los gerentes, administradores, miembros del
directorio y del consejo de supervisión, directores generales, auditores de cuentas o empleados de la sociedad deudora o de las sociedades garantes de todo o de parte de los compromisos de dicha sociedad, así como su cónyuge, ascendientes o descendientes.
Artículo L228-63 La representación de un obligacionista no podrá ser conferida a las personas a las que se haya prohibido el
ejercicio de la profesión bancaria o que hayan sido privadas del derecho de dirigir, de administrar o de gestionar una sociedad en el concepto que sea.
Artículo L228-64 La junta será presidida por un representante del sindicato. En caso de ausencia de los representantes o en caso de
desacuerdo entre ellos, la junta designará a una persona para ejercer las funciones de presidente. En caso de convocatoria hecha por un mandatario judicial, la junta será presidida por este último.
Si no hubiera representantes del sindicato designados en las condiciones previstas en los artículos L. 228-50 y L.228-51, la primera junta se abrirá bajo la presidencia provisional del tenedor que detente o del mandatario que
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CÓDIGO DE COMERCIO represente el mayor número de obligaciones.
Artículo L.228-65 (Disposición nº 2004-604 de 24 de junio de 2004 art. 43 Diario Oficial de 26 de junio de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
I. - La junta general deliberará sobre cualquier medida que tenga por objeto asegurar la defensa de los obligacionistas y la ejecución del contrato de préstamo así como sobre cualquier propuesta que tienda a la modificación del contrato y en especial:
1º Sobre cualquier propuesta relativa a la modificación del objeto o de la forma de la sociedad; 2º Sobre cualquier propuesta, bien de compromiso, bien de transacción sobre derechos en litigio o que hayan sido
objeto de resoluciones judiciales; 3º Sobre las propuestas de fusión o de escisión de la sociedad en los casos previstos en los artículos L.236-14 y
L.236-18; 4º Sobre cualquier propuesta relativa a la emisión de obligaciones que conlleven derechos preferentes a la deuda
de los obligacionistas que componen el sindicato; 5º Sobre cualquier propuesta relativa al abandono total o parcial de las garantías conferidas a los obligacionistas, al
aplazamiento del vencimiento de pago de los intereses y a la modificación de las condiciones de amortización o de los tipos de interés;
6° Sobre cualquier proyecto de traslado del domicilio social de una sociedad europea a otro Estado miembro. II. - La junta general deliberará en las condiciones de quórum y de mayoría previstas en los apartados segundo y
tercero del artículo L.225-98. Decidirá por mayoría de dos tercios de los votos de los que dispongan los tenedores que estén presentes o representados.
Artículo L228-66 El derecho de voto en las juntas generales de obligacionistas pertenecerá al nudo propietario.
Artículo L228-67 El derecho de voto vinculado a las obligaciones deberá ser proporcional a la fracción del importe del préstamo que
éstas representen. Cada obligación dará derecho por lo menos a un voto.
Artículo L228-68 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XIV Diario Oficial de 26 de junio de 2004)
Las juntas no podrán incrementar las cargas de los obligacionistas ni establecer un tratamiento desigual entre los obligacionistas de un mismo sindicato.
No podrán decidir la conversión de las obligaciones en acciones, en base a las disposiciones del artículo L.228-106.
Cualquier disposición contraria se tendrá por no puesta.
Artículo L228-69 Cualquier obligacionista tendrá derecho, en las condiciones y plazos determinados por decreto adoptado en
Conseil d'Etat, a acceder al texto de las resoluciones que sean propuestas y a los informes que se presenten en la junta general.
Tendrá, en todo momento, el mismo derecho en lo referente a las actas y listados de presencia en las juntas generales del sindicato al que pertenece
Artículo L228-70 Los obligacionistas no serán admitidos individualmente a ejercer un control sobre las operaciones de la sociedad o
a solicitar información sobre los documentos sociales.
Artículo L228-71 La sociedad deudora soportará los gastos de convocatoria, de reunión de las juntas generales, de publicidad de
sus decisiones así como los gastos que se deriven del procedimiento previsto en el artículo L.228-50. Los demás gastos de gestión decididos en la junta general del sindicato podrán ser deducidos de los intereses pagados a los obligacionistas y su importe podrá ser determinado por resolución judicial.
Las retenciones citadas en el párrafo anterior no podrán sobrepasar la décima parte del interés anual.
Artículo L228-72 Si no se aprobase por parte de la junta general las propuestas citadas en los apartados 1° y 4° del punto I del
artículo L.228-65, el consejo de administración, el directorio o los gerentes de la sociedad deudora podrán no tenerlas en cuenta, ofreciendo reembolsar las obligaciones en el plazo determinado por decreto adoptado en Conseil d'Etat.
La decisión del consejo de administración, del directorio o de los gerentes de no tener en cuenta las decisiones de la junta de obligacionistas será publicada en las condiciones fijadas por decreto adoptado en Conseil d'Etat, que determinará igualmente el plazo durante el cual se deberá solicitar el reembolso.
Artículo L.228-73 (Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
Si la junta general de obligacionistas de la sociedad absorbida no hubiera aprobado una de las propuestas citadas en los apartados 3º y 6° del punto I del artículo L.228-65 o si no hubiera podido deliberar válidamente por falta del quórum requerido, el consejo de administración, el directorio o los gerentes de la sociedad deudora podrán no tenerla
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CÓDIGO DE COMERCIO en cuenta. La decisión será publicada en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Los obligacionistas conservarán entonces su condición en la sociedad absorbente o en las sociedades beneficiarias de las aportaciones que resulten de la escisión, según el caso.
Sin embargo, la junta general de obligacionistas podrá dar orden a los representantes del sindicato de impugnar la operación en las condiciones y con los efectos previstos en el artículo L.236-14.
Artículo L228-74 Las obligaciones rescatadas por la sociedad emisora, así como las obligaciones que hayan sido designadas por
sorteo y reembolsadas, serán anuladas y no podrán ser puestas de nuevo en circulación.
Artículo L228-75 En ausencia de disposiciones especiales del contrato de emisión, la sociedad no podrá imponer a los
obligacionistas el reembolso anticipado de las obligaciones.
Artículo L228-76 En caso de disolución anticipada de la sociedad, no provocada por una fusión o por una escisión, la junta general
de obligacionistas podrá exigir el reembolso de las obligaciones y la sociedad podrá imponerlo a los mismos obligacionistas.
Artículo L228-77 En caso de emisión de obligaciones provistas de garantías particulares, éstas serán constituidas por la sociedad
antes de la emisión, por cuenta del sindicato de obligacionistas. La aceptación se sobreentenderá por el simple hecho de la suscripción. La aceptación tendrá efectos retroactivos desde la fecha de la inscripción para las garantías sometidas a inscripción, y a la fecha de su constitución para las demás garantías.
Artículo L228-78 El presidente del consejo de administración, el representante del directorio o el gerente, tras la autorización del
órgano social habilitado para ello por los estatutos conferirá las garantías previstas en el artículo L.228-77.
Artículo L228-79 Las garantías serán constituidas en un acta especial. Los requisitos formales de publicidad de dichas garantías
deberán ser cumplidos antes de cualquier suscripción, por cuenta del sindicato en formación de obligacionistas. En el plazo de seis meses a contar desde la apertura de la suscripción, el resultado de ésta será constatado en una
escritura pública por el representante de la sociedad. Las modalidades de la inscripción y de la renovación de la inscripción de las garantías serán determinadas por
decreto adoptado en Conseil d'Etat. Los representantes del sindicato velarán, bajo su responsabilidad, para que se observen las disposiciones relativas
a la renovación de la inscripción.
Artículo L228-80 La cancelación de las inscripciones se producirá en las condiciones determinadas por decreto adoptado en Conseil
d'Etat.
Artículo L228-81 El presidente del consejo de administración, el representante del directorio o el gerente, tras la autorización del
órgano social habilitado para ello por los estatutos conferirán las garantías constituidas con posterioridad a la emisión de las obligaciones. Éstas serán aceptadas por el representante del sindicato.
Artículo L228-82 Se prohibirá la emisión de obligaciones cuyo reembolso esté garantizado por una sociedad de capitalización.
Artículo L228-83 En caso de suspensión de pagos o de liquidación judicial de la sociedad, los representantes del sindicato de
obligacionistas estarán habilitados para actuar en nombre de ésta.
Artículo L.228-84 (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los representantes del sindicato de obligacionistas declararán en los procedimientos de saneamiento judicial o de liquidación judicial sobre el pasivo de la sociedad, para todos los obligacionistas de este sindicato, sobre el importe en capital de las obligaciones que quedan en circulación, para informar sobre el incremento por los cupones de los intereses vencidos y no pagados, cuyo desglose detallado será establecido por el mandatario judiciaL.No estarán obligados a presentar los títulos de sus mandatos en apoyo de esta declaración
Artículo L.228-85 (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En ausencia de declaración por parte de los representantes del sindicato, una resolución judicial designará a instancia del mandatario judicial, a un mandatario encargado de asegurar la representación del sindicato en las operaciones de saneamiento judicial o de liquidación judicial y de declarar la deuda.
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CÓDIGO DE COMERCIO Artículo L.228-86 (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los representantes del sindicato serán consultados por el mandatario judicial sobre las modalidades de pago de las obligaciones propuestas en aplicación del artículo L.621-59. Darán su acuerdo en el sentido definido por la junta general ordinaria de obligacionistas, convocada a tal fin.
Artículo L228-87 Los gastos derivados de la representación de los obligacionistas en el transcurso del procedimiento judicial de
suspensión de pagos de la sociedad corresponderán a ésta y serán considerados como gastos de administración judicial.
Artículo L228-88 La suspensión de pagos o la liquidación judicial de la sociedad no pondrá fin al funcionamiento ni al papel que
desempeña la junta general de obligacionistas.
Artículo L228-89 En caso de cierre por insuficiencia de activo, el representante del sindicato o el mandatario judicial designado,
retomará el ejercicio de los derechos de los obligacionistas.
Artículo L228-90 Salvo cláusula en contrario en el contrato de emisión, las disposiciones de los artículos L.228-46 a L.228-69,
L.228-71, L.228-72, L.228-76 a L.228-81 y L.228-83 a L.228-89 no serán aplicables a las sociedades cuyos préstamos estén sometidos a un régimen legal especial, ni a los préstamos garantizados por el Estado, por los departamentos, por los municipios o por las entidades públicas ni a los préstamos emitidos en el extranjero por sociedades francesas.
Sección VI De los otros valores mobiliarios que dan derecho a la adjudicación de títulos Artículos L228-91 a
representativos de una porción del capital L228-106
Subsección 1 Disposiciones generales Artículos L228-91 a
L228-97
Artículo L228-91 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 44, Artículo 45 Diario Oficial de 26 de junio de 2004)
Las sociedades por acciones podrán emitir valores mobiliarios que den acceso al capital o que den derecho a la adjudicación de títulos de crédito.
Los accionistas de una sociedad que emitan valores mobiliarios que dan acceso al capital tendrán un derecho preferente en la suscripción de dichos valores mobiliarios proporcional al importe de sus valores mobiliarios.
Este derecho estará regulado por las disposiciones aplicables al derecho preferente de suscripción vinculado a los títulos de capital de conformidad con los artículos L. 225-132 y L. 225-135 a L. 225-140.
El contrato de emisión podrá prever que estos valores y los títulos de capital o de créditos a los que den derecho estos valores mobiliarios, sólo puedan ser cedidos y negociados conjuntamente. En dicho caso, si el título emitido originariamente fuera un título de capital, no será considerado como perteneciente a la categoría prevista en el artículo L. 225-99.
Los títulos de capital no podrán ser convertidos o transformados en valores mobiliarios representativos de créditos. Cualquier cláusula en contrario se tendrá por no puesta.
Los valores mobiliarios emitidos en aplicación del presente artículo no constituirán una promesa de acción para la aplicación del apartado segundo del artículo L. 228-10.
Artículo L228-92 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 44, Artículo 46 Diario Oficial de 26 de junio de 2004)
Las emisiones de valores mobiliarios que den acceso al capital o den acceso a la adjudicación de títulos de créditos, reguladas por el artículo L.228-91, serán autorizadas por la junta general extraordinaria de accionistas con arreglo a los artículos L. 225-129 a L. 225-129-6. Ésta se pronunciará tras examinar del informe del consejo de administración o del directorio y el informe especial del auditor de cuentas.
Artículo L228-93 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 44, Artículo 47 Diario Oficial de 26 de junio de 2004)
Una sociedad por acciones podrá emitir valores mobiliarios que den acceso al capital de la sociedad que posea directa o indirectamente más de la mitad de su capital o de la sociedad de la que posea directa o indirectamente más de la mitad del capital.
Bajo pena de nulidad, la emisión deberá ser autorizada por la junta general extraordinaria de la sociedad que vaya a emitir dichos valores mobiliarios y por la junta general extraordinaria de la sociedad en el seno de la cual se ejercen los derechos, en las condiciones previstas por el artículo L. 228-92.
Artículo L228-95 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 VII Diario Oficial de 2 de agosto de 2003)
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CÓDIGO DE COMERCIO (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 44, Artículo 48 Diario Oficial de 26 de junio de 2004)
Serán nulos los acuerdos tomados infringiendo los apartados segundo y tercero del artículo L. 228-91.
Artículo L228-97 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 61 Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 44 Diario Oficial de 26 de junio de 2004)
En el momento de la emisión de valores mobiliarios representativos de créditos de la sociedad emisora, incluyendo aquellos que den derecho a suscribir o a adquirir un valor mobiliario, podrá estipularse que estos valores mobiliarios no sean reembolsados hasta haber desinteresado a los otros acreedores, excluyendo o incluyendo a los titulares de préstamos participativos y de títulos participativos, sin perjuicio de lo dispuesto en el artículo L. 228-36 del presente código en los artículos L. 313-13 y siguientes del Código Monetario y Financiero.
También podrá estipularse un orden de prioridad en los pagos dentro de estas categorías de valores mobiliarios.
Subsección 2 Disposiciones relativas a los valores mobiliarios que dan acceso al capital Artículos L228-98 a
L228-106
Artículo L228-98 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
A partir de la emisión de valores mobiliarios que dan acceso al capital, la sociedad que vaya a adjudicar estos títulos no podrá modificar su forma o su objeto, a menos que esté autorizada a ello por el contrato de emisión o en las condiciones previstas en el artículo L. 228-103.
Tampoco podrá modificar las reglas de reparto de sus beneficios, ni amortizar su capital, a menos que esté autorizada a ello por el contrato de emisión o en las condiciones previstas en el artículo L. 228-103 y siempre y cuando tome las disposiciones necesarias para mantener los derechos de los titulares de los valores mobiliarios que dan acceso al capital en las condiciones definidas en el artículo L. 228-99.
Sin embargo, siempre y cuando tome las disposiciones mencionadas en el párrafo anterior, podrá crear acciones preferentes.
En caso de reducción de capital motivada por pérdidas y realizada por la disminución del importe nominal de los títulos o del número de títulos que integran el capital, los derechos de los titulares de valores mobiliarios que dan acceso al capital serán reducidos como consecuencia de esto, como si dichos titulares hubiesen ejercido dichos derechos antes de la fecha en que la reducción de capital se hubiera hecho definitiva.
Artículo L228-99 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
La sociedad que vaya a adjudicar los títulos de capital o los valores mobiliarios que dan acceso al capital, deberá adoptar las medidas necesarias para proteger los intereses de los titulares si decidiera proceder a la emisión, bajo cualquier forma, de nuevos títulos de capital con derecho de suscripción preferente reservado a sus accionistas, o si decidiera distribuir reservas, en efectivo o en especie, y primas de emisión o modificar el reparto de sus beneficios mediante la creación de acciones preferentes.
En tal caso, deberá: 1º Bien, crear las condiciones para que los titulares de estos derechos puedan ejercerlos, si el periodo previsto
para el contrato de emisión aún no hubiera empezado, de tal manera que dichos titulares puedan participar inmediatamente en las operaciones mencionadas en el apartado primero o beneficiarse de estos derechos;
2º Bien, tomar las disposiciones que, en caso de que los titulares ejercieran sus derechos ulteriormente, les permitieran suscribir con carácter preferente los nuevos valores mobiliarios emitidos, u obtener la adjudicación gratuita de éstos, o recibir dinero en efectivo o bienes semejantes a los que se hubieran distribuido, en las mismas cantidades o proporciones y en las mismas condiciones, salvo en materia de disfrute, que si hubieran sido accionistas en dichas operaciones;
3º Bien, proceder a un reajuste de las condiciones de suscripción, de las bases de conversión, de las modalidades de canje o adjudicación inicialmente previstas para tener en cuenta la incidencia de las operaciones mencionadas en el apartado primero.
Salvo estipulación diferente del contrato de emisión, la sociedad podrá adoptar de manera simultánea las medidas previstas en los párrafos 1º y 2º. En todos los casos, podrá sustituirlas por el reajuste autorizado en el párrafo 3º. Este reajuste estará organizado por el contrato de emisión cuando los títulos de capital no estén admitidos a negociación en un mercado regulado.
Las condiciones de aplicación del presente artículo serán establecidas por decreto adoptado en Conseil d'Etat.
Artículo L228-100 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Lo dispuesto en los artículos L. 228-98 y L. 228-99 será aplicable mientras existan derechos vinculados a cada uno de los elementos de los valores mobiliarios mencionados en estos artículos.
Artículo L228-101 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Si la sociedad que vaya a emitir los títulos de capital fuera absorbida por otra sociedad o fusionara con una o varias sociedades para constituir una nueva sociedad, o procediera a una escisión, los titulares de los valores mobiliarios que
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CÓDIGO DE COMERCIO dan acceso al capital ejercerán sus derechos en la o las sociedades beneficiarias de las aportaciones. No será aplicable el artículo L. 228-65, salvo estipulación en contrario del contrato de emisión.
El número de títulos de capital de la o las sociedades absorbentes o nuevas a los que pueden aspirar estos titulares será determinado modificando el número de títulos que se prevé emitir o atribuir al contrato de emisión en función del número de acciones a crear por la o las sociedades beneficiarias de las aportaciones. El auditor de aportaciones emitirá un dictamen sobre el número de títulos determinado con arreglo a este procedimiento.
La aprobación del proyecto de fusión o de escisión por los accionistas de la o las sociedades beneficiarias de las aportaciones o de la o las sociedades nuevas conllevará la renuncia por parte de los accionistas y, en su caso, por parte de los titulares de los certificados de inversión de dichas sociedades, al derecho de suscripción preferente mencionado en el artículo L. 228-35 o, en el apartado segundo del artículo L. 228-91, en beneficio de los titulares de valores mobiliarios que dan acceso al capital de manera diferida.
La o las sociedades beneficiarias de las aportaciones o la o las sociedades nuevas sustituirán de pleno derecho a la sociedad emisora en sus obligaciones hacia los titulares de dichos valores mobiliarios.
Artículo L228-102 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Salvo estipulación especial del contrato de emisión y fuera del caso de disolución anticipada que no sea el resultado de una fusión o de una escisión, la sociedad no podrá imponer a los titulares de valores mobiliarios que dan acceso al capital el rescate o el reembolso de sus derechos.
Artículo L228-103 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004) (Disposición nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XXVII Diario Oficial de 10 de diciembre de 2004)
Los titulares de valores mobiliarios que dan acceso al capital de manera diferida tras la separación, en su caso, de los derechos del título originario en aplicación de la presente sección, serán reagrupados de pleno derecho para la defensa de sus intereses comunes en un sindicato que gozará de personalidad civil y estará sujeto a disposiciones idénticas a las previstas para las obligaciones en los artículos L. 228-47 a L. 228-64, L. 228-66 y L. 228-90. Se constituirá, si procede, un sindicato distinto para cada naturaleza de títulos que confieran los mismos derechos.
Las juntas generales de los titulares de dichos valores mobiliarios estarán encargadas de autorizar cualquier modificación al contrato de emisión y de resolver sobre cualquier asunto relativo a las condiciones de suscripción o de adjudicación de títulos de capital determinadas en el momento de la emisión.
Cada valor mobiliario que da acceso al capital dará derecho a un voto. Las condiciones de quórum y de mayoría serán las determinadas en los apartados segundo y tercero del artículo L.225-96.
Los gastos derivados del funcionamiento de la junta y, de manera general, todos los gastos inherentes al funcionamiento de los diferentes sindicatos correrán a cargo de la sociedad que vaya a emitir o a adjudicar nuevos valores mobiliarios representativos de su capital social.
Cuando los valores mobiliarios emitidos según lo dispuesto en la presente sección sean obligaciones destinadas a ser convertidas o reembolsadas en títulos de capital o canjeadas por títulos de capital, los dispuesto en los apartados segundo, tercero y cuarto del presente artículo será de aplicación al sindicato creado en aplicación del artículo L. 228-46.
NOTA: Estas disposiciones serán de aplicación en Mayotte, en Nueva Caledonia y en las islas Wallis y Futuna.
Artículo L228-104 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Serán nulos los acuerdos o estipulaciones que infrinjan los artículos L.228-98 a L.228-101 y L. 228-103.
Artículo L228-105 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Los titulares de valores mobiliarios que dan acceso al capital dispondrán, ante la sociedad emisora de títulos que reciban y en las condiciones establecidas por decreto adoptado en Conseil d'Etat, del derecho de comunicación de los documentos sociales que la sociedad remite o pone a disposición de los accionistas o titulares de certificados de inversión.
Cuando los derechos de adjudicación de una parte proporcional del capital social se incorporen o vinculen a obligaciones, el derecho de comunicación será ejercido por los representantes del sindicato de obligacionistas, de conformidad con lo dispuesto en el artículo L. 228-55.
Tras la separación de estos derechos del título originario, el derecho de comunicación será ejercido por los representantes del sindicato creado de conformidad con lo dispuesto en el artículo L. 228-103.
En todos los casos, los representantes de los diferentes sindicatos podrán participar en la junta general, pero sin derecho a voto. No podrán inmiscuirse, en ningún caso, en la gestión de los asuntos sociales.
Artículo L228-106 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Cuando se abra un procedimiento de suspensión de pagos a una sociedad emisora de valores mobiliarios que dan acceso al capital en las condiciones del artículo L. 228-91, el plazo previsto para ejercer el derecho a la adjudicación de una parte proporcional del capital social quedará abierto a partir de la resolución judicial que disponga el plan de continuación, en función de cada titular y en las condiciones previstas por dicho plan.
CAPITULO IX
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CÓDIGO DE COMERCIO De la sociedad europea Artículos L229-1 a
L229-15
Artículo L.229-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Las sociedades europeas inscritas en Francia en el Registro de Comercio y de Sociedades tendrán personalidad jurídica desde su inscripción.
La sociedad europea se regirá por las disposiciones del Reglamento (CE) N° 2157/2001 del Consejo de 8 de octubre de 2001, por el que se aprueba el estatuto de la Sociedad Anónima Europea, por las disposiciones del presente capítulo y por las disposiciones aplicables a las sociedades anónimas no contrarias a estas.
La sociedad europea estará sujeta a lo dispuesto en el artículo L.210-3. La sede social estatutaria y la administración central de la sociedad europea no podrán disociarse.
Artículo L.229-2 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Cualquier sociedad europea legalmente inscrita en el Registro de Comercio y de Sociedades podrá trasladar su domicilio social a otro Estado miembro. Deberá para ello presentar un proyecto de traslado. Dicho proyecto será depositado en la secretaría del Tribunal en cuya circunscripción esté registrada la sociedad y será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
El traslado de domicilio social será decidido por la junta general extraordinaria con arreglo a las condiciones establecidas en el artículo L.225-96 y estará sujeto a la ratificación de las juntas especiales de accionistas mencionadas en los artículos L.225-99 y L.228-35.
En caso de oposición a dicha operación, los accionistas podrán obtener el recate de sus acciones con arreglo las condiciones establecidas por decreto adoptado en Conseil d'Etat.
El proyecto de traslado de domicilio social será sometido a las juntas especiales de tenedores de certificados de inversión que decidirán conforme a las normas de la junta general de accionistas, a menos que la sociedad adquiera esos títulos, previa solicitud de su parte, y que esta adquisición haya sido aceptada por su junta especiaL.La oferta de adquisición será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat. Cualquier poseedor de certificados de inversión que no haya cedido sus títulos dentro del plazo fijado por decreto adoptado en Conseil d'Etat seguirá siendo su poseedor siempre que proceda al canje de sus certificados de inversión y de derecho de voto por acciones.
El proyecto de traslado se someterá a la aprobación de las juntas de obligacionistas de la sociedad, a menos que se ofrezca a dichos obligacionistas, previa solicitud de su parte, el reembolso de los títulos. La oferta de reembolso será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat. Cualquier obligacionista que no haya solicitado el reembolso dentro el plazo fijado por decreto adoptado en Conseil d'Etat conservará su condición en la sociedad con arreglo a las condiciones establecidas en el proyecto de traslado.
Los acreedores no obligacionistas de la sociedad que traslade su domicilio social y cuyo crédito sea anterior al traslado de la sede podrán impugnar el mismo dentro del plazo fijado por decreto adoptado en Conseil d'Etat. Una resolución judicial desestimará esta oposición u ordenará, bien el reembolso de los créditos, bien la constitución de garantías, si así lo ofreciera la sociedad que trasladara su domicilio y si se juzgara que dichas garantías son suficientes. En ausencia de reembolso de los créditos o de constitución de las garantías exigidas, el traslado de domicilio social no será oponible frente a dichos acreedores. La impugnación formulada por un acreedor no tendrá por efecto prohibir la continuación de las operaciones de traslado del domicilio sociaL.Las disposiciones del presente párrafo no serán un obstáculo para la aplicación de los convenios que autoricen al acreedor exigir el reembolso inmediato de su crédito en caso de traslado del domicilio social.
Un notario expedirá un certificado en el que se dé fe del buen cumplimiento de los actos y formalidades previos al traslado de domicilio social.
Artículo L.229-3 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
I. - El control de la legalidad de la fusión será efectuado, en cuanto al procedimiento relativo a cada una de las sociedades que fusionen, por el Secretario del Tribunal en cuya circunscripción esté registrada la sociedad, de conformidad con lo dispuesto en el artículo L.236-6.
El control de la legalidad de la fusión será efectuado, en cuanto al procedimiento relativo a la realización de la fusión y a la constitución de la sociedad europea, por un notario.
Con este fin, cada sociedad que fusione deberá remitir al notario el certificado mencionado en el artículo 25 del Reglamento (CE) N° 2157/2001 del Consejo de 8 de octubre de 2001 arriba mencionado, dentro de un plazo de seis meses a contar desde la fecha de su expedición, así como una copia del proyecto de fusión aprobado por la sociedad.
El notario comprobará en especial que la sociedades que fusionen hayan aprobado un proyecto de fusión en los mismos términos y que las modalidades relativas a la implicación de los trabajadores han sido establecidas de conformidad con lo dispuesto en los artículos L.439-25 a L.439-45 del Código de Trabajo.
El notario comprobará asimismo que la constitución de la sociedad europea creada por fusión cumpla las condiciones establecidas por las disposiciones legales francesas.
II. - Las causas de nulidad de los acuerdos tomados por alguna de las juntas que hubieran decidido la operación de fusión, con arreglo al derecho aplicable a la sociedad anónima, o los incumplimientos en materia de control de legalidad serán causas de disolución de la sociedad europea.
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CÓDIGO DE COMERCIO Cuando sea posible subsanar la irregularidad susceptible de provocar la disolución, el Tribunal que conozca de la
acción de disolución de una sociedad europea creada por fusión concederá a la sociedad en cuestión un plazo para regularizar su situación.
Las acciones de disolución de la sociedad europea prescribirán a los seis meses a partir de la fecha de la última inscripción en el Registro de Comercio y de Sociedades que hubiera hecho necesaria la operación.
Cuando se declare la disolución de la sociedad europea, se procederá a su liquidación de conformidad con lo dispuesto en los estatutos y en el capítulo VII del título III del presente libro.
Cuando una resolución judicial que declare la disolución de una sociedad europea por una de las causas previstas en el párrafo sexto del presente artículo tenga carácter definitivo, dicha resolución será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.229-4 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
El Fiscal de la República será la autoridad competente para oponerse, de conformidad con lo dispuesto en el apartado 14 del artículo 8 y en el artículo 19 del Reglamento (CE) n° 2157/2001 del Consejo de 8 de octubre de 2001 arriba mencionado, al traslado de domicilio social de una sociedad europea registrada en Francia que conllevara un cambio del derecho aplicable, así como a la constitución de una sociedad europea por fusión que implicara a una sociedad regida por el derecho francés.
Artículo L.229-5 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Las sociedades que impulsen la operación de constitución de una sociedad europea holding deberán elaborar un proyecto común de constitución de sociedad europea.
Dicho proyecto será depositado en la secretaría del Tribunal en cuya circunscripción estén registradas las sociedades y será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Uno o varios auditores para la constitución de una sociedad europea holding, nombrados por resolución judicial, elaborarán bajo su responsabilidad un informe destinado a los accionistas de cada sociedad, cuyo modelo y características serán definidos por decreto adoptado en Conseil d'Etat.
Previo acuerdo entre las sociedades que impulsen la operación, el o los auditores podrán elaborar un informe escrito destinado a los accionistas del conjunto de las sociedades implicadas en la misma.
Lo dispuesto en los párrafos tercero y cuarto del artículo L.236-9 y en los artículos L.236-13 y L.236-14 será de aplicación a la constitución de una sociedad europea holding.
Artículo L.229-6 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Por excepción a la segunda frase del artículo L.225-1, una sociedad europea podrá constituir una sociedad europea de la que sea la única accionista. Estará sujeta a las disposiciones aplicables a la sociedad europea y a las relativas a la sociedad de responsabilidad limitada con un único socio de los artículos L.223-5 y L.223-31.
En esta hipótesis, el accionista único ejercerá los poderes conferidos a la junta general. En el caso de una sociedad europea unipersonal, no se aplicará lo dispuesto en los artículos L.225-25, L.225-26,
L.225-72 y L.225-73 a los administradores o miembros del consejo de supervisión de la misma.
Artículo L.229-7 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
La dirección y la administración de la sociedad europea se regirán por lo dispuesto en la sección 2 del capítulo V del presente título, con excepción del párrafo primero de los artículos L.225-37 y L.225-82 y del párrafo cuarto del artículo L.225-64.
No obstante, por excepción al artículo L.225-62, en caso de vacante en un cargo del directorio, el consejo de supervisión podrá nombrar a uno de sus miembros para ejercer las funciones de miembro del directorio por un periodo máximo fijado por decreto adoptado en Conseil d'Etat. Durante dicho periodo, se suspenderá en sus funciones al miembro del directorio en cuestión.
Lo dispuesto en el párrafo primero del artículo L.225-17, en el párrafo segundo del artículo L.225-22, en el artículo L.225-69 y en el párrafo segundo del artículo L.225-79 no obstarán al ejercicio de participación de los trabajadores definido en el artículo L.439-25 del Código de Trabajo.
Cada miembro del consejo de supervisión podrá hacerse remitir por el presidente del directorio los documentos que estime necesarios para el cumplimiento de su misión.
La sociedad europea será dirigida por un directorio compuesto por un máximo de siete miembros. Los estatutos deberán prever normas similares a las recogidas en los artículos L.225-38 a L.225-42 y L.225-86 a
L.225-90. Sin embargo, cuando se trate de una sociedad de las citadas en el artículo L.229-6, la mención en el registro de deliberaciones equivaldrá a la aprobación del convenio.
Artículo L.229-8 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Las juntas generales de la sociedad europea estarán sujetas a las normas establecidas en la sección 3 del capítulo V del presente título, siempre que estas sean compatibles con el Reglamento (CE) N° 2157/2001 del Consejo, de 8 de octubre de 2001, arriba mencionado.
Artículo L.229-9
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CÓDIGO DE COMERCIO (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Si la sociedad europea ya no tuviera su administración central en Francia, cualquier persona interesada podrá solicitar al Tribunal la regularización de la situación mediante el traslado del domicilio social o el restablecimiento de la administración social en el domicilio social en Francia, bajo multa coercitiva si fuera necesario.
El Tribunal fijará un plazo máximo dentro del cual se deba llevar a cabo la regularización. En ausencia de regularización a la expiración de dicho plazo, el Tribunal podrá ordenar la liquidación de la
sociedad con arreglo a las condiciones establecidas en los artículos L.237-1 a L.237-31. El secretario del Tribunal remitirá la resolución judicial al Fiscal de la República. El juez indicará en la sentencia
que la resolución ha sido remitida por el secretario del TribunaL. En caso de constatarse un traslado a Francia de la administración central de una sociedad europea registrada en
otro Estado miembro, infringiendo el artículo 7 del Reglamento (CE) n° 2157/2001 del Consejo, de 8 de octubre de 2001 arriba mencionado, el Fiscal de la República del Tribunal de Grande Instance en cuya circunscripción se hallara la administración central, deberá informar inmediatamente de ello al Estado miembro la sede social estatutaria.
En caso de constatarse un traslado a otro Estado miembro de la administración central de una sociedad europea registrada en Francia, infringiendo el artículo 7 del Reglamento (CE) n° 2157/2001 del Consejo, de 8 de octubre de 2001 arriba mencionado, las autoridades de dicho Estado deberán informar inmediatamente de ello al Fiscal de la República del Tribunal de Grande Instance en cuya circunscripción estuviera registrada a sociedad.
Artículo L.229-10 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Cualquier sociedad europea podrá transformarse en sociedad anónima si, en el momento de la transformación, tuviera dos años de existencia legal y hubiera obtenido la aprobación del balance de sus dos primeros ejercicios.
La sociedad elaborará un proyecto de transformación de la sociedad en sociedad anónima. El proyecto será depositado en la secretaría del Tribunal en cuya circunscripción tuviera el domicilio social dicha sociedad y será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Uno o varios auditores para la transformación, nombrados por resolución judicial, elaborarán bajo su responsabilidad un informe destinado a los accionistas de la sociedad en transformación, en el que certifican que los fondos propios son al menos iguales al capital sociaL.Los mismos serán sometidos a las incompatibilidades previstas en el artículo L.822-11.
La transformación en sociedad anónima se decidirá con arreglo a lo dispuesto en los artículos L.225-96 y L.225-99.
Artículo L.229-11 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Los estatutos de una sociedad europea que no realice llamamiento público al ahorro podrán imponer restricciones a la libre transferibilidad de las acciones, sin que dichas restricciones tengan por efecto una inalienabilidad de las acciones superior a diez años.
Cualquier cesión efectuada infringiendo las cláusulas estatutarias será nula. Esta nulidad será oponible al cesionario o a sus derechohabientes. La misma podrá ser regularizada mediante decisión tomada por unanimidad de los accionistas que no son parte del contrato o de la operación de transferencia de las acciones.
Artículo L.229-12 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Los estatutos de una sociedad europea que no realice llamamiento público al ahorro, con arreglo a las condiciones que ellos mismos determinen, podrán prever que un accionista pueda verse obligado a ceder sus acciones. Podrán así mismo prever la suspensión de los derechos no dinerarios de este accionista en tanto que el mismo no haya procedido a la cesión en cuestión.
Artículo L.229-13 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Los estatutos de una sociedad europea que no realice llamamiento público al ahorro podrán prever que la sociedad accionista cuyo control se modifique de conformidad con el artículo L.233-16 deba, a partir de esta modificación, informar de ello a la sociedad europea. Esta podrá decidir, en las condiciones establecidas por los estatutos, suspender el ejercicio de los derechos no dinerarios de este accionista y excluirlo.
Lo dispuesto en el párrafo primero podrá aplicarse, en las mismas condiciones, al accionista que haya adquirido esta condición tras una operación de fusión, escisión o disolución.
Artículo L.229-14 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Si los estatutos no determinaran las modalidades de evaluación del precio de cesión de las acciones cuando la sociedad europea aplique una cláusula introducida según lo dispuesto por los artículos L.229-11 a L.229-13, este precio será determinado por acuerdo entre las partes o, en su defecto, con arreglo a las condiciones establecidas en el artículo 1843-4 del Código Civil.
Cuando las acciones sean rescatadas por la sociedad europea, esta estará obligada a cederlas en un plazo de seis meses o a anularlas.
Artículo L.229-15 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Las cláusulas estipuladas en aplicación de los artículos L.229-11 a L.229-14 sólo podrán ser adoptadas o
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CÓDIGO DE COMERCIO modificadas por unanimidad de los accionistas.
TITULO III DISPOSICIONES COMUNES A LAS DIFERENTES SOCIEDADES MERCANTILES Artículos L231-1 a
L238-3-1
CAPITULO I Del capital variable Artículos L231-1 a
L231-8
Artículo L231-1 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Podrá estipularse en los estatutos de aquellas sociedades que no tengan la forma de sociedad anónima, así como en toda sociedad cooperativa, que el capital social sea susceptible de ampliación, por medio de pagos sucesivos de los socios o por admisión de nuevos socios, y de reducción, por medio de la recuperación total o parcial de las aportaciones.
Las sociedades cuyos estatutos contengan la estipulación anterior se atendrán a las disposiciones del presente capítulo, independientemente de las normas generales correspondientes a su forma específica.
Artículo L231-2 Si la sociedad hubiera hecho uso de la facultad otorgada por el artículo L.231-1 se mencionará esta circunstancia
en todas las actas y documentos emitidos por la sociedad y que sean destinados a terceros, añadiendo las palabras: "de capital variable".
Artículo L231-3 No estarán sujetas a los requisitos formales de depósito y publicación las actas que certifiquen ampliaciones o
reducciones de capital social, realizadas en los términos del artículo L.231-1, o las exclusiones de socios realizadas no obstante lo dispuesto en el artículo L.231-6, si cuando no se trate de los gerentes o los administradores.
Artículo L231-4 Las acciones o cupones de acciones serán nominativos, incluso después de haber sido totalmente desembolsados. Sólo serán negociables tras la constitución definitiva de la sociedad. La negociación sólo podrá producirse por vía de transferencia a los registros de la sociedad y los estatutos podrán
conceder el derecho a la impugnación de la transmisión en el seno del consejo de administración o de la junta general.
Artículo L231-5 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 124 II Diario Oficial de 16 de mayo de 2001)
Los estatutos determinarán una cantidad por debajo de la cual el capital no podrá ser reducido a causa de las recuperaciones de las aportaciones autorizadas por el artículo L.231-1.
Esta cantidad no podrá ser inferior ni a la décima parte del capital social estipulado en los estatutos ni, siempre y cuando no sean sociedades cooperativas, a la cantidad mínima exigida por las disposiciones legislativas reguladoras de cada forma de sociedad.
Las sociedades cooperativas estarán definitivamente constituidas cuando se produzca el pago de la décima parte del capital.
Artículo L231-6 Todo socio podrá retirarse de la sociedad cuando lo juzgue conveniente salvo que haya acuerdos en contrario o
cuando se aplique el primer párrafo del artículo L.231-5. Podrá estipularse que la junta general tenga derecho a decidir, con la mayoría establecida para la modificación de
los estatutos, que uno o varios de los socios dejen de formar parte de la sociedad. El socio que deje de formar parte de la sociedad, ya sea por propia voluntad, o a consecuencia de una decisión de
la junta general, responderá durante cinco años de todas las obligaciones existentes en el momento de su exclusión, tanto frente a los socios como frente a terceros.
Artículo L231-7 La sociedad, sea cual fuere su forma, estará representada ante la justicia por sus administradores.
Artículo L231-8 La sociedad no quedará disuelta ni por la muerte o la exclusión de un socio, ni por una resolución judicial de
liquidación, o por una medida de privación del derecho a ejercer la profesión comercial o por una medida de incapacitación que afecte a alguno de sus socios o por la insolvencia de alguno de ellos. Continuará de pleno derecho con el resto de los socios.
CAPITULO II De las cuentas sociales Artículos L232-1 a
L232-23
Sección I
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CÓDIGO DE COMERCIO De los documentos contables Artículos L232-1 a
L232-6
Artículo L232-1 I. - Al cierre de cada ejercicio, el consejo de administración, el directorio o los gerentes elaborarán el inventario, las
cuentas anuales, según lo establecido en las disposiciones de la sección 2 del capítulo III del título II del libro I y realizarán un informe de gestión. Deberán adjuntar al balance:
1º Un extracto de las fianzas, avales y garantías dados por la sociedad. Esta disposición no se aplicará a las sociedades que exploten un establecimiento de crédito o una compañía de seguros;
2º Un extracto de las garantías concedidas por ella. II. - El informe de gestión expondrá la situación de la sociedad durante el ejercicio transcurrido, su evolución
previsible, los hechos importantes acaecidos entre la fecha del cierre del ejercicio y la fecha en la que dicho informe se haya realizado, sus actividades en materia de investigación y desarrollo.
III. - Los documentos mencionados en el presente artículo serán, en su caso, puestos a disposición de los auditores de cuentas en las condiciones fijadas por decreto adoptado en Conseil d'Etat.
Artículo L232-2 En las sociedades mercantiles que respondan a uno de los criterios definidos por decreto adoptado en Conseil
d'Etat, seleccionadas por su número de empleados o por su facturación, considerando eventualmente la naturaleza de su actividad, el consejo de administración, el directorio o los gerentes estarán obligados a establecer una valoración de la situación del activo realizable y disponible, excluyendo los valores de explotación y del pasivo exigible, una cuenta de pérdidas y ganancias, un cuadro de financiación conjuntamente con el balance anual y un plan de financiación previsible.
El decreto adoptado en Conseil d'Etat mencionado anteriormente precisará la periodicidad, los plazos y las condiciones requeridas para la elaboración de estos documentos.
En cuanto a la determinación del número de empleados, tendrán la condición de trabajadores de la sociedad, los de las sociedades de las que ésta posea directa o indirectamente más de la mitad del capital, cualquiera que sea la forma de éstas.
Artículo L232-3 En las sociedades anónimas, los documentos citados en el artículo L.232-2 serán analizados en los informes
escritos elaborados por el consejo de administración o el directorio sobre la evolución de la sociedad. Los documentos e informes serán presentados simultáneamente al consejo de supervisión, al auditor de cuentas y al comité de empresa.
En caso de inobservancia de las disposiciones del artículo L.232-2 y del párrafo anterior, o si las informaciones dadas en los informes citados en el párrafo anterior suscitaran observaciones por parte del auditor de cuentas, éste tendrá que señalarlo en un informe dirigido al consejo de administración o al directorio, según el caso. El informe del auditor de cuentas será remitido simultáneamente al Comité de empresa. En la siguiente reunión de la junta general se dará a conocer dicho informe.
Artículo L232-4 En todas las sociedades que no revistan la forma de sociedades anónimas, los informes previstos en el artículo
L.232-3 serán elaborados por los gerentes, que los presentarán al auditor de cuentas, al comité de empresa y, en su caso, al consejo de supervisión, cuando éste exista en estas sociedades.
En caso de inobservancia de las disposiciones del artículo L.232-2 y del párrafo anterior o si las informaciones dadas en los informes citados en el párrafo anterior suscitaran observaciones por parte del auditor de cuentas, éste lo señalará en un informe dirigido al gerente o en el informe anual. Podrá solicitar que su informe sea notificado a los socios o que se dé a conocer en la junta de éstos. Este informe será presentado al comité de empresa.
Artículo L232-5 Las sociedades que elaboren cuentan consolidadas de conformidad con lo dispuesto en los artículos L.233-18 al
233-26, en las condiciones previstas en el artículo L.123-17 y no obstante lo dispuesto por el artículo L.123-18, podrán inscribir en el activo del balance los títulos de las sociedades controladas por aquéllas de manera exclusiva, en el sentido del artículo L.233-16, en función de la parte proporcional de los fondos propios establecida por las normas de consolidación que estos títulos representen. Si se eligiera este método de evaluación, se aplicará al conjunto de los títulos que respondan a las condiciones anteriores. En el anexo se deberá hacer mención de la opción elegida.
La contrapartida de la variación anual de la parte proporcional global de los fondos propios representativa de estos títulos no constituye un elemento de resultado; será inscrita separadamente en una partida de fondos propios. No será distribuible y no podrá ser utilizada para compensar las pérdidas. Sin embargo, si la diferencia global llegara a ser negativa, deberá ser inscrita en la cuenta de resultados.
Si una sociedad utiliza el método previsto en los párrafos anteriores, las sociedades que controle aplicarán ese mismo método cuando controlen por si mismas otras sociedades en las mismas condiciones.
Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Artículo L232-6 Cuando, en las condiciones definidas en el artículo L.123-17, se produzcan modificaciones en las presentación de
las cuentas anuales así como en los métodos de evaluación utilizados, deberán ser señalados en el informe de gestión
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CÓDIGO DE COMERCIO y, eventualmente, en el informe de los auditores de cuentas.
Sección II De los documentos propios de las sociedades que realicen oferta pública de
acciones al ahorro Artículos L232-7 a L232-8
Artículo L232-7 Las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado estarán obligadas a
adjuntar a sus cuentas anuales un inventario de los valores mobiliarios poseídos en cartera al cierre del ejercicio. Adjuntarán también un cuadro relativo al reparto y asignación de las cantidades distribuibles que serán propuestas
a la junta general. Estas sociedades, exceptuando las sociedades de inversión de capital variable, estarán también obligadas a
elaborar y publicar, como máximo en los cuatro meses siguientes al primer semestre del ejercicio, un informe en el que se comenten los datos numéricos relativos a la cifra de negocios y a los resultados de la sociedad en el transcurso del semestre finalizado y que describa su actividad a lo largo de este período así como su evolución previsible en el transcurso del ejercicio y los hechos más relevantes acaecidos en el transcurso del semestre anterior. Las menciones que deberán figurar obligatoriamente en el informe semestral y las condiciones de su publicación serán determinadas por decreto adoptado en Conseil d'Etat. Los auditores de cuentas comprobarán la exactitud y veracidad de las informaciones contenidas en el informe semestral.
Artículo L232-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Cuando la mitad de su capital pertenezca a una o a varias sociedades cuyas acciones estén admitidas a negociación en un mercado regulado, las sociedades cuyas acciones no sean admitidas en él y aquéllas que no revistan la forma de sociedades por acciones, estarán obligadas a adjuntar a sus cuentas un inventario de los valores mobiliarios poseídos en cartera al cierre del ejercicio, si su balance sobrepasara los 300 de euros o si el valor del inventario o el valor bursátil de su cartera sobrepasara los 300000 euros.
Sección III De las amortizaciones y de las provisiones Artículo L232-9
Artículo L232-9 Sin perjuicio de las disposiciones del segundo párrafo del artículo L.232-15, los gastos de constitución de la
sociedad serán amortizados antes de realizar cualquier reparto de beneficios, y, como máximo, en un plazo de cinco años.
Los gastos de la ampliación de capital serán amortizados como máximo a la expiración del quinto ejercicio siguiente a aquél en el curso del cual se hubieran realizado. Estos gastos podrán ser imputados al importe de las primas de emisión correspondientes a esta ampliación.
Sin embargo, las sociedades cuyo objeto exclusivo sea la construcción y la gestión de inmuebles de alquiler para uso principal como vivienda o leasing inmobiliario, así como las sociedades inmobiliarias para el comercio y la industria, podrán amortizar los gastos de constitución de la sociedad y los gastos de ampliación de capital en las mismas condiciones que sus inmuebles. Las sociedades autorizadas para la financiación de las telecomunicaciones podrán amortizar los gastos de constitución y los gastos de ampliación de capital en las mismas condiciones que sus inmuebles y sus equipamientos.
Sección IV De los beneficios Artículos L232-10 a
L232-20
Artículo L232-10 Bajo pena de nulidad de todo acuerdo en contrario, en las sociedades de responsabilidad limitada y las sociedades
por acciones, se deducirá al menos una veinteava parte correspondiente a la formación de un fondo de reserva llamado "reserva legal", sobre el beneficio del ejercicio, al que se le restará, en su caso, las pérdidas anteriores.
Esta deducción dejará de ser obligatoria, cuando la reserva alcance la décima parte del capital social.
Artículo L232-11 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El beneficio distribuible estará constituido por el beneficio del ejercicio, tras la deducción de las pérdidas anteriores y de las cantidades que deberán mantenerse en reserva, por aplicación de la Ley o de los estatutos, que se sumará al saldo anterior positivo.
Además, la junta general podrá decidir el reparto de las cantidades deducidas de las reservas de las que pueda disponer. En ese caso, la decisión indicará expresamente las partidas de las reservas sobre las que se efectuarán estas deducciones. Sin embargo, los dividendos serán deducidos preferiblemente del beneficio distribuible del ejercicio.
Aparte del caso de reducción de capital, no se podrá realizar ningún otro reparto a los accionistas cuando los fondos propios pudieran llegar a ser, a consecuencia de tal reparto, inferiores al importe del capital y las reservas que la Ley o los estatutos no permiten repartir.
La diferencia de la reevaluación no será distribuible. Podrá ser incorporada en todo o en parte al capital.
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CÓDIGO DE COMERCIO Artículo L232-12
Tras la aprobación de las cuentas anuales y la constatación de la existencia de cantidades distribuibles, la junta general determinará la parte que corresponda adjudicar a los socios en forma de dividendos.
Sin embargo, cuando un balance, elaborado en el transcurso o al final del ejercicio y certificado por un auditor de cuentas, constatara que la sociedad, desde el cierre del ejercicio anterior, ha obtenido un beneficio, tras la constitución de las amortizaciones y provisiones necesarias y tras la deducción, si procede, de las pérdidas anteriores y de las cantidades a dejar en reserva por aplicación de la Ley o de los estatutos y considerando el remanente de beneficios, tal beneficio podrá ser repartido por medio de anticipos sobre los dividendos con anterioridad a la aprobación de las cuentas del ejercicio. El importe de estos anticipos no podrá exceder del importe del beneficio definido en el presente párrafo. Serán repartidos en las condiciones y con los trámites establecidos por decreto adoptado en Conseil d'Etat.
Todo dividendo distribuido infringiendo las normas anteriormente enunciadas será considerado como dividendo ficticio.
Artículo L232-13 Las condiciones en las que se efectuará el pago de los dividendos votados por la junta general serán determinadas
por ésta o, en su defecto, por el consejo de administración, el directorio o los gerentes, según el caso. Sin embargo, el pago de los dividendos deberá producirse en un plazo máximo de nueve meses contados a partir
del cierre del ejercicio. Una resolución judicial podrá otorgar una prórroga de dicho plazo.
Artículo L232-14 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Podrá ser adjudicado por los estatutos un incremento de dividendos hasta un límite del 10% a todo accionista que presente justificación, al cierre del ejercicio, de una inscripción nominativa de al menos dos años de antigüedad y del mantenimiento de ésta hasta la fecha de pago del dividendo. Su porcentaje será determinado por la junta general extraordinaria. En las sociedades admitidas a negociación en un mercado regulado, el número de títulos con derecho a este incremento de dividendos no podrá exceder, para un mismo accionista, del 0,5% del capital de la sociedad. El mismo incremento podrá ser atribuido, en las mismas condiciones, en caso de reparto de acciones gratuitas.
Este incremento no podrá ser adjudicado antes del cierre del segundo ejercicio siguiente a la modificación de los estatutos.
Artículo L232-15 Estará prohibido estipular un interés fijo o suplementario en beneficio de los socios. Cualquier cláusula en contrario
se tendrá por no puesta. Las disposiciones del párrafo anterior no serán aplicables cuando el Estado haya otorgado a las acciones la
garantía de un dividendo mínimo.
Artículo L232-16 Los estatutos podrán prever la atribución, en concepto de primer dividendo, de un interés calculado sobre el
importe liberado y no reembolsado de las acciones. Salvo disposición en contrario de los estatutos, no se tendrán en cuenta las reservas para el cálculo del primer dividendo.
Artículo L232-17 La sociedad no podrá exigir de los accionistas o poseedores de participaciones ninguna restitución de dividendos,
salvo cuando concurran las dos condiciones siguientes: 1º Cuando el reparto se haya efectuado infringiendo las disposiciones de los artículos L. 232-11, L.232-12 y
L.232-15. 2º Cuando la sociedad determine que los beneficiarios conocían el carácter irregular de este reparto en el momento
en que se efectuó o que, dadas las circunstancias, no podían ignorarlo.
Artículo L232-18 En las sociedades por acciones, los estatutos podrán prever que la junta que resuelve sobre las cuentas del
ejercicio tenga la facultad de otorgar a cada accionista, para todo o parte del dividendo a repartir o de los anticipos sobre el dividendo, una opción entre el pago del dividendo o anticipos sobre el dividendo en metálico o en acciones.
Cuando existan diferentes categorías de acciones, la junta general que resuelva sobre las cuentas del ejercicio tendrá la facultad de decidir que las acciones suscritas sean de la misma categoría que las acciones que hayan dado derecho al dividendo o a los anticipos sobre el dividendo.
La oferta de pago del dividendo o de los anticipos sobre el dividendo en acciones tendrá que ser realizada simultáneamente a todos los accionistas.
Artículo L232-19 El precio de emisión de las acciones que hayan sido emitidas en las condiciones previstas en el artículo L.232-18
no podrá ser inferior al nominal. En las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado, el precio de emisión no
podrá ser inferior al 90% de la media de las cotizaciones en las veinte últimas sesiones bursátiles anteriores al día de la decisión de inicio del reparto, reducido por el importe neto del dividendo o de los anticipos sobre el dividendo.
En las demás sociedades, el precio de emisión será determinado, a elección de la sociedad, o bien dividiendo el importe del activo neto calculado según el balance más reciente por el número de títulos existentes, o bien guiándose por el informe del perito designado judicialmente a petición del consejo de administración o del directorio, según el
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CÓDIGO DE COMERCIO caso. El auditor de cuentas comprobará la aplicación de las reglas de determinación del precio de emisión y presentará un informe especial a la junta general citada en el artículo L.232-18.
Cuando el importe de los dividendos o de los anticipos sobre el dividendo anual al que tenga derecho no corresponda a un número entero de acciones, el accionista podrá recibir el número de acciones inmediatamente inferior completado con una compensación en metálico o, si la junta general lo solicitase, el número de acciones inmediatamente superior, pagando el accionista la diferencia en metálico.
Artículo L232-20 La solicitud de pago del dividendo en acciones, acompañada, en su caso, del pago previsto en el segundo párrafo
del artículo L.232-19, deberá producirse en un plazo determinado por la junta general, sin que pueda ser superior a tres meses contados a partir de la fecha de dicha junta. La ampliación de capital será realizada por el simple hecho de esta solicitud, y, en su caso, por este pago y no se requerirá el cumplimiento de los requisitos formales previstos en el artículo L.225-142, en el párrafo segundo del artículo L.225-144, y en el artículo L.225-146.
Sin embargo, en caso de ampliación de capital, el consejo de administración o el directorio, según el caso, podrá suspender el ejercicio del derecho a obtener el pago del dividendo en acciones durante un plazo que no podrá exceder de tres meses.
En la primera reunión que tenga lugar tras la expiración del plazo establecido por la junta general en aplicación del primer párrafo del presente artículo, el consejo de administración o, según el caso, el directorio, comprobará el número de acciones emitidas en aplicación del presente artículo y aportará las modificaciones necesarias a las cláusulas de los estatutos relativas al importe del capital social y al número de acciones que lo representan. El presidente podrá, por delegación del consejo de administración o del directorio, proceder a estas operaciones en el mes siguiente a la expiración del plazo determinado por la junta general.
Sección V De la publicidad de las cuentas Artículos L232-21 a
L232-23
Artículo L232-21 I. - Las sociedades colectivas en la que todos los socios indefinidamente responsables sean sociedades de
responsabilidad limitada o sociedades por acciones, en el mes siguiente a la aprobación de las cuentas anuales por la junta general ordinaria de los socios, estarán obligadas a depositar, por duplicado, en la secretaría del Tribunal, para ser remitidas al Registro de Comercio y de Sociedades:
1º Las cuentas anuales, el informe de gestión y, en su caso, las cuentas consolidadas, el informe sobre la gestión del grupo, los informes de los auditores de cuentas sobre las cuentas anuales y las cuentas consolidadas, eventualmente complementadas con sus observaciones sobre las modificaciones realizadas por la junta en las cuentas anuales presentadas a ésta para su aprobación;
2º La propuesta de asignación del resultado presentado a la junta y la resolución de asignación votada o la decisión de asignación ya tomada.
II. II.- En caso de denegación o de admisión, se presentará en el mismo plazo una copia del acuerdo de la junta. III. - Las obligaciones definidas anteriormente se impondrán igualmente a las sociedades colectivas cuyos socios
indefinidamente responsables sean sociedades colectivas o a las comanditarias simples cuyos socios indefinidamente responsables sean sociedades de responsabilidad limitada o por acciones.
IV. - Para la aplicación del presente artículo, se considerarán como sociedades de responsabilidad limitada o por acciones, las sociedades creadas bajo un sistema jurídico extranjero que tengan una forma jurídica similar.
Artículo L232-22 I. - Toda sociedad de responsabilidad limitada estará obligada a presentar, por duplicado, en la secretaría del
Tribunal, para ser remitidas al Registro de Comercio y de Sociedades, en el mes siguiente a la aprobación de las cuentas anuales por parte de la junta ordinaria de socios o por el socio único:
1º Las cuentas anuales, el informe de gestión y, en su caso, las cuentas consolidadas, el informe sobre la gestión del grupo, los informes de los auditores de cuentas sobre las cuentas anuales y las cuentas consolidadas, eventualmente completadas por sus observaciones en relación a las modificaciones aportadas por la junta o el socio único a las cuentas anuales presentadas a éstos para su aprobación;
2º La propuesta de asignación del resultado presentada a la junta o al socio único y el acuerdo de asignación votado o la decisión de asignación tomada.
II. - En caso de denegación o de admisión, se presentará en el mismo plazo una copia del acuerdo tomado por la junta o de la decisión del socio único.
Artículo L232-23 I. - Toda sociedad por acciones estará obligada a presentar, por duplicado, en la secretaría del Tribunal en el mes
siguientes a la aprobación de las cuentas anuales por parte de la junta general de accionistas, para ser remitidas al Registro de Comercio y de Sociedades:
1º Las cuentas anuales, el informe de gestión, el informe de los auditores de cuentas sobre las cuentas anuales, eventualmente completado por sus observaciones sobre las modificaciones aportadas por la junta a las cuentas anuales que le fueron presentadas para su aprobación, así como, eventualmente, las cuentas consolidadas, el informe sobre la gestión del grupo, el informe de los auditores de cuentas sobre las cuentas consolidadas y el informe del consejo de supervisión;
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CÓDIGO DE COMERCIO 2º La propuesta de asignación del resultado sometida a la junta y la resolución de asignación votada. II. - En caso de no aprobarse las cuentas anuales, se presentará en el mismo plazo una copia del acuerdo de la
junta.
CAPITULO III De las filiales, de las participaciones y de las sociedades controladas Artículos L233-1 a
L233-31
Sección I Definiciones Artículos L233-1 a
L233-5
Artículo L233-1 Cuando una sociedad posea más de la mitad del capital de otra sociedad, la segunda será considerada como filial
de la primera, para la aplicación del presente capítulo.
Artículo L233-2 Cuando una sociedad posea en otra sociedad una fracción del capital comprendida entre el 10 y el 50%, la primera
será considerada como poseedora de una participación en la segunda, para la aplicación del presente capítulo.
Artículo L.233-3 (Ley nº 2001-420 de 15 de mayo de 2001 art. 120 I Diario Oficial de 16 de mayo de 2001) (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 28 I Diario Oficial de 12 de diciembre de 2001) (Ley nº 2005-842 de 26 de julio de 2005 art. 33 I Diario Oficial de 27 de julio de 2005)
I. - Se considerará que una sociedad controla a otra, para la aplicación de las secciones 2 y 4 del presente capítulo: 1º Cuando posea directa o indirectamente una fracción del capital que le confiera la mayoría de los derechos de
voto en las juntas generales de esta sociedad; 2º Cuando disponga por sí misma de la mayoría de los derechos de voto en esta sociedad en virtud de un acuerdo
firmado con otras sociedades o accionistas que no sea contrario al interés de la sociedad; 3º Cuando tenga el control de hecho sobre las decisiones en las juntas generales de esta sociedad, debido a los
derechos de voto de los que disponga. 4° Cuando esté asociada o sea accionista de dicha sociedad, y disponga de la facultad de nombrar o revocar a la
mayoría de los miembros de los órganos de administración, dirección o supervisión de la misma. II. - Se presumirá que ejerce este control cuando disponga directa o indirectamente de un porcentaje de derechos
de voto superior al 40%, y siempre que ningún otro socio o accionista posea directa o indirectamente un porcentaje superior al suyo.
III. - Para la aplicación de las mismas secciones del presente capítulo, se considerará que dos o varias sociedades que actúen de modo concertado controlarán conjuntamente a otra cuando tengan el control de hecho de las decisiones tomadas en las juntas generales.
Artículo L233-4 Cualquier participación en el capital inferior incluso al 10% poseída por una sociedad controlada será considerada
como poseída indirectamente por la sociedad que controle a esta sociedad.
Artículo L233-5 El Ministerio Público y la Comisión de operaciones bursátiles para las sociedades que hagan llamamiento público al
ahorro estarán habilitados para entablar una acción judicial para que se constate la existencia de un control sobre una o varias sociedades.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Sección II De las notificaciones y de las informaciones Artículos L233-6 a
L233-15
Artículo L233-6 Cuando una sociedad haya tomado, en el transcurso de un ejercicio, una participación en una sociedad con
domicilio social en territorio de la República Francesa y esta participación represente más de la veinteava, de la décima, de la quinta, de la tercera parte o de la mitad del capital de esta sociedad, o cuando la primera se haya asegurado el control de dicha sociedad, se hará mención de ello en el informe sobre las operaciones del ejercicio presentado a los socios y, en su caso, en el informe de los auditores de cuentas.
El consejo de administración, el directorio o el gerente de una sociedad dará cuenta en su informe de la actividad y de los resultados del conjunto de la sociedad, de las filiales de la sociedad y de las sociedades que controle por sector de actividad. Cuando esta sociedad realice y publique las cuentas consolidadas, el informe anteriormente mencionado
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CÓDIGO DE COMERCIO podrá ser incluido en el informe de gestión del grupo citado en el artículo L.233-26.
Artículo L.233-7 (Ley nº 2001-420 de 15 de mayo de 2001 art. 119 3° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 art. 46 I 2°, art. 125 3° Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 art. 51 XV Diario Oficial de 26 de junio de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XXVII Diario Oficial de 10 de diciembre de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 33 II Diario Oficial de 27 de julio de 2005)
I. - Cuando las acciones de una sociedad con sede en el territorio de la República estén admitidas a negociación en un mercado regulado en un mercado de instrumentos financieros que admitan a negociación acciones susceptibles de ser anotadas en la cuenta de un intermediario habilitado en las condiciones previstas por el artículo L.211-4 del Código Monetario y Financiero, cualquier persona física o jurídica que actúe sola o en grupo y que posea un número de acciones que representen más de la veinteava, de la décima, de las tres veinteavas, de la quinta, de la cuarta, de la tercera, de la mitad, de las dos terceras, de las dieciocho veinteavas o de las diecinueve veinteavas partes del capital o de los derechos de voto, informará a la sociedad del número total de acciones que posea de la misma en un plazo establecido por decreto adoptado en Conseil d'Etat, en cual comenzará a computarse a partir del día en que haya sobrepasado ese umbral de participación.
La información mencionada en el párrafo anterior deberá asimismo proporcionarse en el mismo plazo cuando la participación en capital o en derechos de voto sea inferior a los umbrales previstos en este párrafo.
La persona obligada a dar la información prevista en el primer párrafo tendrá que precisar el número de títulos poseídos que en un determinado plazo den acceso al capital, así como los derechos de voto que estén vinculados a ellos.
II. - La persona obligada a dar la información prevista en el punto I informará igualmente a la Autoridad de Mercados Financieros, en el plazo y las condiciones establecidas por su reglamento general, a partir de la fecha en que haya sobrepasado el umbral de participación, cuando las acciones de la sociedad estén admitidas a negociación en un mercado regulado, o en un mercado de instrumentos financieros que no sea un mercado regulado previa solicitud de la persona que gestiona dicho mercado de instrumentos financieros Dicha información se hará pública en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros.
El reglamento general precisará igualmente las modalidades de cálculo de los umbrales de participación. III. - Los estatutos de la sociedad podrán prever una obligación suplementaria de información relacionada con la
posesión de porciones del capital o de los derechos de voto inferiores a la veinteava parte mencionada en el punto I. La obligación recaerá sobre la posesión de cada una de dichas porciones, que no podrán ser inferiores al 0,5% del capital o de los derechos de voto.
IV. - Las obligaciones de información previstas en los puntos I, II y III no se aplicarán a las acciones: 1° Adquiridas exclusivamente con un objetivo de compensación, liquidación o entrega de instrumentos financieros,
en el marco habitual del ciclo de pago a corto plazo definido por el reglamento general de la Autoridad de Mercados Financieros;
2° Detentadas por los administradores de cuentas de custodia en el marco de su actividad de teneduría de cuentas y custodia.
3° Detentadas por un proveedor de servicios de inversión en su cartera de negociación, en el sentido de la Directiva 93/6.CE del Consejo, de 15 de marzo de 1993, sobre la adecuación del capital de las empresas de inversión y las entidades de crédito, siempre que dichas acciones no representen una porción del capital o de los derechos de voto de la sociedad emisora de dichos títulos que fuera superior al umbral fijado por el reglamento general de la Autoridad de Mercados Financieros y siempre que los derechos de voto vinculados a estos títulos no sean ejercidos ni utilizados para intervenir en la gestión de la sociedad emisora.
4° Entregadas a los miembros del Sistema Europeo de Bancos Centrales o entregadas por estos últimos en el ejercicio de sus funciones de autoridad monetaria, en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros.
V. - Las obligaciones de información previstas en los puntos I, II y III no se aplicarán: 1°) Al creador de mercado, cuando este sobrepase el umbral de la veinteava parte del capital o de los derechos de
voto en el marco de la gestión del mercado, a condición que no intervenga en la gestión de la sociedad emisora en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros;
2°) Cuando la persona mencionada en el punto I esté controlada, en el sentido del artículo L.233-3, por una entidad sujeta a la obligación prevista en los puntos I a III para las acciones detentadas por dicha persona, o cuando esta entidad esté a su vez controlada, en el sentido del artículo L.233-3, por una entidad sujeta a la obligación prevista en los puntos I a III para las mismas acciones.
VI. En caso de no cumplir con la obligación de información citada en el punto III, los estatutos de la sociedad podrán prever que sólo se apliquen las disposiciones de los dos primeros párrafos del artículo L.233-14 si hubiera una solicitud, consignada en el acta de la junta general, de uno o varios accionistas poseedores de una fracción del capital o de derechos de voto de la sociedad emisora al menos igual a la fracción menor de capital cuya posesión deba ser declarada. Sin embargo, esta fracción no podrá ser superior al 5%.
VII. - Cuando las acciones de la sociedad estén admitidas a negociación en un mercado regulado, la persona obligada a dar la información prevista en el punto I deberá declarar, en el momento en que sobrepasara el nivel de la décima o la quinta parte del capital o de los derechos de voto, los objetivos que tuviera la intención de alcanzar en los doce meses siguientes . Esta declaración precisará si el comprador actúa solo o en grupo, si prevé paralizar sus
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CÓDIGO DE COMERCIO compras o continuarlas, conseguir o no el control de la sociedad, solicitar su nombramiento o el de una o varias personas como administrador, miembro del directorio o del consejo de supervisión. Será dirigida a la sociedad cuyas acciones hayan sido adquiridas y a la Autoridad de Mercados Financieros en un plazo de diez días bursátiles. Dicha información se hará pública en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros. En caso de cambiar de intención, lo que sólo podrá ser provocado por modificaciones importantes en el entorno, la situación o el accionariado de las personas implicadas, se deberá realizar una nueva declaración, que deberá comunicarse a la sociedad y a la Autoridad de Mercados Financieros y se pondrá a disposición pública en las mismas condiciones.
Artículo L.233-8 (Ley nº 2003-706 de 1 de agosto de 2003 art. 46 I Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-842 de 26 de julio de 2005 art. 33 III Diario Oficial de 27 de julio de 2005)
I. - En los quince días posteriores a la junta general ordinaria, como máximo, toda sociedad por acciones informará a sus accionistas del número total de derechos de voto existentes en tal fecha. Entre dos juntas generales ordinarias, si el número de derechos de voto variara con relación al número declarado anteriormente en una proporción determinada por orden del Ministro de Economía, la sociedad informará a sus accionistas de dicho cambio tan pronto como tenga conocimiento de ello.
II. - Las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado publicarán cada mes el número total de derechos de voto y el número de acciones que integran el capital de la sociedad, cuando dichos números hayan variado desde su última publicación, en las condiciones y con arreglo a los procedimientos establecidos por el reglamento general de la Autoridad de Mercados Financieros. Se considerará que dichas sociedades satisfacen la obligación prevista en el punto I.
Artículo L.233-9 (Ley nº 2005-842 de 26 de julio de 2005 art. 33 IV Diario Oficial de 27 de julio de 2005)
I. - Se asimilarán a las acciones o a los derechos de voto poseídos por la persona obligada a la información prevista en el punto I del artículo L.233-7:
1º Las acciones o los derechos de voto poseídos por otras personas por cuenta de dicha persona; 2º Las acciones o los derechos de voto poseídos por las sociedades que controle dicha persona en el sentido del
artículo L.233-3; 3º Las acciones o los derechos de voto poseídos por un tercero con quien esta persona se haya unido para actuar
conjuntamente; 4º Las acciones o los derechos de voto que esta persona o una de las personas mencionadas en los apartados 1º
al 3º anteriores tenga derecho a adquirir por su propia iniciativa o en virtud de un acuerdo; 5° Las acciones que dicha persona posea en usufructo; 6° Las acciones o los derechos de voto poseídos por un tercero con el cual dicha persona haya suscrito un acuerdo
de cesión temporal relativo a dichas acciones o derechos de voto; 7° Las acciones depositadas ante dicha persona, a condición de que esta pueda ejercer a voluntad los derechos de
votos vinculados a ellas en ausencia de instrucciones específicas de los poseedores; 8° Los derechos de voto que dicha persona pueda ejercer libremente en virtud de un poder conferido por los
poseedores de las acciones, en ausencia de instrucciones específicas de los mismos. II. - No se asimilarán a las acciones o a los derechos de voto poseídos por la persona obligada a la información
prevista en el punto I del artículo L.233-7: 1° Las acciones detentadas por los organismos de inversión colectiva en valores mobiliarios gestionados por una
sociedad de gestión de activos controlada por dicha persona en el sentido del artículo L.233-3, salvo las excepciones previstas por el reglamento general de la Autoridad de Mercados Financieros;
2° Las acciones detentadas en una cartera gestionada por un proveedor de servicios de inversión controlado por dicha persona en el sentido del artículo L.233-3, en el marco del servicio de gestión de cartera por cuenta de terceros en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros, salvo las excepciones previstas por dicho reglamento general;
Artículo L233-10 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 121 Diario Oficial de 16 de mayo de 2001) (Ley nº 2001-1168 de 11 de diciembre de 2001 Artículo 28 II Diario Oficial de 12 de diciembre de 2001) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
I. - Se considerará que actúan conjuntamente las personas que hayan firmado un acuerdo para adquirir o vender derechos de voto o con vistas a ejercer los derechos de voto, con el fin de poner en práctica una política con relación a la sociedad.
II. - Se presume existente tal acuerdo: 1° Entre una sociedad, el presidente de su consejo de administración y sus directores generales o los miembros
de su directorio o sus gerentes; 2° Entre une sociedad y las sociedades que controle en el sentido del artículo 233-3; 3° Entre sociedades controladas por la misma o las mismas personas; 4° Entre los socios de una sociedad por acciones simple con relación a sociedades que ésta controle. III. - Las personas que actúen conjuntamente estarán obligadas de forma solidaria al cumplimiento de lo que
dispongan las leyes y reglamentos.
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CÓDIGO DE COMERCIO Artículo L233-11 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 1 Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 I 4° Diario Oficial de 2 de agosto de 2003)
Toda cláusula de un contrato que prevea condiciones preferenciales de cesión o de adquisición de acciones admitidas a negociación en un mercado regulado y que corresponda al menos a un 0,5% del capital o de los derechos de voto de la sociedad que haya emitido estas acciones deberá ser comunicada a la Autoridad de mercados financieros en un plazo de cinco días bursátiles contados desde la fecha del pacto o del contrato del apéndice que introduzca la cláusula en cuestión. Si no se realizara dicha comunicación, los efectos de esta cláusula quedarán en suspenso y las partes desvinculadas de sus compromisos, en período de oferta pública.
La sociedad y la Autoridad de mercados financieros deberán igualmente ser informados de la fecha de expiración de dicha cláusula.
Las cláusulas de los contratos firmados con anterioridad a la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001, relativa a las nuevas regulaciones económicas, que no hayan sido transmitidas al Consejo de Mercados Financieros en esa fecha, deberán serle comunicadas en un plazo de seis meses, con las mismas condiciones y con los mismos efectos que los mencionados en el párrafo primero.
Las informaciones mencionadas en los párrafos anteriores se pondrán a conocimiento del público en las condiciones fijadas por el reglamento general de la Autoridad de mercados financieros.
Artículo L233-12 Cuando una sociedad esté controlada directa o indirectamente por una sociedad por acciones, aquélla notificará a
esta última y a cada una de las sociedades que participen en este control el importe de las participaciones que posea directa o indirectamente en su capital respectivo así como las variaciones de este importe.
Las notificaciones se harán en el plazo de un mes a contar, o bien desde el día en que la sociedad haya conocido la toma de control para los títulos que poseía antes de esa fecha, o bien desde el día de la operación para las adquisiciones o enajenaciones posteriores.
Artículo L.233-13 (Ley nº 2005-842 de 26 de julio de 2005 art. 33 VI Diario Oficial de 27 de julio de 2005)
En función de las informaciones recibidas en aplicación de los artículos L.233-7 y L.233-12, el informe presentado a los accionistas sobre las operaciones del ejercicio mencionará la identidad de las personas físicas o jurídicas que posean directa o indirectamente más de la veinteava, de la décima, de las tres veinteavas, de la quinta, de la cuarta, de la tercera parte, de la mitad o de las dos terceras partes del capital social o de los derechos de voto en las juntas generales. Hará constar igualmente las modificaciones producidas en el transcurso del ejercicio. Indicará el nombre de las sociedades controladas y la parte del capital de la sociedad que posean. Se hará mención de ello, en su caso, en el informe de los auditores de cuentas.
Artículo L.233-14 (Ley nº 2003-7 de 3 de enero de 2003 art. 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 art. 46 I 5°, V 1°, 2° Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 art. 51 XV bis Diario Oficial de 26 de junio de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 33 VII Diario Oficial de 27 de julio de 2005)
Si no hubieran sido regularmente declaradas en las condiciones previstas en los puntos I y II del artículo L.233-7, las acciones que sobrepasen la fracción que tendría que haber sido declarada, cuando estén admitidas a negociación en un mercado regulado o en un mercado de instrumentos financieros que admitan a negociación acciones susceptibles de ser anotadas en la cuenta de un intermediario habilitado en las condiciones previstas en el artículo L.211-4 del Código Monetario y Financiero, serán privadas del derecho de voto para cualquier junta de accionistas que se celebrara hasta la expiración de un plazo de dos años posteriores a la fecha de regularización de la notificación.
En las mismas condiciones, los derechos de voto vinculados a estas acciones y que no hayan sido regularmente declarados no podrán ser ejercidos o delegados por el accionista que se encuentre en mora.
El accionista que no hubiera procedido a la declaración prevista en el punto VII del artículo L.233-7 será privado de los derechos de voto vinculados a los títulos que excedan de la fracción de la décima o la quinta parte mencionada en el mismo punto para toda junta de accionistas que se celebrara hasta la expiración de un plazo de dos años posteriores a la fecha de regularización de la notificación.
El Tribunal de commerce en cuya circunscripción la sociedad tenga su sede social, a petición del presidente de la sociedad, de un accionista o de la Autoridad de Mercados Financieros, podrá decidir, por un periodo que no podrá exceder de los cinco años, previo dictamen del Ministerio Fiscal, la suspensión total o parcial de sus derechos de voto para todo aquel accionista que no hubiera procedido a las declaraciones previstas en el artículo L.233-7, o que no hubiera respetado el contenido de la declaración prevista en el punto VII de este artículo durante el periodo de doce meses posteriores a su publicación en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros.
Artículo L233-15 El consejo de administración, el directorio o el gerente de cualquier sociedad que tenga filiales o participaciones,
adjuntará un cuadro al balance de la sociedad en el que mostrará la situación de dichas filiales y participaciones.
Sección III
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CÓDIGO DE COMERCIO De las cuentas consolidadas Artículos L233-16 a
L233-28
Artículo L233-16 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 133 Diario Oficial de 2 de agosto de 2003)
I. - Las sociedades mercantiles elaborarán y publicarán cada año a instancia del consejo de administración, del directorio o de los gerentes, según el caso, cuentas consolidadas así como un informe sobre la gestión del grupo, desde el momento en que controlen de manera exclusiva o conjunta una o varias empresas diferentes o que ejerzan una influencia notable sobre éstas, en las condiciones que se definen seguidamente.
II. - El control exclusivo por parte de una sociedad será el resultado: 1º De la posesión directa o indirecta de la mayoría de los derechos de voto en otra empresa; 2° O del nombramiento, durante dos ejercicios consecutivos, de la mayoría de los miembros de los órganos de
administración, de dirección o de supervisión de otra empresa. Se presumirá que la sociedad consolidante ha efectuado este nombramiento cuando haya dispuesto en el transcurso de este período, directa o indirectamente, de una fracción superior al 40% de los derechos de voto, y que ningún socio o accionista poseyera, directa o indirectamente, una fracción superior a la suya;
3º O bien del derecho a ejercer una influencia dominante en una empresa en virtud de un contrato o de cláusulas estatutarias, cuando el derecho aplicable lo permita. (1)
III. - El control conjunto consistirá en compartir el control de una empresa explotada en común por un número limitado de socios o accionistas, de manera que las decisiones se produzcan de común acuerdo.
IV. - Se presumirá que existe influencia notable sobre la gestión y la política financiera de una empresa cuando una empresa disponga, directa o indirectamente, de una fracción al menos igual a la quinta parte de los derechos de voto de esa empresa.
Nota (1): Ley 2003-721 Artículo 133 II: Las disposiciones de este apartado se aplicarán a partir del primer ejercicio abierto tras la publicación de la Ley N° 2003-706 de 1 de agosto de 2003 en el Diario Oficial.
Artículo L233-17 Por excepción a lo establecido por las disposiciones del artículo L.233-16, las sociedades mencionadas en dicho
artículo, exceptuando las que emitan valores mobiliarios admitidos a negociación en un mercado regulado o títulos de crédito negociables, quedarán exentas, en las condiciones determinadas por decreto adoptado en Conseil d'Etat, de la obligación de elaborar y publicar cuentas consolidadas y un informe sobre la gestión del grupo:
1º Cuando ellas mismas estén bajo el control de una empresa que las incluya en sus cuentas consolidadas y publicadas. En ese caso, sin embargo, la exención estará subordinada a la condición de que uno o varios accionistas o socios de la empresa controlada que representen al menos la décima parte de su capital social no se opongan a ello;
2º O cuando sobre la base de las últimas cuentas anuales presentadas durante dos ejercicios consecutivos, el conjunto constituido por una sociedad y las empresas que controla no sobrepase un determinado tamaño con referencia a dos de los tres criterios mencionados en el artículo L.123-16.
Artículo L233-18 (Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 2 Diario Oficial de 22 de diciembre de 2004)
Las cuentas de las empresas situadas bajo el control exclusivo de la sociedad consolidante serán consolidadas por integración global.
Las cuentas de las empresas controladas conjuntamente con otros accionistas o socios por la sociedad consolidante serán consolidadas por integración proporcional.
Las cuentas de las empresas sobre las que la sociedad consolidante ejerza una influencia notable serán consolidadas por equiparación.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L233-19 I. - No obstante la justificación en el anexo explicativo elaborado por la sociedad consolidante, una filial o una
participación quedará excluida de la consolidación cuando por restricciones severas y duraderas sea cuestionado sustancialmente su control o la influencia ejercida por parte de la sociedad consolidante sobre la filial o la participación o las posibilidades de transferencia de fondos por la filial o la participación.
II. - Con la misma condición, una filial o una participación podrá ser excluida de la consolidación: 1º Cuando posean las acciones o participaciones de esta filial o participación sólo con el fin de una cesión ulterior; 2º Cuando la filial o la participación sólo represente, sola o con otras, un interés insignificante con relación al
objetivo definido en el artículo L.233-21; 3º Cuando las informaciones necesarias para la elaboración de las cuentas consolidadas sólo puedan ser
obtenidas mediante gastos excesivos o en plazos incompatibles con los establecidos en aplicación de las disposiciones del artículo L.233-27.
Artículo L233-20 Las cuentas consolidadas incluirán el balance y la cuenta de resultados consolidados así como un anexo
explicativo: formarán un todo indisociable. Para ello, las empresas incluidas en la consolidación estarán obligadas a hacer llegar a la sociedad consolidante
las informaciones necesarias para la elaboración de las cuentas consolidadas.
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CÓDIGO DE COMERCIO Las cuentas consolidadas serán elaboradas y publicadas según las condiciones determinadas por decreto
adoptado en Conseil d'Etat previo dictamen del Consejo Nacional de Contabilidad. Este decreto determinará sobre todo la clasificación de los elementos del balance y de la cuenta de resultados así como las anotaciones a incluir en el anexo explicativo.
Artículo L233-21 Las cuentas consolidadas deberán ser regulares y exactas y dar una imagen fidedigna del patrimonio, de la
situación financiera así como del resultado del conjunto constituido por las empresas incluidas en la consolidación. Se aplicarán, en su caso, las disposiciones previstas en los párrafos primero y segundo del artículo L.123-14.
Artículo L233-22 Sin perjuicio de lo dispuesto en el artículo L.233-23, las cuentas consolidadas se elaborarán según los principios
contables y las normas de valoración contenidas en el presente Código realizando las adaptaciones indispensables derivadas de las características propias de las cuentas consolidadas con respecto a las cuentas anuales.
Los elementos del activo y del pasivo, los elementos de gastos y beneficios incluidos en las cuentas consolidadas serán valorados según métodos homogéneos, salvo que los procesos necesarios tengan un coste desproporcionado y una incidencia insignificante sobre el patrimonio, la situación financiera y el resultado consolidados.
Artículo L233-23 Sin perjuicio de la obligación de justificarlo en el anexo explicativo, la sociedad consolidante podrá hacer uso, en
las condiciones previstas en el artículo L.123-17, de las normas de valoración determinadas por el reglamento del Comité de Reglamentación Contable, y destinadas a:
1º Tener en cuenta las variaciones de precio o de los valores de sustitución; 2º Evaluar los bienes fungibles considerando que el primer bien saliente es el último bien entrante; 3º Permitir tener en cuenta las normas que no estén en conformidad con las fijadas por los artículos L.123-18 a
L.123-21.
Artículo L233-24 (Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 1 Diario Oficial de 22 de diciembre de 2004)
Cuando utilicen las normas contables internacionales adoptadas por reglamento de la Comisión Europea, las sociedades mercantiles que elaboran y publican cuentas consolidadas en el sentido del artículo L. 233-16 estarán eximidas del cumplimiento de las normas contables contempladas en los artículos L. 233-18 a L. 233-23 para elaborar y publicar sus cuentas consolidadas.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L233-25 Sin perjuicio de que se justifique en el anexo explicativo, las cuentas consolidadas podrán ser elaboradas en un
fecha diferente a las de las cuentas anuales de la sociedad consolidante. Si la fecha de cierre del ejercicio de una empresa incluida en la consolidación es anterior en más de tres meses a
la fecha de cierre del ejercicio de consolidación, las cuentas consolidadas serán elaboradas basándose en las cuentas provisionales controladas por un auditor de cuentas o, si no lo hubiera, por un profesional encargado del control de cuentas.
Artículo L233-26 El informe sobre la gestión del grupo expondrá la situación del conjunto constituido por las empresas incluidas en la
consolidación, su evolución previsible, los hechos importantes acaecidos entre la fecha de cierre del ejercicio de consolidación y la fecha en la que las cuentas consolidadas hayan sido elaboradas así como sus actividades en materia de investigación y desarrollo. Este informe podrá ser incluido en el informe de gestión mencionado en el artículo L.232-1.
Artículo L233-27 Un decreto adoptado en Conseil d'Etat determinará las condiciones en las que las cuentas consolidadas y el
informe de gestión del grupo serán puestos a disposición de los auditores de cuentas.
Artículo L233-28 Las personas jurídicas que tengan la condición de comerciante que, sin estar obligadas a ello en razón de su forma
jurídica o del tamaño del conjunto del grupo, publiquen cuentas consolidadas, tendrán que ajustarse a las disposiciones de los artículos L.233-16 y L.233-18 a L.233-27. En ese caso, cuando sus cuentas anuales sean certificadas en las condiciones previstas en el párrafo primero del artículo L.225-235, sus cuentas consolidadas lo serán en las condiciones previstas en el párrafo segundo de dicho artículo.
Sección IV De las participaciones recíprocas Artículos L233-29 a
L233-31
Artículo L233-29 Una sociedad por acciones no podrá poseer acciones de otra sociedad, si ésta poseyera una fracción de su capital
superior al 10%.
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CÓDIGO DE COMERCIO A falta de acuerdo entre las sociedades interesadas para regularizar la situación, la que posea la menor fracción de
capital de la otra deberá transferir su inversión. Si las inversiones recíprocas son de igual importancia, cada una de las sociedades deberá reducir la suya, de tal modo que no exceda del 10% del capital de la otra.
Cuando una sociedad esté obligada a transferir las acciones de otra sociedad, la transferencia deberá efectuarse en el plazo determinado por decreto adoptado en Conseil d'Etat. La sociedad no podrá ejercer los derechos de voto vinculados a esas acciones.
Artículo L233-30 Si una sociedad que no fuera sociedad por acciones contara entre sus socios a una sociedad por acciones que
poseyera una fracción de su capital superior al 10%, la primera no podrá poseer acciones emitidas por esta última. Si ésta llegase a poseerlas, deberá transferirlas en el plazo determinado por decreto adoptado en Conseil d'Etat y
no podrá ejercer el derecho de voto vinculado a ellas. Si una sociedad que no sea sociedad por acciones cuenta entre sus socios a una sociedad por acciones que
posea una fracción de su capital igual o inferior al 10%, sólo podrá poseer una fracción igual o inferior al 10% de las acciones emitidas por ésta última.
Si llegase a poseer una fracción mayor, deberá ceder el excedente en el plazo determinado por decreto de Estado y no podrá, en razón de este excedente, ejercer el derecho de voto.
Artículo L233-31 Cuando existan acciones o derechos de voto de una sociedad que sean poseídos por una o varias sociedades de
las que la primera posea directa o indirectamente el control, los derechos de voto vinculados a estas acciones o estos derechos de voto no podrán ser ejercidos en la junta general de la sociedad. No serán tenidos en cuenta para el cálculo del quórum.
CAPITULO IV Del procedimiento de alerta Artículos L234-1 a
L234-4
Artículo L.234-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 162 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el auditor de cuentas de una sociedad anónima detecte, en el ejercicio de su misión, hechos que puedan comprometer la continuidad de la explotación, informará de ello al presidente del consejo de administración o del directorio en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
A falta de respuesta en los quince días siguientes o si esta no permitiese garantizar la continuidad de la explotación, el auditor de cuentas solicitará en un escrito, cuya copia será remitida al presidente del consejo de administración o del directorio, que el consejo de administración o el consejo de supervisión incluya estos hechos en sus deliberaciones. El auditor de cuentas será convocado a esta sesión. Los acuerdos tomados por el consejo de administración o el consejo de supervisión serán comunicados al presidente del Tribunal de Commerce y al comité de empresa o, en su defecto, a los delegados del personal.
En caso de incumplimiento de estas disposiciones, o si el auditor de cuentas comprobara que a pesar de los acuerdos tomados la continuidad de la explotación sigue en peligro, se convocará una junta general en las condiciones y plazos fijados por decreto adoptado en Conseil d'Etat. El auditor de cuentas elaborará un informe especial que será presentado en la siguiente junta generaL.Dicho informe será remitido al comité de empresa o, en su defecto, a los delegados del personal.
Si tras la reunión de la junta general, el auditor de cuentas comprobase que los acuerdos tomados no permiten asegurar la continuidad de la explotación, informará de sus gestiones al presidente del Tribunal de commerce y le comunicará los resultados de las mismas.
Artículo L.234-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 162 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En las sociedades que no sean sociedades anónimas, el auditor de cuentas solicitará al dirigente, en las condiciones determinadas por decreto adoptado en Conseil d'Etat, explicaciones sobre los acontecimientos citados en el párrafo primero del artículo L.234-1. El dirigente estará obligado a responderle en un plazo de quince días contados a partir de la petición de explicaciones. La respuesta será comunicada al comité de empresa o, en su defecto, a los delegados del personal y, si lo hubiese, al consejo de supervisión. El auditor de cuentas informará de todo ello al presidente del Tribunal de commerce.
En caso de incumplimiento de estas disposiciones, o si se comprobara que a pesar de los acuerdos tomados la continuidad de la explotación sigue en peligro, el auditor de cuentas realizará un informe especial y solicitará al dirigente, en un escrito cuya copia será remitida al presidente del Tribunal de Commerce, que convoque une junta general en las condiciones y plazos fijados por decreto adoptado en Conseil d'Etat para que esta delibere sobre los hechos en cuestión.
Si tras la reunión de la junta general, el auditor de cuentas comprobase que los acuerdos tomados no permiten asegurar la continuidad de la explotación, informará de sus gestiones al presidente del Tribunal de commerce y le comunicará los resultados de las mismas.
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CÓDIGO DE COMERCIO Artículo L.234-3
El comité de empresa o, en su defecto, los delegados del personal ejercerán en las sociedades mercantiles las atribuciones previstas en los artículos L.422-4 y L.432-5 del Código de Trabajo.
El presidente del consejo de administración, el directorio o los gerentes, según el caso, comunicarán a los auditores de cuentas las peticiones de explicación formuladas por el comité de empresa o por los delegados del personal, los informes dirigidos al consejo de administración o al consejo de supervisión, según el caso, así como las respuestas dadas por estos órganos, en aplicación de los artículos L.422-4 y L.432-5 del Código de Trabajo.
Artículo L.234-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 162 IV Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el presente capítulo no será de aplicación en el caso de un procedimiento de conciliación o de salvaguarda incoado por los dirigentes con arreglo a lo dispuesto en los títulos I y II del libro VI.
CAPITULO V De las nulidades Artículos L235-1 a
L235-5
Artículo L235-1 La nulidad de una sociedad o de un acta que modifique los estatutos sólo podrá provenir de una disposición
expresa del presente libro o de las leyes que regulen la nulidad de los contratos. En lo referente a las sociedades de responsabilidad limitada y a las sociedades por acciones, la nulidad de la sociedad no podrá ser por causa ni de un vicio de consentimiento ni de la incapacidad, a menos que ésta afecte a todos los socios fundadores. La nulidad de la sociedad tampoco podrá tener su causa en las cláusulas prohibidas por el artículo 1844-1 del Código Civil.
La nulidad de actas o acuerdos que no sean los previstos en el párrafo anterior sólo podrá ser motivada por infracción de una norma imperativa del presente libro o de las leyes que regulen los contratos.
Artículo L235-2 En las sociedades colectivas y comanditarias simples, será obligatorio el cumplimiento de los requisitos formales
de publicidad bajo pena de nulidad de la sociedad, del acta o del acuerdo, según los casos, sin que los socios ni la sociedad puedan alegar esta causa de nulidad frente a terceros. Sin embargo, si no hubiese constancia de fraude, el Tribunal tendrá la facultad de no declarar dicha nulidad.
Artículo L235-2-1 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 III Diario Oficial de 2 de agosto de 2003)
Serán nulos los acuerdos tomados infringiendo las disposiciones que regulan los derechos de voto vinculados a las acciones.
Artículo L235-3 La acción de nulidad se extinguirá cuando la causa de nulidad haya dejado de existir en el día en que el Tribunal
resuelva en primera instancia sobre el fondo de la cuestión, salvo si esta nulidad se fundase en la ilicitud del objeto social.
Artículo L235-4 El Tribunal de commerce, requerido para una acción de nulidad, podrá, incluso de oficio, determinar un plazo para
permitir subsanar las causas de nulidad. No podrá declarar la nulidad antes de que transcurran dos meses desde la fecha de interposición de la demanda.
Si para subsanar una causa de nulidad se debiera convocar una junta o efectuarse una consulta a los socios, y si estuviera justificada una convocatoria regular de una junta o un envío a los socios del texto de los proyectos de decisión acompañado de los documentos que deben serles presentados, el Tribunal decidirá por resolución el plazo necesario para que los socios puedan tomar un acuerdo.
Artículo L235-5 Si, finalizado el plazo previsto en el artículo L.235-4, no se hubiera tomado ningún acuerdo, el Tribunal resolverá la
demanda de la parte más diligente.
CAPITULO VI De la fusión y de la escisión Artículos L235-6 a
L236-24
Sección I Disposiciones generales Artículos L235-6 a
L236-7
Artículo L235-6 En caso de nulidad de una sociedad o de actas y acuerdos posteriores a su constitución, motivada por un vicio del
consentimiento o por la incapacidad de un socio, y cuando sea posible su regularización, cualquier persona que tenga interés en ello podrá requerir a aquél que pueda efectuarla, que proceda a regularizarla o que inicie un procedimiento de nulidad en un plazo de seis meses so pena de preclusión. Este requerimiento será comunicado a la sociedad.
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CÓDIGO DE COMERCIO La sociedad o un socio podrá presentar, al Tribunal ante el que se interpuso la demanda, en el plazo previsto en el
párrafo anterior, cualquier medida susceptible de suprimir el interés del demandante, sobre todo por rescate de sus derechos sociales. En este caso, el Tribunal podrá, o bien declarar la nulidad, o bien declarar obligatorias las medidas propuestas, siempre y cuando éstas hayan sido previamente adoptadas por la sociedad en las condiciones previstas para las modificaciones estatutarias. El voto del socio que solicite el rescate de sus derechos no influirá en el acuerdo que adopte la sociedad.
En caso de impugnación, el valor de los derechos sociales que se le deban reembolsar al socio será determinado de acuerdo a las disposiciones del artículo 1843-4 del Código Civil. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L235-7 Cuando la nulidad de actas y acuerdos posteriores a la constitución de la sociedad esté fundada en la infracción de
las normas de publicidad, toda persona que tenga interés en la regularización del acta podrá requerir a la sociedad que proceda a realizarla, en el plazo determinado por decreto adoptado en Conseil d'Etat. Si la regularización no se produjera en este plazo, todo interesado podrá solicitar el nombramiento, por resolución judicial, de un mandatario encargado de cumplir este requisito formal.
Artículo L235-8 La nulidad de una operación de fusión o de escisión sólo podrá producirse a causa de la nulidad del acuerdo de
una de las juntas que hayan decidido la operación o de la falta de depósito de la declaración de conformidad mencionada en el tercer párrafo del artículo L.236-6.
Cuando sea posible remediar la irregularidad susceptible de provocar la nulidad, el Tribunal requerido para resolver la acción de nulidad de una fusión o de una escisión concederá a las sociedades interesadas un plazo para regularizar su situación.
Artículo L235-9 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XVI Diario Oficial de 26 de junio de 2004)
Las acciones de nulidad de la sociedad o de actas o acuerdos posteriores a su constitución prescribirán a los tres años contados desde el día en que haya sobrevenido la nulidad, sin perjuicio de la preclusión prevista en el artículo L.235-6.
Sin embargo, la acción de nulidad de una fusión o de una escisión de sociedades prescribirá a los seis meses a partir de la fecha de la última inscripción en el Registro de Comercio y de Sociedades necesaria para la operación.
La acción de nulidad basada en el artículo L. 225-149-3 prescribirá en el plazo de tres meses a partir de la fecha de celebración de la junta general siguiente a la decisión de ampliación de capital.
Artículo L235-10 Cuando se declare la nulidad de la sociedad se procederá a su liquidación de conformidad con las disposiciones de
los estatutos del capítulo VII del presente título.
Artículo L235-11 Cuando una resolución judicial que declare la nulidad de una fusión o de una escisión sea definitiva, esta
resolución será objeto de publicidad con las condiciones que se determinarán por un decreto adoptado en Conseil d'Etat.
No tendrá efecto sobre las obligaciones a cargo o en beneficio de las sociedades a las que el o los patrimonios sean transferidos entre la fecha en la que tiene efecto la fusión o la escisión y la de la publicación de la resolución que declare su nulidad.
En el caso de la fusión, las sociedades que hayan participado en la operación serán solidariamente responsables de la ejecución de las obligaciones a cargo de la sociedad absorbente mencionadas en el párrafo anterior. Lo mismo ocurrirá, en el caso de escisión, con respecto a la sociedad escindida para las obligaciones de las sociedades a las que el patrimonio sea transferido. Cada una de las sociedades a las que se transfiere el patrimonio responderá de las obligaciones a su cargo surgidas entre la fecha en que tiene efecto la escisión y la de la publicación de la resolución que declare la nulidad.
Artículo L235-12 Ni la sociedad ni los socios podrán hacer valer una nulidad frente a terceros de buena fe. Sin embargo, la nulidad
que provenga de la incapacidad o de un vicio de consentimiento será oponible incluso frente a terceros, por el incapacitado y sus representantes legales, o por el socio cuyo consentimiento haya sido obtenido por engaño, dolo o violencia.
Artículo L235-13 La acción de resarcimiento por responsabilidad civil fundada en la anulación de la sociedad o de las actas o
acuerdos posteriores a su constitución prescribirá a los tres años, contados a partir del día en que la resolución de anulación pase a tener fuerza de cosa juzgada.
La desaparición de la causa de nulidad no será obstáculo para el ejercicio de la acción por daños y perjuicios causados por el vicio del que se acusa a la sociedad, al acta o al acuerdo. Esta acción prescribirá a los tres años a partir del día en que la nulidad haya sido subsanada.
Artículo L235-14 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 20 II Diario Oficial de 27 de marzo de
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CÓDIGO DE COMERCIO 2004)
El presidente de los órganos de dirección y de administración o el presidente de sesión de dichos órganos que no hiciera constar en actas las deliberaciones de dichos órganos, será sancionado con la nulidad de los acuerdos adoptados por dichos órganos.
Se ejercitará la acción de nulidad contra todo miembro del directorio o miembro del consejo de supervisión. Esta acción podrá ser ejercitada hasta la aprobación del acta de la segunda reunión del consejo de administración,
del directorio o del consejo de supervisión que siga a las deliberaciones susceptibles de ser anuladas. La misma estará sujeta a lo dispuesto en los artículos L. 235-4 y L. 235-5.
Artículo L236-1 Una o varias sociedades podrán, por vía de fusión, transferir su patrimonio a una sociedad existente o a una nueva
sociedad que constituyan. Una sociedad podrá también, por vía de escisión, transferir su patrimonio a varias sociedades existentes o a varias
sociedades nuevas. Estas posibilidades estarán abiertas a las sociedades en liquidación a condición de que el reparto de sus activos
entre los socios no haya sido objeto de un principio de ejecución. Los socios de las sociedades que transfieran su patrimonio en virtud de las operaciones mencionadas en los tres
párrafos anteriores recibirán participaciones o acciones de la o de las sociedades beneficiarias y, eventualmente, una compensación en efectivo cuyo importe no podrá exceder del 10% del valor nominal de las participaciones o de las acciones adjudicadas.
Artículo L236-2 Las operaciones citadas en el artículo L.236-1 podrán ser realizadas entre sociedades que tengan diferente forma
jurídica. Serán decididas, por cada una de las sociedades interesadas, en las condiciones previstas para la modificación de
sus estatutos. Si la operación acarrease la creación de nuevas sociedades, cada una de éstas se constituirá según las normas
propias de la forma jurídica que adoptase la sociedad. Cuando las operaciones comporten la participación de sociedades anónimas y de sociedades de responsabilidad
limitada, se aplicarán las disposiciones de los artículos L.236-10, L.236-11, L-236-14, L.236-20 y L.236-21.
Artículo L236-3 I. - La fusión o la escisión conllevará la disolución sin liquidación de las sociedades que desaparecen y la
transmisión universal de su patrimonio a las sociedades beneficiarias, en el estado en que se encuentre en la fecha de la realización definitiva de la operación. Ésta conllevará simultáneamente la adquisición por parte de los socios de las sociedades que desaparecen de la condición de socios de las sociedades beneficiarias, en las condiciones determinadas por el contrato de fusión o de escisión.
II. - Sin embargo, no se procederá al canje de participaciones o de acciones de la sociedad beneficiaria por participaciones o acciones de las sociedades que desaparecen cuando esas participaciones o acciones sean poseídas:
1º Por la sociedad beneficiaria o por una persona que actúe en su propio nombre pero por cuenta de esta sociedad;
2º O bien por la sociedad que desaparece o por una persona que actúe en su propio nombre pero por cuenta de esta sociedad.
Artículo L236-4 La fusión o la escisión será efectiva: 1º En caso de creación de una o varias sociedades nuevas, en la fecha de inscripción en el Registro de Comercio y
de Sociedades, de la nueva sociedad o de la última de ellas; 2º En los demás casos, en la fecha de la última junta general que haya aprobado la operación salvo que el contrato
prevea que la operación surtirá efecto en otra fecha, la cual no deberá ser ni posterior a la fecha de cierre del ejercicio en curso de la o de las sociedades beneficiarias ni anterior a la fecha de cierre del último ejercicio cerrado de la o de las sociedades que transmiten su patrimonio.
Artículo L236-5 Por excepción a lo establecido en las disposiciones del párrafo segundo del artículo, L. 236-2 si la operación
proyectada tuviera por efecto aumentar las obligaciones de los socios o accionistas de una o varias de las sociedades en cuestión, tal operación sólo podrá ser aprobada por unanimidad entre dichos socios o accionistas.
Artículo L236-6 Todas las sociedades que participen en una de las operaciones mencionadas en el artículo L.236-1 realizarán un
proyecto de fusión o de escisión. Este proyecto será depositado en la secretaría del Tribunal de commerce correspondiente al domicilio social de
dichas sociedades y será objeto de publicidad cuyas condiciones se fijarán por decreto adoptado en Conseil d'Etat. Bajo pena de nulidad, las sociedades que participen en una de las operaciones mencionadas en los párrafos
primero y segundo del artículo L.236-1 estarán obligadas a depositar en la secretaría una declaración en la que especificarán todos los trámites efectuados para proceder a ellas y en la que afirmarán que la operación ha sido realizada ateniéndose a las leyes y reglamentos. El secretario comprobará, bajo su responsabilidad, que esta declaración se ajusta a las disposiciones del presente artículo.
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CÓDIGO DE COMERCIO Artículo L236-7
Las disposiciones del presente capítulo relativas a los obligacionistas serán aplicables a los titulares de títulos participativos.
Sección II Disposiciones particulares para las sociedades anónimas Artículos L236-8 a
L236-22
Artículo L236-8 Las operaciones citadas en el artículo L.236-1 y realizadas únicamente entre sociedades anónimas estarán sujetas
a las disposiciones de la presente sección.
Artículo L236-9 La fusión será decidida por la junta general extraordinaria de cada una de las sociedades que participan en la
operación. La fusión estará sujeta a la ratificación de las juntas especiales de accionistas mencionadas en los artículos
L.225-99 y L.228-15 de cada una de las sociedades que participen en la operación. El proyecto de fusión será sometido a las juntas especiales de tenedores de certificados de inversión que decidirán
conforme a las normas de la junta general de accionistas, a menos que la sociedad absorbente adquiera esos títulos por simple demanda de su parte, en las condiciones de publicidad cuyas modalidades serán determinadas por decreto adoptado en Conseil d'Etat, y que esta adquisición haya sido aceptada por su junta especial. Todo poseedor de certificados de inversión que no haya cedido sus títulos en el plazo determinado por el decreto adoptado en Conseil d'Etat continuará en la sociedad absorbente en las condiciones determinadas por el contrato de fusión, sin perjuicio de las disposiciones del último párrafo del artículo L.228-30.
El consejo de administración o el directorio de cada una de las sociedades que participen en la operación realizará un informe escrito que será puesto a disposición de los accionistas.
Artículo L236-10 I. - Uno o varios auditores de la fusión, nombrados por resolución judicial, elaborarán bajo su responsabilidad un
informe escrito sobre las condiciones de la fusión. Podrán obtener de cada sociedad la presentación de todos los documentos útiles y proceder a realizar todas las comprobaciones necesarias. Estarán sujetos a las incompatibilidades previstas en el artículo L.225-224 con relación a las sociedades participantes.
II. - Los auditores de la fusión comprobarán que los valores relativos adjudicados a las acciones de las sociedades que participen en la operación sean pertinentes y que la relación de canje sea equitativa.
III. - El o los informes de los auditores de la fusión serán puestos a disposición de los accionistas. Tales informes deberán:
1º Indicar el o los métodos seguidos para la determinación de la relación de canje propuesta; 2º Indicar si este o estos métodos son los adecuados para el caso y mencionar los valores a los que cada uno de
esos métodos conduce, previo dictamen sobre la importancia dada a estos métodos en la determinación del valor establecido;
3º Indicar además las dificultades particulares de valoración, si las hubiera. IV. - Además, los auditores de la fusión evaluarán bajo su responsabilidad el valor de las aportaciones en especie y
los beneficios especiales y establecerán para ello el informe previsto en el artículo L.225-147.
Artículo L236-11 Cuando, desde el momento del depósito en la secretaría del Tribunal de commerce del proyecto de fusión y hasta
el momento de realizar la operación, la sociedad absorbente posea permanentemente la totalidad de las acciones que representen la totalidad del capital de las sociedades absorbidas, no se procederá ni a la aprobación de la fusión por la junta general extraordinaria ni a la realización de los informes mencionados en el último párrafo del artículo L.236-9, y en el artículo L.236-10. La junta general extraordinaria de la sociedad absorbente tomará una decisión a la vista del informe de un auditor de aportaciones, de conformidad con las disposiciones del artículo L.225-147.
Artículo L236-12 Cuando la fusión se realice por creación de una nueva sociedad, ésta podrá constituirse sin otras aportaciones que
las de las sociedades que se fusionen. En todos los casos, el proyecto de estatutos de la nueva sociedad será aprobado por la junta general extraordinaria
de cada una de las sociedades que desaparecen. No será procedente la aprobación por parte de la junta general de la nueva sociedad.
Artículo L236-13 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El proyecto de fusión se someterá a la aprobación de las juntas de obligacionistas de las sociedades absorbidas, a menos que se ofrezca a dichos obligacionistas, a simple petición de éstos, el reembolso de los títulos. La oferta de reembolso estará sujeta a las condiciones de publicidad determinadas por decreto adoptado en Conseil d'Etat.
Cuando sea procedente el reembolso por simple petición, la sociedad absorbente se convertirá en deudora de los obligacionistas de la sociedad absorbida.
Todo obligacionista que no haya solicitado el reembolso en el plazo determinado por decreto adoptado en Conseil d'Etat conservará su condición en la sociedad absorbente en las condiciones determinadas por el contrato de fusión.
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CÓDIGO DE COMERCIO Artículo L236-14
La sociedad absorbente será deudora de los acreedores no obligacionistas de la sociedad absorbida en sustitución de ésta, sin que esta sustitución conlleve novación con respecto a ellos.
Los acreedores no obligacionistas de las sociedades que participen en la operación de fusión y cuyo crédito sea anterior a la publicidad dada al proyecto de fusión podrán impugnar éste en el plazo determinado por decreto adoptado en Conseil d'Etat. Una resolución judicial denegará esta impugnación u ordenará o bien el reembolso de los créditos, o bien la constitución de garantías si la sociedad absorbente las ofreciese y fuesen consideradas como suficientes.
A falta de reembolso de los créditos o de constitución de las garantías exigidas, no será oponible la fusión a este acreedor.
La impugnación formulada por un acreedor no tendrá por efecto prohibir la continuación de las operaciones de fusión.
Las disposiciones del presente artículo no serán un obstáculo para la aplicación de los convenios que autoricen al acreedor exigir el reembolso inmediato de su crédito en caso de fusión de la sociedad deudora con otra sociedad.
Artículo L236-15 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XVII Diario Oficial de 26 de junio de 2004)
El proyecto de fusión no será sometido a la aprobación de las juntas de obligacionistas de la sociedad absorbente. Sin embargo, la junta general de los obligacionistas podrá encargar a los representantes del sindicato de obligacionistas que se opongan a la fusión en las condiciones y bajo los efectos previstos en los párrafos segundo y siguientes del artículo L.236-14.
Artículo L236-16 Los artículos L.236-9 y L.236-10 serán aplicables a la escisión.
Artículo L236-17 Cuando la escisión deba ser realizada por aportaciones a nuevas sociedades anónimas, cada una de las nuevas
sociedades podrá ser constituida sin otra aportación que la de la sociedad escindida. En ese caso, y, si las acciones de cada una de las nuevas sociedades son atribuidas a los accionistas de la
sociedad escindida proporcionalmente a sus derechos en el capital de esta sociedad, no será necesario elaborar el informe mencionado en el artículo L.236-10.
En todos los casos, los proyectos de estatutos de las nuevas sociedades serán aprobados por la junta general extraordinaria de la sociedad escindida. No se requerirá que la junta general de cada una de las nuevas sociedades apruebe la operación.
Artículo L236-18 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El proyecto de escisión será sometido a la aprobación de las juntas de obligacionistas de la sociedad escindida, de acuerdo a las disposiciones del apartado 3º del punto I del artículo L.228-65, a menos que se ofrezca a dichos obligacionistas, por simple petición, el reembolso de los títulos. La oferta de reembolso estará sujeta a las condiciones de publicidad determinadas por decreto adoptado en Conseil d'Etat.
Cuando proceda el reembolso por simple petición, las sociedades beneficiarias de las aportaciones que resulten de la escisión serán deudoras solidarias de los obligacionistas que soliciten el reembolso.
Artículo L236-19 El proyecto de escisión no será sometido a la aprobación de las juntas de obligacionistas de las sociedades a las
que se haya transferido el patrimonio. Sin embargo, la junta ordinaria de los obligacionistas podrá encargar a los representantes del sindicato que formulen una impugnación a la escisión, en las condiciones y con los efectos previstos en los párrafos segundo y siguientes del artículo L.236-14.
Artículo L236-20 Las sociedades beneficiarias de las aportaciones derivadas de la escisión serán deudoras solidarias de los
obligacionistas y de los acreedores no obligacionistas de la sociedad escindida, en sustitución de ésta sin que esta sustitución conlleve novación con respecto a ellos.
Artículo L236-21 Como excepción al régimen general establecido en las disposiciones del artículo L.236-20, se podrá estipular que
las sociedades beneficiarias de la escisión responderán únicamente de la parte del pasivo de la sociedad escindida que respectivamente les corresponda y sin que tengan que responder de forma solidaridad.
En este caso, los acreedores no obligacionistas de las sociedades participantes podrán impugnar la escisión en las condiciones y bajo los efectos previstos en los párrafos segundo y siguientes del artículo L.236-14.
Artículo L236-22 La sociedad que aporte parte de su activo a otra sociedad y la sociedad que se beneficie de esta aportación podrán
decidir de común acuerdo someter la operación a las disposiciones de los artículos L.236-16 al 236-21.
Sección III Disposiciones particulares para las sociedades de responsabilidad limitada Artículos L236-23 a
L236-24
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CÓDIGO DE COMERCIO Artículo L236-23
Las disposiciones de los artículos L.236-10, L.236-11, L.236-14, L.236-20 y L.236-21 serán aplicables a las fusiones o a las escisiones de las sociedades de responsabilidad limitada en beneficio de sociedades con la misma forma jurídica.
Cuando la fusión se realice por aportaciones a una nueva sociedad de responsabilidad limitada, ésta podrá constituirse sin más aportaciones que las de las sociedades que se fusionan.
Cuando la escisión se realice por aportaciones a nuevas sociedades de responsabilidad limitada, éstas podrán ser constituidas sin más aportación que la de la sociedad escindida. En este caso, y si las partes de cada una de las sociedades nuevas son atribuidas a los socios de la sociedad escindida proporcionalmente a sus derechos en el capital de esta sociedad, no será necesario elaborar el informe mencionado en el artículo L.236-10.
En los casos previstos en los dos párrafos anteriores, los socios de las sociedades que desaparecen podrán actuar de pleno derecho en calidad de fundadores de las nuevas sociedades y se procederá de acuerdo a las disposiciones que regulan las sociedades de responsabilidad limitada.
Artículo L236-24 La sociedad que aporte parte de su activo a otra sociedad y la sociedad que se beneficie de esta aportación podrán
decidir de común acuerdo someter la operación a las disposiciones aplicables en caso de escisión por aportaciones a sociedades de responsabilidad limitada existentes.
CAPITULO VII De la liquidación Artículos L237-1 a
L237-31
Sección I Disposiciones generales Artículos L237-1 a
L237-13
Artículo L237-1 Sin perjuicio de lo dispuesto en las disposiciones del presente capítulo, la liquidación de las sociedades estará
regulada por las disposiciones previstas en los estatutos.
Artículo L237-2 La sociedad se encontrará en estado de liquidación desde el momento de su disolución, sea cual fuere la causa,
salvo en el caso previsto en el párrafo tercero del artículo 1844-5 del Código Civil. Su denominación social irá seguida de la mención: "sociedad en liquidación".
La personalidad jurídica de la sociedad subsistirá para las necesidades de liquidación, hasta el cierre de ésta. La disolución de una sociedad sólo producirá efectos frente a terceros desde la fecha en que ésta se publique en el
Registro de Comercio y de Sociedades.
Artículo L237-3 El acta de designación del liquidador será publicada por éste, en las condiciones y en los plazos fijados por decreto
adoptado en Conseil d'Etat, que determinará igualmente los documentos adjuntos que será necesario depositar en el Registro de Comercio y de Sociedades.
Artículo L237-4 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
No podrán ser designados liquidadores las personas a las que se les haya prohibido o privado del derecho a ejercer las funciones de director general, de administrador, de gerente de la sociedad, de miembro del directorio o del consejo de supervisión.
Artículo L237-5 La disolución de la sociedad no conllevará de pleno derecho la rescisión de los contratos de alquileres de los
inmuebles utilizados para su actividad social, incluidas las viviendas que dependan de estos inmuebles. En caso de cesión del contrato de alquiler, si no se puede asegurar la obligación de garantía en los términos de
éste, por resolución judicial, se podrá sustituir por cualquier garantía ofrecida por el cesionario o un tercero, y que sea considerada suficiente.
Artículo L237-6 Salvo consentimiento unánime de los socios, la cesión de todo o de parte del activo de la sociedad en liquidación a
una persona que haya tenido en esta sociedad la condición de socio de una sociedad colectiva, de socio colectivo de una sociedad comanditaria, de gerente, de administrador, de director general, de miembro del consejo de supervisión, de miembro del directorio, de auditor de cuentas o de supervisor, sólo podrá producirse con autorización del Tribunal de commerce, previo dictamen del liquidador y, si lo hubiera, del auditor de cuentas o del supervisor.
Artículo L237-7 Se prohibe la cesión de todo o parte del activo de la sociedad en liquidación al liquidador o a sus empleados o a
sus cónyuges, ascendientes o descendientes.
Artículo L237-8
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CÓDIGO DE COMERCIO (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
La cesión global del activo de la sociedad o la aportación del activo a otra sociedad, particularmente por fusión quedará autorizada:
1º En las sociedades colectivas, por unanimidad de los socios; 2º En las sociedades comanditarias simples, por unanimidad de los socios colectivos y por mayoría en número y en
capital de los comanditarios; 3º En las sociedades de responsabilidad limitada, por la mayoría exigida para la modificación de los estatutos; 4º En las sociedades por acciones, en las condiciones de quórum y de mayoría previstas para las juntas
extraordinarias y, además, en las sociedades comanditarias por acciones, con el acuerdo unánime de los socios colectivos.
Artículo L237-9 Los socios, incluidos los titulares de acciones con dividendo preferente sin derecho de voto, serán convocados al
final de la liquidación para decidir sobre la cuenta definitiva, sobre el finiquito de la gestión del liquidador y la finalización de su mandato y para certificar el cierre de la liquidación.
En su defecto, cualquier socio podrá solicitar judicialmente el nombramiento de un mandatario encargado de realizar dicha convocatoria.
Artículo L237-10 Si la junta para el cierre prevista en el artículo L.237-9 no pudiese llegar a un acuerdo o si se negase a aprobar las
cuentas del liquidador, deberá resolverse judicialmente a petición de éste o de cualquier interesado.
Artículo L237-11 La autorización de cierre de la liquidación será publicada según las condiciones determinadas por decreto
adoptado en Conseil d'Etat.
Artículo L237-12 El liquidador será responsable, tanto con relación a la sociedad como a terceros, de las consecuencias
perjudiciales por las faltas que haya cometido en el ejercicio de sus funciones. La acción de resarcimiento por responsabilidad civil contra los liquidadores prescribirá en las condiciones previstas
en el artículo L.225-254.
Artículo L237-13 Toda acción contra los socios no liquidadores o sus cónyuges supérstites, herederos o causahabientes, prescribirá
en el plazo de cinco años contados a partir de la publicación de la disolución de la sociedad en el Registro de Comercio y de Sociedades.
Sección II Disposiciones aplicables por resolución judicial Artículos L237-14 a
L237-31
Artículo L237-14 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 2° Diario Oficial de 16 de mayo de 2001)
I. - En defecto de cláusulas estatutarias o contrato expreso entre las partes, la liquidación de la sociedad disuelta se efectuará según las normas de la presente sección, sin perjuicio de la aplicación de la primera sección del presente capítulo.
II. - Además, una resolución judicial podrá decidir que esta liquidación sea efectuada en las mismas condiciones, a petición:
1º De la mayoría de los socios, en las sociedades colectivas; 2º De socios que representen al menos un 5% del capital, en las sociedades comanditarias simples, las sociedades
de responsabilidad limitada y las sociedades por acciones; 3º De los acreedores sociales. III. - En este caso, las disposiciones de los estatutos contrarias a las del presente capítulo, se tendrán por no
puestas.
Artículo L237-15 Las competencias del consejo de administración, del directorio o de los gerentes finalizarán a partir de la resolución
judicial emitida en aplicación del artículo L. 237-14 o de la disolución de la sociedad si ésta fuese posterior.
Artículo L237-16 La disolución de la sociedad no supondrá el fin de las funciones del consejo de supervisión ni de las de los
auditores de cuentas.
Artículo L237-17 En ausencia de auditores de cuentas, e incluso en las sociedades que no estén obligadas a designarlos, los socios
podrán nombrar a uno o varios supervisores en las condiciones previstas en el punto I del artículo L.237-27. En su defecto, podrán ser nombrados, por resolución judicial, a petición del liquidador o de cualquier interesado.
El acta de nombramiento de los supervisores determinará sus poderes, obligaciones y remuneraciones así como la duración de sus funciones. Incurrirán en la misma responsabilidad que los auditores de cuentas.
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CÓDIGO DE COMERCIO Artículo L237-18
I. - Los socios nombrarán a uno o varios liquidadores, tanto si la disolución fuera resultado del término que fijan los estatutos como si lo fuera por decisión de los socios.
II. - El liquidador será nombrado: 1º En las sociedades colectivas, por unanimidad de los socios; 2º En las sociedades comanditarias simples, por unanimidad de los socios colectivos y por mayoría del capital
entre los comanditarios; 3º En las sociedades de responsabilidad limitada, por la mayoría del capital entre los socios; 4º En las sociedades anónimas, en las condiciones de quórum y de mayoría previstas para las juntas generales
ordinarias; 5º En las sociedades comanditarias por acciones, en las condiciones de quórum y de mayoría previstas para las
juntas generales ordinarias, mayoría que deberá incluir a la unanimidad de los socios colectivos; 6º En las sociedades por acciones simples, por unanimidad de los socios salvo cláusula en contrario.
Artículo L237-19 Si los socios no hubieran podido nombrar a un liquidador, éste será designado por resolución judicial a petición de
cualquier interesado, en las condiciones determinadas por un decreto adoptado en Consejo en Estado.
Artículo L237-20 Si la disolución de la sociedad fuera decidida por resolución judicial, esta resolución designará a uno o a varios
liquidadores.
Artículo L237-21 La duración del mandato del liquidador no podrá exceder de los tres años. Sin embargo, este mandato podrá ser
renovado por los socios o el presidente del Tribunal de commerce, dependiendo de si hubiera sido nombrado por los socios o por resolución judicial.
Si la junta de socios no hubiera podido reunirse válidamente, el mandato será renovado por resolución judicial a petición del liquidador.
Al solicitar la renovación de su mandato, el liquidador indicará las razones por las que no ha podido terminar la liquidación, las medidas que prevé tomar y los plazos necesarios para finalizar la liquidación.
Artículo L237-22 El liquidador será revocado y sustituido según las formas previstas para su nombramiento.
Artículo L237-23 Dentro de los seis primeros meses siguientes a su nombramiento, el liquidador convocará a la junta de socios en la
que informará sobre la situación del activo y del pasivo de la sociedad, sobre la continuidad de las operaciones de liquidación y el plazo necesario para terminarlas. El plazo dado al liquidador para que emita su informe podrá ser ampliado, a petición suya, por resolución judicial hasta doce meses.
En su defecto, se procederá a la convocatoria de la junta o bien por el órgano de control, si lo hubiera, o bien por un mandatario designado por resolución judicial a petición de cualquier interesado.
Si la reunión de la junta fuera imposible o si no se tomara en ella ningún acuerdo, el liquidador solicitará judicialmente las autorizaciones necesarias que conduzcan a la liquidación.
Artículo L237-24 El liquidador representará a la sociedad. Estará investido de las más amplios facultades para realizar el activo,
incluso de forma amistosa. Las restricciones a estos poderes, que se deriven de los estatutos o del acta de nombramiento, no serán oponibles frente a terceros.
Estará habilitado para pagar a los acreedores y repartir el saldo restante. No podrá continuar los negocios en curso o iniciar nuevos por necesidades de la liquidación salvo que haya sido
autorizado para ello, o bien por los socios, o bien por resolución judicial si hubiese sido designado de esta forma.
Artículo L237-25 El liquidador, dentro de los tres meses siguientes al cierre de cada ejercicio, hará constar las cuentas anuales a la
vista del inventario que hubiera elaborado a partir de los diferentes elementos del activo y del pasivo existentes en esta fecha y emitirá un informe escrito por el cual dará cuenta de las operaciones de liquidación efectuadas a lo largo del ejercicio transcurrido.
Salvo dispensa otorgada por resolución judicial, el liquidador, al menos una vez al año y en los seis meses siguientes al cierre del ejercicio, convocará según las condiciones previstas por los estatutos a la junta de socios quien decidirá sobre las cuentas anuales, dará las autorizaciones necesarias y eventualmente renovará el mandato de los supervisores, auditores de cuentas o miembros del consejo de supervisión.
Si la junta no se reuniese, el informe previsto en el párrafo primero será depositado en la secretaría del Tribunal de commerce y presentado a toda persona interesada.
Artículo L237-26 En período de liquidación, los socios podrán tener acceso a los documentos sociales, en las mismas condiciones
que anteriormente.
Artículo L237-27
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CÓDIGO DE COMERCIO I. - Las decisiones previstas en el párrafo segundo del artículo L.237-25 serán tomadas: 1º Por mayoría de los socios en capital, en las sociedades colectivas, en las comanditarias simples y en las de
responsabilidad limitada; 2º En las condiciones de quórum y de mayoría de las juntas ordinarias, en las sociedades por acciones; 3º Salvo cláusula en contrario, por unanimidad de los socios, en las sociedades por acciones simples. II. - Si no se hubiese podido alcanzar la mayoría requerida, se decidirá por resolución judicial a petición del
liquidador o de cualquier persona interesada. III. - Cuando el acuerdo conlleve la modificación de los estatutos, será tomado en las condiciones previstas a tal
efecto para cada forma de sociedad. IV. - Los socios liquidadores podrán tomar parte en la votación.
Artículo L237-28 En caso de continuidad de la explotación social, el liquidador estará obligado a convocar la junta de socios, en las
condiciones previstas en el artículo L.237-25. En su defecto, cualquier persona interesada podrá solicitar la convocatoria, ya sea por los auditores de cuentas, el consejo de supervisión o el órgano de control, o ya sea por un mandatario nombrado por resolución judicial.
Artículo L237-29 Salvo cláusula en contrario de los estatutos, el reparto de los fondos propios que queden tras el reembolso del
nominal de las acciones o de participaciones sociales se efectuará entre los socios en las mismas proporciones que su participación en el capital social.
Artículo L237-30 El reembolso de las acciones con dividendo preferente sin derecho de voto deberá efectuarse antes que el de las
acciones ordinarias. Lo mismo sucederá con el dividendo preferencial que no haya sido íntegramente abonado. Las acciones con dividendo preferente sin derecho de voto tendrán, proporcionalmente a su importe, los mismos
derechos que las otras acciones sobre el superávit de liquidación. Cualquier cláusula en contrario a los dispuesto en el presente artículo se tendrá por no puesta.
Artículo L237-31 Sin perjuicio de los derechos de los acreedores, el liquidador decidirá si será conveniente distribuir los fondos que
hubieran quedado disponibles en el transcurso de la liquidación. Tras el requerimiento infructuoso al liquidador, cualquier interesado podrá solicitar judicialmente que se decida
sobre la conveniencia de un reparto en el proceso de liquidación. La decisión de distribuir los fondos será publicada según las condiciones determinadas por decreto adoptado en
Conseil d'Etat.
CAPITULO VIII De los apercibimientos Artículos L238-1 a
L238-3-1
Artículo L238-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 122 1° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 21 Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XVIII Diario Oficial de 26 de junio de 2004)
Cuando las personas interesadas no pudieran obtener que se les entregue, remita o permita el acceso a los documentos citados en los artículos L. 221-7, L. 223-26, L. 225-115, L. 225-116, L. 225-117, L. 225-118, L. 225-129, L. 225-129-5, L. 225-129-6, L. 225-135, L. 225-136, L. 225-138, L. 225-177, L. 225-184, L. 228-69, L. 237-3 y L. 237-26, podrán solicitar al presidente del Tribunal que resuelva en procedimiento sumario, para que exija mediante requerimiento al liquidador o a los administradores, gerentes y dirigentes, bajo pena de multa, que dichos documentos sean puestos a disposición o para que nombre a un mandatario encargado de poner dichos documentos a disposición de los interesados.
Podrá ejercitar esta acción cualquier persona interesada que no pudiera obtener del liquidador, de los administradores, gerentes o dirigentes, la entrega de un modelo de poder conforme a las normas establecidas por decreto adoptado en Conseil d'Etat, o la información exigida por dicho decreto en lo concerniente a la celebración de las juntas.
Cuando la demanda sea admitida, la sanción y los gastos de procedimiento correrán a cargo de los administradores, de los gerentes, de los dirigentes o del liquidador encausado.
Artículo L238-2 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 V Diario Oficial de 2 de agosto de 2003)
Cualquier interesado podrá solicitar al presidente del Tribunal que resuelva en procedimiento de urgencia para que requiera bajo pena de multa al liquidador el cumplimiento de las obligaciones previstas en los artículos L. 237-21 y L. 237-25.
Artículo L.238-3 (Ley nº 2003-721 de 1 de agosto de 2003 art. 9 3° Diario Oficial de 5 de agosto de 2003)
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CÓDIGO DE COMERCIO (Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
El Ministerio Fiscal así como cualquier persona interesada podrán solicitar al presidente del Tribunal que resuelva en procedimiento sumario para que intime bajo pena de multa al representante legal de una sociedad de responsabilidad limitada, de una sociedad anónima, de una sociedad por acciones simple, de una sociedad europea, de una sociedad comanditaria por acciones, a incluir la mención en todas las actas o en todos los documentos de la sociedad, de su denominación social, precedida o seguida inmediatamente y de manera legible de las palabras "société de responsabilité limitée" o de las iniciales "SARL" , "société anonyme" o de las iniciales "SA", "société par actions simplifiée" o de las iniciales "SAS", "société européenne" o de las iniciales "SE" o "société en commandite par actions", así como la declaración del capital social.
Artículo L238-4 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 20 III Diario Oficial de 27 de marzo de 2004)
Cualquier interesado podrá solicitar al presidente del Tribunal que resuelva en procedimiento sumario, para que exija mediante requerimiento al presidente de dichos órganos de dirección y de administración, bajo pena de multa, que transcriba las actas de dichas reuniones en un registro especial que será conservado en el domicilio social.
Artículo L238-5 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 22 III Diario Oficial de 27 de marzo de 2004)
Cualquier interesado podrá solicitar al presidente del Tribunal que resuelva en procedimiento sumario, para que exija mediante requerimiento al presidente de la junta general de accionistas o de obligacionistas, bajo pena de multa, que transcriba las actas de dichas juntas en un registro especial que será conservado en el domicilio social.
Artículo L238-6 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 I Diario Oficial de 26 de junio de 2004)
Si la junta especial de accionistas con dividendo preferente no hubiera sido consultada con arreglo a las condiciones previstas en los artículos L. 228 -35-6, L. 228-35-7 y L. 228-35-10, el presidente del Tribunal, resolviendo en procedimiento sumario y previa petición de cualquier accionista, podrá requerir bajo pena de multa a los gerentes o al presidente del consejo de administración o del directorio, para que convoquen dicha junta o designen a un mandatario encargado de proceder a esta convocatoria.
Podrá ejercitar la misma acción cualquier persona o titular de valores mobiliarios que dan acceso al capital, cuando la junta general o especial a la que pertenezca no haya sido consultada en las condiciones previstas en el artículo L. 225-99, en el segundo apartado del artículo L. 225-129-6 y en los artículos L. 228-16 o L. 228-103.
Artículo L.238-3-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
Cualquier persona interesada podrá solicitar al presidente del Tribunal que resuelva en procedimiento sumario para que dirija un requerimiento a las sociedades que utilicen las iniciales "SE" en su denominación social contraviniendo lo dispuesto en el artículo 11 del Reglamento (CE) N° 2157/2001 del Consejo, de 8 de octubre de 2001, por el que se aprueba el estatuto de la Sociedad Anónima Europea (SE), instándoles bajo pena de multa a cumplir los dispuesto en dicho artículo.
TITULO IV DISPOSICIONES PENALES Artículos L241-1 a
L248-1
CAPITULO I De las infracciones que afectan a las sociedades de responsabilidad limitada Artículos L241-1 a
L241-9
Artículo L241-1 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 9 1° Diario Oficial de 5 de agosto de 2003)
Serán castigados con seis meses de prisión y 9.000 euros de multa los socios de una sociedad de responsabilidad limitada que omitieran en el acta de la sociedad la declaración relativa al reparto de las participaciones sociales entre todos los socios, al desembolso de las participaciones o al depósito de los fondos.
Las disposiciones del presente artículo serán aplicables en caso de ampliación de capital.
Artículo L241-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 19 Diario Oficial de 27 de marzo de 2004)
Serán castigados con seis meses de prisión y 9.000 euros de multa los gerentes que omitieran, directamente o por persona interpuesta, cualquier tipo de valores mobiliarios por cuenta de la sociedad, con excepción de las obligaciones emitidas en las condiciones determinadas por el artículo L. 223-11.
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CÓDIGO DE COMERCIO Artículo L241-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con dos años de prisión y 375.000 euros de multa: 1º El que atribuya fraudulentamente a una aportación en especie una valoración superior a su valor real; 2º Los gerentes que efectúen entre los socios el reparto de dividendos ficticios, en ausencia de inventario o por
medio de inventarios fraudulentos; 3º Los gerentes que hubieran presentado a los socios, incluso en ausencia de todo reparto de dividendos, cuentas
anuales que no den una imagen fiel del resultado de las operaciones del ejercicio, de la situación financiera y tras la expiración de este período, del patrimonio, con el fin de ocultar la verdadera situación de la sociedad;
4º Los gerentes que hubieran hecho un uso de los bienes o del crédito de la sociedad de mala fe, con pleno conocimiento de que es contrario al interés de ésta, con fines personales o para favorecer a otra sociedad en la que estuvieran interesados directa o indirectamente;
5º Los gerentes que hubieran hecho mal uso, de mala fe, de los poderes que poseen o de los votos de los que disponen con pleno conocimiento de que es contrario a los intereses de la sociedad, para fines personales o para favorecer a otra sociedad o a otra empresa en la que estuvieran directa o indirectamente interesados.
Artículo L241-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 122 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 9.000 euros: 1º Los gerentes que no realicen el inventario, elaboren las cuentas anuales ni un informe de gestión en cada
ejercicio; 2 y 3º (suprimidos)
Artículo L241-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán castigados con seis meses de prisión 9.000 euros de multa los gerentes que no convocaran la reunión de la junta de los socios dentro de los seis meses siguientes al cierre del ejercicio o, en caso de prórroga, en el plazo determinado por resolución judicial, o que no sometieran a la aprobación de dicha junta o del socio único los documentos previstos en el apartado 1º del artículo L.241-4.
Artículo L241-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán castigados con seis meses de prisión y 4.500 euros de multa, cuando los fondos propios de la sociedad llegaran a ser inferiores a la mitad del capital social a causa de las pérdidas constatadas en los documentos contables, los gerentes que:
1º No consultasen a los socios en los cuatro meses posteriores a la aprobación de las cuentas en que se hubieran detectado estas pérdidas, con el fin de decidir si procedería la disolución anticipada de la sociedad;
2º No depositasen en la secretaría del Tribunal de commerce, ni inscribiesen en el Registro de Comercio y de Sociedades, ni publicasen en un periódico de anuncios legales, la decisión adoptada por los socios.
Artículo L241-9 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 9 5° Diario Oficial de 5 de agosto de 2003)
Las disposiciones de los artículos L. 241-2 a L. 241-6 serán aplicables a toda persona que, directamente o por persona interpuesta, haya ejercido de hecho la gestión de una sociedad de responsabilidad limitada al amparo o en sustitución de su gerente legal.
CAPITULO II De las infracciones que afectan a las sociedades anónimas Artículos L242-1 a
L242-31
Sección I De las infracciones relativas a la constitución Artículos L242-1 a
L242-5
Artículo L242-1 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 9.000 euros los fundadores, el presidente, los administradores o los directores generales de una sociedad anónima que emitieran acciones o partes de acciones o bien antes de la inscripción de dicha sociedad en el Registro de Comercio y de Sociedades, o bien en cualquier momento si la inscripción hubiera sido realizada por fraude, o bien sin haber cumplido con los requisitos formales de constitución.
Se podrá imponer, además, una pena de un año de prisión en el caso de que las acciones o las partes de acciones
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CÓDIGO DE COMERCIO se hubieran emitido sin que las acciones por suscripción dineraria hubieran sido desembolsadas al menos en una cuarta parte o sin que las acciones por aportaciones no dinerarias hubieran sido íntegramente desembolsadas antes de la inscripción de la sociedad en el Registro de Comercio y de Sociedades.
Se aplicarán las penas previstas en el párrafo anterior a las personas citadas en el primer párrafo, por no mantener las acciones dinerarias en la forma nominativa hasta su completa liberación.
Las penas previstas en el presente artículo podrán ser aumentadas al doble, cuando se trate de sociedades anónimas que hagan llamamiento público al ahorro.
Artículo L242-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 122 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con cinco años de prisión y 9.000 euros de multa, el que: 1º, 2º y 3º (suprimidos); 4º Hubiese atribuido fraudulentamente a una aportación en especie una valoración muy superior a su valor real.
Artículo L242-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 122 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán castigados con un año de prisión y 9.000 euros de multa los fundadores, el presidente del consejo de administración, los administradores o los directores generales de una sociedad anónima, así como los titulares o tenedores de acciones que negociaran:
1º Acciones dinerarias que no se hubieran mantenido en forma nominativa hasta su entera liberación. 2º Acciones dinerarias para las cuales no se hubiera efectuado el pago de la cuarta parte; 3º (suprimido).
Artículo L242-4 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 Diario Oficial de 26 de junio de 2004)
Será castigado con las penas previstas en el artículo L. 242-3 el que hubiese realizado o publicado la valoración de las acciones o promesas de acciones citadas en dicho artículo.
Artículo L242-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con seis meses de prisión y 9.000 euros de multa el que aceptara o conservara las funciones de auditor de cuentas a pesar de las incompatibilidades o de las prohibiciones legales.
Sección II De las infracciones relativas a la dirección y a la administración Artículos L242-6 a
L242-8
Artículo L242-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con cinco años de prisión y 375.000 euros de multa: 1º El presidente, los administradores o los directores generales de una sociedad anónima que efectuaran entre los
accionistas el reparto de dividendos ficticios en ausencia de inventario o por medio de inventarios fraudulentos; 2º El presidente, los administradores o los directores generales de una sociedad anónima que publicaran o
presentaran a los accionistas, incluso en ausencia de reparto de dividendos, cuentas anuales que no diesen, para cada ejercicio, una imagen fidedigna del resultado de las operaciones del ejercicio, de la situación financiera y del patrimonio, tras la expiración de este período, con vistas a ocultar la verdadera situación de la sociedad;
3º El presidente, los administradores o los directores generales de una sociedad anónima que hicieran de los bienes o del crédito de la sociedad, de mala fe, un uso contrario al interés de ésta, con pleno conocimiento de ello, para fines personales o para favorecer a otra sociedad o empresa en la que estén interesados directa o indirectamente;
4º El presidente, los administradores o los directores generales de una sociedad anónima que hicieran de mala fe un uso contrario a los intereses de la sociedad de los poderes que poseen o de los votos de los que disponen por su condición, con pleno conocimiento de ello, para fines personales o para favorecer a otra sociedad o empresa en la que ellos estuvieran interesados, directa o indirectamente.
Artículo L242-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 9.000 euros el presidente, los administradores o los directores generales de una sociedad anónima, que no hagan inventario ni elaboren las cuentas anuales ni un informe de gestión para cada ejercicio.
Sección III
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CÓDIGO DE COMERCIO De las infracciones relativas a las juntas de accionistas Artículos L242-9 a
L242-15
Artículo L242-9 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 I Diario Oficial de 2 de agosto de 2003)
Se castigará con dos años de prisión y 9.000 euros de multa: 1º El que impidiera a un accionista participar en una junta de accionistas; 2° Apartado derogado 3º El que se hiciera conceder, garantizar o prometer beneficios por el hecho de votar en un determinado sentido o
por no participar en la votación, así como el que concediera, garantizara o prometiera dichos beneficios.
Artículo L242-10 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán castigados con seis meses de prisión y 9.000 euros de multa el presidente o los administradores de una sociedad anónima, que no convocasen la reunión de la junta general ordinaria en los seis meses posteriores al cierre del ejercicio o, en caso de prórroga, en el plazo concedido por resolución judicial o que no sometieran a la aprobación de dicha junta las cuentas anuales ni el informe de gestión previstos en el artículo L. 232-1.
Artículo L242-15 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 I Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 22 Diario Oficial de 27 de marzo de 2004)
Serán sancionados con multa de 3.750 euros el presidente o los administradores de una sociedad anónima: 1º Párrafo derogado. 2º Que no adjunten a la lista de asistencia los poderes dados a cada mandatario; 3º Que no procedan a la certificación de las decisiones de las junta de accionista por un acta firmada por los
miembros de la mesa que mencione: la fecha y el lugar de la reunión, el modo de convocatoria, el orden del día, la composición de la mesa, el número de acciones que participaron en la votación y el quórum alcanzado, los documentos e informes sometidos a la junta, un resumen de los debates, el texto de las resoluciones sometidas a votación y los resultados de las mismas.
Sección IV De las infracciones relativas a las modificaciones del capital social Artículos L242-17 a
L242-24
Subsección 1 De la ampliación de capital Artículos L242-17 a
L242-21
Artículo L242-17 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
I. - Serán sancionados con multa de 9.000 euros el presidente, los administradores o los directores generales de una sociedad anónima, que emitan, en una ampliación de capital, acciones o partes de acciones:
1º O bien antes de que el depositario expida el certificado, o de que el contrato de garantía previsto en el artículo L.225-145 esté firmado;
2º O bien sin que se hubiesen cumplido regularmente los requisitos formales previos a la ampliación de capital. II. - Podrá ser condenado, además, a un año de prisión, si las acciones o las partes de acciones fueran emitidas sin
que el capital de la sociedad anteriormente suscrito hubiera sido íntegramente desembolsado, o sin que las nuevas acciones por aportaciones no dinerarias hubieran sido íntegramente desembolsadas antes de la inscripción modificativa en el Registro de Comercio y de Sociedades, o incluso, sin que las acciones dinerarias nuevas hubieran sido desembolsadas, en el momento de la suscripción, en al menos un cuarto de su valor nominal y, en su caso, de la totalidad de la prima de emisión.
III. - Se impondrán las penas de multa y de prisión previstas en los puntos I y II a las mismas personas, cuando no mantuvieran las acciones dinerarias en la forma nominativa hasta su completa liberación.
IV. - Las penas previstas en el presente artículo podrán ser aumentadas al doble, cuando se trate de sociedades que hagan llamamiento público al ahorro.
V.- Las disposiciones del presente artículo no serán aplicables ni a las acciones que hubieran sido regularmente emitidas por conversión de obligaciones convertibles permanentemente, o por utilización de los bonos de suscripción, ni a las acciones emitidas en las condiciones previstas en los artículos L.232-18 al 232-20.
Artículo L242-20
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CÓDIGO DE COMERCIO (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigados con dos años de prisión y 18.000 euros de multa el presidente, los administradores o los auditores de cuentas de una sociedad anónima, que dieran o confirmaran indicaciones inexactas en los informes presentados a la junta general convocada para decidir la supresión del derecho preferencial de suscripción de los accionistas.
Artículo L242-21 Las disposiciones de los artículos L.242-2 a L.242-5 relativas a la constitución de sociedades anónimas serán
aplicables en caso de ampliación de capital.
Subsección 2 De la reducción de capital Artículos L242-23 a
L242-24
Artículo L242-23 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 9.000 euros el presidente o los administradores de una sociedad anónima que procedan a una reducción de capital social:
1º Sin respetar la igualdad de los accionistas; 2º Sin proporcionar publicidad a la decisión de reducción de capital en el Registro de Comercio y de Sociedades y
en un periódico habilitado para recibir los anuncios legales.
Artículo L242-24 Serán sancionados con la pena prevista en el artículo L.242-23, el presidente, los administradores o los directores
generales de una sociedad anónima, que no suscribieran, adquirieran, tomaran en prenda, conservaran o vendieran, en nombre de la sociedad, acciones emitidas por ésta infringiendo las disposiciones de los artículos L.225-206 a L.225-215.
Estarán sujetos a la misma pena el presidente, los administradores o los directores generales, que utilizaran acciones compradas por la sociedad, en aplicación del artículo L.225-208, con fines distintos a los previstos en dicho artículo.
Estarán sujetos a la misma pena el presidente, los administradores o los directores generales de una sociedad anónima, que efectuaran, en nombre de ésta, las operaciones prohibidas por el párrafo primero del artículo L.225-216.
Sección VI De las infracciones relativas a la disolución Artículo L242-29
Artículo L242-29 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán castigados con seis meses de prisión y 4.500 euros de multa el presidente o los administradores de una sociedad anónima, cuando los fondos propios de la sociedad llegaran a ser inferiores a la mitad del capital social por causa de pérdidas constatadas en los documentos contables, siempre y cuando:
1º No convocaran la junta general extraordinaria, en los cuatro meses siguientes a la aprobación de las cuentas que hubieran detectado las pérdidas, con el fin de decidir si procedería la disolución anticipada de la sociedad;
2º No depositaran en la secretaría del Tribunal de commerce, ni inscribieran en el Registro de Comercio y de Sociedades ni publicaran en un periódico de anuncios legales el acuerdo adoptado por la junta general.
Sección VII De las infracciones relativas a las sociedades anónimas dotadas de directorio y Artículo L242-30
de consejo de supervisión
Artículo L242-30 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 9 6° Diario Oficial de 5 de agosto de 2003)
Serán aplicables las sanciones previstas por los artículos L.242-6 a L.242-29 y L.246-1 a los presidentes, los directores generales y los administradores de las sociedades anónimas, según sus respectivas atribuciones, a los miembros del directorio y a los miembros del consejo de supervisión de las sociedades anónimas reguladas por las disposiciones de los artículos L.225-57 a L.225-93.
Las disposiciones del artículo L.246-2 serán aplicables además a las sociedades anónimas reguladas por los artículos L.225-57 a L.225-93.
Sección VIII De las infracciones relativas a las sociedades anónimas laborales Artículo L242-31
Artículo L242-31 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 3.750 euros el presidente, los administradores o los directores generales de una
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CÓDIGO DE COMERCIO sociedad anónima laboral que en uso de su facultad para emitir acciones laborales, no mencionaran esta circunstancia por la adición de las palabras "laboral" en todas las actas o en todos los documentos emitidos por la sociedad y destinados a terceros.
CAPITULO III De las infracciones que afectan a las sociedades comanditarias por acciones Artículo L243-1
Artículo L243-1 Los artículos L. 242-1 a L. 242-29 se aplicarán a las sociedades comanditarias por acciones. Las penas previstas para los presidentes, los administradores o los directores generales de las sociedades
anónimas se aplicarán, en lo que concierne a sus atribuciones, a los gerentes de las sociedades comanditarias por acciones.
CAPITULO IV De las infracciones que afectan a las sociedades por acciones simples Artículos L244-1 a
L244-4
Artículo L244-1 Los artículos L. 242-1 a L. 242-6, L. 242-8, L. 242-17 a L. 242-29 se aplicarán a las sociedades por acciones
simples. Las penas previstas para el presidente, los administradores o los directores generales de las sociedades anónimas
serán aplicables al presidente y a los dirigentes de las sociedades por acciones simples. Los artículos L.242-20, L.242-26 y L.242-27 se aplicarán a los auditores de cuentas de las sociedades por acciones
simples.
Artículo L244-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 128 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 9 4° Diario Oficial de 5 de agosto de 2003)
Será castigado con 6 meses de prisión y 7.500 euros de multa el presidente o dirigente de una sociedad por acciones simple que no consultara a los socios en las condiciones previstas en los estatutos, en caso de ampliación, amortización o reducción de capital, de fusión, de escisión, de disolución o de transformación en una sociedad con otra forma jurídica.
Artículo L244-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 18.000 euros los dirigentes de una sociedad por acciones simple que hicieran llamamiento público al ahorro.
Artículo L244-4 Las disposiciones de los artículos L. 244-1, L. 244-2 y L. 244-3 serán aplicables a toda persona que, directamente
o por persona interpuesta, haya ejercido de hecho la dirección de una sociedad por acciones simple bajo el amparo o en sustitución del presidente y de los dirigentes de esta sociedad.
CAPITULO IV bis De las infracciones que afectan a las sociedades europeas Artículo L244-5
Artículo L.244-5 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Los artículos L.242-1 a L.242-30 se aplicarán a las sociedades europeas. Las penas previstas para el presidente, los administradores, los directores generales, los miembros del directorio o
los miembros del consejo de supervisión de las sociedades anónimas serán aplicables al presidente, los administradores, los directores generales, los miembros del directorio o los miembros del consejo de supervisión de las sociedades europeas.
El artículo L.242-20 se aplicará a los auditores de cuentas de las sociedades europeas.
CAPITULO V De las infracciones relativas a los valores mobiliarios emitidos por las sociedades Artículos L245-3 a
por acciones L245-17
Sección I De las infracciones relativas a las acciones Artículos L245-3 a
L245-5
Artículo L245-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
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CÓDIGO DE COMERCIO (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 III Diario Oficial de 26 de junio de 2004)
Serán castigados con seis meses de prisión y 6.000 euros de multa el presidente y los administradores, los directores generales, los miembros del directorio y del consejo de supervisión de una sociedad anónima, los gerentes de una sociedad comanditaria por acciones:
1º Cuya sociedad procediera a la amortización del capital cuando la totalidad de acciones con dividendo preferente sin derecho de voto no hubieran sido íntegramente rescatadas o anuladas;
2º Cuya sociedad, en caso de reducción del capital no motivada por pérdidas y realizada según las condiciones previstas en el artículo L.225-207, no rescatase para su anulación las acciones con dividendo preferente sin derecho de voto antes de las acciones ordinarias.
Artículo L245-4 Serán castigados con las penas previstas en el artículo L.245-3, el presidente y los administradores, los directores
generales, los miembros del directorio y del consejo de supervisión de una sociedad anónima, los gerentes de las sociedades comanditarias por acciones, que posean, directa o indirectamente, en las condiciones previstas por el artículo L.228-17, acciones con dividendo preferente sin derecho de voto de la sociedad que dirigen.
Artículo L245-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con seis meses de prisión y 6.000 euros de multa el liquidador de una sociedad que no respetara las disposiciones del artículo L.237-30.
Sección III De las infracciones relativas a las obligaciones Artículos L245-9 a
L245-15
Artículo L245-9 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 23 Diario Oficial de 27 de marzo de 2004)
Serán sancionados con multa de 9.000 euros el presidente, los administradores, los directores generales o los gerentes de una sociedad por acciones, que emitieran por cuenta de esta sociedad, obligaciones negociables que, en una misma emisión, no confirieran los mismos derechos de crédito para un mismo valor nominal.
Artículo L245-11 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 IV Diario Oficial de 26 de junio de 2004)
Será castigado con dos años de prisión y 9.000 euros de multa el que 1º Impidiera a un obligacionista participar en una junta general de obligacionistas; 2º Se hiciera otorgar, garantizar o prometer beneficios especiales por el hecho de votar en un cierto sentido o por
no participar en la votación, así como el que otorgara, garantizara o prometiera estos beneficios especiales.
Artículo L245-12 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 V Diario Oficial de 26 de junio de 2004)
Serán sancionados con multa de 6.000 euros: 1º El presidente, los administradores, los directores generales, los gerentes, los auditores de cuentas, los miembros
del consejo de supervisión o los empleados de la sociedad deudora o de la sociedad garante de todo o de parte de las obligaciones de la sociedad deudora así como sus ascendientes, descendientes o cónyuges, que representaran obligacionistas en su junta general, o aceptaran ser los representantes del sindicato de obligacionistas;
2º El presidente, los administradores, los directores generales o los gerentes de sociedades poseedores de al menos un 10% del capital de las sociedades deudoras, que tomaran parte en la junta general de los obligacionistas en razón de las obligaciones poseídas por estas sociedades.
Artículo L245-13 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 22 Diario Oficial de 27 de marzo de 2004)
Será sancionado con multa de 4.500 euros el presidente de la junta general de obligacionistas que no hiciera constar los acuerdos de cualquier junta general de obligacionistas en un acta que mencione la fecha y el lugar de la reunión, la forma de convocatoria, el orden del día, la composición de la mesa, el número de obligacionistas participantes en la votación y el quórum alcanzado, los documentos e informes sometidos a la junta, un resumen de los debates, el texto de las resoluciones sometidas a votación y el resultado de las mismas.
Artículo L245-15 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con
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CÓDIGO DE COMERCIO entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 IX Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 VI Diario Oficial de 26 de junio de 2004)
Las infracciones previstas en los artículos L.245-9 y en los artículos L.245-12 y L.245-13 serán castigadas con la pena de cinco años de prisión y con multa de 18.000 euros cuando hubieran sido cometidas fraudulentamente con vistas a privar a los obligacionistas o a algunos de ellos de una parte de los derechos vinculados a su título de crédito.
Sección IV Disposiciones comunes Artículo L245-16
Artículo L245-16 Las disposiciones del presente capítulo referidas al presidente, los administradores, los directores generales y los
gerentes de sociedades por acciones serán aplicables a toda persona que, directamente o por persona interpuesta, haya ejercido, de hecho, la dirección, la administración o la gestión de dichas sociedades bajo el amparo o en sustitución de sus representantes legales.
Sección V De las infracciones relativas a las sociedades anónimas dotadas de directorio y Artículo L245-17
de consejo de supervisión
Artículo L245-17 Serán aplicables las sanciones previstas por los artículos L.245-1 a L.245-15 a los presidentes, los directores
generales y los administradores de las sociedades anónimas, según sus respectivas atribuciones, a los miembros del directorio y a los miembros del consejo de supervisión de las sociedades anónimas reguladas por las disposiciones de los artículos L.225-57 a L.225-93.
Las disposiciones del artículo L.245-16 serán aplicables además a las sociedades anónimas reguladas por los artículos L.225-57 a L.225-93.
CAPITULO VI De las infracciones comunes a las diversas formas de sociedades por acciones Artículo L246-2
Artículo L.246-2 (Ley nº 2003-721 de 1 de agosto de 2003 art. 9 7º Diario Oficial de 5 de agosto de 2003) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
Las disposiciones de los artículos L.242-1 a L.242-29, L.243-1 y L.244-5, referidas al presidente, los administradores o los directores generales de las sociedades anónimas o de las sociedades europeas y a los gerentes de las sociedades comanditarias por acciones, se aplicarán a toda persona que, directamente o por persona interpuesta, haya ejercido de hecho la dirección, la administración o la gestión de dichas sociedades al amparo o en sustitución de sus representantes legales.
CAPITULO VII De las infracciones comunes a las diferentes formas de sociedades mercantiles Artículos L247-1 a
L247-10
Sección I De las infracciones relativas a las filiales, a las participaciones y a las Artículos L247-1 a
sociedades controladas L247-3
Artículo L247-1 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
I. - Serán castigados con dos años de prisión y 9.000 euros de multa los presidentes, los administradores, los directores generales o los gerentes de toda sociedad que:
1º No hicieran mención en el informe anual, presentado a los socios sobre las operaciones del ejercicio, de una adquisición de participación en una sociedad con sede en el territorio de la República francesa que represente más de la veinteava, de la décima, de la quinta, de la tercera parte, de la mitad o de los dos tercios de capital o de los derechos de voto en las juntas generales de esta sociedad o de la toma de control de dicha sociedad;
2º No dieran cuenta, en el mismo informe, de la actividad y de los resultados del conjunto de la sociedad, de las filiales de la sociedad y de las sociedades que controle por sector de actividad;
3º No adjuntaran al balance de la sociedad el cuadro previsto en el artículo L.233-15, que aporta las informaciones que muestran la situación de dichas filiales y participaciones.
II. - Serán sancionados con multa de 9.000 euros los miembros del directorio, del consejo de administración o los gerentes de las sociedades citadas en el artículo L.233-16, sin perjuicio de las excepciones en su aplicación previstas en el artículo L.233-17, que no elaboraran y enviaran las cuentas consolidadas a los accionistas o socios en los plazos previstos por la Ley. El Tribunal podrá además ordenar la inserción de la sentencia, por cuenta del sancionado, en uno o varios periódicos.
III. - Será castigado con las penas mencionadas en el punto I el auditor de cuentas que no incluyera en su informe
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CÓDIGO DE COMERCIO las menciones citadas en el apartado 1º del punto I del presente artículo.
Artículo L.247-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-7 de 3 de enero de 2003 art. 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 art. 46 V Diario Oficial de 2 de agosto de 2003)
I.- Serán castigados con multa de 18.000 euros los presidentes, los administradores, los miembros del directorio, los gerentes o los directores de las personas jurídicas, así como toda persona física, que no cumplieran con las obligaciones relativas a las informaciones a las que estas personas están obligadas en aplicación del artículo L.233-7, en razón de las participaciones que posean.
II.- Serán castigados con la misma pena los presidentes, los administradores, los miembros del directorio, los gerentes o los directores generales de una sociedad, por no efectuar las notificaciones a las que esta sociedad esté obligada en aplicación del artículo L233-12, en razón de las participaciones que posea en la sociedad por acciones que la controla.
III.- Serán castigados con la misma pena los presidentes, los administradores, los miembros del directorio, los gerentes o los directores generales de una sociedad, por el hecho de omitir, en el informe presentado a los accionistas sobre las operaciones del ejercicio, la mención de la identidad de las personas que poseen participaciones significativas en esta sociedad, de las modificaciones producidas en el curso del ejercicio, del nombre de las sociedades controladas y de la parte del capital de la sociedad que estas sociedades posean, en las condiciones previstas por el artículo L.233-13.
IV. - Será castigado con la misma pena al auditor de cuentas por el hecho de omitir, en su informe, las menciones previstas en el apartado III.
V.- Para las sociedades que realicen un llamamiento público al ahorro, se ejercitarán las acciones judiciales tras haber solicitado el dictamen de la Autoridad de Mercados Financieros.
Artículo L247-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 18.000 euros los presidentes, los administradores, los miembros del directorio, los directores generales o los gerentes de sociedades que hayan infringido las disposiciones de los artículos L.233-29 a L.233-31.
Para las sociedades que hagan llamamiento público al ahorro, las acciones judiciales por infracción de las disposiciones del artículo L.233-31 se ejercitarán tras haber solicitado el dictamen de la Comisión de operaciones bursátiles.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Sección II De las infracciones relativas a la publicidad Artículo L247-4
Artículo L247-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será sancionado con multa de 9.000 euros el que no cumpliese con las obligaciones que se derivan del artículo L.225-109 en el plazo y de acuerdo a las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Sección III De las infracciones relativas a la liquidación Artículos L247-5 a
L247-8
Artículo L247-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con dos años de prisión y 9.000 euros de multa el que infringiera la prohibición de ejercer las funciones de liquidador.
Toda persona castigada por la aplicación del párrafo anterior no podrá ser empleada, sea en el concepto que fuere, por la sociedad en la que haya ejercido las funciones prohibidas. En caso de infracción a esta prohibición, la persona condenada y su empresario, si este último hubiese tenido conocimiento de ello, serán castigados con las penas previstas en dicho párrafo.
Artículo L247-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
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CÓDIGO DE COMERCIO Será castigado con seis meses de prisión y 9.000 euros de multa el liquidador de una sociedad que: 1º No publicase en el plazo de un mes a partir de su nombramiento, el acta que lo hubiera nombrado liquidador en
un periódico de anuncios legales en el departamento del domicilio social, ni presentara en el Registro de Comercio y de Sociedades las resoluciones que hubieran dictado la disolución;
2º No convocara a los socios al final de la liquidación, para decidir sobre la cuenta definitiva, sobre el finiquito de su gestión, el fin de su mandato ni hiciera constar el cierre de la liquidación y no depositara, en el caso previsto en el artículo L.237-10, sus cuentas en la secretaría del Tribunal ni solicitara judicialmente la aprobación de las mismas.
Artículo L247-7 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 122 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 I Diario Oficial de 2 de agosto de 2003)
Será castigado con las penas previstas en el artículo L.247-6, en el caso de que la liquidación de una sociedad se produjera de acuerdo a las disposiciones de los artículos L.237-14 a L.237-31 el liquidador que:
1º No presentara dentro de los seis meses siguientes a su nombramiento, un informe sobre la situación activa y pasiva, sobre la continuación de las operaciones de liquidación, ni solicitara las autorizaciones necesarias para concluirlas;
2º No realizara las cuentas anuales a la vista del inventario y un informe escrito en el que diera cuenta de las operaciones de liquidación a lo largo del ejercicio transcurrido, dentro de los tres meses siguientes al cierre de cada ejercicio;
3º (suprimido); 4° y 5°: Párrafos derogados. 6º No depositara en una cuenta abierta en un establecimiento de crédito a nombre de la sociedad en liquidación, en
el plazo de quince días contados a partir de la decisión del reparto, las cantidades correspondientes a los repartos entre los socios y los acreedores, o no depositara en la Caja de Depósitos y Consignaciones, en el plazo de un año contado a partir del cierre de la liquidación, las cantidades adjudicadas a los acreedores o a los socios que no hubieran sido reclamadas por ellos.
Artículo L247-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con cinco años de prisión y 9.000 euros de multa el liquidador de mala fe que: 1º Hiciera un uso de los bienes o del crédito de la sociedad en liquidación, a sabiendas del perjuicio que causa a
los intereses de ésta, con fines personales o para favorecer a otra sociedad o empresa en la que él estuviera directa o indirectamente interesado;
2º Cediera todo o parte del activo de la sociedad en liquidación infringiendo las disposiciones de los artículos L.237-6 y L.237-7.
Sección IV De las infracciones relativas a las sociedades anónimas dotadas de directorio y Artículo L247-9
de consejo de supervisión
Artículo L247-9 Las sanciones previstas por los artículos L.247-1 a L.247-4 para los presidentes, los directores generales y los
administradores de sociedades anónimas, serán aplicables, según sus respectivas atribuciones, a los miembros del directorio y a los miembros del consejo de supervisión de las sociedades anónimas reguladas por las disposiciones de los artículos L.225-57 a L.225-93.
Sección V De las infracciones relativas a las sociedades de capital variables Artículo L247-10
Artículo L247-10 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será sancionado con multa de 3.750 euros el presidente, el gerente o, de modo general, el dirigente de una sociedad que hiciera uso de la facultad prevista en el artículo L.231-1 y que no mencionara esta circunstancia añadiendo las palabras "de capital variable" en todas las actas y documentos emitidos por la sociedad y destinados a terceros.
CAPITULO VIII Disposiciones que afectan a los directores generales delegados de las sociedades Artículo L248-1
anónimas
Artículo L.248-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 107 5° Diario Oficial de 16 de mayo de 2001) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
Las disposiciones del presente título referidas a los directores generales de las sociedades anónimas o de las sociedades europeas se aplicarán, según sus respectivas atribuciones, a los directores generales delegados.
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CÓDIGO DE COMERCIO TITULO V DE LAS AGRUPACIONES DE INTERÉS ECONÓMICO Artículos L251-1 a
L252-13
CAPITULO I De la agrupación de interés económico del derecho francés Artículos L251-1 a
L251-23
Artículo L251-1 Dos o varias personas físicas o jurídicas podrán constituir entre ellas una agrupación de interés económico con una
duración determinada. La finalidad de la agrupación será facilitar o desarrollar la actividad económica de sus miembros y mejorar o
incrementar los resultados de esta actividad. No será la consecución de beneficios en sí misma. Su actividad deberá estar ligada a la actividad económica de sus miembros y sólo podrá tener un carácter auxiliar
con relación a ésta.
Artículo L251-2 Las personas que ejerzan una profesión liberal sometida a un estatuto legislativo o reglamentario o cuyo título esté
protegido podrán constituir una agrupación de interés económico o participar en ella.
Artículo L251-3 La agrupación de interés económico podrá constituirse sin capital. Los derechos de sus miembros no podrán ser representados por títulos negociables. Cualquier cláusula en
contrario se tendrá por no puesta.
Artículo L251-4 La agrupación de interés económico gozará de personalidad jurídica y de plena capacidad a partir de la fecha de
su inscripción en el Registro de Comercio y de Sociedades, sin que esta inscripción conlleve la presunción del carácter mercantil de la agrupación. La agrupación de interés económico cuyo objeto sea mercantil podrá hacer de manera habitual y como actividad principal todo tipo de actos de comercio por cuenta propia. Podrá ser titular de un contrato de arrendamiento comercial.
Las personas que hayan actuado en nombre de una agrupación de interés económico en fase de formación, antes de que haya adquirido personalidad jurídica, serán responsables, solidaria e indefinidamente, de los actos así realizados, a menos que el grupo, tras haber sido válidamente constituido e inscrito, retome los compromisos suscritos. Se considerará entonces que estos compromisos han sido suscritos desde el inicio por la agrupación.
Artículo L251-5 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
La nulidad de la agrupación de interés económico así como de los actos o acuerdos de ésta sólo podrá producirse por infracción a las disposiciones imperativas del presente capítulo, o de una de las causas generales de nulidad de los contratos.
La acción de nulidad se extinguirá cuando la causa de nulidad haya dejado de existir al día en que el Tribunal resuelva sobre el fondo de la cuestión en primera instancia, salvo que esta nulidad esté fundada en la ilicitud del objeto de la agrupación.
Los artículos 1844-12 a 1844-17 del Código Civil serán aplicables a las agrupaciones de interés económico.
Artículo L251-6 Los miembros de la agrupación económica responderán de las deudas de ésta con su propio patrimonio. Sin
embargo, un nuevo miembro podrá, si el contrato lo permitiese, ser exonerado de las deudas contraídas con anterioridad a su entrada en la agrupación. Deberá publicarse la resolución de exoneración. Serán solidarios, salvo pacto en contrario, con el tercero cocontratante.
Los acreedores de la agrupación no podrán demandar judicialmente el pago de las deudas de un miembro si no lo hubiesen requerido antes infructuosamente a la agrupación por medio de un documento extrajudicial.
Artículo L251-7 La agrupación de interés económico podrá emitir obligaciones, en las condiciones generales de emisión de esos
títulos por las sociedades, si ella misma estuviera exclusivamente compuesta de sociedades que cumplen las condiciones previstas por el presente libro en cuanto a la emisión de obligaciones.
La agrupación de interés económico podrá igualmente emitir obligaciones en las condiciones generales de emisión de estos títulos previstas por la Ley Nº 85-698 de 11 de julio de 1985, que autoriza la emisión de valores mobiliarios por algunas asociaciones, siempre que la propia agrupación esté compuesta exclusivamente de asociaciones que satisfagan las condiciones previstas por esta ley para la emisión de obligaciones.
Artículo L251-8 I. - El contrato de agrupación de interés económico fijará la organización de la agrupación no obstante las
disposiciones del presente capítulo. Se plasmará por escrito y se publicará según las condiciones determinadas por decreto adoptado en Conseil d'Etat.
II. - El contrato contendrá, en todo caso, las siguientes indicaciones:
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CÓDIGO DE COMERCIO 1º La denominación de la agrupación; 2º Los apellidos, razón social o denominación social, la forma jurídica, la dirección del domicilio o de la sede social
y, si procede, el número de identificación de cada uno de los miembros de la agrupación, así como, según el caso, la ciudad en la que se sitúa la secretaría en la que está inscrita o la ciudad en la que se encuentra el Registro Central de Artesanos en el que está inscrito;
3º La duración prevista para la agrupación; 4º El objeto de la agrupación; 5º La dirección de la sede de la agrupación. III. - Cualquier modificación del contrato será realizada y publicada en las mismas condiciones que las fijadas para
el propio contrato. No podrán oponerse frente a terceros hasta que no se hayan publicado.
Artículo L251-9 La agrupación, a lo largo de su existencia, podrá aceptar nuevos miembros en las condiciones determinadas por el
contrato de constitución. Cualquier miembro de la agrupación podrá retirarse en las condiciones previstas en el contrato, siempre y cuando
haya cumplido con sus obligaciones.
Artículo L251-10 La junta de miembros de la agrupación estará habilitada para tomar cualquier decisión, incluida la disolución
anticipada o la prórroga, en las condiciones determinadas en el contrato. Éste podrá prever que todos los acuerdos o algunos de ellos sean tomados en las condiciones de quórum y de mayoría que él mismo determine. En caso de que no se especifique nada en el contrato, las decisiones se tomarán por unanimidad.
El contrato también podrá adjudicar a cada miembro un número de votos diferente al adjudicado a otros. A falta de mención expresa, cada miembro dispondrá de un voto.
La junta se reunirá obligatoriamente a petición de una cuarta parte al menos de los miembros de la agrupación.
Artículo L251-11 La agrupación será administrada por una o varias personas. Se podrá nombrar administrador de la agrupación a
una persona jurídica salvo que ella designe un representante permanente, que incurrirá en las mismas responsabilidades civil y penal que si fuese administrador en su propio nombre. El o los administradores del grupo, y el representante permanente de la persona jurídica nombrada administrador serán responsables, individual o solidariamente según el caso, con respecto a la agrupación o a terceros, de las infracciones a las disposiciones legislativas y reglamentarias aplicables a las agrupaciones, de la contravención de los estatutos de la agrupación, así como de sus propias faltas cometidas en el ejercicio de la gestión. Si varios administradores hubiesen cooperado en los mismos hechos, el Tribunal determinará la parte contributiva de cada uno en la reparación del daño. Salvo esta condición, el contrato de agrupación, o, en su defecto, la junta de miembros organizará libremente la administración de la agrupación y nombrará a los administradores determinando sus atribuciones, sus poderes y las condiciones de revocación.
En sus relaciones con terceros, un administrador comprometerá a la agrupación por todo acto que realice dentro del objeto de ésta. No será oponible frente a terceros toda limitación de poderes otorgados
Artículo L251-12 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 116 Diario Oficial de 2 de agosto de 2003)
El control de la gestión, que deberá ser confiado a personas físicas, y el control de las cuentas serán ejercidos en las condiciones previstas por el contrato de constitución de la agrupación.
Sin embargo, cuando una agrupación emita obligaciones en las condiciones previstas en el artículo L.251-7, el control de la gestión deberá ser ejercido por una o varias personas físicas designadas por la junta. La duración de sus funciones y sus competencias se fijarán por contrato.
El control de las cuentas en las agrupaciones citadas en el párrafo anterior y en las agrupaciones que cuenten con cien empleados o más al cierre de un ejercicio deberá ser ejercido por uno o varios auditores de cuentas elegidos de entre la lista citada en el artículo L.822-1 y nombrados por la junta para un período de seis ejercicios. Las disposiciones del presente Código relativas a las incompatibilidades, las competencias, las funciones, las obligaciones, la responsabilidad, la recusación, la revocación, la remuneración del auditor de cuentas de las sociedades anónimas así como las sanciones previstas por el artículo L.242-27 serán aplicables a los auditores de las agrupaciones de interés económico, sin perjuicio del cumplimiento de sus normas propias.
En los casos previstos en los dos párrafos anteriores, las disposiciones de los artículos L.242-25, L.242-26 y L.242-28, L.245-8 a L.245-17 serán aplicables a los dirigentes de la agrupación, a las personas físicas dirigentes de las sociedades miembros o representantes permanentes de las personas jurídicas dirigentes de estas sociedades.
Artículo L251-13 En las agrupaciones que respondan a uno de los criterios definidos en el artículo L.232-2, los administradores
estarán obligados a elaborar una valoración de la situación del activo realizable y disponible, sin contar los valores de explotación, y del pasivo exigible, una cuenta de pérdidas y ganancias, un cuadro de financiación al mismo tiempo que el balance anual y un plan de financiación previsible.
Un decreto adoptado en Conseil d'Etat determinará la periodicidad, los plazos y las condiciones de la elaboración de estos documentos.
Artículo L251-14
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CÓDIGO DE COMERCIO Los documentos citados en el artículo L.251-13 serán analizados en los informes escritos sobre la evolución de la
agrupación realizados por los administradores. Los documentos e informes serán presentados al auditor de cuentas y al comité de empresa.
En caso de inobservancia de las disposiciones del artículo L.251-13 y del párrafo anterior, o si las informaciones dadas en los informes citados en el párrafo anterior suscitasen observaciones por su parte, el auditor de cuentas deberá señalarlo en un informe a los administradores o en el informe anual. Podrá solicitar que su informe sea dirigido a los miembros de la agrupación o que se dé a conocer en la junta de éstos. Este informe será comunicado al comité de empresa.
Artículo L251-15 Cuando el auditor de cuentas detecte, en el ejercicio de su misión, hechos que puedan comprometer la continuidad
de la explotación de la agrupación, informará de ello a los administradores, en las condiciones determinadas por un decreto adoptado en Conseil d'Etat. Éstos estarán obligados a responderle en el plazo de quince días. La respuesta será comunicada al comité de empresa. El auditor de cuentas informará de todo ello al presidente del Tribunal.
En caso de inobservancia de estas disposiciones, o si se comprobara que a pesar de los acuerdos tomados la continuidad de la explotación sigue en peligro, el auditor de cuentas realizará un informe especial e solicitará por escrito a los administradores el incluir la deliberación sobre los hechos detectados en la siguiente junta general. Este informe será presentado al comité de empresa.
Si tras la reunión de la junta general, el auditor de cuentas constatara que las decisiones tomadas no permitirán asegurar la continuidad de la explotación, informará de sus gestiones al presidente del Tribunal y le presentará los resultados de las mismas.
Artículo L251-16 El comité de empresa o, en su defecto, los delegados del personal ejercerán en las agrupaciones de interés
económico, las atribuciones previstas en los artículos L.422-4 y L.432-5 del Código de Trabajo. Los administradores comunicarán al auditor de cuentas las peticiones de explicaciones formuladas por el comité de
empresa o los delegados del personal, los informes que les sean dirigidos y las respuestas dadas en aplicación de los artículos L.422-4 y L.432-5 del Código de Trabajo.
Artículo L251-17 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Las actas y documentos emitidos por la agrupación y destinados a terceros, especialmente las cartas, facturas, anuncios y publicaciones diversas, deberán indicar legiblemente la denominación de la agrupación seguida de las palabras: "Agrupación de interés económico" o de las siglas correspondientes: "GIE".
Toda infracción a las disposiciones del párrafo anterior se sancionará con multa de 3.750 euros.
Artículo L251-18 Cualquier sociedad o asociación cuyo objeto corresponda a la definición de la agrupación de interés económico
podrá ser transformada en tal agrupación sin dar lugar a la disolución ni a la creación de una nueva persona jurídica. Una agrupación de interés económico podrá ser transformada en sociedad colectiva sin dar lugar a la disolución ni
a la creación de una nueva persona jurídica.
Artículo L251-19 La agrupación de interés económico será disuelta: 1º Al llegar a su término; 2º Por realización o extinción de su objeto; 3º Por decisión de sus miembros en las condiciones previstas en el artículo L.251-10 4º Por decisión judicial, basada en motivos justificados; 5º Por fallecimiento de una persona física o por disolución de una persona jurídica, miembro de la agrupación,
salvo estipulación en contrario del contrato.
Artículo L251-20 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Si uno de los miembros se viera afectado por una incapacidad, una situación de quiebra personal o una prohibición de dirigir, gestionar, administrar o controlar una empresa comercial, cualquiera que fuere su forma, o una persona jurídica de derecho privado no comerciante, la agrupación será disuelta, a menos que el contrato previera su continuidad o que los demás miembros la decidieran por unanimidad.
Artículo L251-21 La disolución de la agrupación de interés económico conllevará su liquidación. La personalidad de la agrupación
subsistirá para las necesidades de la liquidación.
Artículo L251-22 La liquidación se llevará a cabo de acuerdo con las disposiciones del contrato. En su defecto, la junta de miembros
de la agrupación nombrará a un liquidador o, si la junta no hubiese podido proceder a esta designación, se hará por resolución judicial.
Tras el pago de las deudas, el excedente del activo será repartido entre los miembros en las condiciones previstas por el contrato. En su defecto, el reparto se hará a partes iguales.
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CÓDIGO DE COMERCIO Artículo L251-23 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El apelativo de "agrupación de interés económico" y las siglas "GIE" sólo serán utilizados por las agrupaciones sujetas a las disposiciones del presente capítulo. El empleo ilícito de este apelativo, de estas siglas o de cualquier expresión que pueda prestarse a confusión con ellos, se castigará con pena de un año de prisión y una multa de 6.000 euros.
El Tribunal podrá ordenar, además, la publicación de la resolución, por cuenta del condenado, en tres periódicos como máximo y su publicación mediante edictos, en las condiciones previstas en el artículo 131-35 del Código Penal.
CAPITULO II De la agrupación europea de interés económico Artículos L252-1 a
L252-13
Artículo L252-1 Las agrupaciones europeas de interés económico inscritas en Francia en el Registro de Comercio y de Sociedades
tendrán personalidad jurídica desde su inscripción.
Artículo L252-2 Las agrupaciones europeas de interés económico tendrán un carácter civil o mercantil según su objeto. La
inscripción no conllevará la presunción de que la agrupación sea mercantil.
Artículo L252-3 Los derechos de los miembros de la agrupación no podrán ser representados por títulos negociables.
Artículo L252-4 Las decisiones colegiadas de la agrupación europea de interés económico serán tomadas por la junta de los
miembros de la agrupación. Sin embargo, los estatutos podrán estipular que estas decisiones, o algunas de ellas, puedan ser tomadas en forma de consulta escrita.
Artículo L252-5 El o los gerentes de una agrupación europea de interés económico serán responsables, individual o solidariamente
según el caso, con respecto a la agrupación o frente a terceros, de las infracciones a las disposiciones legislativas o reglamentarias aplicables a la agrupación, de la inobservancia de los estatutos, o bien de sus faltas en la gestión. Si varios gerentes hubieran cooperado en los mismos hechos, el Tribunal determinará la parte que corresponda a cada uno en la reparación del daño.
Artículo L252-6 Una persona jurídica podrá ser designada gerente de una agrupación europea de interés económico. Desde el
momento de su nombramiento, estará obligada a designar un representante permanente que incurrirá en las mismas responsabilidades civil y penal que si fuese gerente en su propio nombre, sin perjuicio de la responsabilidad solidaria de la persona jurídica a la que representa.
Artículo L252-7 Las disposiciones del capítulo anterior aplicables a las agrupaciones de interés económico del derecho francés
relativas a las obligaciones contables, al control de las cuentas y a la liquidación, serán aplicables a las agrupaciones europeas de interés económico.
Artículo L252-8 Cualquier sociedad o asociación, cualquier agrupación de interés económico podrá ser transformada en una
agrupación europea de interés económico sin dar lugar a la disolución ni a la creación de una nueva persona jurídica. Una agrupación europea de interés económico podrá ser transformada en una agrupación de interés económico de
derecho francés o una sociedad colectiva, sin dar lugar a la disolución ni a la creación de una nueva persona jurídica.
Artículo L252-9 La nulidad de la agrupación europea de interés económico así como la de los actos o acuerdos de ésta sólo podrá
provenir de la infracción a las disposiciones imperativas contenidas en el reglamento nº 2137-85 de 25 de julio de 1985 del Consejo de las Comunidades Europeas o a las disposiciones del presente capítulo o de una de las causas generales de nulidad de los contratos.
La acción de nulidad se extinguirá cuando la causa de nulidad haya dejado de existir al día en que el Tribunal resuelva sobre el fondo de la cuestión en primera instancia, salvo que esta nulidad esté fundada en la ilicitud del objeto de la agrupación.
Se aplicarán los artículos 1844-12 al 1844-17 del Código Civil.
Artículo L252-10 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Las agrupaciones europeas de interés económico no podrán, bajo pena de nulidad de los contratos firmados o de los títulos emitidos, hacer llamamiento público al ahorro.
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CÓDIGO DE COMERCIO Será castigado con dos años de prisión y 300.000 euros de multa el gerente de una agrupación europea de interés
económico o el representante permanente de una persona jurídica gerente de una agrupación europea de interés económico que hiciera llamamiento público al ahorro.
Artículo L252-11 La utilización en las relaciones con terceros de cualquier acta, carta, nota y documento similar que no lleve las
menciones prescritas por el artículo 25 del reglamento nº 2137-85 de 25 de julio de 1985 del Consejo de las Comunidades Europeas será sancionada con las penas previstas en el artículo L.251-17.
Artículo L252-12 El apelativo "agrupación europea de interés económico" y las siglas "GEIE" sólo podrán ser utilizados por las
agrupaciones sujetas a las disposiciones del reglamento nº 2137-85 de 25 de julio de 1985 del Consejo de las Comunidades Europeas. El empleo ilícito de este apelativo o de estas siglas o de cualquier expresión que pueda prestarse a confusión con ellas, será castigado con las penas previstas en el artículo L.251-23.
Artículo L252-13 Los artículos L.242-26 y L.242-27 serán aplicables a los auditores de cuentas de las agrupaciones europeas de
interés económico. Los artículos L.242-25 y L.242-28 serán aplicables a los dirigentes de la agrupación y a las personas físicas que dirijan sociedades miembros de ella o que sean representantes permanentes de las personas jurídicas que dirijan estas sociedades.
LIBRO III DE ALGUNAS FORMAS DE VENTAS Y DE LAS CLÁUSULAS DE Artículos L310-1 a EXCLUSIVIDAD L330-3
TITULO I DE LAS LIQUIDACIONES, DE LAS VENTAS AMBULANTES, DE LAS REBAJAS Y DE Artículos L310-1 a
LAS VENTAS EN FÁBRICA L310-7
Artículo L310-1 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 26, Artículo 29 Diario Oficial de 27 de marzo de 2004)
Serán consideradas ventas en liquidación las ventas acompañadas o precedidas de publicidad y anunciadas como orientadas a la venta acelerada de la totalidad o de una parte de las mercancías de un establecimiento comercial mediante una reducción del precio, como consecuencia de una decisión, sea cual fuera la causa, de cese, suspensión estacional o cambio de actividad, o de modificación sustancial de las condiciones de explotación.
Las liquidaciones estarán sometidas a previa declaración ante la autoridad administrativa competente del lugar de la liquidación. Dicha declaración incluirá la causa y duración de liquidación, no pudiendo esta última exceder de dos meses. La misma irá acompañada de un inventario de las mercancías a liquidar. Cuando el acontecimiento que hubiera motivado la liquidación no se produzca dentro del plazo máximo de seis meses siguiente a la declaración, el declarante deberá informar de ello a la autoridad administrativa competente.
Durante el período de liquidación, estará prohibido poner a la venta mercancías diferentes a las que aparecen en el inventario que sirviera de base a la presentación de la declaración previa.
Artículo L310-3 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 29 Diario Oficial de 27 de marzo de 2004)
I.- Serán consideradas ventas en rebaja las ventas acompañadas o precedidas de publicidad y anunciadas como orientadas a la venta acelerada de mercancías en stock mediante una reducción de precio.
Estas ventas sólo podrán ser realizadas a lo largo de dos períodos por cada año civil con una duración máxima de seis semanas cuyas fechas serán determinadas en cada departamento por la autoridad administrativa competente, en las condiciones definidas por el decreto previsto en el artículo L.310-7 y sólo podrán incluir mercancías ofrecidas a la venta y pagadas al menos un mes antes de la fecha prevista para el inicio del período de rebajas.
II. - En cualquier publicidad, rótulo, denominación social o nombre comercial, el empleo de la palabra: Rebajas o de sus derivados estará prohibido para designar cualquier actividad, denominación social o nombre comercial, rótulo o calidad, que no se corresponda con una operación de rebajas tal y como se define en el punto I anterior.
Artículo L310-4 La denominación de tienda o almacén de fábrica sólo podrá ser utilizada por los productores que vendan
directamente al público la parte de su producción no comercializada en el circuito de distribución o que sean objeto de retorno. Estas ventas directas se refieren exclusivamente a las producciones de la temporada anterior de comercialización, justificando así una venta a precio reducido.
Artículo L310-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 28 Diario Oficial de 27 de marzo de 2004)
Será sancionado con multa de 15.000 euros el que: 1º Procediera a una liquidación sin la declaración previa mencionada en el artículo L.310-1 o infringiendo las
condiciones contempladas en dicho artículo;
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CÓDIGO DE COMERCIO 2º Procediera a una venta ambulante sin la autorización prevista por el artículo L.310-2 o infringiendo dicha
autorización; 3º Realizara rebajas fuera de los períodos previstos en el punto I del artículo L.310-3 o con mercancías poseídas
desde menos de un mes antes de la fecha considerada como inicio de rebajas; 4º Utilizara la palabra: rebajas o sus derivados en los casos en los que esta utilización no se refiera a una
operación de rebajas definida en el punto I del artículo L.310-3; 5º Utilizara la denominación tienda o almacén de fábrica por inobservancia de las disposiciones del artículo
L.310-4. 6º Organizara un evento comercial sin la declaración prevista en el artículo L. 740-2 o no respetara las condiciones
de realización del evento declarado. Las personas físicas se expondrán también, como pena accesoria, a la publicación de la resolución judicial
mediante edictos o difusión de la misma en las condiciones previstas en el apartado 9º del artículo 131-35 del Código Penal.
Artículo L310-6 Las personas jurídicas podrán ser declaradas penalmente responsables, en las condiciones previstas en el artículo
121-2 del Código Penal, de las infracciones definidas en el artículo L.310-5. Las penas a las que se expondrá son: 1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º La publicación mediante edictos o la difusión de la resolución judicial en las condiciones previstas en el apartado
9º del artículo 131-39 del Código Penal.
Artículo L310-7 Las condiciones de aplicación de las disposiciones del presente título serán determinadas por decreto adoptado en
Conseil d'Etat, y en particular los sectores en los que los anuncios de reducción de precios para los consumidores, sea cual fuera su soporte, no puedan expresarse en porcentaje o por la mención de los precios anteriores, y la duración o las condiciones de esta prohibición.
TITULO II DE LAS VENTAS EN SUBASTA PÚBLICA Artículos L321-4 a
L320-2
Artículo L320-1 Nadie podrá hacer de la subasta pública un procedimiento habitual en el ejercicio de su actividad comercial.
Artículo L320-2 Serán excepciones a la prohibición prevista en el artículo L.320-1 las ventas prescritas por la Ley o realizadas por
autoridades judiciales, así como las ventas tras fallecimiento, liquidación judicial o cese de actividad de un comercio o en cualquier otro caso de necesidad cuya apreciación será sometida al Tribunal de commerce.
Se exceptuarán igualmente las ventas por pregón público de comestibles y objetos de poco valor, conocidos en el comercio francés con el nombre "menue mercerie".
CAPITULO I De las ventas voluntarias de bienes muebles en subasta pública Artículos L321-4 a
L321-38
Sección I Disposiciones generales Artículos L321-4 a
L321-3
Artículo L321-1 Las ventas voluntarias de bienes muebles en subasta pública sólo podrán realizarse con artículos de ocasión o con
bienes nuevos que procedan directamente de la fabricación del vendedor si éste no es ni comerciante ni artesano. Estos bienes serán vendidos al por menor o por lotes.
Serán considerados como muebles por el presente capítulo los bienes muebles susceptibles de desplazamiento. Serán considerados como artículos de ocasión los bienes que, en cualquier estado de su producción o de su
distribución, hayan entrado en posesión de una persona para su uso personal, a consecuencia de cualquier acto a título oneroso o gratuito.
Artículo L321-2 Las ventas voluntarias de bienes muebles en subasta pública serán, salvo los casos previstos en el artículo
L.321-36, organizadas y realizadas por sociedades mercantiles reguladas por el libro II, y cuya actividad estará regida por las disposiciones del presente capítulo.
Estas ventas podrán igualmente ser organizadas y realizadas con carácter accesorio por los notarios y los agentes judiciales. Esta actividad será ejercida en el marco de su profesión y siguiendo las normas que les sean aplicables. Sólo podrán recibir el mandato por el propietario de los bienes.
Artículo L321-3
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CÓDIGO DE COMERCIO El hecho de ofrecer, actuando como mandatario del propietario, un bien en subasta pública a distancia por vía
electrónica para adjudicarlo al mejor postor de los que pujen constituirá una venta en subasta pública a efectos del presente capítulo.
Las operaciones de corretaje en subasta realizadas a distancia por vía electrónica, que se caracteriza por la ausencia de adjudicación y de intervención de un tercero en la realización de la venta de un bien entre las partes, no constituyen una venta en subasta pública.
Se someterán igualmente a las disposiciones del presente capítulo, con exclusión de los artículos L.321-7 y L.321-16, las operaciones de corretaje en subasta correspondientes a bienes culturales realizadas a distancia por vía electrónica.
Subsección 1 Las sociedades de ventas voluntarias de bienes muebles en subasta Artículos L321-4 a
pública L321-17
Artículo L321-4 El objeto de las sociedades de ventas voluntarias de bienes muebles en subasta pública se limitará a la valoración
de los bienes muebles, a la organización y a la realización de las ventas voluntarias de bienes muebles en subasta pública en las condiciones determinadas por el presente capítulo.
Las sociedades de ventas voluntarias de bienes muebles en subasta pública actuarán como mandatarios del propietario del bien. No estarán habilitados para comprar o vender directa o indirectamente por su cuenta bienes muebles propuestos para la venta en subasta pública. Esta prohibición se aplicará también a los dirigentes, socios y empleados de la sociedad. Sin embargo, éstos podrán vender de forma excepcional, con la mediación de la sociedad, bienes que les pertenezcan a condición de que se haga mención de ello en la publicidad.
Artículo L321-5 Las sociedades de ventas voluntarias de bienes muebles en subasta pública sólo podrán ejercer su actividad tras
haber obtenido la autorización del Consejo de ventas voluntarias de bienes muebles en subasta pública establecidas en el artículo L. 321-18.
Deberán presentar garantías suficientes en lo referente a su organización, a sus medios técnicos y financieros, a la honorabilidad y la experiencia de sus dirigentes así como las disposiciones propias para asegurar a sus clientes la seguridad de las operaciones.
Artículo L321-6 Las sociedades de ventas voluntarias de bienes muebles en subasta pública deberán, sea cual fuere su forma,
nombrar a un auditor de cuentas y a un auditor de cuentas suplente. Éstas deberán presentar justificante de: 1º La existencia en un establecimiento de crédito de una cuenta destinada exclusivamente a recibir los fondos
poseídos por cuenta ajena; 2º Un seguro que cubra su responsabilidad profesional; 3º Un seguro o un aval que garantice la representación de los fondos mencionados en el apartado 1º.
Artículo L321-7 Las sociedades de ventas voluntarias de bienes muebles en subasta pública darán al Consejo de ventas
voluntarias de bienes muebles en subasta pública todo tipo de precisiones útiles sobre los locales en donde se efectuarán de manera habitual las exposiciones de los bienes muebles propuestos para la venta así como sobre las operaciones de ventas en subasta pública. Cuando la exposición o la venta se realice en otro local, o a distancia por vía electrónica, la sociedad avisará de ello previamente al Consejo.
Artículo L321-8 Las sociedades de ventas voluntarias de bienes muebles en subasta pública deberán incluir entre sus dirigentes,
sus socios o sus empleados al menos a una persona que tenga la cualificación requerida para dirigir una venta o ser titular de un título, de un diploma o de una habilitación reconocidos como equivalentes en la materia, en las condiciones definidas por decreto en el Conseil d'Etat.
Artículo L321-9 Las personas mencionadas en el artículo L.321-8 serán las únicas habilitadas para dirigir la venta, para designar al
último postor como adjudicatario o para declarar el bien no adjudicado y para levantar acta de esta venta. El acta se realizará un día más tarde, como máximo, del día posterior a la venta. Mencionará los apellidos y la
dirección del nuevo propietario declarados por el adjudicatario, la identidad del vendedor, la designación del objeto así como su precio constatado públicamente.
En el plazo de quince días contados a partir de la venta, el vendedor podrá, por mediación de la sociedad, vender de mutuo acuerdo los bienes declarados no adjudicados al finalizar la subasta. Esta transacción no será precedida de ninguna exposición ni publicidad. No podrá ser hecha a un precio inferior a la última puja realizada antes de retirar el bien de la venta o, en ausencia de pujas, del importe del precio de salida. El último postor será previamente informado si fuera conocido. Será objeto de un acta adjunta al acta de la venta.
Artículo L321-10 Las sociedades de ventas voluntarias de bienes muebles en subasta pública llevarán un registro diario, en
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CÓDIGO DE COMERCIO aplicación de los artículos 321-7 y 321-8 del Código Penal así como un registro en el que inscribirán sus actas.
Artículo L321-11 Cada venta voluntaria de bienes muebles en subasta pública deberá ser precedida de publicidad en la forma
adecuada. El precio de reserva será el precio mínimo acordado con el vendedor, por debajo del cual el bien no podrá ser
vendido. Si el bien hubiera sido valorado, ese precio no podrá ser fijado por un importe superior a la valoración más baja que figure en la publicidad, o anunciada públicamente por la persona que proceda a la venta y consignada en acta.
Artículo L321-12 Una sociedad de ventas voluntarias de bienes muebles en subasta pública podrá garantizar al vendedor un precio
de adjudicación mínimo del bien ofrecido para la venta, que será abonado, en caso de adjudicación del bien. Si el bien ha sido valorado, este precio no podrá ser fijado en un importe superior a la valoración mencionada en el artículo L.321-11.
Esta facultad solamente será ofrecida a la sociedad que haya realizado con una compañía de seguros o un establecimiento de crédito un contrato en cuyos términos se especifique que esta compañía o este establecimiento se comprometerá, en caso de imposibilidad de la sociedad, a reembolsar la diferencia entre el importe garantizado y el precio de adjudicación si el importe garantizado no hubiera sido alcanzado en la venta por subasta.
Artículo L321-13 Una sociedad de ventas voluntarias de bienes muebles en subasta pública podrá conceder al vendedor un
adelanto sobre el precio de adjudicación del bien propuesto para la venta.
Artículo L321-14 Las sociedades de ventas voluntarias de bienes muebles en subasta pública serán responsables con respecto al
vendedor y al comprador del pago del precio y de la entrega de los bienes cuya venta hayan efectuado. Cualquier cláusula que prevea descartar o limitar su responsabilidad se tendrá por no puesta.
El bien adjudicado sólo podrá ser entregado al comprador cuando la sociedad haya percibido el importe del precio o cuando se le hayan dado garantías sobre el pago del precio por parte del comprador.
Si el adjudicatario no efectuase al pago, tras habérsele requerido infructuosamente, el bien será puesto de nuevo a la venta, a petición del vendedor, en segunda subasta por incumplimiento del adjudicatario anterior; si el vendedor no formulase esta petición en el plazo de un mes contado a partir de la fecha de adjudicación, la venta se considerará realizada de pleno derecho, sin perjuicio del pago de la indemnización por los daños y perjuicios ocasionados por el adjudicatario que se halla en mora.
Los fondos poseídos por cuenta del vendedor deberán serle abonados a éste como máximo en los dos meses siguientes a la fecha de la venta.
Artículo L321-15 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con dos años de prisión y 375.000 euros de multa el que procediera o hiciera proceder a una o varias subastas voluntarias de bienes muebles en subasta pública;
1º Si la sociedad que organizase la venta no dispusiese de la autorización prevista en el artículo L.321-5 o bien porque no fuese titular de ésta, o porque su autorización hubiese sido suspendida o revocada de modo temporal o definitivo;
2º Si el ciudadano de un Estado miembro de la Comunidad europea o de un Estado parte en el Acuerdo sobre el Espacio económico europeo que organiza la venta no hubiese procedido a la declaración prevista en el artículo L.321-24;
3º O si la persona que dirige la venta no cumpliese las condiciones previstas en el artículo L.321-8 o estuviese afectada por una prohibición a título temporal o definitivo para dirigir tales ventas.
II. - Las personas físicas culpables de infringir una de las disposiciones previstas en el presente artículo se expondrán igualmente a las siguientes penas complementarias:
1º La prohibición, por un período de cinco años como máximo, de ejercer una función pública o de ejercer la actividad profesional o social en el ejercicio o en ocasión del ejercicio de la cual se haya cometido la infracción;
2º La publicación mediante edictos o la difusión de la resolución judicial en las condiciones previstas por el artículo 131-35 del Código Penal;
3º La confiscación de las cantidades u objetos irregularmente recibidos por el autor de la infracción, exceptuando los objetos susceptibles de restitución.
III. - Las personas jurídicas podrán ser declaradas responsables penalmente, en las condiciones previstas por el artículo 121-2 del Código Penal, de las infracciones determinadas en el presente artículo. Las penas a las que se expondrá son:
1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º Por un período de cinco años como máximo, las penas mencionadas en los apartados 1º, 2º, 3º, 4º, 8º y 9º del
artículo 131-39 del Código Penal. La prohibición mencionada en el apartado 2º del mismo artículo se refiere a la actividad en el ejercicio o en ocasión del ejercicio de la cual se hubiera cometido la infracción.
Artículo L321-16 Las disposiciones del artículo L.720-5 no serán aplicables a los locales utilizados por las sociedades mencionadas
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CÓDIGO DE COMERCIO en el artículo L.321-2.
Artículo L321-17 (Ley nº 2004-130 de 11 de febrero de 2004 Artículo 57 Diario Oficial de 12 de febrero de 2004)
Las sociedades de ventas voluntarias de bienes muebles en subasta pública y los oficiales públicos o ministeriales competentes para proceder a las ventas judiciales y voluntarias, así como los peritos encargados de la tasación de los bienes, serán los responsables en el transcurso y con ocasión de las ventas de bienes muebles en subasta pública según las normas aplicables a estas ventas.
Quedan prohibidas y se tendrán por no puestas las cláusulas que pretendan descartar o limitar su responsabilidad. Las acciones de resarcimiento por responsabilidad civil emprendidas con ocasión de las tasaciones y de las ventas
voluntarias y judiciales de bienes muebles en subasta pública prescribirán a los diez años, contados a partir de dicha adjudicación o de dicha tasación.
Subsección 2 El Consejo de ventas voluntarias de bienes muebles en subasta pública
Sección II Libre prestación de servicios de la actividad de ventas voluntarias de bienes Artículos L321-24 a
muebles en subasta pública por los ciudadanos de los Estados miembros de la Comunidad L321-28 Europea y de los Estados que forman
Artículo L321-24 Los ciudadanos de un Estado miembro de la Comunidad europea o de un Estado parte en el Acuerdo sobre el
Espacio Económico Europeo que ejerzan de forma permanente la actividad de ventas voluntarias de bienes muebles en subasta pública en uno de estos Estados que no sea Francia podrán realizar, en Francia, esta actividad profesional de modo ocasional. Esta actividad sólo podrá ser practicada después de haber realizado la declaración en el Consejo de ventas de bienes muebles en subasta pública. La declaración será realizada al menos tres meses antes de la fecha de la primera venta realizada en Francia. El Consejo será informado de las siguientes ventas al menos un mes antes de su realización. Podrá oponerse, por motivo justificado, a la celebración de alguna de esas ventas.
Artículo L321-25 Las personas que ejerzan la actividad de ventas voluntarias de bienes muebles en subasta pública de forma
permanente en su país de origen harán uso, en Francia, de su condición, expresada en una de las lenguas del Estado en el que estén establecidas, acompañada de una traducción al francés, así como, si procede, del nombre del organismo profesional del que dependen.
Artículo L321-26 Para poder ejercer la actividad de ventas voluntarias de bienes muebles en subasta pública de modo ocasional, el
ciudadano de un Estado miembro de la Comunidad Europea o de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo deberá presentar la justificación ante el Consejo de ventas voluntarias de bienes muebles en subasta pública de que es titular de uno de los diplomas, títulos o habilitaciones previstas en el artículo L.321-8 o, si se trata de una persona jurídica, la prueba de que incluye entre sus dirigentes, sus socios o sus empleados a una persona que cumple esta condición.
Deberá igualmente aportar la prueba al Consejo de la existencia de un establecimiento en su país de origen y de garantías de moralidad profesional y personal.
Artículo L321-27 Los ciudadanos de un Estado miembro de la Comunidad Europea o de un Estado parte en el Acuerdo sobre el
Espacio Económico Europeo estarán obligados a respetar las normas que regulen la actividad de ventas voluntarias de bienes muebles en subasta pública previstas en el presente capítulo sin perjuicio del cumplimiento de las obligaciones impuestas por el Estado en el que estén establecidos siempre que ambas normas no sean contradictorias.
Artículo L321-28 En caso de incumplimiento de las disposiciones del presente capítulo, los ciudadanos de los Estados miembros de
la Comunidad Europea y de los Estados partes en el Acuerdo sobre el Espacio Económico Europeo estarán sujeto a las disposiciones del artículo L.321-22. Sin embargo, las sanciones de prohibición temporal del ejercicio de la actividad o de revocación de la autorización serán sustituidas por las sanciones de prohibición temporal o definitiva para ejercer en Francia la actividad de ventas voluntarias de bienes muebles en subasta pública.
En caso de sanción, el Consejo de ventas voluntarias de bienes muebles en subasta pública comunicará dicha sanción a la autoridad competente del Estado de origen.
Sección III De los peritos autorizados por el Consejo de ventas voluntarias de bienes Artículos L321-18 a
muebles en subasta pública L321-35-1
Artículo L321-18 Se creará un Consejo de ventas voluntarias de bienes muebles en subasta pública, dotado de personalidad
jurídica.
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CÓDIGO DE COMERCIO El Consejo de ventas voluntarias de bienes muebles en subasta pública, se encargará: 1º De autorizar a las sociedades de ventas voluntarias de bienes muebles en subasta pública así como a los
peritos citados en la sección 3; 2º De registrar las declaraciones de los ciudadanos de los Estados mencionados en la sección 2; 3º De sancionar, en las condiciones previstas en el artículo L.321-22 el incumplimiento de las leyes, los pagos y las
obligaciones profesionales aplicables a las sociedades de ventas voluntarias de bienes muebles en subasta pública, a los peritos autorizados y a los ciudadanos de un Estado miembro de la Comunidad europea o de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo que ejerza de modo ocasional la actividad de ventas voluntarias de bienes muebles en subasta pública en Francia.
La decisión del Consejo de ventas voluntarias de bienes muebles en subasta pública que deniegue o retire la autorización a una sociedad o a un perito o el registro de la declaración de un ciudadano de un Estado mencionado en la sección 2 deberá estar debidamente motivada.
Artículo L321-19 El Consejo de ventas voluntarias de bienes muebles en subasta pública y la Cámara Nacional de peritos tasadores
judiciales asegurarán conjuntamente la organización de la formación profesional para la obtención de la cualificación requerida para poder dirigir tales ventas.
Artículo L321-20 El Consejo de ventas voluntarias de bienes muebles en subasta pública informará a la Cámara Nacional y a las
cámaras de peritos tasadores judiciales, así como a las cámaras departamentales de agentes judiciales y notarios, de los hechos cometidos en la circunscripción de éstas que hayan llegado a su conocimiento y que contravendrían la reglamentación de las ventas voluntarias de bienes muebles en subasta pública.
Las Cámaras Departamentales de agentes judiciales y de notarios, la Cámara Nacional y las Cámaras de peritos tasadores judiciales procederán a dar la misma información con respecto al Consejo de ventas voluntarias de bienes muebles en subasta pública.
Artículo L321-21 El Consejo de ventas voluntarias de bienes muebles en subasta pública se compondrá de once miembros
designados por el Ministro de Justicia por un período de cuatro años: 1º Seis serán personas cualificadas; 2º Cinco serán representantes de los profesionales, de los cuales uno de ellos será un perito. El mandato de los miembros del Consejo sólo será renovable por una sola vez. El presidente será elegido por los miembros en el seno del consejo. Se nombrará el mismo número de suplentes y en las mismas formas. Un magistrado de la fiscalía será designado para ejercer las funciones de Comisario del Gobierno ante el Consejo
de ventas voluntarias de bienes muebles en subasta pública. La financiación del consejo quedará asegurada por el pago de las cotizaciones profesionales abonadas por las
sociedades de ventas voluntarias de bienes muebles en subasta pública y por los peritos autorizados. El importe de estas cotizaciones será determinado por el Consejo en función de la actividad de los obligados a este pago.
Artículo L321-22 Todo incumplimiento de las leyes, reglamentos u obligaciones profesionales aplicables a las sociedades de ventas
voluntarias de bienes muebles en subasta pública, a los peritos autorizados y a las personas habilitadas para dirigir las ventas en virtud del párrafo primero del artículo L.321-9 podrá dar lugar a sanción disciplinaria. La prescripción será de tres años contados a partir de la fecha de la infracción.
El Consejo decidirá por decisión debidamente justificada. No se procederá a ninguna sanción sin que los motivos hayan sido comunicados al representante legal de la sociedad, al perito o a la persona habilitada para dirigir las ventas, cuando éste haya estado en condiciones de tener conocimiento del informe y haya sido escuchado o debidamente citado para ello.
Las sanciones aplicables a las sociedades de ventas voluntarias de bienes muebles en subasta pública, a los peritos autorizados y a las personas habilitadas para dirigir las ventas, considerando la gravedad de los hechos imputados, serán: el apercibimiento, la reprensión, la prohibición del ejercicio de todo o parte de la actividad de modo temporal por una duración que no podrá exceder de tres años y la revocación de la autorización de la sociedad o del perito o la prohibición definitiva de dirigir las ventas.
En caso de urgencia y como medida cautelar, el presidente del Consejo podrá acordar la suspensión provisional del ejercicio de todo o parte de la actividad de una sociedad de ventas voluntarias de bienes muebles en subasta pública, de un perito autorizado o de una persona habilitada para dirigir las ventas, por un período que no podrá exceder de un mes, salvo prórroga decidida por el Consejo que no podrá exceder de tres meses. El Consejo será informado de tal suspensión inmediatamente.
Artículo L321-23 Las decisiones del Consejo de ventas voluntarias de bienes muebles en subasta pública y de su presidente podrán
ser objeto de un recurso ante la Cour d'appel de París. El recurso podrá ser llevado ante el primer presidente de dicha cour, quien resolverá en procedimiento sumario.
Artículo L321-29 Los peritos a los que podrán acudir las sociedades de ventas voluntarias de bienes muebles en subasta pública,
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CÓDIGO DE COMERCIO los agentes judiciales, los notarios y los peritos tasadores judiciales podrán ser autorizados por el Consejo de ventas voluntarias de bienes muebles en subasta pública.
El Consejo elaborará una lista de peritos autorizados en cada especialidad.
Artículo L321-30 Todo perito autorizado deberá estar inscrito en una de las especialidades cuya nomenclatura será determinada por
el Consejo de ventas voluntarias de bienes muebles en subasta pública. Nadie podrá estar en más de dos especialidades, a menos que se trate de especialidades afines a las anteriores
cuyo número no podrá ser superior a dos.
Artículo L321-31 (Ley nº 2004-130 de 11 de febrero de 2004 Artículo 58 1° Diario Oficial de 12 de febrero de 2004)
Todo perito, esté o no autorizado, estará obligado a contratar un seguro que garantice su responsabilidad profesional.
Será solidariamente responsable con el organizador de la venta en lo que se refiera a su actividad.
Artículo L321-32 Toda persona inscrita en la lista prevista en el artículo L.321-29 sólo podrá hacer constar su condición bajo la
denominación de perito autorizado por el Consejo de ventas voluntarias de bienes muebles en subasta pública. Esta denominación deberá ir acompañada de la indicación de su o de sus especialidades.
Artículo L321-33 El que, no figurando en la lista prevista en el artículo L.321-29, utilizase la denominación mencionada en este
artículo, o una denominación similar susceptible de provocar confusión en el público, será castigado con las penas previstas en el artículo 433-17 del Código Penal.
Artículo L321-34 El Consejo de ventas voluntarias de bienes muebles en subasta pública podrá decidir la revocación de la
autorización a un perito en caso de incapacidad legal, de falta profesional grave, de condena por hechos contrarios al honor, a la moral o a las buenas costumbres.
Artículo L321-35 (Ley nº 2004-130 de 11 de febrero de 2004 Artículo 58 2° y 3º Diario Oficial de 12 de febrero de 2004)
Un perito, esté autorizado o no, no podrá valorar ni poner en venta un bien que le pertenezca ni adquirir por su cuenta un bien, directa o indirectamente, en las ventas por subasta pública en las que él participe profesionalmente.
Sin embargo, el experto podrá vender de forma excepcional, con la mediación de una persona mencionada en el artículo L. 321-2, un bien que le pertenezca a condición de que se haga mención de ello en la publicidad.
Artículo L321-35-1 (Introducido por la Ley nº 2004-130 de 11 de febrero de 2004 Artículo 58 4° Diario Oficial de 12 de febrero de 2004)
Cuando recurra a un perito no autorizado, el organizador de la venta velará por que dicho perito cumpla las obligaciones previstas en el apartado primero del artículo L. 321-31 y en el artículo L. 321-35.
Sección IV Disposiciones diversas Artículos L321-36 a
L321-38
Artículo L321-36 Las ventas en subasta pública de bienes muebles pertenecientes al Estado que se definen en el artículo L.68 del
Código del Patrimonio del Estado, así como todas las ventas de bienes muebles efectuadas de forma demanial en las condiciones previstas en el artículo L.69 del citado Código, se harán igualmente según las condiciones previstas en estos artículos. Sin embargo, como excepción a lo dispuesto en los artículos L.68, L.69 y L.70 de dicho Código, estas ventas podrán ser realizadas con publicidad y competencia, por cuenta del Estado, por las sociedades de ventas voluntarias de bienes muebles en subasta pública en las condiciones previstas por el presente capítulo.
Las ventas de bienes muebles en subasta pública que deban someterse al Código de Aduanas serán realizadas según las condiciones previstas en el mismo Código. Sin embargo, como excepción a las disposiciones del Código de Aduanas, estas ventas podrán igualmente ser efectuadas con publicidad y competencia, por cuenta del Estado, por las sociedades de ventas voluntarias de bienes muebles en subasta pública, en las condiciones previstas en el presente capítulo.
Artículo L321-37 Los Tribunales civiles serán los únicos competentes para conocer de acciones judiciales relativas a las actividades
de venta en las que tome parte una sociedad de ventas voluntarias de bienes muebles en subasta pública constituidas en conformidad al presente capítulo. Cualquier cláusula en contrario se tendrá por no puesta. Sin embargo, los socios podrán acordar, en los estatutos, someter a arbitraje los litigios surgidos entre ellos o entre sociedades de ventas voluntarias en razón de su actividad.
Artículo L321-38 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Un decreto adoptado en Conseil d'Etat fijará las condiciones de aplicación del presente capítulo y, en particular, el
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CÓDIGO DE COMERCIO régimen de garantías previsto en el artículo L.321-6, las condiciones de información del Consejo de ventas voluntarias de bienes muebles en subasta pública cuando la exposición o la venta no se desarrollara en los locales previstos en la primera frase del artículo L.321-7, debiendo figurar en la publicidad prevista en el artículo L.321-11 las condiciones de organización y de funcionamiento del Consejo de ventas en subasta pública y las condiciones de autorización de los peritos por parte del Consejo.
CAPITULO II De las otras ventas en subasta pública Artículos L322-1 a
L322-16
Artículo L322-1 Las ventas públicas y al por menor de mercancías que se efectúan tras un fallecimiento o por autoridad judicial
serán realizadas de acuerdo a las formas prescritas y por los oficiales ministeriales encargados de la venta forzosa del mobiliario en conformidad con los artículos 53 de la Ley nº 91-650 de 9 de julio de 1991 relativa a la reforma de los procedimientos civiles de ejecución y el 945 del Código de Proceso Civil.
Artículo L322-2 Las ventas de mercancías tras la liquidación judicial serán realizadas según los artículos L.622-18 y siguientes. El mobiliario del deudor sólo podrá ser vendido en subasta con la intervención de los peritos tasadores judiciales,
notarios o agentes judiciales, en conformidad con las leyes y reglamentos que determinarán las atribuciones de estos funcionarios.
Artículo L322-3 Las ventas públicas y en subasta tras el cese de actividad de un comercio, o en los otros casos de necesidad
previstos por el artículo L.320-2 no podrán realizarse en tanto no hayan sido previamente autorizados por el Tribunal de commerce, a instancia del comerciante propietario a la que adjuntará una relación detallada de las mercancías.
El Tribunal hará constar, en su resolución, el hecho que haya dado lugar a la venta; indicará el lugar del distrito en el que se realizará la venta; podrá incluso ordenar que las adjudicaciones sólo se realicen por lotes de los que él determinará la cuantía.
Decidirá quien de los corredores o los peritos tasadores judiciales o cualquier otro funcionario público estará encargado de la recepción de las pujas.
Sólo se podrá conceder la autorización por causa de necesidad a un comerciante sedentario, que tenga desde hace más de un año su domicilio real en el distrito en el que haya de realizarse la venta.
Se colocarán carteles en la puerta del local en el que se realice la venta en donde se detallará la sentencia que la ha autorizado.
Artículo L322-4 Las ventas públicas en subasta de mercancías al por mayor serán efectuadas por corredores de mercancías
jurados en los casos, en las condiciones y siguiendo las formalidades determinadas por decreto adoptado en Conseil d'Etat.
Artículo L322-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Cualquier infracción a las disposiciones de los artículos L.320-1 y L.320-2 y L.322-1 a L.322-7 será castigada con la confiscación de las mercancías ofrecidas a la venta y con una multa de 3.750 euros que será impuesta solidariamente tanto contra el vendedor como contra el funcionario público que le haya ayudado, sin perjuicio de la indemnización por daños y perjuicios a que hubiere lugar.
Será considerada como cómplice y sujeta a las mismas penas aquella persona cuya intervención tenga como finalidad eludir la prohibición formulada en el artículo L.320-1.
Artículo L322-6 Se castigará con las penas previstas en el artículo L.322-5 a los vendedores y funcionarios públicos que incluyan,
en las ventas hechas por una autoridad judicial, por causa de embargo, de fallecimiento, de liquidación judicial, de cese de actividad de un comercio o en otros casos de necesidad previstos en el artículo L.320-2, mercancías nuevas que no formasen parte del fondo de comercio o mobiliario puesto en venta.
Artículo L322-7 En los lugares en los que no haya corredores de comercios, los peritos tasadores judiciales, los notarios y agentes
judiciales realizarán las ventas anteriormente citadas, según las atribuciones respectivas que le son otorgadas por las leyes y los reglamentos.
Estarán sometidos, para dichas ventas, a las formas, condiciones y tarifas impuestas a los corredores.
Artículo L322-8 (Disposición nº 2004-279 de 25 de marzo de 2004 Artículo 3 Diario Oficial de 27 de marzo de 2004)
Los corredores jurados podrán proceder, sin la autorización del Tribunal de Comercio, a la venta en subasta voluntaria, al por mayor, de mercancías. No obstante, se requerirá una autorización para mercancías tales como el material de transporte, las armas, municiones y sus accesorios, los objetos de arte, de colección o antigüedades así como los demás bienes de ocasión, cuya lista será establecida por orden del Ministro de Justicia y del Ministro de
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CÓDIGO DE COMERCIO Comercio.
NOTA: Resolución 2004-279 de 25 de marzo de 2004 art. 8 y 9: Lo dispuesto en el artículo L322-8 del Código de Comercio será de aplicación en Nueva Caledonia y en las islas Wallis y Futuna.
Artículo L322-9 Los corredores establecidos en una ciudad en donde tenga su sede un Tribunal de commerce estarán capacitados
para proceder a las ventas reguladas por el presente capítulo en cualquier localidad que dependa de la jurisdicción de este Tribunal en la que no existan corredores.
Se sujetarán a las disposiciones previstas por los artículos 871 y 873 del Código General de Impuestos.
Artículo L322-10 El derecho de corretaje para las ventas que sean objeto de los artículos L.322-8 al 322-13 será fijado, para cada
localidad, por el Ministro de Agricultura, el Ministro competente en materia de Comercio o el Ministro de Obras Públicas, previo dictamen de la Cámara de Comercio y de Industria y del Tribunal de commerce. En ningún caso podrá exceder de la cantidad establecida para las ventas de mutuo acuerdo para el mismo tipo de mercancías.
Artículo L322-11 Los litigios relativos a las ventas realizadas en aplicación del artículo L.322-8 serán sometidos al Tribunal de
commerce.
Artículo L322-12 Se procederá a las ventas previstas en el artículo L.322-8 en locales especialmente autorizados para ello, previo
dictamen de la Cámara de Comercio e Industria y del Tribunal de commerce.
Artículo L322-13 Un decreto adoptado en Conseil d'Etat determinará las medidas necesarias para la ejecución de los artículos
L.322-11 y L.322-12, y en particular los requisitos formales y las condiciones de las autorizaciones previstas por el artículo L.322-12.
Artículo L322-14 Los Tribunaux de commerce podrán autorizar la venta en subasta, al por mayor, tras un fallecimiento o el cese de
actividad del comercio y en cualquier otro caso de necesidad que le sea sometido para su evaluación, de las mercancías de todo tipo y procedencia.
La autorización será concedida previa solicitud. Se adjuntará a ésta una relación detallada de las mercancías propuestas para la venta.
El Tribunal hará constar en su resolución el hecho que hubiera provocado la venta.
Artículo L322-15 Las ventas autorizadas en virtud del artículo anterior, así como todas las que sean autorizadas u ordenadas por la
justicia consular en los diversos casos previstos por el presente Código serán realizadas con intervención de los corredores.
Sin embargo, seguirá siendo competencia del Tribunal, o del Juez que autoriza u ordena la venta, el nombramiento de otro tipo de funcionario público para proceder a ésta. En ese caso, el funcionario, sea cual fuere, estará sujeto a las disposiciones que regulan los actos realizados por los corredores, en lo que se refiere a los requisitos formales, a los precios y a su responsabilidad.
Artículo L322-16 Las disposiciones de los artículos L.322-11 a L.322-13 serán aplicables a las ventas citadas en los artículos
L.322-14 y L.322-15.
TITULO III DE LAS CLÁUSULAS DE EXCLUSIVIDAD Artículos L330-1 a
L330-3
Artículo L330-1 El período de validez de cualquier cláusula de exclusividad estará limitado a un máximo de diez años. Por ésta el
comprador, cesionario o arrendatario de bienes muebles se comprometerá con respecto a su vendedor, cedente o arrendador, a no hacer uso de objetos similares o complementarios que provengan de otro proveedor.
Artículo L330-2 Cuando el contrato que contenga la cláusula de exclusividad mencionada en el artículo L.330-1 esté seguido de
nuevos compromisos análogos, entre las mismas partes, relacionados con el mismo tipo de bienes, las cláusulas de exclusividad contenidas en estos nuevos acuerdos finalizarán en la misma fecha que figure en el primer contrato.
Artículo L330-3 Toda persona que ponga a disposición de otra un nombre comercial, una marca o una firma comercial, exigiendo
un compromiso de exclusividad o de casi exclusividad para el ejercicio de su actividad, estará obligada, antes de firmar cualquier contrato suscrito en interés común de ambas partes, a suministrar a la otra parte un documento que dé informaciones exactas y fidedignas que le permitan comprometerse con conocimiento de causa.
Este documento, cuyo contenido será establecido por decreto, precisará la antigüedad y la experiencia de la
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CÓDIGO DE COMERCIO empresa, el estado y las perspectivas de desarrollo del mercado en cuestión, la importancia de la red de explotadores, la duración, las condiciones de renovación, de rescisión y de cesión del contrato así como el campo de las exclusividades.
Cuando se exija el pago de una cantidad antes de la firma del contrato mencionado anteriormente, en especial para obtener la reserva de una zona, las prestaciones aseguradas en contrapartida de esta cantidad deberán ser precisadas por escrito, así como las obligaciones recíprocas de las partes en caso de retracto.
El documento previsto en primer párrafo, así como el proyecto de contrato serán comunicados como mínimo veinte días antes de la firma del contrato o, en su caso, antes del pago de la cantidad mencionada en el párrafo anterior.
LIBRO IV DE LA LIBERTA DE PRECIOS Y DE LA COMPETENCIA Artículos L410-1 a
L470-8 TITULO I DISPOSICIONES GENERALES Artículos L410-1 a
L410-2
Artículo L410-1 Las normas previstas en el presente libro se aplicarán a cualquier actividad de producción, de distribución y de
servicios, incluidas las que sean competencia del sector público, en particular en el marco de los contratos de delegación de servicio público.
Artículo L410-2 Salvo en los casos en los que la Ley disponga otra cosa, los precios de los bienes, productos y servicios regulados
con anterioridad al 1 de enero de 1987 por la Disposición nº 45-1483 de 30 de junio de 1945 serán libremente fijados por el juego de la libre competencia.
Sin embargo, un decreto adoptado en Conseil d'Etat podrá regular los precios tras haber consultado al Consejo de la Competencia en los sectores o las zonas en los que la competencia de precios esté limitada por situaciones de monopolio o dificultades perdurables de suministro, o bien en razón de disposiciones legislativas o reglamentarias.
Las disposiciones de los dos primeros párrafos no serán obstáculo para lo que disponga el Gobierno por decreto adoptado en Conseil d'Etat contra las subidas y bajadas excesivas de precios, medidas temporales motivadas por una situación de crisis, circunstancias excepcionales, calamidad pública o una situación manifiestamente anormal del mercado en un determinado sector. El decreto será promulgado tras consultar al Consejo Nacional de Consumo. Éste determinará su período de vigencia que no podrá exceder de seis meses.
TITULO II DE LAS PRÁCTICAS CONTRARIAS A LA LIBRE COMPETENCIA Artículos L420-1 a
L420-7
Artículo L420-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 52 Diario Oficial de 16 de mayo de 2001)
Se prohibirán las acciones concertadas, los convenios, acuerdos expresos o tácitos, o coaliciones que tengan por finalidad o puedan tener por efecto impedir, restringir o falsear el juego de la libre competencia, aunque sea por mediación directa o indirecta de una sociedad del grupo implantada fuera de Francia, en particular cuando estén orientados a:
1º Limitar el acceso al mercado o el libre ejercicio de la competencia por parte de otras empresas; 2º Obstaculizar la determinación de precios por el libre mercado, favoreciendo artificialmente su subida o su
bajada; 3º Limitar o controlar la producción, las salidas a mercado, las inversiones o el progreso técnico; 4º Repartir los mercados o las fuentes de suministro.
Artículo L420-3 Será nulo todo compromiso, contrato o cláusula contractual que incluya alguna de las prácticas prohibidas por los
artículos L.420-1 y L.420-2.
Artículo L420-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 48 Diario Oficial de 16 de mayo de 2001)
I.- No se someterán a las disposiciones de los artículos L.420-1 y L.420-2 las prácticas: 1º Que resulten de la aplicación de un texto legislativo o de un texto reglamentario tomado para su aplicación; 2º Aquellas cuyos autores puedan probar que tienen por efecto asegurar un progreso económico, incluida la
creación o mantenimiento de puestos de trabajo y que reservan a los usuarios una parte ponderada del beneficio que resulte de ellas, sin dar a las empresas interesadas la posibilidad de eliminar la competencia para una parte sustancial de los productos en cuestión. Estas prácticas, que pueden consistir en organizar bajo una misma marca o firma, los volúmenes, la calidad de producción y la política comercial, en la que se puede incluir el acuerdo de un precio de venta común para los productos agrícolas o de origen agrícola, sólo deberán imponer restricciones a la libre competencia en la medida en que sean indispensables para alcanzar este objetivo de progreso.
II. - Algunas clases de acuerdos o algunos acuerdos, sobre todo cuando tienen por objeto mejorar la gestión de las
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CÓDIGO DE COMERCIO pequeñas y medianas empresas, podrán ser considerados como conformes a estas condiciones por decreto adoptado previo dictamen del Consejo de la Competencia.
Artículo L420-6 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 67 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigada con cuatro años de prisión y 75.000 euros toda persona física que tomase parte fraudulentamente, de forma personal y determinante, en la concepción, organización o realización de las prácticas citadas en los artículos L.420-1 y L.420-2.
El Tribunal podrá ordenar que su resolución sea publicada, íntegramente o por extractos, en los periódicos que él designe, por cuenta de la persona sancionada.
Los actos que interrumpan la prescripción ante el Consejo de la Competencia en aplicación del artículo L. 462-7 interrumpirán también la prescripción de la acción pública.
Artículo L420-7 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 82 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 1 Diario Oficial de 5 de noviembre de 2004)
Sin perjuicio de los artículos L. 420-6, L. 462-8, L. 463-1 à L. 463-4, L. 463-6, L. 463-7 y L. 464-1 a L. 464-8, los litigios relativos a la aplicación de las normas previstas en los artículos L. 420-1 a L. 420-5, en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea y en aquéllos en las que dichas disposiciones están contempladas, serán competencia, según el caso y sin perjuicio de las normas de atribución de competencias entre los diferentes órdenes jurisdiccionales, de los tribunaux de grande instance o de los tribunaux de commerce cuya sede y circunscripción serán determinadas por decreto adoptado en Conseil d'Etat. Dicho decreto determinará igualmente la sede y la circunscripción de las Cours d'appel que serán competentes para conocer de las resoluciones dictadas por dichos órganos jurisdiccionales.
TITULO III DE LA CONCENTRACIÓN ECONÓMICA Artículos L430-1 a
L430-10
Artículo L430-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 86 Diario Oficial de 16 de mayo de 2001)
I.- Se realizará una operación de concentración: 1º Cuando se fusionen dos o más empresas anteriormente independientes; 2º Cuando una o varias personas, que posean ya el control de al menos una empresa o cuando una o varias
empresas adquieran el control del conjunto o de parte de una o varias empresas distintas, directa o indirectamente, por la adquisición de participación en el capital o por la compra de elementos activos, por contrato o por cualquier otro medio.
II. - La creación de una empresa común que cumpla de modo estable todas las funciones de una entidad económica autónoma constituirá una concentración a efectos del presente artículo.
III. - Con la finalidad de la aplicación del presente título, el control derivará de los derechos, contratos u otros medios que confieran la posibilidad de ejercer una influencia determinante en la actividad de una empresa, por sí solos o conjuntamente y considerando las circunstancias de hecho o de derecho y en especial:
- de los derechos de propiedad o de goce en todo o parte de los bienes de una empresa; - de los derechos o de los contratos que confieran una influencia determinante en la composición, los acuerdos o
las decisiones de los órganos de una empresa
Artículo L430-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 87 Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-660 de 21 de julio de 2003 Artículo 59 Diario Oficial de 22 de julio de 2003) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 25 Diario Oficial de 27 de marzo de 2004)
Estará sujeta a las disposiciones de los artículos L.430-3 y siguientes del presente título toda operación de concentración, en el sentido del artículo L.430-1, cuando se cumplan los tres requisitos siguientes:
- La cifra de negocios total mundial, sin incluir impuestos, del conjunto de empresas o grupos de las personas físicas y jurídicas que forman parte de la concentración es superior a 150 millones de euros;
- La cifra de negocios total, sin incluir impuestos, realizada en Francia para al menos dos de las empresas o grupos de personas físicas o jurídicas implicadas, es superior a 50 millones de euros;
- La operación no entra en el ámbito de aplicación del Reglamento comunitario nº 4064/89 del Consejo de 21 de diciembre de 1989 relativo al control de las operaciones de concentración entre empresas.
Sin embargo, una operación de concentración que entre en el marco del reglamento anteriormente citado y que haya sido objeto de una remisión total o parcial a la autoridad nacional estará sujeta a las disposiciones del presente título dentro de los límites de esta remisión.
En los departamentos de Ultramar, cuando una operación de concentración en el sentido del artículo L. 430-1 tenga por efecto, bien aumentar la superficie de venta definida en el artículo L. 720-4 más allá del límite fijado por dicho artículo, bien aumentar la cuota de mercado, expresada en cifra de negocios, de las empresas sujetas a los dispuesto en el mismo artículo, en más del 25 %, el Ministro podrá someterla al procedimiento previsto en los artículos L. 430-3 y
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CÓDIGO DE COMERCIO siguientes dentro de un plazo de tres meses. No obstante, no se aplicará a dichas operaciones lo dispuesto en el artículo L. 430-4.
Artículo L430-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 88 Diario Oficial de 16 de mayo de 2001) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 83 II Diario Oficial de 10 de diciembre de 2004)
La operación de concentración deberá ser notificada al Ministro de Economía antes de su realización. La notificación podrá tener lugar cuando la o las partes afectadas estén en condiciones de presentar un proyecto lo suficientemente acabado como para permitir la instrucción del expediente, y especialmente cuando éstas hayan llegado a un acuerdo de principio, firmado una carta de intención, o a partir del momento del anuncio de la oferta pública. La remisión ante el Ministro de Economía de la totalidad o parte de un caso de concentración notificado a la Comisión Europea tendrá el valor de notificación a efectos del presente artículo.
La obligación de notificación afectará a las personas físicas o jurídicas que adquieran el control de todo o parte de una empresa o a todas las partes afectadas en el caso de una fusión o de la creación de una empresa común, las cuales deberán entonces realizar conjuntamente la notificación. El contenido del informe de notificación será establecido por decreto.
La recepción de la notificación de una operación, o la remisión total o parcial de una operación de dimensión comunitaria será objeto de un comunicado publicado por el Ministro de Economía según condiciones establecidas por decreto.
En el momento de la recepción del informe de notificación, el Ministro enviará un ejemplar del mismo al Consejo de la Competencia.
Artículo L430-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 89 Diario Oficial de 16 de mayo de 2001)
La realización de una operación de concentración sólo podrá hacerse efectiva tras el acuerdo del Ministro de Economía y, en su caso, del Ministro encargado del sector económico correspondiente.
En caso de necesidad específica debidamente motivada, las partes que hubieran realizado la notificación podrán solicitar al Ministro de Economía una autorización especial que les permita proceder a la concentración efectiva de la totalidad o parte de la concentración sin esperar la decisión mencionada en el primer párrafo y sin perjuicio de ésta.
Artículo L430-5 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 90 Diario Oficial de 16 de mayo de 2001)
I.- El Ministro de Economía se pronunciará sobre la operación de concentración en un plazo de cinco semanas contadas a partir de la fecha de recepción de la notificación completa.
II. II.- Las partes implicadas en la operación podrán comprometerse a tomar medidas orientadas sobre todo a remediar eventualmente los efectos contrarios a la libre competencia de la operación en el momento de la notificación de esta operación, o en cualquier momento antes de la expiración del plazo de cinco semanas contadas a partir de la fecha de recepción de la notificación completa, mientras la decisión prevista en el punto I no se haya producido.
Si los compromisos fueran recibidos por el Ministro dos semanas después de la notificación completa de la operación, el plazo mencionado en el punto I expirará tres semanas después de la fecha de recepción de dichos compromisos por parte del Ministro de Economía.
III. - El Ministro de Economía podrá: - Hacer constar, por motivo justificado, que la operación que le ha sido notificada no entra en el ámbito definido por
los artículos L.430-1 y L.430-2; - O autorizar la operación, subordinando esta autorización, eventualmente y por motivo justificado, al cumplimiento
efectivo de los compromisos de ambas partes. Sin embargo, si estima que la operación pudiera perjudicar a la libre competencia y que dichos compromisos no
bastarán para remediarlo, instará al Consejo de la Competencia para que emita su dictamen. IV. - Si el Ministro no tomara ninguna de las tres decisiones previstas en el punto III en el plazo mencionado en el
punto I, eventualmente prolongado en aplicación del punto II, se considerará que la operación ha sido objeto de una decisión de autorización.
Artículo L430-7 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 92 Diario Oficial de 16 de mayo de 2001)
I.- Cuando se haya sometido al Consejo de la Competencia, la operación de concentración será objeto de una resolución en un plazo de cuatro semanas contadas a partir del envío del dictamen del Consejo al Ministro de Economía.
II. - Tras haber conocido dicho dictamen del Consejo de la Competencia, las partes podrán proponer ciertos compromisos para paliar los efectos contrarios a la libre competencia de la operación antes de que finalice el plazo de cuatro semanas contadas a partir de la fecha del envío del dictamen al Ministro, salvo si la operación ya hubiera sido objeto de la resolución prevista en el punto I.
Si los compromisos fueran transmitidos al Ministro transcurrida una semana desde la fecha de remisión del dictamen al propio Ministro, el plazo mencionado en el punto I expirará tres semanas después de la fecha en que éste reciba dichos compromisos.
III. - El Ministro de Economía y, en su caso, el Ministro encargado del sector económico correspondiente podrán, por medio de una orden motivada:
- Prohibir la operación de concentración y requerir eventualmente de las partes que tomen medidas orientadas a
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CÓDIGO DE COMERCIO restablecer una competencia suficiente;
- Autorizar la operación requiriendo de las partes que tomen medidas que aseguren una competencia suficiente u obligándoles a observar ciertas prescripciones orientadas a aportar una contribución suficiente al progreso económico y social para paliar los perjuicios producidos a la libre competencia.
Estos requerimientos y prescripciones mencionados en los dos párrafos anteriores se impondrán sean cuales fueren las cláusulas contractuales eventualmente firmadas por las partes.
El proyecto de resolución será transmitido a las partes interesadas a las que se les dará un plazo para presentar sus observaciones.
IV. - Si el Ministro de Economía y el Ministro encargado del sector económico correspondiente no previeran tomar ninguna de las decisiones previstas en el punto III, el Ministro de Economía autorizará la operación por medio de una resolución justificada. La autorización podrá ser subordinada a la realización efectiva de los compromisos previstos por las partes que hayan procedido a la notificación.
V.- Si no se hubiesen tomado ninguna de las tres decisiones previstas en los puntos III y IV en el plazo mencionado en el punto I, eventualmente prorrogado en aplicación del punto II, se considerará que la operación ha sido objeto de una resolución de autorización.
Artículo L430-8 (Introducido por la Ley nº 2001-420 de 15 de mayo de 2001 Artículo 92 Diario Oficial de 16 de mayo de 2001)
I.- Si una operación de concentración hubiese sido realizada sin ser notificada, el Ministro de Economía podrá penalizar a las personas encargadas de la notificación con una sanción pecuniaria cuyo importe máximo se elevará al 5 % del volumen de negocio realizado en Francia en el último ejercicio cerrado sin impuestos, incrementado eventualmente por el realizado en Francia durante el mismo período por la parte adquirida, para las personas jurídicas y, para las personas físicas, a 1,5 millones de euros.
Además el Ministro requerirá de las partes, bajo pena de multa, que notifiquen la operación, a menos que vuelvan al estado anterior a la concentración. Podrá igualmente someter el asunto al Consejo de la Competencia sin esperar a la notificación. Se aplicará entonces el procedimiento previsto en los artículos L.430-5 al 430-7.
II. - Si una operación de concentración notificada y no beneficiada por la excepción a la aplicación prevista en el párrafo segundo del artículo L.430-4, hubiera sido realizada antes de producirse la resolución prevista en el párrafo primero del mismo artículo, el Ministro de Economía podrá imponer una sanción pecuniaria a las personas que hayan procedido a la notificación, que no podrá sobrepasar el importe establecido en el punto I.
III. - En caso de omisión o de declaración inexacta en una notificación, el Ministro de Economía podrá penalizar a las personas que hayan procedido a dicha notificación con una sanción pecuniaria que no podrá exceder del importe establecido en el punto I.
Esta sanción podrá ir acompañada de la revocación de la autorización de la operación. A menos que vuelvan al estado anterior a la concentración, las partes estarán entonces obligadas a notificar de nuevo la operación en un plazo de un mes contado a partir de la revocación de la autorización, en su defecto, se expondrían a las mismas sanciones previstas en el punto I;
IV. - Si el Ministro de Economía considerara que las partes no hubieran ejecutado una orden, una prescripción o un compromiso en los plazos fijados, podrá acudir al Consejo de la Competencia para que emita su dictamen.
Si el dictamen del Consejo de la Competencia constatara la falta de ejecución, el Ministro de Economía y, llegado el caso, el Ministro encargado del sector económico correspondiente podrán:
1º Retirar la decisión que hubiera autorizado la realización de la operación. A menos que vuelvan a su estado anterior a la concentración, las partes estarán obligadas a notificar de nuevo la operación en un plazo de un mes contado a partir de la revocación de la autorización; si no lo hicieran, se expondrán a las mismas sanciones previstas en el punto I;
2º Requerir a las partes a las que incumba la obligación no cumplida para que ejecuten los requerimientos, prescripciones o compromisos en un plazo determinado, bajo pena de multa.
Además, el Ministro de Economía podrá penalizar a las personas a las que incumbiera dicha obligación no ejecutada con una sanción pecuniaria que no podrá exceder del importe definido en el punto I.
Artículo L430-9 (Introducido por la Ley nº 2001-420 de 15 de mayo de 2001 Artículo 91 Diario Oficial de 16 de mayo de 2001)
El Consejo de la Competencia podrá, en caso de explotación abusiva de una posición dominante o de un estado de dependencia económica, solicitar al Ministro de Economía para que junto con el Ministro encargado del sector económico correspondiente, requiera por medio de una orden motivada, a la empresa o al grupo de empresas infractoras, la modificación, el complemento o la rescisión en un plazo determinado de todos los acuerdos y de todos los actos por los que se hubiera realizado la concentración de la potencia económica que ha permitido los abusos, aunque estos actos hubieran sido objeto del procedimiento previsto en el presente título.
Artículo L430-10 (Introducido por la Ley nº 2001-420 de 15 de mayo de 2001 Artículo 93 Diario Oficial de 16 de mayo de 2001)
I.- Las decisiones tomadas en aplicación de los artículos L.430-5 a L.430-8 serán publicadas, eventualmente acompañadas del dictamen del Consejo de la Competencia, según las condiciones determinadas por decreto.
II. - Cuando el Ministro de Economía interrogue a terceros sobre la operación, sus efectos y los compromisos propuestos por las partes y haga pública su decisión en las condiciones previstas en el punto I, tendrá en cuenta el interés legítimo de las partes que proceden a la notificación o de las partes citadas de que no se divulguen las
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CÓDIGO DE COMERCIO informaciones confidenciales que afecten a sus negocios.
TITULO IV DE LA TRANSPARENCIA, DE LAS PRÁCTICAS RESTRICTIVAS DE LA
COMPETENCIA Y DE OTRAS PRÁCTICAS PROHIBIDAS Artículos L441-1 a L443-3
CAPITULO PRELIMINAR Disposiciones generales
CAPITULO I De la transparencia Artículos L441-1 a
L441-5
Artículo L.441-1 (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 13 IV 1° Diario Oficial de 12 de diciembre de 2001)
Las normas relativas a las condiciones de venta al consumidor serán determinadas por el artículo L.113-3 del Código de Consumo, que se transcribe a continuación:
"Art.113-3.- Todo vendedor de productos o prestatario de servicios estará obligado, mediante etiquetado, marcación, fijación de avisos o a través de cualquier otro procedimiento idóneo, a comunicar a los consumidores los precios, las eventuales limitaciones de la responsabilidad contractual y las condiciones particulares de venta, según las modalidades fijadas mediante decisión del ministro de Economía, previa consulta con el Consejo Nacional del Consumo".
La presente disposición será de aplicación a todas las actividades contempladas en el último párrafo del artículo L.113-2.
Las normas relativas a la obligación de suministrar información por parte de las entidades de crédito y los organismos mencionados en el artículo L.518-1 del Código Monetario y Financiero serán determinadas por los puntos I y II del artículo L.312-1-1 del mismo Código.
Artículo L.441-2 (Ley nº 2001-420 de 15 de mayo de 2001 art. 49 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-157 de 23 de febrero de 2005 art. 32 Diario Oficial de 24 de febrero de 2005)
Toda publicidad con relación al consumidor, difundida por cualquier medio o visible desde el exterior del lugar de venta, que mencionase una reducción de precio o un precio de promoción en productos alimenticios perecederos, deberá precisar la naturaleza y el origen del o de los productos ofertados así como el periodo durante el cual se mantendrá la oferta propuesta por el anunciante. La mención relativa al origen estará inscrita en caracteres de igual tamaño que los relativos al precio.
Cuando tales operaciones promocionales fueran susceptibles de desorganizar los mercados, por su amplitud o su frecuencia, una orden ministerial o, en su defecto, prefectoral determinará, la periodicidad y la duración de tales operaciones para los productos en cuestión.
En el caso de fruta o verdura fresca que haya sido objeto entre el proveedor y su cliente de un acuerdo sobre el precio de cesión, el anuncio del precio fuera del lugar de venta estará autorizado en un plazo máximo de setenta y dos horas anteriores al primer día de aplicación del precio anunciado, por una duración que no podrá exceder de cinco días a partir de dicha fecha.
En los demás casos, cualquier anuncio de precio fuera del lugar de venta, relativo a fruta o verdura fresca, cualquiera que fuere su origen, deberá ser objeto de un acuerdo interprofesional de un año renovable que deberá suscribirse de conformidad con lo dispuesto en el artículo L.632-1 del Código RuraL. Dicho acuerdo precisará los periodos durante los cuales estará autorizado este anuncio, así como sus modalidades.
El mismo podrá ampliarse según lo dispuesto en los artículos L.632-3 y L.632-4 de dicho Código. Lo dispuesto en los tres párrafos anteriores no será de aplicación a la fruta y verdura fresca perteneciente a
especies no producidas en Francia metropolitana. Cualquier infracción a las disposiciones de los párrafos anteriores será sancionada con multa de 15.000 euros. Se podrá ordenar, en las condiciones previstas en el artículo L.121-3 del Código de Consumo, el cese de la
publicidad realizada incumpliendo las disposiciones del presente artículo.
Artículo L.441-2-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 33 Diario Oficial de 24 de febrero de 2005) (Ley nº 2006-11 de 1 de enero de 2006 art. 53 III Diario Oficial de 6 de enero de 2006)
En el caso de los productos agrícolas perecederos o procedentes de ciclos cortos de producción, de animales vivos, canales de animales, así como en el de los productos de la pesca y acuicultura que figuren en un listado establecido por decreto, el distribuidor o el proveedor de servicios sólo podrá beneficiarse de descuentos, rebajas y reintegros, o prever la remuneración de servicios de cooperación comercial cuando estos estén previstos en un contrato escrito relativo a la venta de dichos productos por el proveedor.
Dicho contrato deberá incluir en especial cláusulas relativas a los compromisos sobre los volúmenes, a las modalidades de determinación del precio en función del volumen y calidad de los productos y servicios en cuestión así como a la fijación de un precio determinado.
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CÓDIGO DE COMERCIO Cuando un contrato tipo relativo a las actividades mencionadas en el párrafo primero esté incluido en un acuerdo
interprofesional adoptado por la organización interprofesional reconocida para dicho producto y se haga extensivo en aplicación de los artículos L.623-3 y L.632-4 del Código Rural, el contrato mencionado en el párrafo primero deberá ser acorde con dicho contrato tipo. El contrato tipo podrá incluir cláusulas tipo relativas a los compromisos y a las modalidades de determinación de precios mencionados en el párrafo segundo, a los calendarios de entrega, a la duración del contrato y al principio de precio mínimo, elaborándose el contenido de dichas cláusulas en el marco de la negociación comercial entre los cocontratantes.
Cualquier infracción a lo dispuesto en el presente artículo será sancionada con multa de 15.000 euros.
Artículo L441-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 53 I Diario Oficial de 16 de mayo de 2001)
Cualquier compra de productos o cualquier prestación de servicios por medio de una actividad profesional deberá ser objeto de una factura.
El vendedor estará obligado a entregar la factura en el momento de la realización de la venta o la prestación del servicio. El comprador deberá reclamarla. La factura será redactada obligatoriamente por duplicado. Debiendo conservar un ejemplar cada uno, el comprador y el vendedor.
La factura deberá mencionar el nombre de las partes, así como su dirección, la fecha de la venta o de la prestación del servicio, la cantidad, la denominación precisa, y el precio unitario sin T.V.A. (Taxe valeur ajoutée: Impuesto sobre el valor añadido) de los productos vendidos y de los servicios prestados así como toda reducción de precio aplicada en la fecha de la venta o de la prestación de los servicios y directamente ligada a esta operación de venta o de prestación de servicios, con exclusión de los descuentos no previstos en la factura.
La factura mencionará también la fecha en la que se deberá producir el pago. Precisará las condiciones de descuento aplicables en caso de pago en una fecha anterior a la resultante de la aplicación de las condiciones generales de venta así como el porcentaje de penalización exigible al día siguiente de la fecha de pago inscrita en la factura. Se considerará efectuado el pago en la fecha en que el cliente ponga los fondos a disposición del beneficiario o de su subrogado.
Artículo L441-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Toda infracción a las disposiciones del artículo L. 441-3 se sancionará con multa de 75.000 euros. La multa podrá ser aumentada hasta un 50% de la cantidad facturada o de la que hubiera debido ser facturada.
Artículo L441-5 Las personas jurídicas podrán ser declaradas responsables penalmente de la infracción citada en el artículo
L.441-4. en las condiciones previstas en el artículo 121-2 del Código Penal. Las penas a las que se expondrán las personas jurídicas serán:
1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º Pena de exclusión de los contratos con la administración por un período máximo de cinco años, en aplicación
del apartado 5º del artículo 131-39 de dicho Código.
CAPITULO II De las prácticas restrictivas de la competencia Artículos L442-1 a
L442-10
Artículo L442-1 (Ley nº 2001-1168 de 11 de diciembre de 2001 Artículo 13 IV 2° Diario Oficial de 12 de diciembre de 2003) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Las normas relativas a las ventas o prestaciones con primas, denegaciones de ventas y servicios, prestaciones por lotes o por cantidades impuestas serán determinadas en los artículos L.121-35 y L.122-1 del Código de Consumo, que reproducimos seguidamente:
"Art. L. 121-35.- Estará prohibida toda venta u oferta de venta de productos o bienes o de toda prestación u oferta de prestación de servicios, hecha a los consumidores y que den derecho a una prima a título gratuito, inmediatamente o en un determinado plazo, consistente en productos, bienes o servicios, salvo si son idénticos a los que son objeto de la venta o de la prestación.
Esta disposición no se aplicará a los pequeños objetos o servicios de escaso valor ni a las muestras. Esta disposición se aplicará a todas las actividades mencionadas en el último párrafo del artículo les L. 113-2. Para los establecimientos de crédito y los organismos mencionados en el artículo L. 518-1 del Código Monetario y
Financiero, las normas relativas a las ventas con primas serán fijadas por el apartado 2° del punto I del artículo L. 312-1-2 del mismo Código."
"Art. L.122-1.- Estará prohibido denegar a un consumidor la venta de un producto o la prestación de un servicio, salvo motivo legítimo y subordinar la venta de un producto a la compra de una cantidad impuesta o a la compra vinculada a otro producto o de otro servicio así como subordinar la prestación de un servicio a la de otro servicio o a la compra de un producto."
Esta disposición se aplicará a todas las actividades mencionadas en el último párrafo del artículo les L. 113-2. Para los establecimientos de crédito y los organismos mencionados en el artículo L. 518-1 del Código Monetario y
Financiero, las normas relativas a las ventas subordinadas serán fijadas por el apartado 2° del punto I del artículo L.
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CÓDIGO DE COMERCIO 312-1-2 del mismo Código."
Artículo L442-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
El comerciante que revendiera o anunciara la reventa de un producto en su estado inicial por un importe, inferior a su precio de compra efectivo será sancionado con multa de 75.000 euros. Esta multa podrá corresponder a la mitad de los gastos de publicidad en el caso de que un anuncio publicitario, sea cual fuere su soporte, anunciase un precio inferior al precio de compra efectivo.
El precio de compra efectivo será el precio unitario que figure en la factura incrementada por los impuestos sobre el volumen de negocios, por los impuestos específicos vinculados a esta reventa y por el coste del transporte.
Artículo L442-3 Las personas jurídicas podrán ser declaradas responsables penalmente, en las condiciones previstas por el
artículo 121-2 del Código Penal, de la infracción prevista en el artículo L.442-2. Las penas a las que se expondrá son: 1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º La pena mencionada en el apartado 9º del artículo 131-39 de citado Código. Se podrá ordenar el cese del anuncio publicitario en las condiciones previstas en el artículo L.121-3 del Código de
Consumo.
Artículo L.442-4 (Ley nº 2005-845 de 26 de julio de 2005 art. 164 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I.- Lo dispuesto en el artículo L.442-2 no será de aplicación: 1º A las ventas voluntarias o forzosas motivadas por el cese o el cambio de una actividad comercial: a) A los productos cuya venta presente un marcado carácter estacional, durante el periodo final de la temporada de
ventas y en el intervalo comprendido entre dos temporadas de venta; b) A los productos que ya no respondan a la demanda general a causa de la evolución de la moda o de la aparición
de perfeccionamientos técnicos; c) A los productos de características idénticas, cuyo reaprovisionamiento se haya efectuado a la baja en su precio,
sustituyéndose entonces el precio efectivo de compra por el precio resultante de la nueva factura de compra; d) A los productos alimenticios comercializados en una tienda cuya superficie de venta sea menor de 300 metros
cuadrados y a los productos no alimenticios comercializados en una tienda cuya superficie de venta sea menor de 1.000 metros cuadrados, cuyo precio de reventa se ajuste al precio legalmente aplicado por otro comerciante para los mismos productos en la misma zona de actividad;
2º A los productos perecederos a partir del momento en que estén amenazados de rápida alteración, siempre que la oferta de precio reducido no sea objeto de cualquier publicidad o anuncio en el exterior del punto de venta.
II.- Las excepciones previstas en el apartado I no obstarán a la aplicación del apartado 2° del artículo L.653-5 y del apartado1° del artículo L.654-2.
Artículo L442-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será sancionada con multa de 15.000 euros toda persona que imponga, directa o indirectamente, un mínimo al precio de reventa de un producto o de un bien, al precio de una prestación de servicio o a un margen comercial.
Artículo L442-7 Ninguna asociación o cooperativa de empresa o de administración podrá, de modo habitual, ofrecer productos a la
venta, venderlos o realizar servicios si estas actividades no estuvieran previstas en sus estatutos.
Artículo L442-8 Se prohibe a cualquier persona ofrecer a la venta productos o proponer servicios utilizando, en condiciones
irregulares, el patrimonio del Estado, de las administraciones locales y sus establecimientos públicos. Las infracciones a la prohibición mencionada en el párrafo anterior se investigarán y constatarán según lo
dispuesto en los artículos L.450-1 a L.450-3 y en el L.450-8. Los agentes podrán depositar, en aquellos locales que determinen y durante un período que no podrá ser superior
a un mes, los productos ofrecidos a la venta y los bienes que hayan permitido la venta o la oferta de servicios. Este depósito dará lugar al levantamiento inmediato de un atestado. Éste incluirá un inventario de los bienes y de
las mercancías consignados así como la mención de su valor. Será presentada al Fiscal de la República y al interesado, en los cinco días siguientes a su cierre.
El órgano jurisdiccional podrá ordenar la confiscación de los productos ofrecidos a la venta y los bienes que hayan permitido la venta de los productos o la oferta de servicios. El órgano jurisdiccional podrá condenar al autor de la infracción a pagar al Tesoro Público una cantidad que corresponda al valor de los productos consignados, en el caso en que no se haya ordenado el decomiso.
Artículo L.442-9 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 34 I Diario Oficial de 24 de febrero de 2005)
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CÓDIGO DE COMERCIO Comprometerá su responsabilidad y le obligará a reparar el daño causado, cualquier productor, comerciante,
industrial o persona inscrita en el Registro Central de Artesanos, aplicara o hiciera aplicar, en una situación de crisis coyuntural tal como está definida en el artículo L.611-4 del Código Rural, precios de primera cesión abusivamente bajos para los productos que figuren el listado previsto en el artículo L.441-2-1 del presente Código.
Lo dispuesto en los puntos III y IV del artículo L.442-6 será aplicable a la acción prevista por el presente artículo.
Artículo L.442-10 (introducido por la Ley nº 2005-882 de 2 de agosto de 2005 art. 51 Diario Oficial de 3 de agosto de 2005)
I. - Será considerado nulo el contrato en virtud del cual un proveedor se comprometa con cualquier productor, comerciante o persona inscrita en el Registro Central de Artesanos, en relación con una oferta de precio consiguiente a una subasta inversa realizada a distancia, organizada especialmente por vía electrónica, cuando no satisfaga al menos a una de las siguientes reglas:
1° Previamente a la subasta, el comprador o la persona que la organice por cuenta de este comunicará de forma transparente y no discriminatoria al conjunto de candidatos admitidos a presentar una oferta, los elementos determinantes de los productos o prestaciones de servicios que el mismo desee adquirir, las condiciones y modalidades de compra, los criterios de selección detallados así como las reglas que se seguirán en la subasta;
2° Tras la fase de pujas, se revelará la identidad del candidato retenido a cualquier otro candidato que haya participado en la subasta y así lo solicite. Si el autor de la oferta seleccionada se hallara en mora, nadie estará obligado a retomar la subasta a partir del último precio o de la última puja.
II. - El comprador o la persona que organice la subasta por cuenta de este realizará una grabación del desarrollo de la subasta, que deberá conservar durante un año. Dicha grabación podrá ser utilizada en el marco de una investigación, con arreglo a las condiciones previstas en el título V del presente libro.
III.- Se prohibirán las subastas inversas organizadas a distancia por el comprador o su representante en el caso de los productos agrícolas mencionados en el párrafo primero del artículo L.441-2-1, así como en el de los productos alimenticios de consumo corriente procedente de la primera transformación de los primeros.
IV. - El hecho de incumplir lo dispuesto en los puntos I a III comprometerá la responsabilidad de su autor y le obligará a reparar el daño causado. Lo dispuesto en los puntos III y IV del artículo L.442-6 será de aplicación a las operaciones mencionadas en los puntos I a III del presente artículo.
CAPITULO III Otras prácticas prohibidas Artículos L443-1 a
L443-3
Artículo L443-1 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
El plazo de pago, a todo productor, revendedor o proveedor de servicios, bajo pena de multa de 75.000 euros, no podrá ser superior:
1º A los treinta días siguientes a la finalización de los diez días de entrega para las compras de productos de alimentación perecederos y de carnes congeladas o ultracongeladas, de pescados ultracongelados, de platos precocinados y de conservas fabricadas a partir de productos de alimentación perecederos, exceptuando las compras de productos de temporada en el marco de contratos llamados de cultivo, citados en los artículos L.326-1 a L.326-3 del Código Rural;
2º A los veinte días siguientes al día de la entrega para las compras de ganado vivo destinado al consumo y carnes frescas derivadas;
3º A los treinta días siguientes después de finalizar el mes de entrega para las compras de bebidas alcohólicas sujetas a los derechos de consumo previstos en el artículo 403 del Código General de Impuestos;
4º A falta de acuerdos interprofesionales concluidos en aplicación del libro VI del Código Rural y siendo obligatorios por vía reglamentaria para todos los operadores en el conjunto del territorio metropolitano en lo referente a los plazos de pago, a los setenta y cinco días siguientes al día de entrega para las compras de bebidas alcohólicas sujetas a derechos de circulación previstos en el artículo 438 del mismo Código.
Artículo L443-3 I. - Las personas jurídicas podrán ser declaradas responsables penalmente de las infracciones contempladas en
los puntos I y II del artículo L.433-2, en las condiciones previstas por el artículo 121-2 del Código Penal. II. - Las penas a las que se someterán las personas jurídicas serán: 1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º Las mencionadas en los apartados 2º, 3º, 4º, 5º, 6º y 9º del artículo 131-39 de dicho Código. III. - La prohibición mencionada en el apartado 2º del artículo 131-39 del Código Penal se aplicará a la actividad en
el ejercicio o en ocasión de cuyo ejercicio se ha cometido la infracción.
TITULO V DE LOS PODERES DE INVESTIGACIÓN Artículos L450-1 a
L450-8
Artículo L450-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 81 I Diario Oficial de 16 de mayo de 2001)
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CÓDIGO DE COMERCIO (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 2 Diario Oficial de 5 de noviembre de 2004)
Los funcionarios habilitados para ello por el Ministro de Economía podrán proceder a realizar las investigaciones necesarias para la aplicación de las disposiciones del presente libro.
Los ponentes del Consejo de la Competencia dispondrán de los mismos poderes en los asuntos para los que dicho Consejo fuera competente.
En el caso de que las investigaciones se realizaran en nombre y por cuenta de una autoridad de la competencia de otro Estado miembro de acuerdo con lo dispuesto en el apartado 1 del artículo 22 del Reglamento nº 1/2003 del Consejo, relativo a la aplicación de las normas sobre competencia previstas en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea, el Ministro de Economía podrá autorizar que agentes de esta autoridad en materia de competencia ayuden en sus investigaciones a los funcionarios habilitados mencionados en el apartado primero o a los ponentes mencionados en el apartado segundo. Las modalidades de esta ayuda serán establecidas por decreto adoptado en Conseil d'Etat.
Los funcionarios de la categoría A del Ministerio de Economía, especialmente habilitados para ello por el Ministro de Justicia, previa propuesta del Ministro de Economía, podrán recibir de los jueces de instrucción comisiones rogatorias.
Los funcionarios habilitados mencionados en el presente artículo podrán ejercer los poderes de investigación que posean en virtud del presente artículo y de los artículos siguientes, en el conjunto del territorio nacional.
Artículo L450-2 Las investigaciones darán lugar al levantamiento de actas y, en su caso, de informes. Dichas actas serán transmitidas a la autoridad competente. Se dejará un duplicado a las partes interesadas. Se
presumirán ciertos, salvo prueba en contrario.
Artículo L450-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 76 Diario Oficial de 16 de mayo de 2001)
Los investigadores podrán acceder a cualquier local, propiedad o medio de transporte de uso profesional, solicitar el acceso a los libros, facturas o cualquier otro documento profesional y obtener o realizar copias por cualquier medio y en cualquier soporte técnico, obtener sus informaciones y comprobantes solicitándolos por medio de una citación o in situ.
Podrán solicitar a la autoridad de la que dependan que nombre a un perito para proceder a cualquier peritaje contradictorio que fuera necesaria.
Artículo L450-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 77 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 3 Diario Oficial de 5 de noviembre de 2004)
Los investigadores solamente podrán realizar las inspecciones necesarias y proceder a la incautación de documentos o cualquier soporte de información, en el caso de que dichas investigaciones sean solicitadas por la Comunidad Europea o por el ponente general del Consejo de la Competencia, previa propuesta del ponente y tras autorización judicial concedida por resolución del juge des libertés et de la détention del Tribunal de grande instance en cuya circunscripción estén situados los lugares que haya que inspeccionar. Podrán asimismo, en las mismas condiciones, proceder al precintado de locales comerciales, documentos y soportes de información mientras duren las inspecciones en dichos locales. Cuando estos lugares estén situados en la circunscripción de varias jurisdicciones y haya que llevar a cabo una acción simultánea en cada uno de ellos, uno de los presidentes (1) competentes podrá emitir una única resolución.
El Juez deberá comprobar que la solicitud de autorización que le hubieran remitido esté motivada; esta demanda deberá incluir todos los elementos de información en posesión del solicitante que pudieran justificar la inspección. Cuando la inspección esté orientada a permitir la constatación de infracciones a las disposiciones del Libro IV del presente Código que se estén cometiendo, la solicitud de autorización podrá contener solamente los indicios que permitan presuponer, en este caso, la existencia de prácticas de las que se busca la prueba.
La inspección y la incautación se efectuarán bajo la autoridad y el control del juez que las haya autorizado. Éste designará a uno o varios oficiales de la policía judicial encargados de asistir a estas operaciones, de prestar su apoyo procediendo, en su caso, a las requisas necesarias y de mantenerle informado de su desarrollo. Cuando tengan lugar fuera de la jurisdicción de su Tribunal de grande instance, entregará una comisión rogatoria para ejercer este control al presidente (1) del Tribunal de grande instance en cuya circunscripción se efectúe la inspección.
El Juez podrá desplazarse a los locales durante la intervención. En cualquier momento podrá decidir la suspensión o el cese de la inspección.
La resolución será notificada verbalmente y en el lugar y momento de la inspección al ocupante de los locales o a su representante quien recibirá copia íntegra contra recibo o anotación en el acta. En ausencia del ocupante de los locales o de su representante, la resolución será notificada tras la inspección, por carta certificada con acuse de recibo. La notificación se considerará realizada en la fecha de recepción que figure en el aviso.
La resolución mencionada en el párrafo primero del presente artículo sólo será susceptible de un recurso de casación según las normas previstas por el Código de Proceso Penal. Este recurso no tendrá efecto suspensivo.
La inspección, que no podrá empezar antes de las seis horas ni después de las veintiuna horas, será efectuada en presencia del ocupante de los locales o de su representante. En caso de imposibilidad, el oficial de policía judicial requerirá la presencia de dos testigos que no sean personas dependientes de su autoridad, de la de la administración de la Dirección General de la Competencia, de Consumo ni de la Represión del Fraude o de la del Consejo de la
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CÓDIGO DE COMERCIO Competencia.
Sólo los investigadores, el ocupante de los locales o su representante así como el oficial de policía judicial y, en su caso, los agentes y demás personas habilitadas por la Comisión Europea podrán tener conocimiento de los objetos y documentos antes de su incautación.
Los inventarios y los precintos judiciales se realizarán según el artículo 56 del Código de Proceso Penal. Los originales del atestado y del inventario serán transmitidos al juez que haya ordenado la inspección. Los objetos y documentos incautados serán restituidos al ocupante de los locales, en un plazo máximo de seis
meses a partir de la fecha en la que la resolución del Consejo de la Competencia sea definitiva. El ocupante del local será requerido, por carta certificada con acuse de recibo, para venir a buscarlos, dentro de un plazo de dos meses. Tras la expiración de este plazo y si no hubiese emprendido diligencias por su parte, los objetos y documentos le serán restituidos con los gastos a su costa.
El desarrollo de las operaciones de inspección o incautación podrá ser objeto de un recurso ante el Juez que lo haya autorizado en un plazo de dos meses que empezará a contar, para las personas que ocupen los locales donde se hayan desarrollado estas operaciones, desde la notificación de la resolución que las haya autorizado y, desde que hayan tenido conocimiento de la existencia de estas operaciones y, como máximo, desde la notificación de los motivos prevista en el artículo L.463-2 para las demás personas que entren ulteriormente a ser parte en la causa debido a piezas embargadas en el curso de estas operaciones. El Juez se pronunciará sobre este recurso por vía de resolución, que sólo será susceptible de un recurso de casación según las normas previstas en el Código de Proceso Penal. Este recurso no tendrá efecto suspensivo.
(1) Nota: El artículo 49 X 1º y 2º de la Ley nº 2000-516 de 15 de junio de 2000, con entrada en vigor el 16 de junio de 2002, modificó el artículo 48 de la disposición nº 86-1243 de 1 de diciembre de 1986, sustituyendo la palabra "presidente", por las palabras "juge des libertés et de la détention". Este artículo 48 fue derogado y codificado por la disposición nº 2000-912 de 18 de septiembre de 2000, y se convirtió en el artículo L. 450-4 del Código de Comercio.
Artículo L450-5 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 78 Diario Oficial de 16 de mayo de 2001)
El ponente general del Consejo de la Competencia será informado inmediatamente del inicio y del resultado de las investigaciones mencionadas en el artículo L.450-4 cuando hayan sido diligenciadas por iniciativa del Ministro de Economía y se refieran a hechos que puedan corresponder a lo dispuesto por los artículos L.420-1 y L.4202.
Podrá proponer al Consejo que intervenga de oficio.
Artículo L450-6 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 80 Diario Oficial de 16 de mayo de 2001)
El ponente general designará, para el examen de cada asunto, a uno o varios ponentes. A petición de éste, la autoridad de la que dependen los agentes citados en el artículo L.450-1 designará a los investigadores y ordenará proceder inmediatamente a toda investigación que el instructor considere útil. Éste último definirá la orientación de la investigación y será mantenido informado de su desarrollo.
Un decreto precisará las condiciones en las que, a petición justificada del presidente del Consejo de la Competencia, la autoridad de la que dependen los agentes citados en el artículo L.450-1 pondrá a disposición del ponente general del Consejo de la Competencia, por un período determinado, investigadores para proceder a ciertas indagaciones, según las orientaciones definidas por los ponentes
Artículo L450-7 Los investigadores podrán acceder a cualquier documento o elemento de información en posesión de los servicios
y establecimientos del Estado y de otras entidades públicas, sin que se les oponga el secreto profesional.
Artículo L450-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con seis meses de prisión y 7.500 euros de multa el que se opusiere, de cualquier modo, al ejercicio de las funciones de los agentes designados en el artículo L.450-1 y los ponentes del Consejo de la Competencia en aplicación del presente libro.
TITULO VI DEL CONSEJO DE LA COMPETENCIA Artículos L461-1 a
L464-8
CAPITULO I De la organización Artículos L461-1 a
L461-3
Artículo L461-1 I.- El Consejo de la Competencia estará compuesto de diecisiete miembros nombrados por un período de seis años
por decreto adoptado tras el informe del Ministro de Economía. II. - Se compondrá de: 1º Ocho miembros o antiguos miembros del Conseil d'Etat, de la Cour de Cassation, de la Cour des comptes o de
las otras jurisdicciones administrativas o judiciales;
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CÓDIGO DE COMERCIO 2º Cuatro personalidades elegidas en razón de su capacidad en materia económica o en materia de competencia y
consumo; 3º Cinco personalidades que ejerzan o hayan ejercido sus actividades en los sectores de la producción, de la
distribución, de la artesanía, de los servicios o profesiones liberales. III. - El presidente y los tres vicepresidentes serán nombrados, tres de ellos, entre los miembros y antiguos
miembros del Conseil d'Etat, de la Cour de Cassation o de la Cour des comptes y el restante, de entre las categorías de las personalidades mencionadas en los apartados 2º y 3º del punto II.
IV. - Las cuatro personalidades previstas en el apartado 2º del punto II serán elegidas de entre una lista de ocho nombres presentada por los ocho miembros previstos en el apartado 1º del punto II.
V.- El mandato de los miembros del Consejo de la Competencia será renovable.
Artículo L461-2 El presidente y los vicepresidentes ejercerán sus funciones con dedicación exclusiva. Estarán sometidos a las
normas de incompatibilidad previstas para los empleos públicos. Será declarado dimisionario de oficio por el Ministro cualquier miembro del Consejo que no haya participado sin un
motivo justificado en tres sesiones consecutivas o que no cumpliera las obligaciones previstas en los dos párrafos que siguen. Todo miembro del Consejo tendrá que informar al presidente de los intereses que posea o que acabe de adquirir y de las funciones que ejerza en una actividad económica.
Ningún miembro del Consejo podrá deliberar en un asunto en el que tenga interés o si representara o hubiera representado a una de las partes interesadas.
El Comisario del Gobierno ante el Consejo será nombrado por el Ministro de Economía.
Artículo L.461-3 (Ley nº 2001-420 de 15 de mayo de 2001 art. 65 Diario Oficial de 16 de mayo de 2001) (Ley nº 2001-1276 de 28 de diciembre de 2001 art. 85 Ley de finanzas para 2001 Diario Oficial de 29 de diciembre de 2001)
El Consejo podrá celebrar sesión en forma plenaria, por secciones, o en comisión permanente. La comisión permanente estará compuesta del presidente y de tres vicepresidentes.
En caso de empate en la votación, el presidente tendrá voto de calidad. El ponente general, el o los ponentes generales adjuntos y los ponentes permanentes serán nombrados a
propuesta del presidente por orden del Ministro de Economía. Los otros ponentes serán nombrados por el presidente. El ponente general podrá delegar en uno o varios ponentes generales adjuntos toda o una parte de las atribuciones
que ostente en virtud del Libro IV del presente Código. Los fondos atribuidos al Consejo de la Competencia para su funcionamiento quedarán inscritos en el presupuesto
del Ministerio de Economía. No serán aplicables a su gestión las disposiciones de la Ley de 10 de agosto de 1922 relativa a la organización del control de los gastos efectuados.
El presidente será el que ordene los ingresos y los gastos del Consejo.
CAPITULO II De las atribuciones Artículos L462-1 a
L462-9
Artículo L462-1 El Consejo de la Competencia podrá ser consultado por las comisiones parlamentarias sobre las proposiciones de
ley así como sobre toda cuestión que afecte a la competencia. Emitirá su dictamen sobre cualquier cuestión de competencia a petición del Gobierno. Podrá igualmente emitir su
dictamen sobre las mismas cuestiones a petición de las entidades territoriales, de las organizaciones profesionales y sindicales, de las organizaciones de consumidores autorizadas, de las Cámaras de agricultura, de las Cámaras profesionales de Artesanía o Cámaras de comercio e industria, en lo referente a los intereses de los que éstas se encarguen.
Artículo L462-2 El Consejo será obligatoriamente consultado por el Gobierno sobre todo proyecto de texto reglamentario que
instituya un régimen nuevo que tenga directamente como efecto: 1º Someter el ejercicio de una profesión o el acceso a un mercado a restricciones cuantitativas; 2º Establecer derechos exclusivos en determinadas zonas; 3º Imponer prácticas uniformes en materia de precios o de condiciones de venta.
Artículo L462-3 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 4 Diario Oficial de 5 de noviembre de 2004)
El Consejo podrá ser consultado por los órganos judiciales sobre las prácticas contrarias a la libre competencia definidas en los artículos L.420-1, L.420-2 y L.420-5, así como en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea y detectadas en los asuntos sobre los que hayan entrado a conocer. Sólo podrá emitir un dictamen tras un procedimiento contradictorio. Sin embargo, si hubiese obtenido informaciones a lo largo de un procedimiento anterior, podrá emitir su dictamen sin tener que iniciar el procedimiento previsto en el presente texto.
La prescripción quedará en suspenso, en su caso, por la consulta con el Consejo. El dictamen del Consejo podrá ser publicado tras el sobreseimiento o la resolución.
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CÓDIGO DE COMERCIO Artículo L462-4
El Consejo podrá ser consultado por el Ministro de Economía sobre todo proyecto de concentración o toda concentración que pudiera perjudicar la libre competencia en las condiciones previstas en el título III anterior.
Artículo L462-5 El Consejo de la competencia podrá conocer a instancia del Ministro de Economía por motivo de cualquier práctica
mencionada en los artículos L.420-1, L.420-2 y L.420-5. Podrá ser competente de oficio o a instancia de las empresas u organismos citados en el párrafo segundo del artículo L.462-1, para cualquier asunto relacionado con los intereses de los que se encargue.
Artículo L462-6 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 5 Diario Oficial de 5 de noviembre de 2004)
El Consejo de la Competencia examinará si las prácticas en las que hubiera entrado a conocer se encuentran dentro del ámbito de los artículos L.420-1, L.420-2 o L.420-5 o pudieran encontrarse motivados por aplicación del artículo L.420-4. El citado Consejo dictará, llegado el caso, sanciones y requerimientos.
Cuando los hechos le parezcan adecuados para motivar la aplicación del artículo L.420-6, remitirá el informe al Fiscal de la República. Esta transmisión interrumpirá la prescripción de la acción pública.
La prescripción se interrumpirá igualmente cuando los hechos mencionados en la presentación de la demanda sean objeto de un acto orientado a su investigación, su constatación o su sanción por la Comisión Europea o por una autoridad en materia de competencia de otro Estado miembro de la Comunidad Europea.
Artículo L462-7 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 6 Diario Oficial de 5 de noviembre de 2004)
El Consejo no podrá entrar a conocer por hechos anteriores a los cinco años si no se hubiese realizado ningún acto orientado a su investigación, su constatación o su sanción.
Artículo L462-8 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 74 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 7 Diario Oficial de 5 de noviembre de 2004)
El Consejo de la Competencia podrá declarar inadmisible la demanda, a través de resolución motivada, por falta de interés o de cualificación para actuar del autor de ésta, o si los hechos estuvieran prescritos en el sentido del artículo L.462-7, o si estimase que los hechos invocados no entran en el ámbito de su competencia.
Podrá también rechazar la demanda por resolución motivada cuando estime que los hechos invocados no están suficientemente probados.
Podrá también rechazar la demanda, en las mismas condiciones, cuando tenga información de que otra autoridad nacional en materia de competencia de un Estado miembro de la Comunidad Europea o la Comisión Europea ya trató los mismos hechos regidos por las disposiciones 81 y 82 del Tratado Constitutivo de la Comunidad Europea.
Podrá también rechazar la demanda, en las mismas condiciones, o suspender el procedimiento, cuando tenga información de que otra autoridad nacional en materia de competencia de un Estado miembro de la Comunidad Europea o la Comisión Europea está tratando los mismos hechos regidos por las disposiciones 81 y 82 del Tratado Constitutivo de la Comunidad Europea. Cuando esta información llegue a conocimiento del ponente en la fase de la instrucción, el ponente general podrá suspender su desarrollo.
El Consejo de la Competencia podrá decidir igualmente, en las mismas condiciones, archivar un asunto del que hubiera conocido de oficio.
Se levantará acta de los desistimientos de las partes o de la declinaciones de competencia efectuadas por la Comisión Europea, por decisión del presidente del Consejo de la Competencia o de un vicepresidente delegado por él.
Artículo L462-9 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 83 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 8 Diario Oficial de 5 de noviembre de 2004)
I. - El Consejo de la Competencia podrá, en lo que afecte a sus competencias y tras previa información del Ministro de Economía, comunicar las informaciones o los documentos que posea o haya reunido, a la Comisión de las Comunidades Europeas o a las autoridades de los otros Estados que ejerzan competencias análogas, si lo solicitaren, siempre que haya reciprocidad y a condición de que la autoridad extranjera competente esté sujeta al secreto profesional con las mismas garantías que en Francia.
El Consejo de la Competencia podrá, en las mismas condiciones, con los mismos procedimientos y bajo las mismas sanciones que las previstas para el cumplimiento de sus funciones, dirigir o pedir al Ministro de Economía que dirija investigaciones, a petición de autoridades extranjeras que ejerzan competencias análogas, sin perjuicio de que haya reciprocidad.
La obligación del secreto profesional no será obstáculo para la presentación por parte de las autoridades en materia de competencia de las informaciones o documentos que posean o hayan obtenido, ante la Comisión de las Comunidades Europeas y a las autoridades de los otros Estados que ejerzan competencias análogas, por petición de éstos, y sujetas a las mismas obligaciones de secreto profesional.
La ayuda solicitada por una autoridad extranjera que ejerza competencias análogas en la forma de llevar a cabo las investigaciones o la transmisión de informaciones poseídas o reunidas por el Consejo de la Competencia será denegada por éste cuando la ejecución de la demanda pudiera vulnerar la soberanía, la seguridad, los intereses económicos esenciales o el orden público francés o cuando ya se hubiera iniciado un procedimiento penal en Francia
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CÓDIGO DE COMERCIO basado en los mismos hechos y contra las mismas personas, o cuando éstas hubieran sido ya sancionadas con una resolución definitiva por los mismos hechos.
Las autoridades en materia de competencia, en lo que se refiere a sus atribuciones respectivas, podrán utilizar informaciones o documentos que les hayan sido transmitidos en las mismas condiciones por la Comisión de las Comunidades Europeas o por las autoridades de los otros Estados miembros que ejerzan competencias análogas.
El Consejo, para la aplicación del presente artículo, podrá concluir acuerdos que determinen sus relaciones con las autoridades de los otros Estados que ejerzan competencias análogas. Estos acuerdos serán aprobados por el Consejo en las condiciones previstas en el artículo L.463-7. Serán publicadas en el Diario Oficial.
II. - En la aplicación de las normas sobre competencia previstas en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea, las autoridades en materia de competencia aplicarán las disposiciones del Reglamento n° 1/2003 del Consejo relativo a la aplicación de las normas sobre competencia previstas en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea, con excepción de lo dispuesto en los cinco primeros apartados del punto I del presente artículo.
Para la aplicación de lo dispuesto en el apartado 4 del artículo 11 de este Reglamento, el Consejo de la Competencia remitirá a la Comisión Europea un resumen del asunto, así como un documento que exponga la orientación prevista, que puede ser la notificación de los motivos o el informe mencionados en el artículo L. 463-2. Podrá poner estos mismos documentos a disposición de las demás autoridades en materia de competencia de los Estados miembros de la Comunidad Europea.
CAPITULO III Del procedimiento Artículos L463-1 a
L463-8
Artículo L463-1 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 9 Diario Oficial de 5 de noviembre de 2004)
La instrucción y el procedimiento ante el Consejo de la Competencia se realizarán de forma totalmente contradictoria, sin perjuicio de las disposiciones previstas en el artículo L. 463-4.
Artículo L463-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 68 I y II Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 9 Diario Oficial de 5 de noviembre de 2004)
Sin perjuicio de las medidas previstas en el artículo L.464-1 el ponente general notificará los motivos a los interesados así como al Comisario del Gobierno, que podrán consultar el expediente sin perjuicio de lo dispuesto en el artículo L. 463 y presentar sus observaciones en un plazo de dos meses.
El informe será entonces notificado a las partes, al Comisario del Gobierno y a los ministros interesados. Será acompañado de los documentos sobre los que se basará el ponente y eventualmente de las observaciones hechas por los interesados.
Las partes tendrán un plazo de dos meses para presentar en respuesta una memoria que podrá ser consultada por las personas citadas en el párrafo anterior durante los quince días anteriores a la sesión.
Cuando circunstancias excepcionales lo justifiquen, el presidente del Consejo podrá, por Disposición no susceptible de recurso, conceder un plazo suplementario de un mes para la consulta del expediente y la presentación de las observaciones de las partes.
Artículo L463-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 69 Diario Oficial de 16 de mayo de 2001)
El presidente del Consejo de la Competencia o un vicepresidente delegado por él podrá, tras la notificación de los motivos a las partes interesadas, decidir que el asunto sea juzgado por el Consejo sin previa realización de un informe. Esta decisión será notificada a las partes.
Artículo L463-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 70 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 9 III Diario Oficial de 5 de noviembre de 2004)
Salvo en el caso en que la entrega o consulta de dichos documentos fuera necesaria para el procedimiento o para el ejercicio de los derechos de la o las partes encausadas, el presidente del Consejo de la Competencia, o un vicepresidente delegado por éste, podrá rechazar la entrega o la consulta de los documentos o de determinados elementos de éstos que revelen algún secreto de los negocios. Se retirarán del expediente los documentos en cuestión o se ocultarán algunas de sus anotaciones.
En el caso en que la entrega o consulta de dichos documentos sea necesarias para el procedimiento o el ejercicio de los derechos de alguna de las partes, a pesar de que revelen algún secreto de los negocios, se adjuntarán al expediente como anexo confidencial y sólo se remitirán al Comisario del Gobierno y a la o las partes encausadas que los necesiten para el ejercicio de sus derechos.
Las condiciones de aplicación del presente artículo serán determinadas, en caso de necesidad, por un decreto adoptado en Conseil d'Etat.
Artículo L463-5 Las instancias de instrucción y de decisión podrán presentar al Consejo de la Competencia, a petición de éste, los
sumarios o informes de la investigación que hayan tenido relación directa con los hechos por los que haya entrado a
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CÓDIGO DE COMERCIO conocer el Consejo.
Artículo L463-6 Se castigará con las penas previstas en el artículo 226-13 del Código Penal, la divulgación por una de las partes de
las informaciones relativas a la otra parte o a un tercero, de las que no podría tener conocimiento si no hubiera sido por las presentaciones o consultas a las que se ha procedido.
Artículo L463-7 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Las sesiones del Consejo de la Competencia no serán públicas. Únicamente las partes y el Comisario del Gobierno podrán asistir a ellas. Las partes podrán solicitar ser oídas por el Consejo y asistir o hacerse representar.
El Consejo de la Competencia podrá oír a toda persona cuyas declaraciones le parezcan susceptibles de contribuir a su información.
El ponente general, el o los ponentes generales adjuntos y el Comisario del Gobierno podrán presentar observaciones.
El ponente general, el o los ponentes generales adjuntos y el ponente asistirán a la deliberación sin derecho a voto, salvo cuando el Consejo decida sobre prácticas que le hayan sido sometidas en aplicación del artículo L.462-5.
Artículo L463-8 (Introducido por la Ley nº 2001-420 de 15 de mayo de 2001 Artículo 71 Diario Oficial de 16 de mayo de 2001)
El ponente general podrá decidir la actuación de peritos, en caso de petición formulada en cualquier momento de la instrucción por el ponente o por una parte. No se admitirá ningún recurso contra esta resolución.
La misión y el plazo dado al perito serán precisados en la resolución que lo nombre. El desarrollo de las operaciones de peritaje se hará de modo contradictorio.
El pago del peritaje correrá a cargo de la parte que la haya solicitado o del Consejo en el caso de que fuera ordenada a petición del ponente. Sin embargo, el Consejo podrá, en su resolución sobre el fondo, imputar el pago del gasto definitivo a la o a las partes sancionadas en las proporciones que éste determine.
CAPITULO IV De las resoluciones y de los recursos Artículos L464-1 a
L464-8
Artículo L464-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 72 Diario Oficial de 16 de mayo de 2001)
El Consejo de la Competencia podrá, tras haber oído a las partes encausadas y al Comisario del Gobierno, tomar las medidas cautelares que le fueran solicitadas por el Ministro de Economía, por las personas mencionadas en el párrafo segundo del artículo L.462-1 o por las empresas.
Estas medidas sólo podrán tomarse si la práctica denunciada vulnerase gravemente y de forma inmediata a la economía general, a la del sector interesado, al interés de los consumidores o a la empresa denunciante.
Podrán conllevar la suspensión de la práctica concernida así como un requerimiento a las partes para volver al estado anterior. Deberán limitarse a lo estrictamente necesario para hacer frente a la situación de urgencia.
Las medidas cautelares serán publicadas en el Boletín Oficial de la Competencia, del Consumo y de la Represión de Fraudes.
Artículo L464-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 73 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 10 Diario Oficial de 5 de noviembre de 2004)
I.- El Consejo de la Competencia podrá exigir a los interesados que pongan fin a las prácticas contrarias a la libre competencia en un determinado plazo o imponer condiciones particulares. También podrá aceptar compromisos propuestos por las empresas u organismos para poner fin a las prácticas contrarias a la libre competencia.
Podrá imponer una sanción pecuniaria aplicable inmediatamente, o ulteriormente en el caso de que no ejecutase los requerimientos, o en caso de incumplimiento de los compromisos contraídos.
Las sanciones pecuniarias serán proporcionales a la gravedad de los hechos imputados, a la importancia del daño causado a la economía y a la situación del organismo o de la empresa sancionada o del grupo al que la empresa pertenezca y a la eventual reiteración de prácticas prohibidas por el presente título. Serán determinadas individualmente para cada empresa u organismo sancionado y de un modo justificado para cada sanción.
Si el autor de la infracción no fuese una empresa, el importe máximo de la sanción será de 3 millones de euros. El importe máximo de la sanción para una empresa será el 10% del importe de la facturación mundial más elevada sin impuestos, realizada en el transcurso de uno de los ejercicios cerrados desde el ejercicio anterior a aquél en el transcurso del cuál se hayan producido las prácticas en cuestión. Si las cuentas de la empresa concernida hubieran sido consolidadas o combinadas según los textos aplicables a su forma social, la facturación tenida en cuenta será la que figure en las cuentas consolidadas o combinadas de la empresa consolidante o combinante.
El Consejo de la Competencia podrá ordenar la publicación, la difusión o la publicación mediante edictos de su resolución o de un extracto de ésta según los requisitos formales especificados por él. Podrá igualmente ordenar la inserción de la resolución o del extracto de ésta en el informe sobre las operaciones del ejercicio, realizado por los gerentes, el consejo de administración o el directorio de la empresa. Los gastos correrán por cuenta de la persona interesada.
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CÓDIGO DE COMERCIO II. - El Consejo de la Competencia podrá imponer multas coercitivas a los interesados, hasta el límite del 5% de la
cifra de negocios diaria media, por día de retraso a partir de la fecha fijada para obligarles a: a) Ejecutar una decisión con objeto de poner fin a las prácticas contrarias a la libre competencia, ejecutar una
decisión que imponga condiciones particulares o cumplir una decisión que conlleve un compromiso obligatorio en virtud del punto I;
b) Observar las medidas dictadas de acuerdo con lo dispuesto en el artículo L. 464-1. La cifra de negocios tenida en cuenta será calculada basándose en las cuentas de la empresa relativas al último
ejercicio cerrado en el momento de la fecha de la decisión. La multa coercitiva será liquidada por el Consejo, quien deberá fijar su importe definitivo.
III. - Cuando un organismo o una empresa no impugne los motivos que le hubieran sido notificados y se comprometa a modificar su actitud en el futuro, el ponente general podrá proponer al Consejo de la Competencia, que tras escuchar a las partes y al Comisario del Gobierno sin realizar previamente un informe, que dicte la sanción pecuniaria prevista en el punto I teniendo en cuenta la ausencia de impugnación. En ese caso, el importe máximo de la sanción se reducirá a la mitad.
IV. - Se podrá otorgar una exoneración total o parcial de las sanciones pecuniarias a una empresa o a un organismo que, junto con otros, haya realizado la práctica prohibida por las disposiciones del artículo L.420-1, si hubiese contribuido a descubrir la práctica prohibida y a identificar a sus autores, aportando elementos de información que ni el Consejo ni la Administración tuvieran anteriormente. A consecuencia de esta gestión de la empresa o del organismo, el Consejo de la Competencia, a petición del ponente general o del Ministro de Economía, emitirá un dictamen de clemencia, que precisará las condiciones a las que se subordinará dicha exoneración, después de que el Comisario del Gobierno y la empresa o el organismo en cuestión hayan presentado sus alegaciones. Este dictamen será transmitido a la empresa o al organismo y al Ministro, y no será publicado. En el momento de la resolución dictada en aplicación del punto I del presente artículo, el Consejo podrá, si las condiciones definidas en el dictamen de clemencia hubieran sido respetadas, conceder una exoneración de las sanciones pecuniarias proporcional a la contribución aportada para la determinación de la infracción.
Artículo L464-3 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 11 Diario Oficial de 5 de noviembre de 2004)
Si las medidas, requerimientos o compromisos previstos en los artículos L.464-1 y L.464-2 no fueran respetados, el Consejo podrá imponer una sanción pecuniaria en los límites fijados en el artículo L.464-2.
Artículo L464-4 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 12 Diario Oficial de 5 de noviembre de 2004)
Las sanciones pecuniarias y multas coercitivas serán cobradas como los créditos del Estado que no sean relativos al impuesto y al patrimonio.
Artículo L464-5 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 69 Diario Oficial de 16 de mayo de 2001)
El Consejo, cuando resuelva según el procedimiento simplificado previsto en el artículo L.463-3 podrá decidir las medidas previstas en el punto I del artículo L.464-2. Sin embargo la sanción pecuniaria no podrá exceder de 750.000 Euros para cada uno de los autores de las prácticas prohibidas.
Artículo L464-6 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 75 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 24 Diario Oficial de 27 de marzo de 2004)
Cuando no se detecte ninguna práctica que vulnere la libre competencia en el mercado, el Consejo de la Competencia podrá decidir, después de que el autor de la demanda y el Comisario del Gobierno hayan consultado el expediente y presentado sus observaciones, que no ha lugar a proseguir el procedimiento. Dicha decisión deberá ser motivada.
Artículo L464-6-1 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 24 II Diario Oficial de 27 de marzo de 2004)
El Consejo de la Competencia podrá decidir igualmente, en las condiciones previstas en el artículo L. 464-6, que no procede continuar el procedimiento cuando las prácticas mencionadas en el artículo L. 420-1 no son relativas a contratos celebrados en aplicación del Código de Contratos Públicos y cuando la cuota de mercado total poseída por las empresas u organismos partes en el acuerdo o en la práctica en cuestión no sobrepase:
a) bien, el 10 % en uno de los mercados afectados por el acuerdo o la práctica, cuando se trate de un acuerdo o una práctica entre empresas u organismos que son competidores, existentes o potenciales en uno de los mercados en cuestión;
a) bien, el 15 % en uno de los mercados afectados por el acuerdo o la práctica, cuando se trate de un acuerdo o una práctica entre empresas u organismos que son competidores, existentes o potenciales en uno de los mercados en cuestión;
Artículo L464-6-2 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 24 II Diario Oficial de 27 de marzo de 2004)
No obstante, lo dispuesto en el artículo L. 464-6-1 no se aplicará a los acuerdos y prácticas que incluyan una de las
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CÓDIGO DE COMERCIO restricciones de competencia siguientes:
a) Las restricciones que, directa o indirectamente, aislada o conjuntamente con otros factores sobre los cuales pueden influir las partes, tengan por objeto la determinación de un precio de venta, la limitación de la producción o de las ventas, el reparto de los mercados o de los clientes;
b) Las restricciones a las ventas no solicitadas y realizadas por un distribuidor fuera de su territorio contractual en beneficio de usuarios finales;
c) Las restricciones a las ventas realizadas por los miembros de una red de distribución selectiva que operan como minoristas en el mercado, independientemente de la posibilidad de prohibirle a un miembro del sistema de distribución que opere a partir de un lugar de establecimiento no autorizado;
d) Las restricciones a los suministros cruzados entre distribuidores pertenecientes a un sistema de distribución selectiva, incluso entre distribuidores que operen en distintos niveles comerciales.
Artículo L464-7 La decisión del consejo, basada en el artículo L.464-1, podrá ser objeto de un recurso de nulidad o de revocación
parcial interpuesto por las partes encausadas y el Comisario del Gobierno ante la Cour d'appel de París, como máximo en los diez días siguientes a su notificación. El Tribunal deberá decidir en un mes sobre este recurso.
El recurso no tendrá efecto suspensivo. Sin embargo, el primer presidente de la Cour d'appel de París podrá decretar el aplazamiento de la ejecución de las medidas cautelares si éstas fueran susceptibles de producir consecuencias manifiestamente excesivas o si se hubiesen producido hechos nuevos de una excepcional gravedad con posterioridad a su notificación.
Artículo L464-8 (Ley nº 2001-1168 de 11 de diciembre de 2001 Artículo 33 IV Diario Oficial de 12 de diciembre de 2001) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 24 III Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 13 Diario Oficial de 5 de noviembre de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 83 II Diario Oficial de 10 de diciembre de 2004)
Las resoluciones del Consejo de la Competencia mencionadas en los artículos L.462-8, L.464-1, L.464-2, L.464-3, L.464-5 y L.464-6 serán notificadas a las partes encausadas y al Ministro de Economía, que podrán, en el plazo de un mes, interponer un recurso de nulidad o de revocación parcial ante la Cour d'appel de París.
Las resoluciones serán publicadas en el Boletín Oficial de la Competencia, del Consumo y de la Represión del Fraude. El Ministro de Economía velará por su ejecución. Las decisiones podrán prever una publicación limitada ara tener en cuenta el interés legítimo de las partes de que sus secretos no sean divulgados.
El recurso no tendrá efecto suspensivo. Sin embargo, el primer presidente de la Cour d'appel de París podrá ordenar que se aplace la ejecución de la resolución si ésta fuera susceptible de producir consecuencias manifiestamente excesivas o si se hubieran producido hechos nuevos de excepcional gravedad con posterioridad a su notificación.
El recurso de casación planteado, en su caso, contra la sentencia del Tribunal se interpondrá en el mes siguiente a su notificación.
El Ministro de Economía podrá en todos los casos interponer un recurso de casación contra la sentencia de la Cour d'appel de París.
TITULO VII DISPOSICIONES DIVERSAS Artículos L470-1 a
L470-8
Artículo L470-1 El órgano jurisdiccional podrá condenar solidariamente a las personas jurídicas al pago de las multas impuestas a
sus dirigentes en virtud de las disposiciones del presente libro y de los textos que se hubieran tomado para su aplicación.
Artículo L470-3 Cuando una persona que hubiera sido condenada, en los dos años anteriores, por una de las infracciones previstas
en los artículos L. 441-2, L. 441-3, L. 441-4, L. 441-5, L. 441-6, L. 442-2, L. 442-3, L. 442-4, L. 442-5 y L. 443-1, cometiera la misma infracción, la sanción podría ser aumentada, como máximo, al doble de lo previsto.
Artículo L470-4 Cuando una persona jurídica que hubiera sido condenada en los dos años anteriores, por una de las infracciones
definidas por los artículos L. 441-3, L. 441-4, L. 441-5, L. 441-6 L. 442-2, L. 442-3 y L. 442-4, cometiera la misma infracción, la sanción máxima que se podría aplicar sería igual a diez veces la prevista para las personas físicas por esta misma infracción.
Artículo L470-5 Para la aplicación de las disposiciones del presente libro, el Ministro de Economía o su representante podrán
presentar sus conclusiones antes las jurisdicciones civiles o penales y exponerlas oralmente en la audiencia. Podrá así mismo presentar los sumarios y los informes de la investigación.
Artículo L470-6 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 84 Diario Oficial de 16 de mayo de 2001)
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CÓDIGO DE COMERCIO (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 14 Diario Oficial de 5 de noviembre de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 83 II Diario Oficial de 10 de diciembre de 2004)
Para la aplicación de los artículos 81 al 83 del Tratado Constitutivo de la Comunidad Europea, el Ministro de Economía, y los funcionarios que haya designado o habilitado de acuerdo a las disposiciones del presente libro, por un lado y el Consejo de la Competencia, por el otro, dispondrán de los respectivos poderes que les son reconocidos por los artículos del presente libro y del Reglamento (CE) N° 139/2004 del Consejo, de 20 de enero de 2004, sobre el control de las concentraciones entre empresas y por el Reglamento (CE) n° 1/2003 del Consejo, de 16 de diciembre de 2002 relativo a la aplicación de las normas sobre competencia previstas en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea. Les serán aplicables las normas de procedimiento previstas por estos textos.
Para la aplicación de los artículos 87 y 88 del Tratado Constitutivo de la Comunidad Europea, el Ministro de Economía y los funcionarios que haya designado o habilitado de acuerdo con las disposiciones del artículo L.450-1 dispondrán de los poderes que les son reconocidos por el título V del libro IV.
Artículo L470-7 Las organizaciones profesionales podrán interponer la acción ante la jurisdicción civil o mercantil para los hechos
que perjudiquen directa o indirectamente al interés colectivo de la profesión o del sector que representen, o a la lealtad de la competencia.
Artículo L470-8 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente libro.
LIBRO V DE LOS EFECTOS DE COMERCIO Y DE LAS GARANTÍAS Artículos L511-1 a
L526-4 TITULO I DE LOS EFECTOS DE COMERCIO Artículos L511-1 a
L512-8
CAPITULO I De la letra de cambio Artículos L511-1 a
L511-81
Sección I De la emisión y de la forma de la letra de cambio Artículos L511-1 a
L511-6
Artículo L511-1 I. - La letra de cambio deberá incluir: 1º La denominación de letra de cambio inserta en el texto mismo del título expresada en el idioma empleado para
su redacción; 2º El mandato puro y simple de pagar una cantidad determinada; 3º El nombre de la persona que deba pagar, denominada librado; 4º La indicación del vencimiento; 5º El lugar en el que se deba efectuar el pago; 6º El nombre de la persona a quien se deba hacer el pago o a cuya orden se deba efectuar; 7º La indicación de la fecha y el lugar en que la letra deba ser librada; 8º La firma de la persona que emite la letra, denominada librador. Se ha de firmar a mano o por cualquier otro
procedimiento no manuscrito. II. - El documento que carezca de alguno de los requisitos que se indican en el punto I no será válido como letra de
cambio, salvo en los casos mencionados en los puntos III al V del presente artículo. III. - La letra de cambio en la que no aparezca indicada la fecha de su vencimiento se considerará pagadera a la
vista. IV. - A falta de indicación especial, el lugar designado junto al nombre del librado se considerará como el lugar de
pago, y, a la vez, como lugar de domicilio del librado. V.- La letra de cambio que no indique el lugar de su emisión se considerará suscrita en el lugar designado junto al
nombre del librador.
Artículo L511-2 La letra de cambio podrá girarse a la orden del propio librador. Podrá ser girada contra el propio librador. Podrá ser girada por cuenta de un tercero. Podrá ser pagadera en el domicilio de un tercero, ya sea en la localidad en que el librado tenga su domicilio o bien
en cualquier otra localidad.
Artículo L511-3 En una letra de cambio pagadera a la vista o a un plazo desde la vista, el librador podrá disponer que la cantidad
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CÓDIGO DE COMERCIO devengue intereses. En cualquier otro tipo de letra de cambio, esta cláusula se tendrá por no puesta.
El tipo de interés fijado deberá indicarse en la letra; en caso contrario, la cláusula correspondiente se tendrá por no puesta.
Los intereses correrán a partir de la fecha indicada en la letra de cambio salvo que se indique alguna fecha.
Artículo L511-4 En la letra de cambio cuyo importe esté escrito a la vez en letras y en números, en caso de que haya contradicción
entre ambos, se considerará válida la cantidad escrita en letras. En la letra de cambio cuyo importe esté escrito varias veces, tanto en letras como en números, si hay diferencias
en el importe indicado en ellas, se considerará como válido el importe de menor valor.
Artículo L511-5 Las letras de cambio libradas por menores serán nulas con respecto a éstos, salvo los derechos respectivos de las
partes, según el artículo 1312 del Código Civil. Si una letra de cambio llevase firmas de personas incapaces de obligarse por letra de cambio, firmas falsas o
firmas de personas imaginarias o firmas que, por cualquier otra razón, no pudieran obligar a las personas que la hayan firmado, o aquellas con cuyo nombre aparezca firmada, las obligaciones de los demás firmantes no dejarán por ello de ser válidas.
Cualquiera que firme en una letra de cambio en representación de una persona de la que no tuviera el poder para actuar, quedará obligado por sí mismo en virtud de la letra y, si hubiese pagado, tendrá los mismos derechos que corresponderían al supuesto representado. Sucederá lo mismo en el caso de que un representante hubiera sobrepasado los poderes que le hubieran sido otorgados.
Artículo L511-6 El librador garantiza la aceptación y el pago. Podrá eximirse de la garantía de la aceptación, pero toda cláusula por la cual se exonere de la garantía del pago se
tendrá por no puesta.
Sección II De la provisión Artículo L511-7
Artículo L511-7 La provisión habrá de efectuarse por el librador o por cuenta de quien se librará la letra de cambio, sin que por ello
el librador por cuenta de otro deje de estar personalmente obligado frente a los endosantes y al tenedor. Habrá provisión si, en la fecha de vencimiento de la letra de cambio, aquél a quien la letra ha sido remitida recibe la
orden de pagar al librador o a aquél a cuya cuenta deba librarse la letra, de una cantidad al menos igual al importe de la letra de cambio.
La propiedad de la provisión será transmitida por derecho a los tenedores sucesivos de la letra de cambio. La aceptación supone la provisión. Establecerá la prueba de ésta con relación a los endosantes. Tanto si hay aceptación como si no, sólo el librador estará obligado a probar, en caso de denegación, que aquellos
a cuenta de quienes la letra ha sido librada tenían provisión en la fecha de vencimiento; en caso contrario, quedará obligado a garantizarla, aunque el protesto haya sido hecho tras los plazos establecidos.
Sección III Del endoso Artículos L511-8 a
L511-14
Artículo L511-8 Toda letra de cambio, aunque no esté expresamente librada a la orden, será transmisible por endoso. Cuando el librador haya incluido en la letra de cambio las palabras "no a la orden", o una expresión equivalente, el
título sólo será transmisible en la forma y con los efectos de una cesión ordinaria. El endoso podrá hacerse incluso en favor del librado, haya aceptado o no, del librador o de cualquier otra persona
obligada. Estas personas podrán endosar de nuevo la letra. El endoso deberá ser puro y simple. Cualquier condición a la que aparezca subordinado se tendrá por no puesta. El endoso parcial será nulo. El endoso "al portador" equivaldrá a un endoso en blanco. El endoso deberá quedar inscrito en la letra de cambio o en una hoja anexa que se llamará suplemento. El endoso
deberá ser firmado por el endosante. Deberá ser firmado por el endosante, bien a mano, o bien por cualquier procedimiento no manuscrito.
El endoso podrá no designar al beneficiario o consistir en un endoso en blanco constituido por la simple firma del endosante. En este último caso, el endoso, para ser válido, deberá ser inscrito en el dorso de la letra de cambio o en el suplemento.
Artículo L511-9 I. - El endoso transmite todos los derechos resultantes de la letra de cambio. II. - Si el endoso está en blanco, el tenedor podrá: 1º Completar el endoso en blanco, sea con su nombre o con el de cualquier otra persona;
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CÓDIGO DE COMERCIO 2º Endosar de nuevo la letra en blanco o designar a otra persona; 3º Entregar la letra a un tercero sin completar el endoso en blanco ni endosarla.
Artículo L511-10 El endosante, salvo cláusula en contrario, garantizará la aceptación y el pago. El endosante podrá prohibir un nuevo endoso. En este caso, no estará obligado a responder frente a las personas
a las que se endosara la letra posteriormente.
Artículo L511-11 El poseedor de una letra de cambio se considerará tenedor legítimo de la misma si justifica su derecho por una
serie ininterrumpida de endosos, aún cuando el último endoso esté en blanco. Los endosos tachados se considerarán a este respecto como no escritos. Cuando un endoso en blanco vaya seguido de otro endoso, el firmante de éste se entenderá que adquirió la letra por el endoso en blanco.
Cuando una persona haya sido desposeída de una letra de cambio por cualquier causa, el tenedor que justifique su derecho del modo indicado en el párrafo anterior no estará obligado a devolver la letra salvo que la haya adquirido de mala fe o si, al adquirirla, hubiese cometido una falta grave.
Artículo L511-12 Las personas que hayan sido demandadas judicialmente en virtud de la letra de cambio no podrán oponer frente al
tenedor las excepciones fundadas en sus relaciones personales con el librador o con los tenedores anteriores, a no ser que el tenedor, al adquirir la letra, haya actuado conscientemente en perjuicio del deudor.
Artículo L511-13 Cuando el endoso contenga la mención "valeur en recouvrement", "pour encaissement", par procuration" ("valor al
cobro", "para cobranza", "por poder") o cualquier otra mención que implique un simple mandato, el tenedor podrá ejercer todos los derechos derivados de la letra de cambio, pero sólo podrá endosar ésta en concepto del apoderamiento.
En ese caso, las personas obligadas no podrán invocar contra el tenedor las excepciones que pudieran alegarse contra el endosante.
La autorización incluida en un endoso de apoderamiento no finalizará por la muerte del mandante ni en caso de que le sobreviniera una incapacidad.
Cuando un endoso contenga la mención "valeur en garantie" ("valor en garantía"), "valeur en gage" ("valor en prenda"), o cualquier otra mención que implique una pignoración, el tenedor podrá ejercer todos los derechos derivados de la letra de cambio, pero un endoso hecho por él sólo vale como un endoso en concepto de apoderamiento.
Las personas obligadas no podrán invocar contra el tenedor las excepciones basadas en sus relaciones personales con el endosante, a no ser que el tenedor, al recibir la letra, haya actuado conscientemente en perjuicio del deudor.
Artículo L511-14 El endoso posterior al vencimiento produce los mismos efectos que un endoso anterior. Sin embargo, el endoso
posterior al protesto por falta de pago, o realizado tras el vencimiento del plazo fijado para levantar el protesto sólo producirá los efectos de una cesión ordinaria.
Salvo prueba en contrario, el endoso sin fecha se considerará que ha sido efectuado antes del vencimiento del plazo fijado para levantar el protesto.
Estará prohibido antedatar las órdenes bajo pena de falsedad documental.
Sección IV De la aceptación Artículos L511-15 a
L511-20
Artículo L511-15 El tenedor o incluso un simple poseedor de una letra de cambio podrá presentarla hasta su vencimiento para la
aceptación del librado en el lugar de su domicilio. En toda letra de cambio, el librador podrá determinar que ésta deba ser presentada para su aceptación, fijando o
no un plazo para ello. Podrá prohibir en la letra la presentación para su aceptación, a no ser que se trate de una letra de cambio
pagadera en el domicilio de un tercero, o en una localidad distinta de la del domicilio del librado o de una carta girada a un cierto plazo desde la vista.
Podrá así mismo determinar que la presentación para la aceptación no pueda realizarse antes de un plazo determinado.
Todo endosante podrá establecer que la letra deba ser presentada para su aceptación, con o sin plazo determinado, a no ser que el librador la haya declarado no aceptable.
Las letras de cambio a un cierto plazo desde la vista deberán presentarse a la aceptación en el plazo de un año a partir de su fecha.
El librador podrá reducir este último plazo o estipular uno mayor. Estos plazos podrán ser reducidos por los endosantes. Cuando la letra de cambio haya sido emitida por ejecución de un contrato relativo a suministros de mercancías y
firmado entre comerciantes y el librador haya cumplido las obligaciones a las que le comprometiera el contrato, el librado no podrá negarse a dar su aceptación tras un plazo determinado por los usos y costumbres del comercio en
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CÓDIGO DE COMERCIO materia de reconocimiento de mercancías.
La falta de aceptación conllevará de pleno derecho el vencimiento del plazo con los gastos a cuenta del librado.
Artículo L511-16 El librado podrá solicitar la presentación por segunda vez al día siguiente de la primera. Los interesados no podrán
alegar que tal petición no ha sido cumplida salvo si ésta hubiera sido mencionada en el protesto. El tenedor no estará obligado a desprenderse de la letra presentada para su aceptación en manos del librado.
Artículo L511-17 La aceptación debe escribirse sobre la letra de cambio. Se expresará mediante la palabra "aceptado" o cualquier
otra palabra equivalente y será firmada por el librado. La simple firma del librado en el anverso de la letra valdrá como aceptación.
Cuando la letra sea pagadera a un cierto plazo desde la vista o cuando deba ser presentada para su aceptación en un plazo determinado en virtud de una cláusula especial, la aceptación deberá fecharse el día en que haya sido dada, a no ser que el tenedor exija que sea fechada el día de la presentación. A falta de fecha, el tenedor hará constar esa omisión por un protesto levantado en tiempo hábil, para poder conservar sus derechos de recurso contra los endosantes y contra el librador.
La aceptación será pura y simple, pero el librado podrá limitarla a una parte del importe. Cualquier otra modificación introducida por la aceptación en el texto de la letra de cambio equivaldrá a denegar su
aceptación. Sin embargo, el aceptante quedará obligado en los términos de su aceptación.
Artículo L511-18 Cuando el librador haya indicado en la letra de cambio un lugar de pago diferente al del domicilio del librado, sin
designar a un tercero en cuyo domicilio deba reclamarse el pago, el librado podrá indicarlo en el momento de la aceptación. A falta de tal indicación, se presumirá que el aceptante queda obligado a pagar él mismo en el lugar de pago.
Si la letra fuera pagadera en el domicilio del librado, éste podrá indicar en la aceptación otra dirección, de la misma localidad, dónde deberá realizarse dicho pago.
Artículo L511-19 Por medio de la aceptación, el librado se obliga a pagar la letra de cambio a su vencimiento. A falta de pago, el tenedor, incluso si fuese el librador, tiene contra el aceptante una acción directa derivada de la
letra de cambio para todo lo que pueda ser exigido en virtud de los artículos L.511-45 y L.511-46.
Artículo L511-20 Si el librado, que ha inscrito en la letra de cambio su aceptación, la tacha antes de su restitución, se considerará
que la aceptación ha sido denegada. Salvo prueba en contrario, la tachadura se considerará que ha sido hecha antes de la devolución del título.
Sin embargo, si el librado ha dado a conocer su aceptación por escrito al tenedor o a cualquier firmante, estará obligado frente a éstos en los términos de su aceptación.
Sección V Del aval Artículo L511-21
Artículo L511-21 El pago de una letra de cambio podrá garantizarse por el total o por una parte de su importe mediante un aval. Esta garantía podrá prestarla un tercero o incluso uno de los firmantes de la letra. Se anotará el aval en la letra de cambio o en un suplemento o en un acta separada que indique el lugar en el que
se ha producido. Se expresará con las palabras "bueno para aval" o por cualquier otra fórmula equivalente; será firmado por el
avalista. Se considerará válido por la única firma del avalista en el anverso de la letra de cambio, salvo cuando se trate de la
firma del librado o de la del librador. El aval deberá indicar a cuenta de quien se ha otorgado. A falta de tal indicación, se considerará que es al librador. El avalista responderá en las mismas condiciones que el avalado. Su compromiso será válido incluso cuando la obligación que avale fuera nula por cualquier causa que no sea un
vicio de forma. Cuando él pague la letra de cambio, el avalista adquirirá los derechos derivados de la letra de cambio contra el
avalado y contra todos aquéllos que hayan quedado obligados en virtud de esta letra de cambio.
Sección VI Del vencimiento Artículos L511-22 a
L511-25
Artículo L511-22 I. - Una letra de cambio podrá librarse: 1º A la vista; 2º A un plazo contado desde la vista; 3º A un cierto plazo contado desde la fecha;
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CÓDIGO DE COMERCIO 4º A fecha fija. II. - Serán nulas las letras de cambio que indiquen otros vencimientos o vencimientos sucesivos.
Artículo L511-23 La letra de cambio a la vista será pagadera a su presentación. Deberá presentarse al pago dentro del plazo de un
año contado a partir de su fecha. El librador podrá reducir este plazo o establecer uno más largo. Estos plazos podrán ser reducidos por los endosantes.
El librador podrá indicar que una letra de cambio pagadera a la vista no deberá presentarse al pago antes de un plazo determinado. En ese caso, el plazo para la presentación contará a partir de dicha fecha.
Artículo L511-24 El vencimiento de una letra de cambio a un cierto plazo desde la vista se determinará o bien por la fecha de la
aceptación o bien por la de su protesto. A falta de protesto, la aceptación que no sea fechada se considerará, con relación al aceptante, que ha sido dada
el último día del plazo previsto para la presentación a la aceptación. El vencimiento de una letra de cambio librada a uno o varios meses desde la fecha o desde la vista tendrá lugar en
la fecha correspondiente del mes en el que deba efectuarse el pago. Si no hubiese fecha correspondiente se considerará que el vencimiento tendrá lugar el último día de ese mes.
Cuando una letra de cambio sea librada a uno o a varios meses y medio desde la fecha o desde la vista, se contarán primero los meses enteros.
Si el plazo fuera determinado al inicio, a mediados o a fin de mes, se entenderá por estos términos el 1, el 15 o el último día del mes.
Las expresiones "ocho días" o "quince días" se considerarán, no de una o dos semanas, sino de un plazo de ocho o quince días efectivos.
La expresión "medio mes" indicará un plazo de quince días.
Artículo L511-25 Cuando una letra de cambio sea pagadera a fecha fija en un lugar donde el calendario sea diferente al del lugar de
la emisión, se considerará que la fecha del vencimiento se ha establecido según el calendario del lugar de pago. Cuando una letra librada entre dos lugares que tengan calendarios diferentes sea pagadera a un cierto plazo desde
la fecha, el día de la emisión se remitirá al día correspondiente del calendario del lugar de pago y el vencimiento se determinará en consecuencia.
Los plazos de presentación de las letras de cambio se calcularán de acuerdo con las normas del párrafo anterior. Estas normas no serán aplicables si una cláusula de la letra de cambio, o incluso las simples menciones del
documento indicaran que existe la intención de adoptar otras normas diferentes.
Sección VII Del pago Artículos L511-26 a
L511-37
Artículo L511-26 El tenedor de una letra de cambio pagadera a fecha fija o a un cierto plazo desde la fecha o desde la vista deberá
presentar la letra de cambio al pago o bien el día en que ésta sea pagadera, o bien uno de los dos días hábiles siguientes.
La presentación de una letra de cambio en una cámara de compensación equivaldrá a una presentación al pago.
Artículo L511-27 El librado podrá exigir, al pagar la letra de cambio, que le sea devuelta con el "recibí" del tenedor. El tenedor no podrá rechazar un pago parcial. En caso de pago parcial, el librado podrá exigir que se haga mención de este pago en la letra y que le sea dado un
recibo del mismo. Los pagos efectuados a cuenta del importe de una letra de cambio se deducirán al librador y al endosante. El tenedor estará obligado a hacer protestar la letra de cambio por el excedente.
Artículo L511-28 El tenedor de una letra de cambio no podrá ser obligado a recibir el pago de ésta antes del vencimiento. El librado que paga antes del vencimiento lo hará por su cuenta y riesgo. El que paga al vencimiento quedará liberado válidamente, a no ser que haya cometido un fraude o una falte grave.
Estará obligado a comprobar la regularidad de la serie de endosos, pero no la autenticidad de la firma de los endosantes.
Artículo L511-29 Cuando una letra de cambio haya sido estipulada pagadera en una moneda que no sea de curso legal en el lugar
de pago, el importe de la misma podrá ser pagado en la moneda del país, según su valor de cambio en el día del vencimiento. Si el deudor se retrasara, el tenedor, podrá, según su voluntad, solicitar que el importe de la letra le sea pagado en la moneda del país según el curso del cambio el día del vencimiento o el día del pago.
Los usos y costumbres del lugar de pago servirán para determinar el valor de la moneda extranjera. Sin embargo, el librador podrá determinar que el importe a pagar sea calculado según un curso de cambio especificado en la letra.
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CÓDIGO DE COMERCIO Las normas anteriormente citadas no se aplicarán al caso en el que el librador haya dispuesto que el pago deberá
realizarse en una determinada moneda indicada en una cláusula de pago efectivo en una moneda extranjera. Si el importe de la letra de cambio estuviera indicado en una moneda que tenga la misma denominación pero un
valor diferente, en el país de emisión y en el de pago, se presumirá que se trata del valor correspondiente de la moneda en el lugar de pago.
Artículo L511-30 A falta de presentación de la letra de cambio al pago en el día de su vencimiento o uno de los dos días hábiles
inmediatamente posteriores, todo deudor tendrá la facultad de consignar su importe en depósito en la Caja de Depósitos y Consignaciones, por cuenta y riesgo del tenedor.
Artículo L511-31 No se admitirá la oposición al pago salvo en el caso de pérdida de la letra de cambio o de suspensión de pagos o
liquidación judicial del tenedor.
Artículo L511-32 En caso de extravío de una letra de cambio no aceptada, aquél a quien le pertenece podrá reclamar el pago con la
presentación de otra posterior.
Artículo L511-33 Si la letra de cambio perdida hubiese sido aceptada, sólo se podrá exigir el pago ante la presentación de otra
posterior en caso de resolución judicial y mediante el depósito en fianza de su importe.
Artículo L511-34 Si el que ha extraviado la letra de cambio, hubiera sido o no aceptada, no puede volver a presentar cualquier otro
ejemplar, podrá solicitar el pago de la letra de cambio extraviada y obtenerlo por resolución judicial si justifica su propiedad por medio de sus libros y depositando en fianza su importe.
Artículo L511-35 En caso de denegación del pago, sobre la demanda formulada en virtud de los dos artículos anteriores, el
propietario de la letra de cambio perdida conservará todos sus derechos por medio de un acta de protesto. Esta acta tendrá que ser realizada al día siguiente del vencimiento de la letra de cambio perdida. Las autorizaciones prescritas por el artículo L.511-42 tendrán que ser entregadas al librador y a los endosantes en los plazos establecidos por dicho artículo.
Artículo L511-36 El propietario de la letra de cambio extraviada deberá, para procurarse la siguiente, dirigirse a su endosante
inmediato que estará obligado a prestarle su interés y su nombre para actuar hacia su propio endosante, y así remitirse de endosante en endosante hasta el librador de la letra. El propietario de la letra de cambio perdida pagará los gastos ocasionados por estos trámites.
Artículo L511-37 El compromiso adquirido por la garantía mencionada en los artículos L.511-33 y L.511-34 quedará extinguido a los
tres años si, durante ese tiempo, no se hubiesen entablado ni demandas ni acciones judiciales.
Sección VIII Del recurso por falta de aceptación y por falta de pago Artículos L511-38 a
L511-51
Artículo L511-38 I. - El tenedor podrá ejercer su recurso contra los endosantes, el librador y los demás obligados: 1º En la fecha del vencimiento, si el pago no se hubiera efectuado; 2º Incluso antes del vencimiento: a) Cuando se hubiera denegado total o parcialmente la aceptación; b) En los casos en el que el librado, aceptante o no, se encuentre en situación de cese de pagos o de liquidación
judicial, de quiebra aunque no haya sido constatada por una resolución judicial, o de embargo de sus bienes con resultado infructuoso;
c) En los casos de procedimiento de suspensión de pagos o de liquidación judicial del librador de una letra no aceptable.
II. - Sin embargo, los avalistas contra los cuales se ejerza una acción en los casos previstos por las letras b y c del punto I podrán dirigir un requerimiento para solicitar plazos, al presidente del Tribunal de commerce correspondiente a su domicilio, en los tres días siguientes al ejercicio de esta acción. Si la demanda fuera admitida, la resolución fijará el momento en el que los avalistas estarán obligados a pagar los efectos de comercio de los que se trate, sin que los plazos así otorgados puedan sobrepasar la fecha fijada para el vencimiento. Esta Disposición no será susceptible ni de impugnación ni de apelación.
Artículo L511-39 La falta de aceptación o de pago deberá hacerse constar por escritura pública denominada protesto por falta de
aceptación o por falta de pago. El protesto por falta de aceptación deberá realizarse en los plazos fijados para la presentación a la aceptación. En
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CÓDIGO DE COMERCIO el caso previsto en el párrafo primero del artículo L.511-16, si la primera presentación hubiese tenido lugar el último día del plazo, el protesto podrá aún ser levantado al día siguiente.
El protesto por falta de pago de una letra de cambio pagadera a fecha fija o a un cierto plazo desde la fecha o desde la vista deberá realizarse en uno de los dos días hábiles siguientes al día en que la letra de cambio sea pagadera. Si se tratase de una letra de cambio a la vista, el protesto será levantado en las condiciones indicadas en el párrafo anterior para levantar el protesto por falta de aceptación.
El protesto por falta de aceptación dispensará de la presentación al pago y del protesto por falta de pago. En caso de cese de pagos del librado, aceptante o no, o en caso de embargo infructuoso de sus bienes, el tenedor
sólo podrá ejercer sus acciones tras la presentación al librado de la letra para su pago y tras la elaboración de un protesto.
En caso de suspensión de pagos o de liquidación judicial del librado aceptante o no, así como en caso de suspensión de pagos o de liquidación judicial del librador de una letra no sujeta a la aceptación, la presentación de la providencia declarativa bastará para permitir al tenedor ejercer sus acciones de regreso.
Artículo L511-40 Cuando el tenedor consienta en recibir en pago o bien un cheque ordinario, o bien una orden de transferencia al
Banco de Francia, o bien un cheque postal, el cheque o la orden de transferencia deberán indicar el número y el vencimiento de los efectos pagados con ellos. No se impondrá sin embargo esta mención a los cheques u órdenes de transferencias realizados entre personas pertenecientes al medio bancario para el pago del saldo de las operaciones efectuadas entre ellos por intermediación de una Cámara de compensación.
Si se efectuara el pago por medio de un cheque ordinario y si éste no fuera pagado, se realizará una notificación de protesto por falta de pago de dicho cheque en el domicilio de pago de la letra de cambio en el plazo previsto en el artículo 41 del decreto ley de 30 de octubre de 1935 que unificaba la legislación en materia de cheques y la relativa a las cartas de pago. El protesto por falta de pago del cheque y la notificación serán efectuados en un único acto, salvo en el caso en que por razones de competencia territorial fuese necesaria la intervención de dos Oficiales Ministeriales.
Si el pago se efectuara por medio de una orden de transferencia y si ésta fuera rechazada por el Banco de Francia, o por medio de un cheque postal y si éste fuese rechazado por el centro de cheques postales donde se encuentra la cuenta deudora, la no ejecución será objeto de un acta de notificación en el domicilio del emisor de dicha transferencia o de dicho cheque postal en los ocho días siguientes a la fecha de emisión. Un agente judicial o un notario será el encargado de levantar acta.
Artículo L511-41 Cuando el último día del plazo concedido para levantar acta de notificación de la no ejecución de la transferencia o
del cheque postal fuese un día festivo legal, este plazo quedará prorrogado hasta el primer día hábil que siga a la expiración. Los días festivos intermedios estarán incluidos en el cómputo del plazo. Tendrán la misma consideración que los días festivos legales los días en que, según las leyes vigentes, no se pueda exigir ningún pago ni levantar ningún protesto.
El librado de la letra de cambio que reciba la notificación tendrá que devolver la letra de cambio al Oficial Ministerial si no paga la letra de cambio así como los gastos de notificación y, si procede del protesto del cheque. Este Oficial Ministerial levantará inmediatamente el protesto por falta de pago de la letra de cambio.
Si el librado no devuelve la letra de cambio, se levantará inmediatamente un acta de protesto. Se constatará la falta de devolución. El tercero que sea tenedor estará, en este caso, dispensado de sujetarse a lo previsto en los artículos L.511-33 y L.511-34.
La no devolución de la letra de cambio constituye un delito castigado con las penas previstas por los artículos 341-1 y 314-10 del Código Penal.
Artículo L511-42 El tenedor deberá avisar de la falta de aceptación o de pago a su endosante en los cuatro días hábiles siguientes al
día del protesto o del de la presentación en caso de cláusula de devolución sin gastos. Los notarios y los agentes judiciales estarán obligados, cuando el efecto indique el nombre y el domicilio del
librador de la letra de cambio, a comunicar a éste en las cuarenta y ocho horas posteriores al registro, bajo pena del pago de indemnización por daños y perjuicios, por correo y por carta certificada, los motivos de la denegación del pago. Esta carta dará lugar, en beneficio del notario o del agente judicial, a unos honorarios cuyo importe será establecido por vía reglamentaria además de los gastos de franqueo y de certificación.
Cada endosante deberá dar a conocer a su vez a su endosante la comunicación recibida, en los dos días hábiles siguientes al día en que la haya recibido, indicando los nombres y las direcciones de los que dieron los avisos anteriores, y así sucesivamente, hasta llegar al librador.
Los plazos antes mencionados empezarán a correr desde el día en que se reciba la comunicación anterior. Cuando se realice una comunicación a un firmante de la letra de cambio, en conformidad con lo establecido en el
párrafo anterior, deberá realizar la misma en el mismo plazo a su avalista. En el caso en que un endosante no hubiera indicado su dirección o lo hubiera hecho de un modo ilegible, bastará
con que el aviso sea dado al endosante que le preceda. La persona que deba efectuar una comunicación podrá hacerlo de cualquier modo, incluso por la simple devolución
de la letra de cambio. Deberá probar que ha efectuado la comunicación en el plazo señalado. Se considerará que se ha observado este plazo cuando la carta en la que se haga la comunicación conste que ha
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CÓDIGO DE COMERCIO sido puesta en el correo en dicho plazo.
El que no hiciera la comunicación en el plazo antes indicado no incurrirá en caducidad; responderá, si procede, del perjuicio causado por su negligencia, sin que el importe de la indemnización por daños y perjuicios pueda sobrepasar el de la letra de cambio.
Artículo L511-43 Por medio de la cláusula "retour sans frais", "sans protêt" ( "devolución sin gastos", "sin protesto") o cualquier otra
cláusula equivalente inscrita sobre el documento y firmada, el librador, un endosante o avalista podrán dispensar al tenedor de hacer levantar un protesto por falta de aceptación o por falta de pago para poder ejercer sus acciones de regreso.
Esta cláusula no dispensará al tenedor de la presentación de la letra de cambio en los plazos prescritos ni de efectuar las comunicaciones que sean necesarias.
La prueba de la inobservancia de los plazos incumbirá a quien la alegue en contra del tenedor. Si la cláusula hubiera sido escrita por el librador, producirá sus efectos con relación a todos los firmantes; si
hubiera sido introducida por un endosante o un avalista, sólo producirá sus efectos con relación a éstos. Cuando a pesar de la cláusula introducida por el librador, el tenedor hiciera levantar el protesto, los gastos originados correrán de su cuenta. Cuando la cláusula emane de un endosante, o de un avalista, los gastos del protesto, en caso de que se levante, podrán ser reclamados a todos los firmantes.
Artículo L511-44 Todos los que hubieran librado, aceptado, endosado o avalado una letra de cambio responderán solidariamente
frente al tenedor. El tenedor tendrá el derecho de actuar contra todas estas personas, individual o colectivamente, sin estar obligado
a observar el orden en el que éstas se hayan obligado. El mismo derecho corresponderá a cualquier firmante de una letra de cambio que la haya pagado. La acción emprendida contra cualquiera de los obligados no impedirá que se proceda contra los otros, aunque
sean posteriores en orden a aquél contra el se haya procedido en primer lugar.
Artículo L511-45 I. - El tenedor podrá reclamar a aquél contra el que ejercite su acción: 1º El importe de la letra de cambio no aceptada o no pagada con sus correspondientes intereses, si se hubiese
estipulado de este modo; 2º Los intereses, al tipo de interés legal, a partir de la fecha de vencimiento; 3º Los gastos del protesto, los de las comunicaciones efectuadas y todos los demás gastos. II. - Si la acción se ejercitara antes de la fecha de vencimiento, se hará la deducción de la cantidad correspondiente
sobre el importe total de la letra. Este descuento se calculará de acuerdo al tipo de descuento oficial establecido por el Banco de Francia a la fecha de la acción en el lugar del domicilio del tenedor.
Artículo L511-46 La persona que haya pagado la letra de cambio podrá reclamar a sus avalistas: 1º La cantidad íntegra que haya pagado; 2º Los intereses de dicha cantidad, calculados al tipo de interés legal, a partir del día en que la haya pagado; 3º Los gastos que haya soportado.
Artículo L511-47 Toda persona obligada contra la que se ejercite una acción de regreso o que esté expuesta a una acción podrá
exigir, por el pago, la entrega de la letra de cambio con el protesto y una cuenta de resaca con el recibí. Todo endosante que haya pagado una letra de cambio podrá tachar su endoso y los de los endosantes
subsiguientes.
Artículo L511-48 En caso de ejercitarse una acción de regreso tras una aceptación parcial, el que paga la cantidad por la que la letra
no hubiera sido aceptada, podrá exigir que se mencione este pago en la letra y que se le dé el correspondiente recibo. El tenedor deberá además entregarle una copia autenticada de la letra y el protesto para permitir ejercitar acciones de regreso posteriores.
Artículo L511-49 I. - Tras la expiración de los plazos establecidos: 1º Para la presentación de una letra de cambio a la vista o a un cierto plazo desde la vista; 2º Para el levantamiento del protesto por falta de aceptación o por falta de pago; 3º Para la presentación al pago en caso de cláusula de devolución sin gastos, el tenedor, por incurrir en caducidad, será privado de sus derechos frente a los endosantes, al librador o a los
demás obligados, a excepción del aceptante. II. - Sin embargo, la privación de derechos por incurrir en caducidad no tendrá lugar con respecto al librador si
justifica que hizo provisión en la fecha de vencimiento. El tenedor, en este caso, sólo podrá ejercitar acción contra aquél sobre el que se hubiera librado la letra de cambio.
III. - En caso de que el tenedor no presentara la letra para la aceptación en el plazo establecido por el librador, aquél será privado de sus derechos de acción de regreso, tanto por falta de pago como por falta de aceptación, a no
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CÓDIGO DE COMERCIO ser que de los términos de la estipulación resulte que al librador le hubiera parecido oportuno exonerarse solamente de la garantía de la existencia de aceptación.
IV. - Si un endoso contuviera la estipulación de un plazo para la presentación, sólo podrá alegarla el endosante que la incluyó.
Artículo L511-50 Cuando la presentación de la letra de cambio o el levantamiento del protesto en los plazos prescritos fuese
imposible por causa de un obstáculo insuperable como es la prescripción legal de un Estado cualquiera o cualquier otro caso de fuerza mayor, se prorrogarán estos plazos.
El tenedor estará obligado, inmediatamente, a comunicar el caso de fuerza mayor a su endosante y a mencionar este aviso, fechado y firmado por él, en la letra de cambio o en un suplemento. Para los demás casos, se aplicarán las disposiciones del artículo L.511-42.
Cuando haya cesado la causa de fuerza mayor, el tenedor deberá, sin demora, presentar la letra a la aceptación o al pago y, si procede, deberá levantar el protesto.
Si la fuerza mayor persistiera más de treinta días a partir de la fecha de vencimiento, las acciones de regreso podrán ser ejercitadas, sin que sean necesarios ni la presentación ni el levantamiento de un protesto, a menos que estas acciones de regreso se encuentren suspendidas por un período más largo, por aplicación del artículo L.511-61.
Para las letras de cambio a la vista o a un cierto plazo desde la vista, el plazo de treinta días empezará a correr a partir de la fecha en la que el tenedor haya notificado la fuerza mayor a su endosante, antes incluso de la expiración de los plazos de presentación. Para las letras de cambio a un cierto plazo desde la vista, el plazo de treinta días se añadirá al plazo desde la vista indicado en la letra de cambio.
No serán considerados como causas de fuerza mayor los motivos meramente personales del tenedor o de aquél al que se le ha encargado la presentación de la letra o el levantamiento del protesto.
Artículo L511-51 Con independencia de los requisitos formales prescritos para el ejercicio de la acción en garantía, el tenedor de
una letra de cambio protestada por falta de pago podrá solicitar al Juez el embargo provisional de los efectos mobiliarios de los libradores, aceptantes o endosantes.
Sección IX De los protestos Artículos L511-52 a
L511-61
Subsección 1 De las formas Artículos L511-52 a
L511-55
Artículo L511-52 Los protestos por falta de aceptación o de pago serán levantados por un notario o un agente judicial. El protesto será levantado en un único y mismo acto: 1º En el domicilio de aquél sobre el que la letra de cambio fuera pagadera, o en su último domicilio conocido; 2º En el domicilio de las personas indicadas por la letra de cambio para el pago en caso de necesidad. 3º En el domicilio de un tercero que haya aceptado por intervención. En caso de indicación de un domicilio falso, el protesto será precedido de una acto de investigación.
Artículo L511-53 El acta de protesto incluirá la transcripción literal de la letra de cambio, de la aceptación, de los endosos y de las
anotaciones que se indiquen en ella, el requerimiento del pago del importe de la letra de cambio. Declarará la presencia o la ausencia de aquél que deberá pagar, los motivos de la denegación y la negación o la imposibilidad de firmar.
Artículo L511-54 No podrá suplirse el acta de protesto con ningún acto por parte del tenedor, salvo en los casos previstos por los
artículos L. 511-32 a L. 511-37 y por los artículos L. 511-40 y L. 511-41.
Artículo L511-55 Los notarios y los agentes judiciales estarán obligados a dejar copia exacta de los protestos, bajo pena de
destitución, de condena a costas, de pago de indemnización por daños y perjuicios a las partes. Estarán obligados también, bajo las mismas penas, a entregar a cambio de un recibo una copia exacta de los protestos por falta de pago, de las letras de cambio aceptadas y de los pagarés, o bien de enviárselas por carta certificada con acuse de recibo al secretario del Tribunal de commerce o del Tribunal de grande instance competente en asuntos mercantiles, correspondiente al domicilio del deudor. Este requisito formal deberá ser realizado dentro de los quince días siguientes al levantamiento del acta.
Subsección 2 De la publicidad Artículos L511-56 a
L511-60
Artículo L511-56
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CÓDIGO DE COMERCIO El secretario del Tribunal mantendrá al día un estado nominativo por cada deudor de los protestos por falta de pago
de las letras de cambio aceptadas, de los pagarés y de los cheques, de acuerdo a las denuncias presentadas por los notarios y agentes judiciales, así como de las certificaciones de impagados de cheques postales que los centros de cheques postales hayan denunciado. Este estado incluirá las declaraciones establecidas por decreto.
Artículo L511-57 Tras la expiración del plazo de un mes contado desde el día del protesto o de la expedición del certificado de
impago del cheque postal y durante un año contado desde la misma fecha, cualquier persona podrá solicitar que los secretarios de los Tribunales anteriormente citados le expidan a su costa un extracto del estado nominativo previsto en el artículo L.511-56.
Artículo L511-58 Por medio del depósito contra recibo del efecto y del protesto del cheque postal y del certificado de impago o de un
recibo que pruebe el pago del cheque por parte del deudor, el secretario del Tribunal eliminará del estado nominativo realizado en aplicación del artículo L.511-56 la indicación del protesto o de la certificación de falta de pago.
Los documentos depositados podrán ser retirados durante el año siguiente a la expiración del plazo de un año citado en el artículo L.511-57, tras lo cual el secretario dejará de ser responsable de ellos.
Artículo L511-59 Queda prohibida cualquier publicación, cualquiera que sea su forma, de los estados nominativos efectuados en
virtud de las disposiciones de la presente subsección, bajo pena de indemnización por daños y perjuicios.
Artículo L511-60 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de las disposiciones de la
presente subsección. Establecerá sobre todo el importe de las remuneraciones que corresponden a los notarios o agentes judiciales que hayan levantado los protestos y a los Secretarios de los Tribunaux de commerce por las diferentes formalidades de las que se encargan.
Subsección 3 De la prórroga de los plazos Artículo L511-61
Artículo L511-61 En los casos de movilización del ejército, de catástrofe o calamidad pública, de interrupción de los servicios
públicos gestionados o sometidos al control del Estado o de las entidades territoriales, ciertos decretos del Consejo de Ministros podrán prorrogar, en una parte o en todo el territorio, los plazos en los que deberían ser levantados los protestos y las demás actas destinadas a conservar las acciones de regreso de todos los valores negociables.
Las fechas de vencimiento de los valores negociables podrán ser prorrogadas en las mismas circunstancias y bajo las mismas condiciones.
Sección X De la letra de resaca Artículos L511-62 a
L511-64
Artículo L511-62 Toda persona que tenga derecho a ejercer la acción de regreso podrá reembolsarse, salvo estipulación en
contrario, mediante una nueva letra girada a la vista sobre cualquiera de los obligados en la letra y pagadera en el domicilio de éste.
La letra de resaca incluirá, además de las cantidades indicadas en los artículos L.511-45 y L.511-46, un derecho de comisión y el importe del timbre de la letra.
Si es el tenedor quien emite la letra, el importe de ésta se fijará con arreglo al cambio correspondiente a una letra de cambio girada a la vista, desde el lugar en que la letra inicial fuera pagadera sobre el lugar del domicilio del garante. Si la letra fuese emitida por un endosante, su importe se fijará según el cambio correspondiente a una letra a la vista librada desde el lugar en la que el librador de la letra de resaca tiene su domicilio sobre la localidad del domicilio del responsable de esta letra.
Artículo L511-63 El precio de negociación de la letra de resaca quedará fijado, para Francia continental, uniformemente del siguiente
modo: un 0,25% en las capitales de los departamentos, un 0,50% en la cabeza de las circunscripciones, un 0,75% en cualquier otro lugar.
En ningún caso se producirá negociación de precio de la letra de resaca dentro del mismo departamento.
Artículo L511-64 Las letras de resaca no podrán acumularse. Cada endosante sólo soportará una, así como el librador.
Sección XI De la intervención Artículos L511-66 a
L511-65
Artículo L511-65
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CÓDIGO DE COMERCIO El librador, un endosante o un avalista podrán indicar en la letra a una persona que la acepte o pague en caso de
necesidad. La letra de cambio podrá ser aceptada o pagada, en las condiciones especificadas posteriormente, por una
persona que intervenga por cuenta de cualquier deudor obligado en vía de regreso. La intervención podrá ser realizada por un tercero, incluso el librado, o una persona ya obligada por la letra de
cambio, salvo el aceptante. El interviniente estará obligado a comunicar su intervención a la persona por la cual la ha realizado en el plazo de
dos días hábiles siguientes. En caso de inobservancia de este plazo, será responsable, si procede, del perjuicio causado por su negligencia, sin que la indemnización por daños y perjuicios pueda sobrepasar el importe de la letra de cambio.
Subsección 1 De la aceptación por intervención Artículo L511-66
Artículo L511-66 La aceptación por intervención podrá producirse en todos los casos en que la acción de regreso esté iniciada antes
del vencimiento contra el tenedor de una letra de cambio susceptible de aceptación. Cuando sobre la letra de cambio se haya indicado una persona para aceptarla o pagarla en caso de necesidad en
el lugar del pago, el tenedor no podrá ejercer antes del vencimiento sus derechos de acciones de regreso contra el que haya inscrito la indicación ni contra los firmantes subsiguientes a menos que haya presentado la letra de cambio a la persona designada y éste se haya negado a la aceptación y se haya hecho constar todo esto en un protesto.
En los demás casos de intervención el tenedor podrá rechazar la aceptación por intervención. Sin embargo, si la admitiese, perderá las acciones que le hubieran correspondido antes del vencimiento contra
aquel en cuyo nombre se haya dado la aceptación y contra los firmantes subsiguientes. La aceptación por intervención será mencionada en la letra de cambio; estará firmada por el interviniente. Indicará
por cuenta de quién se ha intervenido; a falta de indicación, la aceptación se considerará que ha sido dada por cuenta del librador.
El aceptante por intervención responderá, del mismo modo que la persona por cuya cuenta interviene, frente al tenedor y frente a los endosantes posteriores.
A pesar de la aceptación por intervención aquél por cuenta de quien se haya hecho y sus avalistas podrán exigir al tenedor, contra el pago de la cantidad indicada en el artículo L.511-45, la entrega de la letra de cambio, del protesto y de un recibo, si procede.
Subsección 2 Del pago por intervención Artículos L511-67 a
L511-71
Artículo L511-67 El pago por intervención podrá producirse siempre que haya abiertas acciones de regreso por parte del tenedor, ya
sea antes o después del vencimiento. El pago comprenderá la cantidad total que deba pagar aquél por quien se interviene. Deberá efectuarse, como máximo, al día siguiente del último día permitido para el levantamiento del protesto por
falta de pago.
Artículo L511-68 Si la letra de cambio hubiese sido aceptada por intervinientes que tengan su domicilio en el lugar de pago o si
hubieran sido indicadas para el pago en caso necesario personas que tengan su domicilio en ese mismo lugar, el tenedor deberá presentar la letra a todas ellas y hacer levantar si procede protesto por falta de pago, como máximo al día siguiente del último día permitido para el levantamiento del protesto.
A falta de protesto en ese plazo, aquél que hubiese indicado la necesidad o por cuenta de quien fuese aceptada la letra y los endosantes posteriores quedarán liberados de su obligación.
Artículo L511-69 El tenedor que rechaza el pago por intervención perderá sus acciones de regreso contra todos los obligados
cambiarios que habrían resultado liberados si el pago hubiera sido aceptado.
Artículo L511-70 El pago por intervención deberá constar en la letra por medio de un recibí, con indicación de la persona a cuyo
favor se hubiese efectuado. A falta de indicación, se considerará que el pago ha sido efectuado a favor del librador. La letra de cambio y el protesto, si éste hubiese sido levantado, deberán ser entregados a la persona que haya
pagado por intervención.
Artículo L511-71 La persona que paga por intervención adquiere los derechos resultantes de la letra de cambio en contra de aquél
por el que haya intervenido y contra todos los obligados con respecto a este último en virtud de la letra de cambio. Sin embargo, no podrá endosar de nuevo la letra.
Los endosantes posteriores al firmante a favor del cual se haya efectuado el pago por intervención quedarán liberados.
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CÓDIGO DE COMERCIO En caso de que haya varios ofrecimientos para el pago por intervención, se preferirá a aquél que opere una mayor
liberación. Quien pagara por intervención sabiendo conscientemente que está actuando en contra de esta regla perderá sus acciones de regreso contra todos los que hubieran podido quedar liberados.
Sección XII De la pluralidad de ejemplares y de copias Artículos L511-72 a
L511-76
Subsección 1 De la pluralidad de ejemplares Artículos L511-72 a
L511-74
Artículo L511-72 La letra de cambio podrá ser girada en varios ejemplares idénticos. Estos ejemplares deberán estar numerados en el mismo texto del documento; si no lo estuvieran, cada uno será
considerado como una letra de cambio distinta. Todo tenedor de una letra de cambio que no indique que ha sido girada en un ejemplar único podrá exigir a su
costa la emisión de varios ejemplares. Para ello, deberá dirigirse a su inmediato endosante que estará obligado a colaborar con él para actuar contra su propio endosante y así sucesivamente hasta llegar al librador. Los endosantes estarán obligados a reproducir los endosos en los nuevos ejemplares.
Artículo L511-73 El pago realizado sobre uno de los ejemplares es liberatorio, aunque no se haya estipulado que ese pago anule los
efectos de los otros ejemplares. Sin embargo, el librado quedará obligado en virtud de todo ejemplar aceptado que no le haya sido devuelto.
El endosante que hubiera transferido los ejemplares a diferentes personas, así como los endosantes subsiguientes, quedarán obligados en razón de todos los ejemplares que lleven sus firmas y que no hayan sido devueltos.
Artículo L511-74 Aquél que haya enviado uno de los ejemplares a la aceptación deberá indicar en los restantes el nombre de la
persona en cuyo poder se encuentre ese ejemplar. Ésta estará obligada a devolverlo al legítimo tenedor de otro ejemplar. Si se negara, el tenedor sólo podrá ejercer acciones de regreso tras haber constatado por medio de un protesto:
1º Que el ejemplar enviado a la aceptación no le ha sido devuelto a pesar de haberlo solicitarlo; 2º Que no se ha podido obtener la aceptación o el pago sobre otro ejemplar.
Subsección 2 De las copias Artículos L511-75 a
L511-76
Artículo L511-75 Todo tenedor de una letra de cambio tendrá derecho a hacer copias de ésta. La copia deberá reproducir exactamente el original con los endosos y todas las demás menciones que figuren en
él. También deberá indicar dónde termina la copia. La copia podrá ser endosada y avalada del mismo modo y con los mismos efectos que el original.
Artículo L511-76 La copia deberá indicar quién es el poseedor del documento original. Éste estará obligado a entregar dicho título al
tenedor legítimo de la copia. Si se negara a hacerlo, el tenedor sólo podrá ejercitar su acción contra las personas que hayan endosado o
avalado la copia tras haber hecho constar por medio de un protesto que el original no le fue entregado tras haberlo solicitado.
Si el título original, tras el último endoso puesto, antes de que se haya hecho la copia, incluyera la cláusula: "A partir d'ici, l'endossement ne vaut que sur la copie" ("A partir de aquí el endoso sólo será válido sobre la copia") o cualquier otra fórmula equivalente, cualquier endoso firmado sobre el original se considerará nulo.
Sección XIII De las alteraciones Artículo L511-77
Artículo L511-77 En caso de alteración del texto de una letra de cambio, los firmantes posteriores a este cambio estarán obligados
en los términos del texto alterado; los firmantes anteriores lo serán en los términos del texto original.
Sección XIV De la prescripción Artículo L511-78
Artículo L511-78 Toda acción resultante de la letra de cambio contra el aceptante prescribirá a los tres años contados a partir de la
fecha de vencimiento.
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CÓDIGO DE COMERCIO Las acciones del tenedor contra los endosantes y contra el librador prescribirán al año contado desde la fecha de
protesto levantado en tiempo hábil o desde la fecha del vencimiento, en caso de cláusula de devolución sin gastos. Las acciones de unos endosantes contra otros y contra el librador prescribirán a los seis meses contados a partir
del día en que el endosante hubiera pagado la letra o del día en que hubiera sido él mismo demandado. Las prescripciones, en caso de acción judicial, no empezarán a contar hasta el día de la última demanda
interpuesta. No se aplicarán si hubo condena o si se hubiese reconocido la deuda por un acta separada. La interrupción de la prescripción sólo surtirá efecto contra aquél respecto del cual se hubiera efectuado el acto que
la interrumpa. Sin embargo, los supuestos deudores estarán obligados, si se les solicita, a declarar bajo juramento que ya no
deben nada, y su cónyuge supérstite, sus herederos o causahabientes, que ellos consideran de buena fe que ya no se debe nada.
Sección XV Disposiciones generales Artículos L511-79 a
L511-81
Artículo L511-79 El pago de una letra de cambio cuyo vencimiento sea en día legalmente considerado como festivo, será exigible el
primer día hábil siguiente. Asimismo, todos los demás actos relativos a las letras de cambio, sobre todo la presentación a la aceptación y el protesto, sólo podrán ser realizados en día laborable.
Cuando alguno de estos actos deba ser realizado en un determinado plazo cuyo último día coincida con un día festivo legalmente establecido, este plazo será prorrogado hasta el primer día laborable siguiente a la expiración. Los días festivos intermedios estarán incluidos en el cómputo del plazo.
Artículo L511-80 A los días festivos legales se asimilarán los días en los que, según los términos de las leyes vigentes, no se pueda
exigir ningún pago, ni elevar ningún protesto.
Artículo L511-81 Los plazos legales o convencionales no incluirán el día que sirva de punto de partida para los plazos. No se admitirán días de gracia, ni legales ni judiciales, salvo en los casos previstos por los artículos L. 511-38 y L.
511-50.
CAPITULO II Del pagaré a la orden Artículos L512-1 a
L512-8
Artículo L512-1 I.- El pagaré deberá contener: 1º La cláusula a la orden o la denominación del documento inscrito en el mismo texto y expresada en la lengua
empleada para la redacción del documento; 2º La promesa pura y simple de pagar una cantidad determinada; 3º La indicación del vencimiento; 4º El lugar en el que se deba efectuar el pago; 5º El nombre de la persona a quien se deba hacer el pago o a cuya orden se deba efectuar; 6º La indicación de la fecha y del lugar en el que se haya emitido el pagaré; 7º La firma de la persona que emite el documento, denominado firmante. II. - El pagaré cuyo vencimiento no esté indicado se considerará como pagadero a la vista. III. - A falta de indicación especial el lugar de emisión del título se considerará como el lugar del pago y, al mismo
tiempo, como lugar del domicilio del firmante. IV. - El pagaré que no indique el lugar de su emisión se considerará firmado en el lugar que figure junto al nombre
del firmante.
Artículo L512-2 El documento en el que falten alguna de las menciones indicadas en el punto I del artículo L.512-1 no será válido
como pagaré, salvo en los casos determinados en los puntos II al IV del artículo L.512-1.
Artículo L512-3 Serán aplicables al pagaré, mientras no sea incompatible con la naturaleza de este documento, las disposiciones
de los artículos L.511-2 a L. 511-5 L. 511-8 a L. 511-14, L. 511-18, L. 511-22 a L. 511-47, L. 511-49 a L. 511-55, L. 511-62 a L. 511-65, L. 511-67 a L. 511-71, L. 511-75 a L. 511-81, relativas a la letra de cambio.
Artículo L512-4 Serán igualmente aplicables al pagaré las disposiciones del artículo L.511-21 relativas al aval. En el caso previsto
en el párrafo sexto de este artículo, si el aval no indicase por cuenta de quién se ha dado, se presumirá que lo ha sido por cuenta del firmante del pagaré.
Artículo L512-5 Las disposiciones de los artículos L. 511-56 a L. 511-61 relativas a la publicidad y a la prórroga de los plazos de los
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CÓDIGO DE COMERCIO protestos serán aplicables al protesto levantado por falta de pago de un pagaré.
Artículo L512-6 El firmante de un pagaré quedará obligado del mismo modo que un aceptante de una letra de cambio.
Artículo L512-7 Los pagarés que deban hacerse efectivos a cierto plazo desde la vista deberán presentarse al firmante para su
aprobación en los plazos fijados en el artículo L.511-15. El plazo a contar desde la vista empezará a contar desde la fecha del VºBº del firmante en el pagaré. La negación del firmante a dar su VºBº fechado se hará constar en un protesto cuya fecha servirá de punto de partida para el plazo desde la vista.
Artículo L512-8 No se permitirá el pago por pagaré al deudor salvo que haya sido expresamente previsto por las partes y
mencionado en la factura. Incluso en ese caso, si el pagaré no llegase al acreedor en el plazo de los treinta días siguientes al envío de la factura, el acreedor podrá emitir una letra de cambio que el deudor estará obligado a aceptar en las condiciones previstas en los párrafos antepenúltimo y último del artículo L.511-15. Cualquier estipulación en contrario se tendrá por no puesta.
TITULO II DE LAS GARANTÍAS Artículos L521-1 a
L526-4
CAPITULO I Disposiciones generales sobre la prenda mercantil Artículos L521-1 a
L521-3
Artículo L521-1 La prenda constituida, por un comerciante o por un individuo no comerciante, por un acto de comercio se hará
constar con relación tanto a terceros como a las partes contratantes según las disposiciones del artículo L.110-3. La prenda, con relación a los valores negociables, podrá ser también constituida mediante un endoso regular
indicando los valores que hubieran sido entregados en garantía. Con relación a las acciones, a las participaciones en los intereses y en las obligaciones nominativas de las
sociedades financieras, industriales, mercantiles o civiles, cuya transmisión se opere por medio de una trasferencia en los registros de la sociedad, así como con relación a las inscripciones nominativas sobre el registro de la deuda pública, la prenda podrá ser igualmente constituida por medio de una transferencia, en concepto de garantía, inscrita en dichos registros.
No quedan derogadas las disposiciones del artículo 2075 del Código Civil en lo que se refiere a los créditos mobiliarios, cuyo cesionario sólo podrá ser objeto de embargo por terceros mediante la comunicación realizada al deudor del traslado de la prenda
El acreedor pignoraticio podrá recuperar los efectos de comercio ofrecidos en prenda.
Artículo L521-2 En cualquier caso, el privilegio sólo subsistirá en esta prenda en tanto que ésta haya sido puesta y mantenida en
posesión del acreedor o de un tercero elegido entre las partes. Se presumirá que el acreedor tiene las mercancías en su posesión cuando estén a su disposición en sus
almacenes o buques, en la aduana o en un depósito público si, antes de que hubieran llegado, hubiera tomado posesión de ellas por medio de un conocimiento o por una carta de porte.
Artículo L521-3 Si no se produjera el pago en la fecha de vencimiento, el acreedor podrá, ocho días después de un simple aviso al
deudor y al tercero que actúa como depositario de la prenda, si lo hubiera, proceder a la venta pública de los objetos entregados en prenda.
Cualquier venta que no fueran aquéllas de las que se encargan los proveedores de servicios de inversión las realizarán los corredores de comercio. Sin embargo, el presidente del Tribunal de commerce podrá designar para efectuarlas, a petición de las partes, a otra clase de funcionarios públicos.
A las ventas previstas en el párrafo anterior se aplicarán las disposiciones de los artículos L. 322-9 a L. 322-13. Se considerará nula cualquier cláusula que autorizase al acreedor a apropiarse de la prenda o a disponer de ella
sin los requisitos formales prescritos anteriormente.
CAPITULO II De los depósitos en almacenes generales Artículos L522-1 a
L522-40
Sección I De la autorización, de la cesión y del cese de la explotación Artículo L522-1
Artículo L522-1 El empresario que dirige un establecimiento que se usa como depósito en el que los industriales, comerciantes,
agricultores o artesanos depositan materias primas, mercancías, géneros o productos fabricados, únicamente podrá
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CÓDIGO DE COMERCIO emitir resguardos de la prenda negociables y calificar su establecimiento de almacén general si hubiese obtenido la autorización correspondiente del Prefecto.
Sección II De las obligaciones, de las responsabilidades y de las garantías Artículos L522-2 a
L522-19
Artículo L522-2 Se dará la orden Prefectoral que resuelve sobre la solicitud de autorización tras el dictamen de los organismos
profesionales e interprofesionales previstos por el decreto adoptado en Conseil d'Etat emitido para la aplicación del presente capítulo II. Tal orden deberá ser motivada.
Artículo L522-3 La cesión de un almacén general estará subordinada a la autorización del Prefecto, dada en las mismas formas.
Artículo L522-4 Cualquier cese de explotación no seguida de cesión estará subordinada a un aviso previo de seis meses, dirigido al
Prefecto por el empresario que lo explota. Tras la expiración de tal plazo y si los intereses generales del comercio lo exigen, el presidente del Tribunal de grande instance podrá nombrar en procedimiento sumario a un administrador provisional, a petición del Ministerio Público.
Artículo L522-5 Los empresarios que dirijan almacenes generales no podrán dedicarse a ningún tipo de comercio o especulación
que tenga por objeto las mercancías para las que están autorizados a entregar recibos-warrants, tanto directa como indirectamente, por su cuenta o por cuenta ajena, a título de comisionista o de cualquier otro modo.
Artículo L522-6 Se considerarán incluidos en el caso del artículo L. 522-5 las sociedades que exploten almacenes generales en las
que uno de sus socios con una participación mayor al 10% del capital social, ejerza una actividad incompatible con las disposiciones de dicho artículo.
Artículo L522-7 Cualquier sociedad que dirija uno de estos depósitos que, a consecuencia de una modificación producida en el
reparto del capital entre los socios ya no se encuentre en las condiciones determinadas por el artículo L.522-6 deberá, en el mes siguiente a esta modificación, solicitar que se le mantenga la autorización de la que fuera beneficiaria.
La autorización seguirá siendo válida hasta que el Prefecto haya emitido una orden. El Prefecto podrá, o bien decidir prolongar la autorización en las condiciones previstas por el artículo L.522-11, o
bien retirársela según las disposiciones del artículo L.522-39.
Artículo L522-8 Cuando la apertura de un establecimiento esté subordinado a la emisión de un decreto o una orden ministerial, la
autorización de este establecimiento como almacén general será concedida por ese decreto o esa orden, tras consultar a los organismos citados en el artículo L.522-2.
Artículo L522-9 Los empresarios de los establecimientos autorizados no tendrán que solicitar la autorización prevista por los textos
que regulan las construcciones, ampliaciones o traslados de establecimientos.
Artículo L522-10 Los decretos u órdenes que autorizan el uso de los establecimientos como almacenes generales podrán incluir una
autorización, para su empresario, de apertura de una sala de ventas públicas de mercancías al por mayor.
Artículo L522-11 I. - Las empresas que no respondan a las condiciones establecidas en los artículos L.522-5 y L.522-6 podrán, sin
embargo, solicitar la autorización como almacenes generales de los depósitos que dirigen o proyecten dirigir y obtener excepcionalmente esta autorización si se reconoce que lo exigen los intereses del comercio.
II. - En ese caso: 1º La solicitud de autorización será objeto de las medidas de publicidad previstas por vía reglamentaria en la
Prefectura y el Ayuntamiento del lugar de tal establecimiento. 2º La orden que le concede la autorización establecerá, además de la fianza prevista en el artículo L.522-12, una
fianza especial al menos igual a ésta. La garantía especial deberá aportarse o bien en metálico, o bien por un aval bancario autorizado por el Tribunal de commerce en cuya circunscripción esté situado el establecimiento.
Artículo L522-12 La orden Prefectoral que autorice la apertura del almacén general obligará al empresario que lo dirige a aportar
una fianza. También estarán sometidos a la misma obligación los establecimientos citados en el artículo L.522-8. El importe de esta fianza, proporcional a la superficie dedicada a almacenamiento, estará comprendido entre dos
límites fijados por un decreto adoptado en Conseil d'Etat.
Artículo L522-13
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CÓDIGO DE COMERCIO Uno o varios reglamentos tipo establecerán las condiciones de funcionamiento de los establecimientos, en el marco
de las disposiciones del presente capítulo y del decreto adoptado en Conseil d'Etat tomado para su aplicación.
Artículo L522-14 Toda persona que deje una mercancía en depósito en un almacén general estará obligada a declarar la naturaleza
de la misma y su valor al empresario que dirige el establecimiento.
Artículo L522-15 Los empresarios que dirijan almacenes generales serán responsables, en los límites del valor declarado, de la
guardia, custodia y conservación de los depósitos que le sean confiados. No serán responsables de los daños y mermas naturales que se deriven de la propia naturaleza y del embalaje de
las mercancías o por causas de fuerza mayor. Los reglamentos tipo y los reglamentos especiales previstos en los artículos L.522-13 y L.522-17 precisarán las
obligaciones de los empresarios en lo que se refiere a la conservación de los depósitos.
Artículo L522-16 Las mercancías susceptibles de ser cubiertas por un warrant serán obligatoriamente aseguradas contra incendio
por las pólizas generales del almacén. Sin embargo, los empresarios que exploten almacenes generales establecidos en los puertos marítimos, no
tendrán esta obligación con relación a las mercancías almacenadas cubiertas por un seguro marítimo siempre que ese seguro cubra esos riesgos.
Si durante este período se produjera un siniestro, el empresario que dirige el almacén general no será responsable ante los depositantes, las compañías de seguros y los poseedores de warrants.
Tras la expiración de dicho período, las mercancías antes mencionadas deberán ser aseguradas por las pólizas generales del almacén.
Artículo L522-17 Cada establecimiento estará dotado de un reglamento particular que completará las disposiciones generales de los
reglamentos tipo y que determinen las condiciones de explotación considerando la naturaleza y la situación del almacén.
Artículo L522-18 Deberá adjuntarse al reglamento previsto en el artículo L.522-17 una lista de precios general y, eventualmente,
tarifas especiales para la retribución del almacenamiento en los términos del presente capítulo, y de los servicios prestados en tal ocasión a los depositantes. La percepción de las tasas correspondientes se producirá indistintamente y sin ningún trato de favor.
Artículo L522-19 Las lista de precios deberán ser comunicadas al Prefecto al menos un mes antes de la apertura del almacén
general. Cualquier modificación en dichas tarifas deberá serle notificada, así como a los organismos citados en el artículo
L.522-2, y no serán aplicables hasta un mes después de esta notificación. Sin embargo, este plazo no se aplicará a los empresarios cuyos precios estén sometidos a una autorización administrativa.
Sección III Del funcionamiento y del control Artículos L522-20 a
L522-23
Artículo L522-20 Los empresarios de los almacenes generales podrán prestar dinero sobre pignoraciones de las mercancías que
reciban en depósito o negociar los warrants que las representen.
Artículo L522-21 Los presidentes, gerentes, directores y el personal de las explotaciones de los almacenes generales estarán
obligados a guardar secreto profesional en todo lo relacionado con las mercancías depositadas, bajo las penas previstas en el artículo 226-13 del Código Penal.
Artículo L522-22 Los almacenes generales serán controlados por la administración, en las condiciones establecidas por decreto
adoptado en Conseil d'Etat.
Artículo L522-23 Las disposiciones del presente capítulo, el decreto adoptado para la aplicación de dichas disposiciones, la lista de
precios y los reglamentos, se expondrán en tablones de anuncios en la parte de las oficinas del almacén a donde el público tenga acceso.
Sección IV De los resguardos y de los warrants Artículos L522-24 a
L522-37
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CÓDIGO DE COMERCIO Artículo L522-24
Se entregará a cada depositante uno o varios resguardos. Estos resguardos mencionarán el nombre, profesión y domicilio del depositante así como la naturaleza de la mercancía depositada y las indicaciones correspondientes para establecer su identidad y para determinar su valor.
Las mercancías fungibles depositadas en un almacén general y a cambio de las que se entregue un resguardo y un warrant podrán ser sustituidas por mercancías de la misma naturaleza, de la misma especie y de la misma calidad. La posibilidad de esta substitución deberá ser mencionada a la vez en el resguardo y en el warrant.
Los derechos y privilegios del tenedor del resguardo y del tenedor del warrant serán trasladados a las mercancías sustituidas.
Se podrá entregar un resguardo y un warrant por un lote de mercancías fungibles tomadas de un lote más importante.
Artículo L522-25 A cada resguardo de mercancía se le adjuntará, con la denominación de warrant, un título de prenda que contenga
las mismas menciones que el resguardo. Los resguardos de las mercancías y los warrants anexos a ellos serán extraídos de un libro matriz.
Artículo L522-26 Los resguardos y los warrants podrán ser transferidos por vía de endoso, juntos o por separado.
Artículo L522-27 Cualquier cesionario del resguardo o del warrant podrá exigir la transcripción del endoso realizado en su beneficio
en las matrices de las que sean separados, con la indicación de su domicilio.
Artículo L522-28 El endoso del warrant separado del resguardo vale por la pignoración de la mercancía en beneficio del cesionario
del warrant. El endoso del resguardo transmite al cesionario el derecho a disponer de la mercancía, siendo a su costa el pago
de la deuda garantizada por el warrant o bien abonando el importe de la misma sobre el precio de la venta de la mercancía, cuando el warrant no hubiese sido ya transferido con el resguardo.
Artículo L522-29 El endoso del resguardo y del warrant, transferidos conjuntamente o por separado, deberán llevar inscrita la fecha. El endoso del warrant separado del resguardo deberá además declarar el importe íntegro, en capital e intereses,
de la deuda garantizada, la fecha de su vencimiento y el nombre, profesión y domicilio del acreedor. El primer cesionario del warrant deberá hacer transcribir inmediatamente el endoso en los libros del almacén, con
las menciones que lo acompañan. Se hará mención de esta transcripción en el warrant.
Artículo L522-30 El tenedor del resguardo separado del warrant podrá, incluso antes de la fecha de vencimiento, pagar la deuda
garantizada por el warrant. Si el tenedor del warrant no fuera conocido o si siendo conocido no está de acuerdo con el deudor sobre las
condiciones en las que tendría lugar el anticipo del pago, la cantidad adeudada, incluidos los intereses hasta la fecha del vencimiento, quedará consignado en la administración del almacén general que será el responsable de ella. Esta consignación liberará la mercancía.
Artículo L522-31 A falta de pago en la fecha de vencimiento, el tenedor del warrant separado del resguardo, podrá iniciar los
trámites para que los funcionarios correspondientes procedan a la venta pública en subasta y al por mayor de la mercancía en prenda, ocho días después del protesto y sin ningún requisito formal, según las disposiciones del libro III relativas a las ventas públicas de mercancías al por mayor.
En el caso de que el firmante primitivo del warrant lo hubiera pagado, podrá iniciar la venta de la mercancía, como se ha dicho en el párrafo anterior, contra el tenedor del resguardo, ocho días después del vencimiento de pago y sin necesidad de ningún requerimiento de pago.
Artículo L522-32 I. - El acreedor recibirá el pago de lo adeudado sobre el precio por privilegio y preferentemente a los demás
acreedores, directamente y sin ningún requisito formal, sin más reducción que las correspondientes a: 1º Las contribuciones indirectas, y derechos de aduana debidos por la mercancía; 2º Los gastos derivados de la venta, el almacenaje y demás gastos correspondientes al mantenimiento de la cosa. II. - Si el tenedor del resguardo no se presentara en el momento de la venta de la mercancía, la cantidad que
exceda de la que se adeuda al tenedor del warrant será consignada en la administración del almacén general como se establece en el artículo L.522-30.
Artículo L522-33 El tenedor no podrá ejercer acción de regreso contra el prestatario y los endosantes hasta haber ejercido sus
derechos sobre la mercancía y si ésta hubiese sido insuficiente. El plazo fijado por el artículo L.511-42 para el ejercicio de la acción de regreso contra los endosantes no empezaría
a contar hasta el día en que se efectúe la venta de la mercancía.
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CÓDIGO DE COMERCIO El tenedor del warrant perderá, en cualquier caso, su acción contra los endosantes si no inicia el proceso de la
venta en el mes siguiente a la fecha del protesto.
Artículo L522-34 El tenedor del resguardo y del warrant tendrá los mismos derechos y privilegios sobre las indemnizaciones de
seguro debidas en caso de siniestro que sobre la mercancía asegurada.
Artículo L522-35 Los establecimientos públicos de crédito podrán recibir los warrants como efectos de comercio, con la dispensa de
una de las firmas exigidas por sus estatutos.
Artículo L522-36 El que haya perdido un resguardo o un warrant podrá solicitar y obtener por medio de una resolución judicial,
justificando su propiedad y dando una garantía, un duplicado si se trata del resguardo, o el pago de la deuda si se trata del warrant.
Si en ese caso el firmante del warrant no se hubiera liberado el día del vencimiento, el tercero tenedor cuyo endoso hubiera sido transcrito en los libros matrices del almacén general podrá ser autorizado por resolución judicial, a iniciar los trámites de venta de la mercancía comprometida aportando un aval en las condiciones determinadas en el artículo L.522-31.
El protesto previsto en dicho artículo deberá dar copia de las menciones tal y como figuran en el libro matriz del almacén general.
Artículo L522-37 En caso de pérdida del resguardo, la garantía prevista en el artículo anterior será liberada a la expiración de un
plazo de cinco años, cuando las mercancías de las que se trate no hayan sido reivindicadas por un tercero en el almacén general.
En caso de pérdida del warrant la garantía será liberada a la expiración de un plazo de tres años, contados desde la transcripción del endoso.
Sección V De las sanciones Artículos L522-38 a
L522-40
Artículo L522-38 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Estará prohibido abrir y explotar sin la autorización prescrita en el artículo L.522-1 un establecimiento que reciba en depósito mercancías por las que se entreguen títulos de prenda negociables con el nombre de warrants o con cualquier otro nombre.
Toda infracción a esta prohibición se castigará con multa de 6.000 euros y pena de un año de prisión. El Tribunal podrá ordenar que la sentencia condenatoria sea publicada íntegramente o por extractos en los
periódicos que él designe y mediante edictos en los lugares que indique, sobre todo en las puertas del domicilio y de los almacenes del condenado, todo ello por cuenta de éste, sin que tales gastos puedan, sin embargo, sobrepasar el máximo de la multa prevista.
Artículo L522-39 En caso de infracción cometida, por el empresario que explota un almacén general, a las disposiciones del
presente capítulo o de los decretos adoptados en Conseil d'Etat tomado para la aplicación de dichas disposiciones, el Prefecto podrá acordar por medio de una orden la revocación de la autorización, a título temporal o definitivo, tras haber emplazado al afectado y haber consultado a los organismos profesionales e interprofesionales citados en el artículo L.522-2.
En ese caso, el presidente del Tribunal que resolverá como en procedimiento sumario, designará a un administrador provisional, a petición del Ministerio Público, y determinará los poderes de los que dispone para la explotación del establecimiento.
En caso de revocación de la autorización a título definitivo y cuando el interés del comercio local exija el mantenimiento del almacén general, los poderes del administrador provisional podrán conllevar la subasta pública del fondo de comercio y del material necesario para su explotación.
La revocación de la autorización a título definitivo podrá igualmente ser acordada, tras consultar a los organismos profesionales e interprofesionales para los establecimientos que hubieran dejado de funcionar como almacenes generales o como depósitos durante al menos dos años.
Artículo L522-40 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de las disposiciones del presente
capítulo.
CAPITULO III Del warrant hotelero Artículos L523-1 a
L523-15
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CÓDIGO DE COMERCIO Artículo L523-1
Todo empresario que explote un hotel podrá solicitar un préstamo sobre el mobiliario comercial, el material y el utillaje que sirva para su explotación, aunque hubieran sido convertidos en inmuebles por su destino, conservando la custodia en sus locales del hotel.
Los objetos que sirvan de garantía al crédito serán, hasta el reembolso de las cantidades prestadas, la prenda del prestamista y de sus derechohabientes.
El que solicitase el préstamo será el responsable de dichos objetos que le sean confiados a sus cuidados, sin ninguna indemnización oponible al prestamista ni a sus derechohabientes.
Artículo L523-2 El empresario que explota el hotel, que no sea propietario ni usufructuario del inmueble en el que ejerce su
industria, deberá comunicar, antes de solicitar cualquier préstamo, por notificación extrajudicial al propietario o usufructuario del fondo arrendado o a su mandatario legal, la clase, la cantidad y el valor de los objetos constituidos en prenda, así como las cantidades que vaya a solicitar como préstamo. Esta misma comunicación deberá ser reiterada por carta, por intermediación del secretario del Tribunal de grande instance competente en el lugar de la explotación del hotel amueblado. La carta de aviso será entregada al Secretario que deberá darle su VºBº, registrarla y enviarla en cédula certificada con acuse de recibo.
El propietario, el usufructuario o su mandatario legal, en un plazo de quince días (sin contar el de inicio ni el de final del plazo) a partir de la notificación del acta antes citada, podrán presentar su oposición a tal préstamo por documento extrajudicial dirigida al secretario, cuando el que solicita el préstamo no hubiera pagado los alquileres devengados, seis meses de alquileres en curso y seis meses por adelantado.
El solicitante del préstamo podrá obtener el levantamiento de la oposición si efectúa el pago de los alquileres anteriormente citados.
Si no hay respuesta por parte del propietario, del usufructuario o de su mandatario legal, en el plazo fijado anteriormente, se considerará que no ha habido oposición al préstamo.
El privilegio del arrendador hasta el total de la cantidad prestada se reducirá a los objetos que sirven de prenda para dicho préstamo. Sin embargo, el privilegio subsistirá por derecho en caso de que se hubiera hecho a pesar de la oposición del arrendador.
El arrendador siempre podrá renunciar a su oposición o al pago de los alquileres citados anteriormente, firmando en el registro previsto en el artículo L.523-3.
En caso de conflicto entre el privilegio del tenedor del warrant hotelero y de los acreedores hipotecarios, su prelación será determinada por las fechas respectivas de la transcripción del primer endoso del warrant y de las inscripciones de hipotecas.
Artículo L523-3 Se llevará en cada secretaría del Tribunal de commerce un libro matriz, numerado y rubricado, cuyo talón y matriz
llevarán la lista de menciones fijada por decreto, según las declaraciones del solicitante del préstamo. El talón que contiene tales menciones constituye el warrant hotelero.
Artículo L523-4 El warrant hotelero será expedido por el secretario del Tribunal de commerce en cuya circunscripción se explote el
hotel. El solicitante del préstamo que lo recibe firmará el recibí de la entrega del título, firmando con la fecha en el registro matriz. No se podrá expedir más de un warrant por los mismos objetos. El warrant será transferido por el solicitante del préstamo al prestamista por vía de endoso firmado y fechado.
El prestamista deberá hacer transcribir en el registro el primer endoso en un plazo de cinco días. Se hará mención también de esta transcripción en el warrant.
Artículo L523-5 El warrant será transferible por vía de endoso realizado siguiendo las prescripciones del artículo L.523-4, pero no
sometido al requisito formal de la transcripción como el primer endoso. Todos los que hayan firmado o endosado un warrant estarán obligados a la garantía solidaria con el tenedor. El primero y los sucesivos poseedores de un warrant estarán obligados a comunicar en los ocho días siguientes, al
secretario del Tribunal de commerce, en sobre de documento judicial certificado con acuse de recibo o verbalmente contra recibo de la comunicación.
El solicitante del préstamo podrá por una mención especial inscrita en el warrant, dispensar al primer y sucesivos tenedores del warrant de dar este aviso. En ese caso, no procederá la aplicación de las disposiciones de los dos últimos párrafos del artículo L.523-8.
Artículo L523-6 El secretario estará obligado a expedir a todo prestamista que lo requiera un estado de los warrants o un certificado
que muestre que no existen inscripciones. Estará obligado a realizar la misma expedición a cualquier hotelero perteneciente circunscripción de su secretaría que lo solicite, pero solamente en lo que se refiera al fondo explotado por él.
Este estado no irá más allá de los cinco últimos años.
Artículo L523-7 La cancelación de la inscripción se realizará mediante una acreditación del reembolso del crédito garantizado por el
warrant o por un levantamiento regular.
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CÓDIGO DE COMERCIO El solicitante del préstamo que haya reembolsado su warrant hará constar el reembolso en la secretaría del
Tribunal de commerce y hará mención del reembolso o del levantamiento sobre el libro matriz llevado por el secretario que le expedirá un certificado de la baja de la inscripción.
La inscripción será borrada de oficio, tras cinco años, si no hubiese sido renovada antes de la expiración de este plazo. Si se inscribe de nuevo tras la baja de oficio, únicamente valdrá frente a terceros desde el día de la fecha.
Artículo L523-8 El solicitante del préstamo conservará el derecho a vender los objetos del warrant de modo amistoso y antes del
pago del crédito, incluso sin la aceptación del prestamista, pero su entrega al comprador no podrá ser efectuada hasta el reembolso al acreedor.
El solicitante del préstamo, incluso antes del plazo, podrá reembolsar el crédito garantizado por el warrant; si el tenedor de éste rechaza las ofertas del deudor, éste podrá, para liberarse, consignar la cantidad ofrecida, observando los requisitos formales prescritos por los artículos 1426 al 1429 del Nuevo Código de Proceso Civil. Las ofertas se harán al último derechohabiente conocido por las comunicaciones llegadas al secretario según el artículo L.523-5. Ante un recibo de consignación regular y suficiente, el presidente del Tribunal de commerce en cuya circunscripción esté inscrito el warrant emitirá una resolución en cuyos términos se ceda la garantía por la cantidad consignada.
En caso de reembolso anticipado de un warrant, el solicitante del préstamo se beneficiará de los intereses que quedaban por adeudar hasta el vencimiento del warrant, tras la deducción de un plazo de diez días.
Artículo L523-9 Los establecimientos públicos de crédito podrán recibir los warrants hoteleros como efectos de comercio, con la
dispensa de una de las firmas exigidas por sus estatutos.
Artículo L523-10 Los tenedores de warrants tendrán, sobre las indemnizaciones de seguros en caso de siniestro, los mismos
derechos y privilegios que sobre los objetos asegurados.
Artículo L523-11 El tenedor de warrants deberá reclamar al solicitante del préstamo el pago de su crédito devengado y, si no se
realizara éste, reiterar su reclamación al deudor por carta certificada con acuse de recibo. A falta de pago del warrant en la fecha de vencimiento, el tenedor tendrá los derechos para la realización de la
prenda que las disposiciones de los artículos L.143-5 y L.143-15 confieren a los acreedores privilegiados o garantizados por una pignoración.
Sin embargo, el arrendador siempre podrá ejercer su privilegio hasta el importe de seis meses de alquileres devengados, seis meses de alquileres en curso y seis meses por adelantado.
Si el tenedor iniciase el trámite de la venta, no podrá ejercer ya su acción de regreso contra los endosantes ni siquiera contra el solicitante del préstamo hasta haber hecho valer sus derechos sobre el valor de los objetos cubiertos por el warrant. En caso de insuficiencia del precio para la compensación, se le concederá un plazo de tres meses contados a partir del día en el que se ha efectuado la venta para que ejercite su acción de regreso contra los endosantes.
Artículo L523-12 El tenedor del warrant recibirá directamente lo que se le adeudaba sobre el precio de venta, por privilegio y antes
que todos los demás acreedores, y sin otra deducción que la de las contribuciones directas y los gastos ocasionados por la venta, sin más requisitos formales que una resolución del presidente del Tribunal de commerce.
Artículo L523-13 Será castigado, según los casos, con las penas previstas para la estafa o el abuso de confianza en los artículos
313-1, 313-7, 313-8 o 314-1 y 314-10 del Código Penal, el solicitante de préstamo que realizara declaraciones falsas o constituyera un warrant sobre objetos que no fueran de su propiedad o que ya hubieran sido dados en prenda o en pignoración y que desviara, malgastara o deteriorara voluntariamente la prenda del acreedor, en su perjuicio.
Artículo L523-14 El importe de los derechos a percibir por el secretario será determinado por decreto adoptado en Conseil d'Etat. Las comunicaciones prescritas por las disposiciones del presente capítulo serán enviadas en la forma y con la tasa
correspondiente a la documentación de negocios certificada.
Artículo L523-15 Todos los acuerdos contrarios a las disposiciones del presente capítulo serán considerados nulos y no existentes, y
en particular todas aquellas estipulaciones que tengan por efecto vulnerar el derecho de los arrendatarios a instituir el warrant hotelero.
CAPITULO IV Del warrant petrolero Artículos L524-1 a
L524-21
Artículo L524-1 Los operadores, poseedores de stocks de petróleo bruto o de productos petroleros podrán cubrir con warrants los
stocks en garantía de sus préstamos, conservando sin embargo la guardia y custodia en sus fábricas o depósitos.
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CÓDIGO DE COMERCIO Los productos cubiertos por los warrants constituirán la prenda del tenedor del warrant, hasta el pago de las
cantidades adelantadas. El warrant será realizado sobre cierta cantidad de mercancías de una calidad específica, sin que sea necesario
separar materialmente los productos cubiertos por el warrant de los demás productos similares poseídos por el solicitante del préstamo.
El solicitante del préstamo será responsable de la mercancía que quede confiada a su guardia y custodia, y todo ello sin ninguna indemnización oponible en beneficio del warrant.
Artículo L524-2 Para elaborar el documento que se denomina "warrant petrolero", el secretario del Tribunal de commerce del lugar
donde se encuentren los productos cubiertos por el warrant inscribirá la clase, la calidad, la cantidad, el valor, el lugar de situación de los productos que deberán servir como prenda para el préstamo, el importe del préstamo, así como las cláusulas y condiciones particulares relativas al warrant petrolero establecidas por las partes, todo ello según las declaraciones del solicitante del préstamo.
El warrant será firmado por el prestatario. Sólo será válido por tres años como máximo, pero podrá ser renovado.
Artículo L524-3 El warrant deberá indicar si el producto cubierto por él está asegurado o no, y, en caso de tener un seguro, el
nombre y la dirección del asegurador. La continuación de dicho seguro hasta la realización del warrant será facultativa para los prestamistas. Los tenedores de warrants tendrán los mismos derechos y privilegios sobre las indemnizaciones de seguros
debidas en caso de siniestro que sobre los productos asegurados.
Artículo L524-4 El Secretario del Tribunal de commerce expedirá, a todo el que lo solicite, un desglose de los warrants inscritos en
los cinco últimos años a nombre del solicitante del préstamo o un certificado de que no existe ninguna inscripción.
Artículo L524-5 La cancelación de la inscripción se realizará mediante una acreditación del reembolso del crédito garantizado por el
warrant o por un levantamiento regular. El solicitante del préstamo que haya reembolsado el warrant solicitará del secretario del Tribunal de commerce que
dé constancia de dicho reembolso. Se hará mención del pago o del levantamiento en el libro matriz previsto en el artículo L.524-2. Se le expedirá un certificado de baja de dicha inscripción.
La inscripción será suprimida de oficio después de cinco años si no ha sido renovada antes de la expiración del plazo. Si se vuelve a inscribir tras la baja de oficio, sólo valdrá frente a terceros desde el día de la nueva fecha.
Artículo L524-6 El solicitante del préstamo conservará el derecho a vender los productos cubiertos por el warrant de modo
amistoso y antes del pago del crédito, incluso sin la autorización del prestamista. Sin embargo, la entrega de los productos al comprador no podrá ser realizada hasta haber desinteresado al acreedor.
El solicitante del préstamo podrá, incluso antes de la fecha de vencimiento, reembolsar el crédito garantizado por el warrant. Si el tenedor del warrant rechaza las ofertas del deudor, éste podrá consignar la cantidad ofrecida para liberarse en las condiciones previstas en los artículos 1426 al 1429 del Nuevo Código de Proceso Civil. Las ofertas se harán al último derechohabiente conocido por las comunicaciones llegadas a la secretaría del tribunal de commerce según el artículo L.523-8. Ante un recibo de consignación regular y suficiente, el presidente del Tribunal de commerce en cuya circunscripción esté inscrito el warrant emitirá una resolución en cuyos términos se ceda la garantía por la cantidad consignada.
En caso de reembolso anticipado de un warrant petrolero, el solicitante del préstamo se beneficiará de los intereses que quedaban por devengar hasta el vencimiento del warrant salvo una deducción de un plazo de diez días.
Artículo L524-7 Los establecimientos públicos de crédito podrán recibir los warrants como efectos de comercio, con la dispensa de
una de las firmas exigidas por sus estatutos.
Artículo L524-8 El warrant petrolero será transferible por vía de endoso. Éste será fechado y firmado, mencionará los nombres, las
profesiones y los domicilios de las partes. Todos los que hayan firmado o endosado un warrant estarán obligados a la garantía solidaria con el tenedor. El poseedor y sucesivos poseedores de un warrant estarán obligados a avisar de ello al secretario del Tribunal de
commerce en los ocho días siguientes por carta certificada con acuse de recibo o verbalmente a cambio de recibo de dicha comunicación.
El solicitante del préstamo podrá, por una mención especial inscrita en el warrant, dispensar al poseedor o sucesivos poseedores de dar esta comunicación, en ese caso no se podrán aplicar las disposiciones del último párrafo del artículo L.524-6.
Artículo L524-9 El tenedor del warrant petrolero deberá reclamar al solicitante del préstamo el pago de su crédito devengado y si
no se produce dicho pago, constatar y reiterar su reclamación al deudor por carta certificada con acuse de recibo.
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CÓDIGO DE COMERCIO Si no estuviese pagado a los cinco días del envío de esta carta, el tenedor del warrant petrolero estará obligado a
denunciar la falta de pago, bajo pena de perder sus derechos contra los endosantes, dentro de los quince días naturales siguientes al vencimiento, sin contar el de inicio ni el de final de plazo, por un apercibimiento dirigido a cada uno de los endosantes y remitido a la secretaría del Tribunal de commerce quien le dará un recibo. La secretaría del Tribunal de commerce dará a conocer este apercibimiento, en los ocho días siguientes, a los endosantes por carta certificada con acuse de recibo.
Artículo L524-10 En caso de negarse al pago, el tenedor del warrant petrolero, transcurridos los quince días desde el envío de la
carta certificada dirigida al solicitante del préstamo, como se ha dicho anteriormente, podrá iniciar el trámite de venta pública de la mercancía empeñada por medio de un Oficial Ministerial. Se procederá en virtud de una resolución emitida por requerimiento del presidente del Tribunal del Comercio de la situación de las mercancías cubiertas por el warrant, fijando el día y la hora de la venta. Se anunciará al menos ocho días antes mediante edictos que se colocarán en los lugares indicados por el presidente del Tribunal de commerce. El presidente del Tribunal podrá, en cualquier caso, autorizar el anuncio de la venta en los periódicos. Se deberá hacer constar la publicidad hecha por una mención inscrita en el documento de venta.
Artículo L524-11 El fedatario público encargado informará, por carta certificada, al deudor y a los endosantes, con ocho días de
antelación, del lugar, fecha y hora en que se procederá a la venta. El solicitante del préstamo podrá sin embargo, por una mención especial inscrita en el warrant petrolero, aceptar
que no haya obligatoriamente venta pública, y que la venta pueda ser realizada de modo amistoso. En tal caso, para proceder a la venta se solicitará al presidente del Tribunal de commerce de la zona donde se encuentren las mercancías que emita una resolución.
Artículo L524-12 Las disposiciones del artículo 53 de la Ley nº 91-650 de 9 de julio de 1991 que reforma los procedimientos civiles
de ejecución serán aplicables a las ventas previstas por las disposiciones del presente capítulo.
Artículo L524-13 El tenedor del warrant recibirá el pago de lo que se le adeuda directamente sobre el precio de venta, por privilegio y
con preferencia a los demás acreedores con la deducción de los gastos de venta, y sin otro requisito formal que una resolución del presidente del Tribunal de commerce.
Artículo L524-14 Si el tenedor del warrant petrolero procediera a efectuar la venta, según lo dispuesto en los artículos L.523-9 a L.
524-11, no podrá ejercer su acción de regreso contra los endosantes ni siquiera contra el solicitante del préstamo, hasta haber hecho valer sus derechos sobre el precio de los productos cubiertos por el warrant. En caso de insuficiencia de la cantidad para su compensación, se le concederá un plazo de un mes, a partir del día en que se ha realizado la venta de la mercancía, para ejercer su acción de regreso contra los endosantes.
Artículo L524-15 En caso de no conformidad, constatada entre las existencias y las cantidades o calidades cubiertas por el warrant,
los prestamistas podrán inmediatamente requerir al titular del warrant petrolero por medio de una carta certificada con acuse de recibo para que restablezca la prenda en las cuarenta y ocho horas siguientes a la recepción de la carta certificada, o bien para que reembolse, en el mismo plazo todo o parte de las cantidades prestadas sobre el warrant petrolero. Si no les fuera dada satisfacción, los prestamistas tendrán derecho a exigir el reembolso total del crédito considerándolo como devengado.
En tal caso, el solicitante del préstamo perderá el beneficio previsto en las disposiciones del último párrafo del artículo L. 524-6 concernientes al reembolso de los intereses.
Artículo L524-16 En caso de un descenso del valor de los stocks cubiertos por el warrant, que sobrepase o iguale al 10%, los
prestamistas podrán requerir de los solicitantes del préstamo que aumenten la mercancía en prenda, o bien que les devuelvan una parte proporcional de las cantidades prestadas, por carta certificada con acuse de recibo. En este último caso, serán aplicables las disposiciones del último párrafo del artículo L.524-6.
Si no se satisface tal demanda en un plazo de ocho días naturales, sin contar el primero ni el último de ellos, los prestamistas tendrán la facultad de exigir el reembolso total de su crédito considerándolo como devengado.
Artículo L524-17 Se castigará con las penas previstas en los artículos 313-1, 313-7 y 313-8 o 314-1 y 314-10 del Código Penal al
solicitante de préstamo o depositario que hiciera una declaración falsa, o constituyera un warrant petrolero sobre productos ya cubiertos por otro warrant, sin aviso previo al nuevo prestamista o desviara, malgastara o deteriorara voluntariamente la prenda de éste, en perjuicio de su acreedor.
Artículo L524-18 Cuando por ejecución de las disposiciones del presente capítulo, hubiera lugar a un procedimiento sumario, este
procedimiento será llevado ante el presidente del Tribunal de commerce de la zona en que se encuentren las mercancías cubiertas por el warrant.
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CÓDIGO DE COMERCIO Artículo L524-19
El importe de los derechos que deberá percibir el secretario del Tribunal de commerce en concepto de los warrants petroleros será el fijado por el decreto regulador los warrants agrícolas. Este importe podrá sin embargo ser revisado por un decreto especial para los warrants petroleros.
Las comunicaciones prescritas por las disposiciones del presente capítulo serán enviadas en la forma y con la tasa correspondiente a la documentación de negocios certificada.
Artículo L524-20 Las disposiciones del presente capítulo serán aplicables no obstante las obligaciones impuestas por la Ley nº
92-1443 de 31 de diciembre de 1992 que reforma el régimen petrolero, en particular en lo que afecta a la constitución y el reparto de los stocks y sin perjuicio del ejercicio eventual de la responsabilidad de los operadores en caso de infringir estas obligaciones.
Artículo L524-21 El presente capítulo será aplicable en los departamentos de Haut-Rhin, Bas-Rhin y Moselle, sin perjuicio de las
disposiciones especiales de la Ley de 1 de junio de 1924 relativa a la aplicación de las leyes comerciales francesas en esos tres departamentos.
Las secretarías competentes para el establecimiento de los warrants petroleros serán las previstas en el artículo 35 de dicha ley para el establecimiento de los warrants hoteleros.
CAPITULO V De la pignoración del utillaje y del material de equipamiento Artículos L525-1 a
L525-20
Artículo L525-1 El pago del precio de adquisición del utillaje y del material de equipamiento profesional podrá ser garantizado, con
relación al vendedor o al prestamista que adelanta los fondos necesarios para pagar al vendedor, por medio de una pignoración limitada al utillaje o al material adquirido de este modo.
Si el comprador tuviera la condición de comerciante esta pignoración estará sometida, no obstante las disposiciones que siguen, a las reglas dictadas por los capítulos II y III del título IV del Libro I, sin que sea necesario incluir en esta pignoración los elementos esenciales del fondo.
Si el comprador no tuviese la condición de comerciante, la pignoración se someterá a las disposiciones del artículo L.525-16.
Artículo L525-2 Se concederá la pignoración por medio de una escritura pública o documento privado registrado por el pago de una
tasa fija. Cuando se conceda al vendedor, será dada en el documento de venta. Cuando se conceda al prestamista que adelanta los fondos necesarios para el pago al vendedor, se dará la
pignoración en el acta del préstamo. Este acta deberá mencionar, bajo pena de nulidad, que los fondos pagados por el prestamista tienen por objeto
asegurar el pago del importe de los bienes adquiridos. Los bienes adquiridos deberán ser enumerados en el cuerpo del acta y cada uno de ellos deberá ser descrito de
modo preciso, con el fin de individualizarlo con respecto a los demás bienes del mismo tipo que pertenezcan a la empresa. El acta indicará igualmente el lugar fijo en el que están ubicados o mencionará, en caso contrario, que son susceptibles de ser desplazados.
Estarán equiparados a los prestamistas de fondos los garantes que intervengan en calidad de fiadores, avalistas o endosantes en la concesión de los créditos para equipamientos. Estas personas estarán subrogadas de pleno derecho a los acreedores. Lo mismo sucederá con las personas que endosan, descuentan, avalan o aceptan los efectos creados en representación de dichos créditos.
Artículo L525-3 La pignoración deberá ser concluida, bajo pena de nulidad, como máximo en el plazo de dos meses contados a
partir del día de la entrega del material de equipamiento en el lugar en el que vaya a ser instalado. También bajo pena de nulidad, la pignoración deberá ser inscrita en las condiciones requeridas por los artículos
L.142-3 y L.142-4, y en un plazo de quince días a contar desde la fecha del acta constitutiva de pignoración. Cuando la entrega del material se produzca después de la fecha prevista en el contrato o si no se hace en el lugar
inicialmente determinado, las deudas inscritas se harán exigibles de pleno derecho si el deudor no hubiera dado a conocer al acreedor pignoraticio la fecha o el lugar en el que se ha producido en el plazo de los quince días siguientes a dicha entrega.
La pignoración no podrá ser opuesta a terceros si, en los quince días siguientes a la recepción del aviso o en los quince días contados a partir del día en que ha tenido conocimiento de la fecha o del lugar de la entrega, el acreedor pignoraticio no hubiera requerido del secretario del Tribunal en dónde ha sido hecha la inscripción de la pignoración que se haga mención de esta fecha o de este lugar en el margen de dicha inscripción.
Artículo L525-4 Los bienes dados en pignoración por aplicación del presente capítulo podrán, además, por requerimiento del
beneficiario de la pignoración ser provistos de una placa sobre una pieza esencial y de un modo visible y fijo en dónde
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CÓDIGO DE COMERCIO se indique el lugar, la fecha y el número de inscripción del privilegio con el que han sido gravados.
Bajo pena de las sanciones previstas en el artículo L.525-19, el deudor no podrá obstaculizar la colocación de estas marcas ni podrá destruirlas, retirarlas o recubrirlas antes del fin o la cancelación del privilegio del acreedor pignoraticio.
Artículo L525-5 Cualquier subrogación convencional en beneficio de la pignoración deberá ser mencionada al margen de la
inscripción en los quince días siguientes a la fecha de la escritura pública o del documento privado que la constata, entregando al secretario una copia o un original de dicha acta.
Los conflictos que puedan surgir entre los titulares de inscripciones sucesivas serán regulados de conformidad con el artículo 1252 del Código Civil.
Artículo L525-6 El beneficio de la pignoración será transferido de pleno derecho según el artículo 1692 del Código Civil a los
tenedores sucesivos de los efectos garantizados, tanto si estos efectos han sido suscritos o aceptados a la orden del vendedor o del prestamista que hubieran suministrado todo o parte del importe, como si, más frecuentemente, representan la movilización de un crédito válidamente pignorado según las disposiciones del presente capítulo.
Si se hubieran creado varios efectos para representar el crédito, el privilegio vinculado a éste será ejercido por el primer demandante para la cuenta común y por la totalidad.
Artículo L525-7 Bajo pena de las sanciones previstas en el artículo L.525-19, el deudor que, antes del pago o del reembolso de las
cantidades garantizadas en conformidad con el presente capítulo, quisiera vender de modo amistoso todo o parte de los bienes gravados, deberá solicitar el consentimiento previo del acreedor pignoraticio y, si no lo tuviera, la autorización del juez de procedimientos sumarios del Tribunal de commerce que resuelve en última instancia.
Cuando haya cumplido las exigencias de publicidad requeridas por el presente capítulo y los bienes gravados hayan sido provistos de una placa según lo determinado por el artículo L.525-4, el acreedor pignoraticio o sus subrogados dispondrán del derecho de reclamación a terceros previsto en el artículo L.143-12 para el ejercicio del privilegio resultante de la pignoración.
Artículo L525-8 El privilegio del acreedor pignoraticio subsiste en aplicación de las disposiciones del presente capítulo si el bien
que ha sido gravado se convierte en inmueble por su destino. El artículo 2133 del Código Civil no será aplicable a los bienes pignorados.
Artículo L525-9 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
I. - En aplicación de las disposiciones del presente capítulo, el privilegio del acreedor pignoraticio se ejercerá sobre los bienes gravados con preferencia a todos los demás privilegios excepto:
1º Del privilegio de los gastos judiciales; 2º Del privilegio de los gastos realizados para la conservación de la cosa; 3º Del privilegio concedido a los trabajadores por el artículo L.143-10 del Código de Trabajo. II. - Se ejercerá, sobre todo, en contra de todo acreedor hipotecario y preferentemente al privilegio del Tesoro, al
privilegio citado en el artículo L.243-4 del Código de la Seguridad Social, al privilegio del vendedor del fondo de comercio a la explotación a la que corresponde el bien gravado, así como al privilegio del acreedor pignoraticio sobre el conjunto de dicho fondo.
III. - Sin embargo, para que su privilegio sea oponible al acreedor hipotecario, al vendedor del fondo de comercio y al acreedor pignoraticio sobre el conjunto de dicho fondo, previamente inscritos, el beneficiario de la pignoración firmada en aplicación del presente capítulo deberá enviar a dichos acreedores, por documento extrajudicial, una copia del acta que constate la pignoración. Esta comunicación deberá ser hecha, bajo pena de nulidad, en los dos meses siguientes a la firma de la pignoración.
Artículo L525-10 Sin perjuicio de las excepciones de aplicación previstas por el presente capítulo, el privilegio del acreedor
pignoraticio estará regulado por las disposiciones del libro I, título IV, capítulo III en las que se refiere a los requisitos formales de inscripción, los derechos de los acreedores en caso de traslado del fondo, los derechos del arrendador del inmueble, el levantamiento de dichos privilegios y los requisitos formales para su cancelación.
Artículo L525-11 La inscripción conservará el privilegio durante cinco años contados a partir de su regularización definitiva. Garantizará, al mismo tiempo que el capital, dos años de intereses. Dejará de tener efecto si no hubiera sido
renovada antes de la expiración del plazo anterior; podrá ser renovada dos veces.
Artículo L525-12 El estado de las inscripciones existentes, expedido en aplicación del artículo 32 de la Ley de 17 de marzo de 1909
relativa a la venta y a la pignoración de los fondos de comercio, deberá incluir las inscripciones realizadas en virtud de las disposiciones del presente capítulo. Podrá igualmente serle expedido al demandante, si lo requiere, una certificación de la existencia o ausencia de inscripciones en los bienes designados, hechas en virtud de las disposiciones de los capítulos I y II del título IV del libro I o en virtud de las disposiciones del presente capítulo.
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CÓDIGO DE COMERCIO Artículo L525-13
La notificación de las diligencias emprendidas, en conformidad con el artículo L.143-10 para llegar a la realización forzosa de ciertos elementos del fondo al que pertenecen los bienes gravados del privilegio del vendedor o del privilegio de la pignoración en virtud de las disposiciones del presente capítulo, hará exigibles los créditos garantizados por estos privilegios.
Artículo L525-14 Si no se hubiera efectuado el pago en la fecha de vencimiento, el acreedor beneficiario del privilegio establecido
por el presente capítulo podrá proseguir el trámite para la venta pública del bien gravado según las disposiciones del artículo L.521-3. El fedatario público encargado de la venta será designado, a su petición, por el presidente del Tribunal de commerce. El acreedor deberá ajustarse a las disposiciones del artículo L.143-10 previamente a la venta.
El acreedor pignoraticio tendrá la facultad de ejercer la sobrepuja de la décima parte prevista en el artículo L.143-13.
Artículo L525-15 Los bienes gravados en virtud del presente capítulo, cuya venta fuera solicitada junto a otros elementos del fondo,
serán objeto de una valoración a parte, o a un precio distinto si el pliego de condiciones obligara al adjudicatario a tomarlos por una peritación.
En todos los casos, las cantidades procedentes de la venta de estos bienes serán, antes de toda distribución adjudicadas a los beneficiarios de las inscripciones, hasta el total del importe de sus créditos en capital, gastos e intereses conservados por dichas inscripciones.
El recibo entregado por el acreedor beneficiario del privilegio sólo estará sujeto al pago de una tasa fija.
Artículo L525-16 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Si el comprador no tuviera la condición de comerciante, la pignoración estará sujeta a las disposiciones de los artículos L.525-1 a L.525-9, L.525-11 y L.525-12 y del presente artículo. La inscripción prevista en el artículo L.525-3 será realizada en la secretaría del Tribunal de commerce en cuya circunscripción esté domiciliado el comprador del bien gravado, o, si se trata de una persona inscrita en el Registro Central de Artesanos, en la circunscripción en la que se sitúe su fondo artesanal.
Si no se ha efectuado el pago en la fecha de vencimiento, el acreedor beneficiario del privilegio establecido por el presente capítulo podrá iniciar el trámite para la venta pública del bien gravado según las disposiciones del artículo L.521-3.
Las inscripciones se suprimirán por consentimiento de las partes interesadas o en virtud de una sentencia con valor de cosa juzgada.
A falta de sentencia, la cancelación total o parcial sólo podrá ser efectuada por el secretario y sólo por medio del depósito de un acta auténtica de consentimiento dado por el acreedor.
Cuando la baja no concedida por el acreedor se solicitara por medio de una acción principal, esta acción será llevada ante el Tribunal de commerce del lugar en el que se realizó la inscripción.
La cancelación se efectuará por medio de una mención realizada al margen de la inscripción por el secretario. Se entregará un certificado de ella a las partes que lo solicitasen.
Artículo L525-17 Para la aplicación de las disposiciones del presente capítulo, los secretarios estarán sujetos a las diligencias y
responsabilidades determinadas por vía reglamentaria en cuanto al contenido del registro de las inscripciones y la expedición de las notas descriptivas o certificados requeridos.
Sus emolumentos se determinarán según lo previsto en los textos reglamentarios vigentes.
Artículo L525-18 No se someterán a la aplicación de las disposiciones del presente capítulo: 1º Los vehículos automóviles citados en el decreto nº 53-968 de 30 de septiembre de 1953; 2º Los buques, así como los barcos de navegación fluvial citados por los artículos 78 y siguientes del Código del
Dominio Público Fluvial y de la Navegación Interior; 3º Las aeronaves citadas en los artículos L.110-1 y siguientes del Código de la Aviación Civil.
Artículo L525-19 Será castigado con las penas previstas para el abuso de confianza por los artículos 314-1 y 314-10 del Código
Penal el comprador o poseedor de bienes pignorados en aplicación del presente capítulo, que destruyera o intentara destruir, desviara o intentara desviar, o alterara o intentara alterar dichos bienes de cualquier manera con la finalidad de hacer fracasar los derechos del acreedor.
Se castigará con las mismas penas cualquier maniobra fraudulenta destinada a privar al acreedor de su privilegio sobre los bienes pignorados o disminuirlo.
Artículo L525-20 Las condiciones de aplicación de las disposiciones del presente capítulo se determinarán por decretos adoptados
en Conseil d'Etat.
CAPITULO VI
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CÓDIGO DE COMERCIO De la protección del empresario individual y de su cónyuge acciones Artículos L526-1 a
L526-4
Artículo L526-1 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2003 Artículo 8 Diario Oficial de 5 de agosto de 2003)
Por excepción a lo dispuesto en los artículos 2092 y 2093 del Código Civil, una persona física inscrita en un registro de publicidad legal de carácter profesional o una persona que ejerza una actividad profesional agrícola o autónoma podrá declarar inembargables sus derechos sobre el inmueble donde se encuentra su residencia principal. Esta declaración, publicada en la Oficina de Hipotecas o, en los departamentos de Bas-Rhin, Haut-Rhin y Moselle, en el Registro de la Propiedad, sólo tendrá efecto frente a los acreedores cuyos derechos sean posteriores a dicha publicación y hayan surgido con motivo de la actividad profesional del declarante.
Cuando el inmueble sea a la vez de uso profesional y de uso residencial, la parte reservada a la residencia principal sólo podrá ser objeto de dicha declaración en la medida en que haya sido señalada en una descripción de división del inmueble.
Artículo L526-2 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2003 Artículo 8 Diario Oficial de 5 de agosto de 2003)
La declaración, realizada ante notario bajo pena de nulidad, incluirá la descripción detallada del inmueble y la indicación de su carácter propio, común o indiviso. El acta se publicará en la Oficina de Hipotecas o, en los departamentos de Bas-Rhin, Haut-Rhin y Moselle, en el Registro de la Propiedad.
Cuando la persona esté inscrita en un registro de publicidad legal de carácter profesional, la declaración deberá mencionarse en dicho registro.
Cuando la persona no esté obligada a inscribirse en un registro de publicidad legal, se deberá publicar un extracto de la declaración en un periódico de anuncios legales del departamento en el que ejerza la actividad profesional para que esta persona pueda acogerse al beneficio mencionado en el apartado primero del artículo L. 526-1.
El establecimiento del acta y el cumplimiento de los requisitos darán lugar al pago a los notarios de una remuneración fija en el marco de un límite máximo determinado por decreto.
Artículo L526-3 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2003 Artículo 8 Diario Oficial de 5 de agosto de 2003)
En caso de cesión de derechos inmobiliarios indicados en la declaración inicial, el precio obtenido será inembargable frente a acreedores cuyos derechos sean posteriores a la publicación de esta declaración y hayan surgido con motivo de la actividad profesional del declarante, bajo la condición de que se reutilicen las cantidades en un plazo de un año para la adquisición por parte del declarante de un inmueble donde se encuentre su residencia principal.
Los derechos sobre la residencia principal nuevamente adquirida serán inembargables, hasta el límite de las cantidades reinvertidas, frente a los acreedores mencionados en el apartado primero siempre que el acta de adquisición incluya una declaración de reinversión de fondos.
La declaración de reinversión de fondos estará sujeta a las condiciones de validez y de oponibilidad previstas en los artículos L. 526-1 y L. 526-2.
En cualquier momento, la declaración podrá ser objeto de una renuncia sujeta a las mismas condiciones de validez y oponibilidad.
Los efectos de la declaración subsistirán tras la disolución del régimen matrimonial cuando el declarante sea el nuevo atributario del bien. El fallecimiento del declarante conllevará la revocación de la declaración.
Artículo L526-4 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2003 Artículo 8 Diario Oficial de 5 de agosto de 2003)
En el momento de solicitar su inscripción en un registro de publicidad legal de carácter profesional, la persona física casada bajo un régimen de comunidad legal o un régimen de comunidad pactado entre cónyuges, deberá acreditar que su cónyuge ha sido informado de las consecuencias de las deudas contraídas en el marco del ejercicio de su profesión sobre los bienes comunes.
Un decreto adoptado en Conseil d'Etat precisará, por cuanto sea necesario, las condiciones de aplicación del presente artículo.
LIBRO VI DE LAS DIFICULTADES DE LAS EMPRESAS Artículos L611-1 a
L610-1 Artículo L.610-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. , art. 2 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por decreto adoptado en Conseil d'Etat se determinará, en cada departamento, el Tribunal o los Tribunales encargados de conocer en los procedimientos previstos por el presente Libro, así como la circunscripción en la que estos Tribunales ejercerán las atribuciones que les hubieran sido asignadas.
TITULO I DE LA PREVENCIÓN Y DEL ARREGLO AMISTOSO DE LAS DIFICULTADES DE LAS Artículos L611-1 a
EMPRESAS L612-5
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CÓDIGO DE COMERCIO CAPITULO I De la prevención de las dificultades de las empresas, del mandato ad hoc y del
procedimiento de conciliación Artículos L611-1 a L611-15
Artículo L.611-1 (Ley nº 2003-721 de 1 de agosto de 2003 art. 10 Diario Oficial de 5 de agosto de 2003) ( Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 3 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier persona inscrita en el Registro de Comercio y de Sociedades o en el Registro Central de Artesanos, así como cualquier persona jurídica de derecho privado, podrá unirse a una agrupación de prevención autorizada por orden del representante del Estado en la región.
Esta agrupación tendrá como misión proporcionar a sus afiliados, de modo confidencial, un análisis de las informaciones económicas, contables y financieras que estos se comprometan a remitirle con regularidad.
Cuando la agrupación detecte indicios de dificultades, informará de ello al empresario y podrá proponerle la intervención de un perito.
A instancia del representante del Estado, las administraciones competentes prestarán su apoyo a las agrupaciones de prevención autorizadas. También se podrá solicitar los servicios del Banco de Francia para emitir dictámenes sobre la situación financiera de las empresas afiliadas, según las condiciones previstas por convenio. Las agrupaciones de prevención autorizadas podrán beneficiarse asimismo de ayudas otorgadas por las entidades territoriales.
Las agrupaciones de prevención autorizadas estarán habilitadas para firmar contratos en beneficio de sus afiliados, en particular con las entidades de crédito y las empresas de seguros.
Artículo L.611-2 ( Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 4 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Cuando de un acto, documento o procedimiento se desprendiera que una sociedad mercantil, una agrupación de interés económico o una empresa individual, comercial o artesanal, está atravesando dificultades susceptibles de comprometer la continuidad de la explotación, el presidente del Tribunal de commerce podrá convocar a sus dirigentes para que se tomen las medidas oportunas para subsanar la situación.
Tras la entrevista consiguiente a la convocatoria, o en el caso de que los dirigentes no hubieran acudido a la convocatoria, el presidente del Tribunal, no obstante cualquier disposición legal o reglamentaria en contrario, podrá obtener de los auditores de cuentas, los miembros y representantes del personal, las administraciones públicas, los organismos de seguridad y previsión sociales así como los servicios encargados de la centralización de los riesgos bancarios y de los incidentes de pago, toda la información necesaria que le permita tener una imagen exacta de la situación económica y financiera del deudor.
II. - Cuando los dirigentes de una sociedad comercial no procedan a la presentación de las cuentas anuales dentro de los plazos previstos por los textos aplicables, el presidente del Tribunal podrá dirigir a los mismos un requerimiento, bajo pena de multa coercitiva, para que lo hagan.
En caso de incumplimiento de lo ordenado en este requerimiento dentro de un plazo fijado por decreto adoptado en Conseil d'Etat, el presidente del Tribunal podrá aplicar a los mismos lo dispuesto en el párrafo segundo del punto I.
Artículo L.611-3 ( Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 5 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El presidente del Tribunal de Commerce o del Tribunal de Grande Instance podrá nombrar, a petición del representante de la empresa, a un mandatario ad hoc, fijándole su misión.
Artículo L.611-4 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 5 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se establecerá un procedimiento de concertación, ante el Tribunal de Commerce, al que podrán acogerse las personas que ejerzan una actividad comercial o artesanal que atraviesen una dificultad jurídica, económica o financiera, conocida o previsible, siempre que no se encuentren en estado de insolvencia por un periodo superior a cuarenta y cinco días.
Artículo L.611-5 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 5 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de conciliación será aplicable, en las mismas condiciones, a las personas jurídicas de derecho privado y a las personas físicas que ejerzan una actividad profesional autónoma, incluyendo una profesión liberal, sujeta a un estatuto legal o reglamentario o cuyo título esté protegido. El Tribunal de Grande Instance será competente a efectos del presente artículo y su presidente ejercerá las mismas facultades que las atribuidas al presidente del Tribunal de Commerce.
El procedimiento de conciliación no será de aplicación a los agricultores que se beneficien del procedimiento previsto en los artículos L.351-1 a L.351-7 del Código Rural.
Artículo L.611-6
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CÓDIGO DE COMERCIO (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 5 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El presidente del Tribunal de commerce conocerá a instancia del deudor, que expondrá su situación financiera, económica y social, sus necesidades de financiación así como, en su caso, los medios de los que dispone para hacerles frente.
Además de las facultades que le son atribuidas por el párrafo segundo del punto I del artículo L.611-2, el presidente del Tribunal podrá encargar la elaboración de un informe sobre la situación económica, social y financiera del deudor a un perito elegido por él y, no obstante cualquier disposición legal o reglamentaria en contrario, obtener de las entidades bancarias o financieras cualquier información que pueda proporcionarle una imagen exacta de la situación económica y financiera del deudor.
El presidente del Tribunal incoará el procedimiento de conciliación y designará a un conciliador por un periodo que no excederá de los tres meses pero que podrá prorrogarse, mediante resolución motivada, por un mes o más a petición de este último. El deudor podrá proponer que el presidente del Tribunal nombre a un conciliador. Al expirar dicho periodo, se pondrá fin de pleno derecho a la misión del conciliador y al procedimiento.
La decisión por la que se incoa el procedimiento de conciliación no será susceptible de recurso. La misma será comunicada al Ministerio FiscaL.Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, la decisión será igualmente comunicada al colegio profesional o a la autoridad competente de la que eventualmente dependa.
El deudor podrá recusar al conciliador en las condiciones y plazos establecidos por decreto adoptado en Conseil d'Etat.
Artículo L.611-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 6 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El conciliador tendrá por misión favorecer la conclusión de un acuerdo amistoso entre el deudor y sus principales acreedores así como, en su caso, sus cocontratantes habituales, con el fin de superar las dificultades de la empresa. Podrá igualmente presentar cualquier propuesta relativa a la salvaguarda de la empresa, a la continuidad de la actividad económica y al mantenimiento del empleo.
Podrá con este fin solicitarle deudor toda la información que estime necesaria. El presidente del Tribunal remitirá al conciliador los datos de que disponga, y, en su caso, los resultados del peritaje citado en el párrafo segundo del artículo L.611-6.
Las administraciones financieras, los organismos de seguridad social, las instituciones que gestionen el régimen de seguro de desempleo previsto por los artículos L.351-3 y siguientes del Código de Trabajo y las instituciones regidas por el libro IX del Código de la Seguridad Social podrá conceder condonaciones de deudas con arreglo a las condiciones establecidas en el artículo L.626-6 del presente Código.
El conciliador informará al presidente del Tribunal del estado de avance de su misión y emitirá las observaciones que estime necesarias sobre las diligencias del deudor.
Si en el transcurso del procedimiento un acreedor reclamara judicialmente al deudor el pago de sus deudas, el juez que haya incoado el procedimiento podrá aplicar, previa petición del deudor y previa consulta con el conciliador, lo dispuesto en los artículos 1244-1 a 1244-3 del Código Civil.
Si resultara imposible alcanzar un acuerdo, el conciliador presentará sin demora un informe al presidente del Tribunal Este pondrá fin a su misión así como al procedimiento de conciliación, notificándose esta decisión al deudor.
Artículo L.611-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 7 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - El presidente del tribunal, a petición conjunta de las partes, hará constar el acuerdo y conferirá al mismo fuerza ejecutiva. El mismo se pronunciará a la vista de una declaración certificada del deudor, indicando que no se encontraba en estado de insolvencia en la fecha de conclusión del acuerdo, o que este último ha puesto fin a la misma. La decisión que recoja el acuerdo no estará sujeta a publicación y no será susceptible de recurso. La misma pondrá fin al procedimiento de conciliación.
II. - No obstante, a petición del deudor, el Tribunal homologará el acuerdo alcanzado, siempre que se cumplan los siguientes requisitos:
1° El deudor no se encuentra en estado de insolvencia o el acuerdo alcanzado pone fin a las misma. 2° Los términos del acuerdo son susceptibles de garantizar la continuidad de la actividad de la empresa. 3° El acuerdo no perjudica los intereses de los acreedores no firmantes del mismo, sin perjuicio de la posible
aplicación de los artículos 1244-1 a 1244-3 del Código Civil.
Artículo L.611-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 7 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal resolverá sobre la homologación tras haber oído o citado en debida forma para tomarles declaración a puerta cerrada al deudor, a los acreedores partes en el acuerdo, a los representantes del comité de empresa o, en su defecto, a los delegados del personal, al conciliador y al Ministerio FiscaL.Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, se convocará u oirá en las mismas condiciones al colegio profesional o a la autoridad competente de la que eventualmente dependa.
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CÓDIGO DE COMERCIO El Tribunal podrá asimismo oír a cualquier persona cuyas declaraciones estime útiles.
Artículo L.611-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 7 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La homologación del acuerdo pondrá fin al procedimiento de conciliación. Cuando el deudor esté sujeto al control legal de sus cuentas, el acuerdo homologado se remitirá a su auditor de
cuentas. La sentencia de homologación se depositará en la secretaría del Tribunal, donde cualquier persona interesada podrá tener acceso a ella, y será objeto de publicidad. Será susceptible de impugnación por parte de terceros dentro del plazo de diez días a contar desde la fecha en que se haga pública. La sentencia de denegación de la homologación no será objeto de publicación y podrá ser recurrida.
El acuerdo homologado suspenderá, durante el periodo de su ejecución cualquier acción judicial, cualquier diligencia individual tanto sobre los bienes muebles como sobre los inmuebles del deudor, con el fin de obtener el pago de los créditos que fueran objeto de ellos. Suspenderá por el mismo periodo los plazos concedidos a los acreedores partes en el acuerdo, bajo pena de caducidad o de rescisión de los derechos correspondientes a estos acreedores. Los codeudores y las personas que hayan concedido una fianza o una garantía autónoma podrán prevalerse de lo dispuesto en el acuerdo homologado.
El acuerdo homologado conllevará la suspensión de la inhabilitación para emitir cheques, de conformidad con el artículo L.131-73 del Código Monetario y Financiero, cuando esta hubiera sido provocada por el rechazo de pago de un cheque emitido antes de la incoación del procedimiento de conciliación.
En caso de incumplimiento de las obligaciones derivadas del acuerdo homologado, el Tribunal que conociera a instancia de una de las partes en el acuerdo homologado, declarará la rescisión de este así como la caducidad de todo plazo de pago que hubiera sido concedido.
Artículo L.611-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 8 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de incoación de un procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial subsiguiente, las personas que en virtud del acuerdo homologado mencionado en el punto II del artículo L.611-8 hubieran concedido al deudor una nueva aportación de tesorería con el fin de permitir la continuidad de la actividad de la empresa y su mantenimiento serán reembolsadas, respecto del importe de dicha aportación, prioritariamente sobre los demás créditos contraídos antes de la incoación del procedimiento de conciliación, según el orden de prelación establecido en el punto II del artículo L.622-17 y en el punto II del artículo L.641-13. En las mismas condiciones, las personas que aporten en virtud del acuerdo homologado un nuevo bien o servicio con el fin de garantizar la continuidad de la actividad de la empresa y su mantenimiento serán reembolsadas, respecto de dicho bien o servicio, prioritariamente sobre todos los demás créditos contraídos antes de la incoación del procedimiento de conciliación.
Esta disposición no será de aplicación a las aportaciones concedidas por los accionistas y socios del deudor con motivo de un aumento de capital.
Los acreedores firmantes del acuerdo no podrán beneficiarse directa ni indirectamente de esta disposición por aquellas aportaciones que fueran anteriores a la incoación del procedimiento de conciliación.
Artículo L.611-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 9 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La incoación de un procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial pondrá fin de pleno derecho al acuerdo constatado u homologado en aplicación del artículo L.611-8. En este caso, los acreedores recuperarán la totalidad de sus créditos y garantías, tras el descuento de las cantidades percibidas, sin perjuicio de las disposiciones previstas en el artículo L.611-11.
Artículo L.611-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 10 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las misiones de mandatario ad hoc o de conciliador no podrán ser ejercidas por una persona que, en el transcurso de los veinticuatro meses anteriores, hubiera percibido por cualquier concepto, directa o indirectamente, una remuneración o un pago por parte del deudor interesado, de cualquier acreedor del deudor o de una persona que el mismo controle o esté controlada por él en el sentido del artículo L.233-16, salvo que se trate de una remuneración percibida en concepto de un mandato ad hoc o de una misión de arreglo amistoso o de conciliación realizada por el mismo deudor o el mismo acreedor. La persona así designada deberá declarar bajo honor, al aceptar su mandato, que satisface a dichas obligaciones.
Las misiones de mandatario ad hoc o de conciliador no podrán ser confiadas a un juez adscrito a un Tribunal de Commerce en funciones o que hubiera abandonado el ejercicio de sus funciones en un periodo inferior a cinco años.
Artículo L.611-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 10 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras haber obtenido el acuerdo del deudor, el presidente del Tribunal determinará, en el momento de su nombramiento, las condiciones de remuneración del mandatario ad hoc, del conciliador y, en su caso, del perito,
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CÓDIGO DE COMERCIO teniendo en cuenta las diligencias necesarias para el cumplimiento de su misión. Su remuneración será fijada por auto del presidente del Tribunal al finalizar la misión del mismo.
Los recursos contra estas decisiones se someterán al primer presidente de la Cour d'Appel en el plazo establecido por decreto adoptado en Conseil d'Etat.
Artículo L.611-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 10 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier persona que fuera solicitada para un procedimiento de conciliación o un mandato ad hoc o que, por sus funciones, tuviera conocimiento del mismo, estará obligada a guardar confidencialidad respecto de la información recibida.
CAPITULO II De las disposiciones aplicables a las personas jurídicas de derecho privado no
comerciantes que ejercen una actividad económica de derecho privado no comerciantes que tengan una actividad económica
Artículos L612-1 a L612-5
Artículo L.612-1 (Ley nº 2003-706 de 1 de agosto de 2003 art. 116 Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 11 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las personas jurídicas de derecho privado no comerciantes que tengan una actividad económica cuyo número de empleados, cifra de negocios sin impuestos o cuyos recursos y total del balance sobrepasen, para dos de estos criterios, los límites fijados por decreto adoptado en Conseil d'Etat, deberán elaborar cada año un balance, una cuenta de resultados y un anexo explicativo. Las condiciones de elaboración de estos documentos se precisarán por decreto.
Estas personas jurídicas estarán obligadas a nombrar al menos a un auditor de cuentas y a un suplente. Para las cooperativas agrícolas y las sociedades de interés colectivo agrícola que no tengan forma mercantil,
cuando no acudan a auditores de cuentas inscritos, podrán cumplir esta obligación recurriendo a los servicios de un organismo autorizado según las disposiciones del artículo L.527-1 del Código RuraL.Las condiciones de aplicación de esta disposición serán precisadas por decreto adoptado en Conseil d'Etat.
Las penas previstas por el artículo L.242-8 serán aplicables a los dirigentes de las personas jurídicas mencionadas en el párrafo primero del presente artículo que no hubieran realizado cada año un balance, una cuenta de resultados y un anexo explicativo.
Incluso cuando no se hubieran alcanzado los límites citados en el párrafo primero, las personas jurídicas de derecho privado no comerciantes que tengan una actividad económica podrán nombrar a un auditor de cuentas y a un suplente en las mismas condiciones que las previstas en el párrafo segundo. En tal caso, el auditor de cuentas y su suplente estarán sujetos a las mismas obligaciones, tendrán las mismas responsabilidades civil y penal y ejercerán las mismas facultades que si hubiesen sido designados en aplicación del párrafo primero.
Artículo L.612-2 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 11 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las personas jurídicas de derecho privado no comerciantes que tengan una actividad económica, que sobrepasen un límite establecido por decreto adoptado en Conseil d'Etat en cuanto al número de trabajadores, al importe de su facturación o a los recursos estarán obligadas a elaborar un estado de situación del activo realizable y disponible, excluyendo los valores de explotación, y del pasivo exigible, una cuenta de pérdidas y ganancias, un cuadro de financiación y un plan de financiación.
La periodicidad, los plazos y las condiciones para la elaboración de estos documentos serán determinados por decreto.
Dichos documentos serán analizados en los informes escritos sobre la evolución de la persona jurídica realizados por el organismo encargado de la administración. Los documentos e informes serán presentados simultáneamente al auditor de cuentas, al comité de empresa o, en su defecto, a los delegados del personal, y al órgano encargado de la supervisión, cuando este exista.
En caso de inobservancia de las disposiciones previstas en los párrafos anteriores o si las informaciones proporcionadas en los informes citados en el párrafo anterior suscitaran observaciones del auditor de cuentas, este deberá señalarlas en un informe escrito que presentará al órgano encargado de la administración o de la dirección. Dicho informe será remitido al comité de empresa o, en su defecto, a los delegados del personaL.En la siguiente reunión del órgano deliberante se dará a conocer dicho informe.
Artículo L.612-3 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 11 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el auditor de cuentas de una persona jurídica citada en los artículos L.612-1 y L.612-4 detectara, durante el ejercicio de su función, hechos susceptibles de comprometer la continuidad de la explotación de esta persona jurídica, informará de ello a los dirigentes de la persona jurídica en cuestión, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
A falta de respuesta dentro de un plazo establecido por decreto adoptado en Conseil d'Etat, o si esta no permitiese
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CÓDIGO DE COMERCIO garantizar la continuidad de la explotación, el auditor de cuentas solicitará por escrito a los dirigentes que hagan deliberar al órgano colegiado de la persona jurídica sobre los hechos detectados. El auditor de cuentas será convocado a esta sesión. El resultado de la deliberación del órgano colegiado será comunicado al comité de empresa o, en su defecto, a los delegados del personal, y al presidente del Tribunal de Grande Instance.
En caso de incumplimiento de estas disposiciones, o si el auditor de cuentas comprobara que a pesar de los acuerdos tomados la continuidad de la explotación sigue en peligro, se convocará una junta general en las condiciones y plazos fijados por decreto adoptado en Conseil d'Etat. El auditor de cuentas elaborará un informe especial que será presentado en la siguiente junta generaL.Dicho informe será remitido al comité de empresa o, en su defecto, a los delegados del personal.
Si tras la reunión de la junta general, el auditor de cuentas constatara que las decisiones tomadas no permiten asegurar la continuidad de la explotación, informará de sus gestiones al presidente del Tribunal y le presentará los resultados de las mismas.
Lo dispuesto en el presente artículo no será de aplicación en el caso de un procedimiento de conciliación o de salvaguarda incoado por los dirigentes en aplicación de los artículos L.611-6 y L.620-1.
Artículo L.612-4 (Ley nº 2003-706 de 1 de agosto de 2003 art. 116, art. 121 Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 11 IV Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Disposición nº 2005-856 de 28 de julio de 2005 art. 5 Diario Oficial de 29 de julio de 2005, con entrada en vigor el 1 de enero de 2006)
Cualquier asociación que haya recibido anualmente de las autoridades administrativas, en el sentido del artículo 1° de la Ley de 12 de abril de 2000, o de sus organismos públicos de carácter industrial y comercial, una o varias subvenciones cuyo importe global exceda de una cantidad fijada por decreto, deberá elaborar las cuentas anuales incluyendo un balance, una cuenta de resultados y un anexo cuyas condiciones de elaboración serán precisadas por decreto. Dichas asociaciones deberán hacer públicas sus cuentas anuales así como el informe del auditor de cuentas, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Estas asociaciones estarán obligadas a nombrar al menos a un auditor de cuentas y a un suplente. NOTA: Disposición 2005-856 2005-07-28 art. 9: El artículo 5 de la presente disposición será de aplicación a los
ejercicios contables de las asociaciones y fundaciones abiertos a partir del 1 de enero de 2006.
Artículo L.612-5 (Ley nº 2001-420 de 15 de mayo de 2001 art. 112 Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 art. 123 I 5º Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El representante legal o el auditor de cuentas de una persona jurídica de derecho privado no comerciante que tenga una actividad económica o de una asociación citada en el artículo L.612-4 si lo hubiera, presentará al órgano deliberante o, si no lo hubiera, a los afiliados junto a los demás documentos comunicados, un informe sobre los contratos realizados directamente o por persona interpuesta entre la persona jurídica y uno de sus administradores o una de las personas que desempeñan un papel de mandatario social.
Se hará lo mismo con los contratos firmados entre esta persona jurídica y una sociedad cuyo socio indefinidamente responsable, un gerente, un administrador, el director general, un director general delegado, un miembro del directorio o del consejo de supervisión, un accionista que disponga de una fracción de los derechos de voto superior al 10%, fuera simultáneamente administrador o desempeñara un papel de mandatario social de dicha persona jurídica.
El órgano deliberante decidirá en relación a este informe. Un decreto adoptado en Conseil d'Etat precisará las condiciones de elaboración de dicho informe. Un convenio no aprobado producirá sin embargo sus efectos. Las consecuencias perjudiciales para la persona
jurídica derivadas de tal convenio podrán ser consideradas responsabilidad individual o solidaria, según el caso; del administrador o de la persona que ejerza la función de mandatario social.
Las disposiciones del presente artículo no serán de aplicación a los contratos relativos a las operaciones corrientes realizadas en condiciones normales y que, en razón de su objeto o de sus implicaciones financieras, no sean significativas para ninguna de las partes.
TITULO II DE LA SALVAGUARDA Artículos L621-1 a
L620-2
Artículo L.620-1 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 12 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se establecerá un procedimiento de salvaguarda, el cual será incoado a instancia del deudor mencionado en el artículo L.620-2, cuando este tuviera dificultades que no pudiera superar y que fueran susceptibles de conducirlo al estado de insolvencia. Este procedimiento estará destinado a facilitar la reorganización de la empresa con objeto de permitir la continuidad de la actividad económica, el mantenimiento del empleo y la liquidación del pasivo.
El procedimiento de salvaguarda dará lugar a un plan aprobado por resolución judicial tras un periodo de
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CÓDIGO DE COMERCIO observación y, en su caso, a la constitución de dos comités de acreedores, de conformidad con lo dispuesto en los artículos L.626-29 y L.626-30.
Artículo L.620-2 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 13 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de salvaguarda será aplicable a cualquier comerciante, a cualquier persona inscrita en el Registro Central de Artesanos, a cualquier agricultor, a cualquier persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, así como a cualquier persona jurídica de derecho privado.
No podrá incoarse un nuevo procedimiento de salvaguarda respecto de una persona que ya estuviera incursa en un procedimiento de este tipo, o en un procedimiento de saneamiento judicial o de liquidación judicial, en tanto no se haya puesto fin a las operaciones del plan que se derive del mismo o en tanto el procedimiento de liquidación no haya finalizado.
CAPITULO I De la apertura del procedimiento Artículos L621-1 a
L621-12
Artículo L.622-1 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 14 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal decidirá sobre la apertura del procedimiento, tras haber oído o citado en debida forma para tomarles declaración a puerta cerrada al deudor y a los representantes del comité de empresa o, en su defecto, a los delegados del personaL.Podrá también convocar a cualquier persona cuyas declaraciones considere útiles.
Además, cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, el Tribunal resolverá tras haber oído o citado en debida forma, en las mismas condiciones, al colegio profesional o a la autoridad competente de la que eventualmente dependa el deudor.
Antes de resolver, el Tribunal podrá nombrar a un juez para recabar informaciones sobre la situación financiera, económica y social de la empresa. Dicho juez podrá aplicar las disposiciones recogidas en el artículo L.623-2 y podrá solicitar el asesoramiento de un perito de su elección.
La apertura de un procedimiento de salvaguarda respecto de un deudor que se beneficie o se haya beneficiado de un mandato ad hoc o de un procedimiento de conciliación en los dieciocho meses anteriores a la misma, deberá ser examinada en presencia del Ministerio Fiscal.
En dicho caso el Tribunal, de oficio o a instancia del Ministerio Fiscal, podrá tener acceso a los documentos y actas relativos al mandato ad hoc o a la conciliación, no obstante lo dispuesto en el artículo L.611-15.
Artículo L.621-2 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 15 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal competente será el Tribunal de commerce si el deudor fuera comerciante o estuviera inscrito en el Registro Central de Artesanos. El Tribunal de Grande Instance será competente en los demás casos.
El procedimiento incoado podrá extenderse a una o varias personas en caso de existir confusión patrimonial entre estas y el deudor, o en caso de que la persona jurídica sea ficticia. El Tribunal que hubiera abierto el procedimiento inicial será competente a estos efectos.
Artículo L.621-3 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 16 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución judicial dará comienzo a un periodo de observación que tendrá una duración máxima de seis meses y que podrá renovarse una vez a petición del administrador, del deudor o del Ministerio FiscaL.Podrá además prolongarse excepcionalmente por una duración fijada por decreto adoptado en Conseil d'Etat, a petición del Fiscal de la República, por resolución motivada del Tribunal.
Cuando se trate de una explotación agrícola, el Tribunal podrá prorrogar la duración del periodo de observación en función del año agrícola en curso de los usos y costumbres específicos en las producciones de la explotación.
Artículo L.621-4 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 17 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En la resolución judicial de apertura, el Tribunal nombrará a un Juez Comisario, cuyas funciones están definidas en el artículo L.612-9. En caso de necesidad, podrá nombrar a varios Jueces Comisarios.
Solicitará al comité de empresa o, en su defecto, a los delegados del personal o, para que designen a un representante entre los trabajadores de la empresa. En ausencia de comité de empresa o de delegado del personal, los trabajadores elegirán a un representante que ejercerá las funciones atribuidas a estas instituciones por las disposiciones del presente título. Las modalidades de nombramiento o elección del representante de los trabajadores serán precisadas por decreto adoptado en Conseil d'Etat. Cuando no se pueda nombrar o elegir ningún representante de los trabajadores, el empresario solicitará la declaración de insolvencia.
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CÓDIGO DE COMERCIO En las misma resolución judicial, sin perjuicio de la posibilidad de nombrar a uno o varios peritos para una misión
que el mismo determine, el Tribunal nombrará a dos mandatarios judiciales cuyas funciones están definidas en los artículos 622-20 y 622-1. A instancia del Ministerio Fiscal, podrá nombrar a varios mandatarios judiciales y varios administradores judiciales. En el caso previsto en el párrafo cuarto del artículo L.621-1, el Ministerio Fiscal podrá oponerse al nombramiento de la persona nombrada anteriormente como mandatario ad hoc o conciliador en el marco de un mandato o de un procedimiento relativo al mismo deudor.
No obstante, el Tribunal sólo estará obligado a nombrar a un administrador judicial cuando el procedimiento se haya incoado en beneficio de una persona cuyos número de trabajadores y cifra de negocios antes de impuestos sean inferiores a los umbrales fijados por decreto adoptado en Conseil d'Etat. En tal caso, será de aplicación lo dispuesto en el capítulo VII del presente título. Hasta la resolución de aprobación del plan y a instancia del deudor, del mandatario judicial o del Ministerio Fiscal, el Tribunal podrá decidir nombrar a un administrador judicial.
Para realizar el inventario y la tasación previstos en el artículo L.622-6, el Tribunal nombrará a un perito tasador judicial, a un agente judicial, a un notario o a un corredor de mercancías jurado.
Artículo L.621-5 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 17 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Ningún pariente, ni consanguíneo ni por afinidad, hasta el cuarto grado inclusive del empresario o de los dirigentes, si se tratara de una persona jurídica, podrá ser designado para una de las funciones previstas en el artículo L.621-4, salvo en los casos en que esta disposición impidiera el nombramiento de un representante de los trabajadores.
Artículo L.621-6 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 18 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Ni el representante de los trabajadores, ni los trabajadores que participen en su nombramiento, podrán haber incurrido en las condenas previstas por el artículo L.6 del Código ElectoraL.El representante de los trabajadores deberá tener dieciocho años cumplidos.
Las impugnaciones relativas a la designación del representante de los trabajadores serán competencia del Tribunal d'Instance que resuelva en última instancia.
Artículo L.621-7 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 19 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal, de oficio o a propuesta del Juez Comisario, o a instancia del Ministerio Fiscal, podrá proceder a la sustitución del administrador, del perito o del mandatario judicial.
En las mismas condiciones el Tribunal podrá nombrar a uno o varios administradores o mandatarios judiciales como adjuntos para que asistan a los que ya hubiese nombrado. El administrador, el mandatario judicial o un acreedor nombrado interventor podrá solicitar al Juez Comisario que recurra al Tribunal con esta finalidad.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, el colegio profesional o la autoridad competente de la que eventualmente dependa, podrá recurrir al Ministerio Fiscal con la misma finalidad.
El deudor podrá solicitar al Juez Comisario que recurra al Tribunal para que se sustituya al administrador o al perito. En las mismas condiciones, los acreedores podrán solicitar la sustitución del mandatario judicial.
El comité de empresa o, en su defecto, los delegados del personal o, en su defecto, los trabajadores de la empresa podrán por sí solos proceder a la sustitución del representante de los trabajadores.
Artículo L.621-8 (Ley nº 2002-73 de 17 de enero de 2002 art. 122 Diario Oficial de 18 de enero de 2002) (Ley nº 2003-7 de 3 de enero de 2003 art. 40 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 20, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador y el mandatario judicial mantendrán informados al Juez Comisario y al Ministerio Fiscal del desarrollo del procedimiento. Estos podrán en cualquier momento solicitar la presentación de todas las actas o documentos relativos al procedimiento.
El Ministerio Fiscal presentará al Juez Comisario a petición de este o de oficio, no obstante cualquier disposición legal en contrario, todas las informaciones que posea y puedan ser útiles para el procedimiento.
Artículo L.621-9 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 21 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario estará encargado de velar por el rápido desarrollo del procedimiento y por la protección de los
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CÓDIGO DE COMERCIO intereses enfrentados.
Si la presencia de un técnico resultara necesaria para el procedimiento, el Juez Comisario será el único habilitado para nombrarlo y confiarle una misión que el mismo determine, sin perjuicio de la facultad del Tribunal para designar a uno a varios peritos de conformidad con el artículo L.621-4 Las condiciones de remuneración de dicho técnico serán establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.621-10 (Ley nº 2003-7 de 3 de enero de 2003 art. 41 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 22 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario designará a uno o a cinco interventores de entre los acreedores que lo solicitaran. Cuando designe a varios interventores, deberá controlar que al menos uno de ellos sea elegido de entre los acreedores titulares de garantías y que otro sea elegido de entre los acreedores no privilegiados.
No podrá ser nombrado interventor o representante de una persona jurídica ningún pariente por consanguinidad o por afinidad hasta el cuarto grado inclusive del empresario o de los dirigentes de la persona jurídica, ni ninguna persona que posea directa o indirectamente la totalidad o parte del capital de la persona jurídica deudora o cuyo capital esté detentado en su totalidad o en parte por dicha persona.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, el colegio profesional o la autoridad competente de la que eventualmente dependa, será considerado interventor de oficio. En tal caso, el Juez Comisario no podrá nombrar a más de cuatro interventores.
La responsabilidad del interventor sólo se verá comprometida en caso de falta grave. El mismo podrá hacerse representar por uno de sus encargados o por un abogado. Cualquier acreedor nombrado como interventor podrá ser revocado por el Tribunal a instancia del Ministerio Fiscal.
Artículo L.621-11 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 22 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los interventores asistirán al mandatario judicial en sus funciones y al Juez Comisario en su misión de supervisión de la administración de la empresa. Podrán tener conocimiento de todos los documentos remitidos al administrador y al mandatario judiciaL.Estarán obligados a guardar confidencialidad respecto de la información recibida. Las funciones de interventor serán gratuitas.
Artículo L.621-12 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 22 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si tras la apertura del procedimiento, se comprobara que el deudor ya se encontraba en estado de insolvencia en el momento de dictarse la sentencia, el Tribunal constatará dicha situación y fijará la fecha de la misma en las condiciones previstas en el párrafo segundo del artículo L.631-8, convirtiendo el procedimiento de salvaguarda en un procedimiento de saneamiento judiciaL.Si fuera necesario, podrá modificar la duración del periodo de observación restante.
El tribunal conocerá del asunto a instancia del administrador, del mandatario o del Ministerio FiscaL.Podrá igualmente conocer de oficio. Se pronunciará tras haber oído o citado en debida forma al deudor.
CAPITULO II De la empresa durante el periodo de observación Artículos L622-1 a
L622-33
Artículo L.622-1 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 23 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - La administración de la empresa competerá a su dirigente. II. - Cuando en aplicación de lo dispuesto en el artículo L.621-4, el Tribunal nombre a uno o varios administradores;
les encargará que, juntos o por separado, supervisen al deudor o le ayuden en todos o algunos de los actos de gestión. III.- En su misión, el administrador estará obligado a respetar las obligaciones legales y convencionales que
incumben al empresario. IV.- El Tribunal podrá en todo momento modificar la misión del administrador a petición de este, del mandatario
judicial o del Ministerio Fiscal. V.- El administrador podrá gestionar con su firma las cuentas bancarias o postales de las que fuera titular el deudor
si este último hubiera sido objeto de las inhabilitaciones previstas en los artículos 65-2 y 68, párrafo tercero, del decreto de 30 de octubre de 1935 que unifica la legislación en materia de cheques.
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CÓDIGO DE COMERCIO Artículo L.622-2 (Ley nº 2003-7 de 3 de enero de 2003 art. 45 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El auditor de cuentas del deudor no podrá objetar el secreto profesional ante los requerimientos del auditor de cuentas del administrador judicial para comunicarle todas las informaciones o documentos relativos al funcionamiento de las cuentas bancarias o postales abiertas a nombre del deudor desde la fecha de nombramiento del administrador.
Artículo L.622-3 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El deudor continuará ejerciendo sobre su patrimonio los actos de disposición y de administración, así como los derechos y acciones que no estuvieran incluidos en la misión del administrador.
Además, no obstante las disposiciones de los artículos L.622-3 y L.621-13, los actos de gestión corriente que el deudor realice por sí solo, se considerarán válidos con relación a terceros de buena fe.
Artículo L.622-4 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Desde el comienzo de sus funciones, el administrador estará obligado a requerir del empresario o a hacer él mismo, según los casos, todos los actos necesarios para conservar los derechos de la empresa contra los deudores de la misma, así como para preservar las capacidades de producción.
El administrador estará facultado para suscribir en nombre de la empresa todas las hipotecas, pignoraciones o privilegios que el empresario debiera haber realizado o renovado.
Artículo L.622-5 (Ley nº 2003-7 de 3 de enero de 2003 art. 46 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Desde el momento de la resolución de apertura, el tercero que posea documentos y libros contables estará obligado a entregarlos para su examen al administrador, o en su defecto al mandatario judicial, cuando este los solicite.
Artículo L.622-6 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 24 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el momento de la apertura del procedimiento, se realizará un inventario del patrimonio del deudor y se procederá a una tasación del mismo así como de las garantías que lo gravan. Dicho inventario, que será remitido al administrador y al mandatario judicial, deberá ser completado por el deudor con la lista de bienes en su posesión susceptibles de ser reivindicados por un tercero.
El deudor remitirá al administrador y al mandatario judicial la lista de sus acreedores, del importe de sus deudas y de los principales contratos en curso. Deberá informarles asimismo de los procedimientos judiciales en curso en los que estuviera implicado
El administrador o, si este no hubiera sido nombrado, el mandatario judicial, no obstante cualquier disposición legal o reglamentaria en contrario, podrá solicitar a las administraciones y organismos públicos, los organismos de prevención y de seguridad social, las entidades de crédito y los servicios encargados de centralizar los riesgos bancarios y los incidentes de pago cualquier información que le permita tener una imagen exacta de la situación patrimonial del deudor.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, el inventario se realizará en presencia de un representante del colegio profesional o de la autoridad competente de la que eventualmente dependa. Dicho inventario no podrá en ningún caso quebrantar el secreto profesional al que el deudor estuviera obligado.
La ausencia de inventario no obstará al ejercicio de las acciones de reclamación y de restitución. Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo.
Artículo L.622-7 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 25 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución judicial que dé comienzo al procedimiento conllevará, de pleno derecho, la prohibición de pagar cualquier deuda contraída antes de la sentencia, con excepción del pago por compensación de deudas conexas. Conllevará asimismo, de pleno derecho, la prohibición de pagar cualquier deuda contraída después de dicha sentencia que no sea mencionada en el punto I del artículo L.622-17, con excepción de las deudas relacionadas con las necesidades de la vida cotidiana del deudor en calidad de persona física y de las deudas alimentarias.
El Juez Comisario podrá autorizar al empresario o al administrador a hacer un acto de disposición ajeno a la
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CÓDIGO DE COMERCIO gestión corriente de la empresa, a conceder una hipoteca o una pignoración o a obligarse o transigir.
El Juez Comisario podrá autorizarles a pagar deudas anteriores a la resolución, para recuperar la prenda o una cosa legítimamente retenida, cuando esta recuperación estuviera justificada para continuar la actividad.
Cualquier acto o pago realizado infringiendo las disposiciones del presente artículo será anulado a petición de cualquier interesado o del Ministerio Fiscal si dicha solicitud se presentase en un plazo de tres años a partir de la conclusión del acto o del pago de la deuda. Cuando el acto haya sido objeto de publicidad, el plazo empezará a contar a partir de la misma.
Artículo L.622-8 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 26 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de venta de un bien sujeto a privilegio especial, por una pignoración o por una hipoteca, la parte proporcional del precio correspondiente a los créditos garantizados por estas garantías será pagada en la cuenta de depósito de la Caja de Depósitos y Consignaciones. Tras la adopción del plan, los acreedores beneficiarios de estas garantías o titulares de un privilegio general serán pagados sobre el precio siguiendo el orden de prelación existente entre ellos y según lo dispuesto en el artículo L.621-22 cuando estuvieran sometidos a los plazos del plan.
El Juez Comisario podrá ordenar el pago provisional de la totalidad o parte de su crédito a los acreedores titulares de garantías sobre el bien. Salvo resolución especialmente motivada del Juez Comisario o cuando se produjera en beneficio del Tesoro o de los organismos sociales u organismos afines, este pago provisional estará subordinado a la presentación por parte de su beneficiario de una garantía procedente de una entidad de crédito.
El deudor o el administrador podrá proponer a los acreedores la sustitución de las garantías que posean por garantías equivalentes. Si no se llegara a un acuerdo, el Juez Comisario podrá ordenar dicha sustitución. El recurso contra esta resolución se presentará ante la Cour d'Appel.
Artículo L.622-9 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 27 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La actividad de la empresa continuará durante el periodo de observación, sin perjuicio de lo dispuesto en los artículos L.622-10 a L.622-16.
Artículo L.622-10 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 28 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En cualquier momento del periodo de observación, el Tribunal podrá ordenar, bien a instancia del administrador, del mandatario judicial, de un interventor, del Ministerio Fiscal, o bien de oficio, el cese parcial de la actividad.
En las mismas condiciones, convertirá dicho procedimiento en un procedimiento de saneamiento judicial si estuvieran reunidas las condiciones del artículo L.631-1, o dictará la liquidación judicial si estuvieran reunidas las condiciones del artículo L.640-1.
El Tribunal resolverá tras haber oído o citado en debida forma al deudor, al administrador, al mandatario judicial, a los interventores y a los representantes del comité de empresa o, en su defecto, a los delegados del personal, y tras haber recabado el dictamen del Ministerio Fiscal.
Cuando convierta el procedimiento de salvaguarda en un procedimiento de saneamiento judicial, el Tribunal podrá modificar, si lo considera necesario, el periodo de observación restante.
Artículo L.622-11 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 28 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el Tribunal dicte la liquidación, pondrá fin al periodo de observación y, sin perjuicio de lo dispuesto en el artículo L.641-10, a la misión del administrador.
Artículo L.622-12 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 28 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando desaparecieran las dificultades que hubieran justificado la apertura del procedimiento, el Tribunal pondrá fin al mismo, a instancia del deudor. Dicho Tribunal resolverá en las condiciones previstas en el párrafo tercero del artículo L.622-10.
Artículo L.622-13 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 29, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO El administrador será el único con facultad para exigir la ejecución de los contratos en curso aportando la
prestación prometida al cocontratante del deudor. El contrato será rescindido de pleno derecho si tras un requerimiento dirigido al administrador este hubiera quedado más de un mes sin efecto. Antes de la expiración de este plazo, el Juez Comisario podrá imponer al administrador un plazo más corto o concederle una prórroga que no podrá exceder de dos meses.
Cuando la prestación consistiera en el pago de una cantidad de dinero, esta deberá ser al contado, salvo si el administrador consiguiera que el cocontratante del deudor admitiera el pago a plazos. Considerando los documentos de previsión de los que disponga, el administrador se asegurará de que dispondrá de los fondos necesarios a estos efectos en el momento en el que pida la ejecución. Si se tratara de un contrato de ejecución o pago escalonados en el tiempo, el administrador pondrá fin al mismo si considerara que no fuese a disponer de los fondos necesarios para cumplir con las obligaciones del plazo siguiente.
A falta de pago en las condiciones definidas en el párrafo anterior y si no hubiera acuerdo con el cocontratante para continuar las relaciones contractuales, el contrato quedará rescindido de pleno derecho y la Fiscalía, el administrador, el mandatario judicial o un interventor podrá recurrir al Tribunal para poner fin al periodo de observación.
El cocontratante deberá cumplir sus obligaciones a pesar de la falta de ejecución por parte del deudor de los compromisos anteriores a la resolución de apertura. El incumplimiento de estos compromisos sólo dará derecho en beneficio de los acreedores a su declaración en el pasivo.
Si el administrador no hiciera uso de la facultad de continuar el contrato, o pusiera fin al mismo en las condiciones del párrafo segundo, el incumplimiento podrá dar lugar a una indemnización por daños y perjuicios cuyo importe será declarado en el pasivo en beneficio de la otra parte. Esta podrá, sin embargo, aplazar la restitución de las cantidades pagadas en exceso por el deudor en ejecución del contrato hasta que se resuelva sobre la indemnización de daños y perjuicios.
No obstante cualquier disposición legal o cualquier cláusula contractual, no podrá derivarse del simple hecho de la apertura de un procedimiento de salvaguarda ninguna indivisibilidad, cancelación o rescisión del contrato.
Lo dispuesto en el presente artículo no será de aplicación a los contratos laborales.
Artículo L.622-14 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 30 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La rescisión del contrato de arrendamiento de los inmuebles arrendados al deudor y destinados a la actividad de la empresa se constatará o se acordará en los siguientes casos:
1° Cuando el administrador decida no continuar el contrato de arrendamiento y pida la rescisión del mismo. En tal caso, la rescisión será efectiva el día de dicha petición.
2° Cuando el arrendador pida la rescisión o haga constatar la rescisión del contrato de arrendamiento por falta de pago de los alquileres y de las cargas derivadas de una ocupación posterior a la resolución de apertura. En tal caso, el arrendador sólo podrá actuar al término del plazo de tres meses contados a partir de dicha resolución.
Si el pago de las cantidades adeudadas tuviera lugar antes de la expiración de dicho plazo, no habrá lugar a la rescisión.
No obstante cualquier cláusula en contrario, la falta de explotación durante el periodo de observación en uno o varios inmuebles alquilados por la empresa no conllevará la rescisión del contrato de arrendamiento.
Artículo L.622-15 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 31 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de cesión del contrato de arrendamiento, cualquier cláusula que imponga al cedente disposiciones solidarias con el cesionario se tendrá por no puesta.
Artículo L.622-16 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 32 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de procedimiento de salvaguarda, el arrendador solamente tendrá privilegio por los dos últimos años de alquileres antes de la resolución de apertura del procedimiento.
Si se rescindiera el contrato de alquiler, el arrendador tendrá además privilegio por el año en curso, por todo lo que concerniera a la ejecución del contrato y por la indemnización de daños y perjuicios que los Tribunales pudieran concederle.
Si no se rescindiera el contrato, el arrendador no podrá exigir el pago de los alquileres por vencer cuando las garantías que le hubieran sido dadas en el contrato fueran mantenidas o cuando las que hubieran sido proporcionadas desde la resolución de apertura fueran consideradas suficientes.
El Juez Comisario podrá autorizar al deudor o al administrador, según el caso, a vender muebles que formaran parte del mobiliario de los locales alquilados amenazados de próximo deterioro, de depreciación inminente o cuya conservación constituyera un dispendio, o cuya venta no pusiera en peligro la existencia del fondo ni el mantenimiento de las garantías suficientes para el arrendador.
Artículo L.622-17 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 33 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de
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CÓDIGO DE COMERCIO enero de 2006, bajo reserva art. 190)
I. - Los créditos contraídos válidamente con posterioridad a la resolución de apertura para satisfacer las necesidades del desarrollo del procedimiento o del periodo de observación, o como contrapartida de una prestación al deudor por su actividad profesional durante este periodo, se pagarán en su fecha de vencimiento.
II. - Cuando no se paguen en su fecha de vencimiento, estos créditos serán pagados prioritariamente sobre los demás créditos contraídos, independientemente de que estos últimos estén provistos o no de privilegios o garantías, con excepción de los créditos garantizados por el privilegio establecido en los artículos L.143-10, L.143-11, L.742-6 y L.751-15 del Código de Trabajo, de los garantizados por el privilegio de las costas judiciales y de los garantizados por el privilegio establecido por el artículo L.611-11 del presente Código.
III. - Su pago se hará según el siguiente orden: 1º Los créditos sobre los salarios cuyo importe no hubiera sido adelantado en aplicación de los artículos L.143-11-1
a L.143-11-3 del Código de Trabajo; 2º Las costas judiciales; 3º Los préstamos concedidos así como las créditos resultantes de la continuación de la ejecución de contratos en
curso de conformidad con lo dispuesto en el artículo L.621-13 y cuyo cocontratante aceptara recibir un pago aplazado. El Juez Comisario autorizará estos préstamos y plazos de pago hasta el límite necesario para la continuidad de la actividad durante el periodo de observación, siendo los mismos objeto de publicidad. En caso de rescisión de un contrato válidamente concluido, las indemnizaciones y penalizaciones estarán excluidas del beneficio del presente artículo;
4º Las cantidades cuyo importe hubiera sido adelantado en aplicación del apartado 3º del artículo L.143-11-1 del Código de Trabajo;
5º Los otros créditos, según su orden de prelación. IV. - Los créditos impagados perderán el privilegio que les confiere el presente artículo si no hubieran sido puestos
en conocimiento del mandatario judicial y del administrador, cuando este hubiera sido nombrado o, cuando estos órganos hubieran cesado en sus funciones, del auditor para la ejecución del plan o del liquidador, dentro del plazo de un año a contar desde el final del periodo de observación.
Artículo L.622-18 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Toda cantidad percibida por el administrador o el mandatario judicial que no fuera ingresada en las cuentas bancarias o postales del deudor para las necesidades de la continuidad de la actividad deberá ser ingresada inmediatamente en la cuenta de depósitos de la Caja de Depósitos y Consignaciones.
En caso de retraso, el administrador o el mandatario judicial deberá pagar el interés legal aumentado en cinco puntos por aquellas cantidades que no hubiera ingresado.
Artículo L.622-19 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier cantidad pagada por la asociación mencionada en el artículo L.143-11-4 del Código de Trabajo en aplicación de los artículos L.143-11-1 a L.143-11-3 del mismo Código, deberá declararse a la administración fiscal.
Artículo L.622-20 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 34, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El mandatario judicial designado por el Tribunal será el único habilitado para actuar en nombre y en defensa de los intereses colectivos de los acreedores. No obstante, en caso de carencia del mandatario judicial, cualquier acreedor que fuera nombrado interventor podrá actuar en defensa de dichos intereses, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
El mandatario judicial remitirá al Juez Comisario y al Ministerio Fiscal las observaciones que los interventores le presenten en cualquier momento del procedimiento.
Las cantidades percibidas tras las acciones ejercitadas por el mandatario judicial o, en su defecto, por el o los acreedores nombrados interventores entrarán a formar parte del patrimonio del deudor y serán destinadas, según las modalidades previstas, para la liquidación del pasivo, en caso de mantenimiento de la empresa.
Artículo L.622-21 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 35 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - La resolución de apertura de procedimiento suspenderá o prohibirá cualquier acción judicial por parte de los
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CÓDIGO DE COMERCIO acreedores cuyo crédito no estuviera mencionado en el punto I del artículo L.622-17 cuyo fin fuera:
1º Condenar el deudor al pago de una cantidad de dinero; 2º Resolver un contrato por falta de pago de una cantidad de dinero. II.- La resolución de apertura suspenderá o prohibirá asimismo cualquier vía de ejecución por parte de los
acreedores, tanto sobre los bienes muebles como sobre los inmuebles. III.- Como consecuencia de ello, se suspenderán los plazos concedidos bajo pena de caducidad o anulación de los
derechos.
Artículo L.622-22 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 36, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No obstante lo dispuesto en el artículo L.625-3, se suspenderán las acciones judiciales en curso hasta que el acreedor demandante proceda a la declaración de su crédito. Tras la declaración de los créditos del acreedor, se reanudarán de pleno derecho las acciones judiciales, tras citar en debida forma al mandatario judicial y, en su caso, al administrador o al auditor para la ejecución del plan, pero dichas acciones reclamarán solamente la constatación de los créditos y la determinación de su importe.
Artículo L.622-23 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las acciones judiciales y las vías de ejecución que no fueran las citadas en el artículo L.622-21 continuarán en contra del deudor durante el periodo de observación, tras la demanda del administrador y del mandatario judicial o tras una reanudación del procedimiento judicial por iniciativa de estos.
Artículo L.622-24 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 37, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
A partir de la publicación de la resolución judicial, todos los acreedores cuyo crédito haya sido contraído con anterioridad a la resolución de apertura, con excepción de los empleados del deudor, dirigirán la declaración de sus créditos al mandatario judiciaL.Los acreedores titulares de una garantía publicada o vinculados al deudor mediante un contrato publicado, serán advertidos personalmente o, si procede, en el domicilio elegido. El plazo de declaración comenzará a contar a partir de dicha notificación.
La declaración de los créditos podrá ser realizada por el acreedor o por el encargado o mandatario de su elección. La declaración de dichos créditos deberá ser realizada aún cuando estos no hubieran sido establecidos mediante
un título. Aquellos créditos cuyo importe no haya sido establecido de forma definitiva se declararán basándose en una valoración estimativa. Los créditos del Tesoro público y de los organismos de previsión y de seguridad social así como los créditos percibidos por los organismos citados en el artículo L.351-21 del Código de Trabajo que no fueran objeto de un título ejecutivo en el momento de su declaración serán admitidos provisionalmente por el importe declarado. En cualquier caso, las declaraciones del Tesoro y de la Seguridad Social serán siempre hechas ateniéndose a los impuestos y otros créditos no establecidos en la fecha de la declaración. No obstante los procedimientos judiciales o administrativos en curso, su determinación definitiva deberá efectuarse dentro del plazo previsto en el artículo L.624-1, bajo pena de caducidad.
Las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo estarán sujetas a las disposiciones del presente artículo para las cantidades que hubieran adelantado y que se les hubiera reembolsado en las condiciones previstas para los créditos suscritos antes de la resolución de apertura del procedimiento.
Estarán sujetos a lo dispuesto en el presente artículo los créditos contraídos válidamente con posterioridad a la resolución de apertura, que no fueran los mencionados en el punto I del artículo L.622-17, así como los créditos alimentarios Los plazos comenzarán a contar a partir de fecha de exigibilidad del crédito. No obstante, los acreedores cuyos créditos procedan de un contrato de ejecución sucesiva declararán la totalidad de las cantidades que les fueran adeudadas, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
El plazo de declaración, por la parte civil, de los créditos procedentes de una infracción final, comenzará a contar a partir de la fecha en que se fije definitivamente el importe de los mismos.
Artículo L.622-25 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La declaración incluirá el importe del crédito al día de la resolución de apertura con indicación de las cantidades por vencer y de la fecha de su vencimiento. Determinará el tipo de privilegio o de garantía de la que eventualmente estuviera provisto dicho crédito.
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CÓDIGO DE COMERCIO Cuando se tratara de créditos en moneda extranjera, la conversión en euros tendrá lugar de acuerdo al cambio
legal en la fecha de la resolución de apertura. El acreedor certificará como cierto el crédito declarado, salvo si se derivara de un título ejecutivo. El Juez
Comisario podrá solicitar el visto bueno del auditor de cuentas o, en su defecto, del perito contable sobre la declaración del crédito. El rechazo del visto bueno tendrá que ser motivado.
Artículo L.622-26 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 38 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
A falta de declaración en los plazos fijados por decreto adoptado en Conseil d'Etat, los acreedores no serán admitidos en los repartos y dividendos, a menos que el Juez Comisario los eximiese de su preclusión al probarse que la falta de dicha declaración no es de su responsabilidad o que se debe a una omisión voluntaria del deudor en el listado previsto en el párrafo segundo del artículo L.622-6. En ese caso, sólo podrá participar en las distribuciones posteriores a su demanda.
La acción de revocación de la preclusión sólo podrá ser ejercida en el plazo de seis meses. Dicho plazo comenzará a contar a partir de la resolución de apertura o, para las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo, de la expiración del plazo durante el cual los créditos derivados del contrato laboral fueran garantizados por las mismas. Para los acreedores titulares de una garantía publicada o vinculados al deudor mediante un contrato publicado, el plazo empezará a contar a partir de la fecha en que reciban la notificación. Por excepción a lo dispuesto anteriormente, dicho plazo será de un año para los acreedores que se hallaran en la imposibilidad de conocer la existencia de su crédito antes de la expiración del plazo de seis meses arriba mencionado.
Artículo L.622-27 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, II, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si surgiera un conflicto sobre la totalidad o parte de un crédito que no fuera de los mencionados en el artículo L.621-1, el mandatario judicial informará de ello al acreedor interesado solicitándole que presente sus alegaciones. Si no diese respuesta dentro del plazo de treinta días quedará prohibida cualquier impugnación ulterior de la propuesta del mandatario judicial.
Artículo L.622-28 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 39 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución de apertura interrumpirá el curso de los intereses legales y convencionales, así como de todos los intereses por retraso y recargos, a menos que se tratara de intereses derivados de contratos de préstamo concluidos por un periodo igual o superior a un año o de contratos que incluyeran un pago aplazado a un año o más. Las personas físicas fiadoras, tanto si fueran codeudoras como si hubieran concedido una garantía autónoma, podrán prevalerse de lo dispuesto en el presente párrafo.
La resolución de apertura suspenderá hasta la resolución judicial que apruebe el plan o dicte la liquidación, cualquier acción contra las personas físicas codeudoras o que hubieran concedido una fianza o una garantía autónoma. Posteriormente, el Tribunal podrá concederles plazos o un aplazamiento de pago dentro de un límite de dos años.
Los acreedores beneficiarios de estas garantías podrán adoptar medidas cautelares.
Artículo L.622-29 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 40 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución de apertura no hará exigibles los créditos no vencidos en la fecha de su adopción. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L.622-30 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 41 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las hipotecas, pignoraciones y privilegios no podrán ser inscritos después de la resolución de apertura del procedimiento. Lo mismo ocurrirá con los actos y resoluciones judiciales traslativas o constitutivas de derechos reales, a menos que dichos actos hayan adquirido fecha cierta o que dichas decisiones hayan adquirido fuerza ejecutiva antes de la resolución de apertura.
Sin embargo, el Tesoro Público conservará su privilegio sobre los créditos que no estuviera obligado a inscribir en la fecha de la resolución de apertura y sobre los créditos no puestos al cobro después de dicha fecha si estos créditos hubieran sido declarados en las condiciones previstas en el artículo L.622-24.
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CÓDIGO DE COMERCIO Por excepción a lo dispuesto en el párrafo primero, el vendedor del fondo de comercio podrá inscribir su privilegio.
Artículo L.622-31 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 42 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El acreedor, tenedor de obligaciones suscritas, endosadas o garantizadas solidariamente por dos o varios codeudores sometidos a un procedimiento de salvaguarda, podrá declarar su crédito por el valor nominal de su título, en cada procedimiento.
Artículo L.622-32 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 42 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En cuanto a los pagos efectuados a los codeudores sometidos a un procedimiento de salvaguarda, estos no dispondrán de ninguna acción de regreso los unos contra otros, salvo que el total de las cantidades pagadas en virtud de cada procedimiento superase el total del crédito, capital y accesorio. En este caso, el excedente será devuelto a aquellos de los codeudores que tuvieran a los otros por garantes siguiendo la prelación de sus obligaciones.
Artículo L.622-33 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 42 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si el acreedor tenedor de obligaciones solidariamente suscritas por el deudor sometido a un procedimiento de salvaguarda y por otros codeudores hubiese recibido un adelanto sobre su crédito antes de la resolución de apertura, sólo podrá declarar su crédito con la deducción de este adelanto y conservará sus derechos contra el codeudor o el fiador sobre lo que le quedara de deuda.
El codeudor o el fiador que hubiera efectuado el pago parcial podrá declarar su crédito por todo lo que hubiera pagado en descargo del deudor.
CAPITULO III De la elaboración del balance económico, social y medioambiental Artículos L623-1 a
L623-3
Artículo L.623-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 43 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador, con el concurso del deudor y la asistencia eventual de uno o varios peritos, quedará encargado de la elaboración de un informe sobre el balance económico y social de la empresa.
El balance económico y social precisará el origen, la importancia y la naturaleza de las dificultades de la empresa. En el caso en que la empresa explotara una o varias instalaciones clasificadas en el sentido del Título 1 del libro V
del Código de Medio Ambiente, se añadirá al balance económico y social un balance medioambiental que el administrador mandará realizar en las condiciones previstas por decreto adoptado en Conseil d'Etat.
A la vista de dicho balance, el administrador propondrá un plan de salvaguarda, sin perjuicio de la aplicación de las disposiciones del artículo L.622-10.
Artículo L.623-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 44 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario, no obstante cualquier disposición legal o reglamentaria en contrario, podrá solicitar a los auditores de cuentas, los expertos contables, los miembros y representantes del personal, las administraciones y organismos públicos, los organismos de prevención y de seguridad social, las entidades de crédito así como a los servicios encargados de centralizar los riesgos bancarios y los incidentes de pago, cualquier información que le permita tener una imagen exacta de la situación económica, financiera, social y patrimonial del deudor.
Artículo L.623-3 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 45, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador recibirá del Juez Comisario todas las informaciones y documentos útiles para el cumplimiento de su misión y la de los peritos.
Cuando el procedimiento se abriera respecto de una empresa que se beneficiara del acuerdo amistoso homologado previsto en el artículo L.611-8 del presente Código o en el artículo L.351-6 del Código Rural, deberá remitirse al administrador el informe pericial mencionado en el artículo L.611-3 o, en su caso, el informe pericial y el
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CÓDIGO DE COMERCIO acta mencionados en los artículos L.351-3 y L.351-6 del Código Rural.
El administrador consultará al deudor y al mandatario judicial y oirá las declaraciones de cualquier persona que pudiera darle información sobre las perspectivas de saneamiento de la empresa, las condiciones de pago del pasivo y las condiciones sociales del mantenimiento de la actividad. Informará al deudor de ello y le solicitará igualmente sus observaciones y propuestas.
Informará del avance de sus gestiones al deudor, al mandatario judicial así como al comité de empresa, o, en su defecto, a los delegados del personaL.Consultará con estos y con deudor sobre las medidas que prevé proponer basándose en las informaciones y ofertas recibidas.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, el administrador consultará con el colegio profesional o la autoridad competente de la que eventualmente dependa el deudor.
CAPITULO IV De la determinación del patrimonio del deudor Artículos L624-1 a
L624-18
Sección I De la comprobación y de la admisión de los créditos Artículos L624-1 a
L624-4
Artículo L.624-1 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 46, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el plazo determinado por el Tribunal, el mandatario judicial elaborará la lista de los créditos declarados con sus propuestas de admisión, denegación o remisión al órgano jurisdiccional competente, tras haber solicitado al deudor que presente sus observaciones. Remitirá dicha lista al Juez Comisario.
El mandatario judicial no podrá ser remunerado por aquellos créditos declarados que no figuraran en la lista elaborada en el plazo mencionado anteriormente, con excepción de los créditos declarados tras la finalización de dicho plazo, en aplicación de los dos últimos párrafos del artículo L.622-24.
Artículo L.624-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario decidirá, ante las propuestas del mandatario judicial, admitir o denegar los créditos o bien constatará que hay un procedimiento judicial en curso, o que la impugnación no es de su competencia.
Artículo L.624-3 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 47 I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El acreedor, el deudor o el mandatario judicial tendrán la posibilidad de interponer un recurso contra las resoluciones que Juez Comisario tome en aplicación de la presente subsección.
Sin embargo, el acreedor cuyo crédito fuera discutido en totalidad o en parte y que no hubiera respondido al mandatario judicial dentro del plazo mencionado en el artículo L.621-27 no podrá ejercer su recurso contra la resolución del Juez Comisario cuando esta confirme la propuesta del mandatario judicial.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones y formas del recurso previsto en el párrafo primero.
Artículo L.624-4 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 47 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario resolverá en última instancia en los casos previstos en la presente sección cuando el valor del crédito en capital no sobrepase el límite de competencia en última instancia del Tribunal que hubiera abierto el procedimiento.
Sección II De los derechos del cónyuge Artículos L624-5 a
L624-8
Artículo L.624-5 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 48 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El cónyuge del deudor sometido a un procedimiento de salvaguarda determinará la consistencia de sus bienes personales según las normas de los regímenes matrimoniales y con arreglo a las condiciones previstas en el artículo
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CÓDIGO DE COMERCIO L.624-9
Artículo L.624-6 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 165 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El mandatario judicial o el administrador, si demuestra por cualquier medio que los bienes adquiridos por el cónyuge del deudor lo han sido con valores suministrados por el mismo, podrá solicitar que las adquisiciones realizadas de esta forma sean devueltas al activo.
Artículo L.624-7 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las recuperaciones de bienes realizadas en aplicación del artículo L.621-111 sólo se ejercerán a cargo de los créditos e hipotecas con los que esos bienes estén legalmente gravados.
Artículo L.624-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 49 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El cónyuge del deudor que fuera comerciante, estuviera inscrito en el Registro Central de Artesanos o fuera agricultor en el momento de su matrimonio, en el año del mismo o en el siguiente, no podrá ejercitar ninguna acción en el procedimiento de salvaguarda en razón de las ventajas otorgadas por uno de los esposos al otro, en el contrato matrimonial o durante el matrimonio. Los acreedores, por su parte, no podrán prevalerse de los beneficios otorgados por uno de los esposos al otro.
Sección III De los derechos del vendedor de bienes muebles, de las reclamaciones y de
las restituciones Artículos L624-9 a L624-18
Artículo L.624-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 50 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La reclamación de los bienes muebles no podrá ser interpuesta hasta tres meses después de la publicación de la resolución de apertura del procedimiento.
Para los bienes que sean objeto de un contrato en curso el día de la apertura del procedimiento, el plazo empezará a contar a partir de la rescisión o del término del contrato,
Artículo L.624-10 (Introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, art. 51 Diario Oficial de 27 de julio de 2005)
El propietario de un bien quedará dispensado de hacer reconocer su derecho de propiedad cuando el contrato relativo a dicho bien hubiera sido objeto de publicidad. Podrá reclamar la restitución de su bien con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.624-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 52 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El privilegio y el derecho de reclamación establecidos por el apartado 4º del artículo 2102 del Código Civil en beneficio del vendedor de bienes muebles, así como la acción resolutoria, sólo se podrán ejercer hasta el límite de lo dispuesto en los artículos L.624-118 a L.624-18 del presente Código.
Artículo L.624-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 53 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Podrán ser reclamadas en totalidad o en parte, por resolución judicial o por efecto de una condición resolutoria adquirida, las mercancías cuya venta hubiera sido decidida antes de la resolución de apertura del procedimiento, si se encontraran en especie.
La reclamación deberá igualmente ser admitida aunque la resolución de la venta hubiera sido acordada o constatada por decisión judicial posterior a la resolución de apertura del procedimiento cuando la acción de reclamación o de resolución hubiera sido iniciada antes de la decisión judicial de apertura por parte del vendedor por una causa que no fuera la falta de pago del precio.
Artículo L.624-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Podrán reclamarse las mercancías expedidas al deudor mientras no se hubiera efectuado la entrega en sus almacenes o en los del comisionista encargado de venderlas por cuenta del deudor.
Sin embargo, dicha reclamación no será admisible, si, antes de su llegada, las mercancías hubiesen sido revendidas sin fraude, con facturas o títulos de transporte regulares.
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CÓDIGO DE COMERCIO Artículo L.624-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El vendedor podrá retener las mercancías que no hubieran sido entregadas o expedidas al deudor o a un tercero que actuara por cuenta del mismo.
Artículo L.624-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se podrán reclamar los efectos de comercio u otros títulos impagados remitidos por su propietario para ser cobrados o para ser especialmente asignados a determinados pagos, si se encontraran aún en manos del deudor.
Artículo L.624-16 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 54 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se podrán reclamar, siempre que se encuentren en especie, las mercancías consignadas a nombre del deudor, para ser vendidas por cuenta del propietario, o bien dejarlas en concepto de depósito.
Podrán igualmente ser reclamados los bienes vendidos con una cláusula de reserva de propiedad que subordine la transmisión de propiedad al pago íntegro del precio, si se encontraran en especie en el momento de la apertura del procedimiento. Esta cláusula, que podrá figurar en un escrito que regule un conjunto de operaciones comerciales concertadas entre las partes, tendrá que haberse concertado entre las partes en un escrito elaborado como máximo en el momento de la entrega. No obstante cualquier cláusula en contrario, la cláusula de reserva de propiedad será oponible al comprador y a los demás acreedores, salvo que las partes hubieran acordado por escrito descartarla o modificarla.
La reclamación en especie podrá ejercerse en las mismas condiciones sobre los bienes mobiliarios incorporados a otro bien mobiliario cuando su recuperación pueda efectuarse sin dañar dichos bienes ni el bien al que se hubieran incorporado. La reclamación en especie podrá ejercerse también sobre bienes fungibles cuando se encuentren en manos del comprador bienes de la misma especie y de la misma calidad.
En todos los casos, no habrá lugar a reclamación si, por decisión del Juez Comisario se pagara su precio inmediatamente. El Juez Comisario podrá asimismo conceder un plazo para el pago, previo consentimiento del acreedor demandante. El pago del precio se asimilará entonces al de los créditos mencionados en el punto I del artículo L.622-17.
Artículo L.624-17 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 55 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador, o en su defecto el deudor previo acuerdo del mandatario judicial, podrá dar su consentimiento a la acción de reclamación o de restitución de un bien citado en la presente sección, con el acuerdo del deudor. A falta de acuerdo o en caso de litigio, la petición será trasladada al Juez Comisario que resolverá sobre el destino del contrato tras considerar las observaciones del acreedor, del deudor y del mandatario judicial al que se le hubiera encargado el asunto.
Artículo L.624-18 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 55 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Podrá reclamarse el precio o la parte del precio de los bienes citados en el artículo L 624-16 que no hubiera sido ni pagado, ni abonado por su valor, ni compensado en cuenta corriente entre el deudor y el comprador en la fecha de la resolución de apertura del procedimiento.
CAPITULO VI Del plan de salvaguarda Artículos L626-2 a
L626-1
Artículo L.626-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 59 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando exista una posibilidad seria de salvaguardar la empresa, el Tribunal establecerá a estos efectos un plan que pondrá fin al periodo de observación.
Este plan de salvaguarda podrá prever, si procede, la inclusión o la cesión de varias actividades. Las cesiones realizadas en aplicación del presente artículo estarán sujetas a lo dispuesto en la sección 1 del capítulo II del título IV. El mandatario judicial ejercerá las misiones confiadas al liquidador en virtud de estas disposiciones.
Sección I De la elaboración del proyecto de plan Artículos L626-2 a
L626-8
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CÓDIGO DE COMERCIO Artículo L.626-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 60 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El proyecto de plan determinará las perspectivas de saneamiento en función de las posibilidades y de las condiciones de ejercicio de las actividades, de la situación del mercado y de los medios de financiación disponibles.
Definirá las condiciones del pago del pasivo y las garantías eventuales que el empresario deba suscribir para asegurar su ejecución.
El proyecto expondrá y justificará el nivel y las perspectivas de empleo así como las condiciones sociales previstas para el mantenimiento de la actividad. Cuando el proyecto previera despidos por motivo económico, recordará las medidas ya tomadas y definirá las acciones que se deban emprender con el fin de facilitar la recolocación y la indemnización de aquellos trabajadores cuyo puesto de trabajo se viera amenazado. El proyecto tendrá en cuenta los trabajos preconizados por el balance medioambiental.
En el mismo se recogerán, se adjuntarán como anexo y se analizarán las ofertas de adquisición realizadas por terceros, relativas a una o varias actividades, y se indicarán las actividades que se propone incluir o detener.
Artículo L.626-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 61 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el proyecto de plan prevea una modificación de capital, la junta general extraordinaria o la junta de socios y, si su aprobación fuera necesaria, las juntas especiales mencionadas en los artículos L.225-99 y L.228-35-6 o las juntas generales de sindicatos citadas en el artículo L.228-103 serán convocadas con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Si debido a las pérdidas constatadas en los documentos contables, los fondos propios llegaran a ser inferiores a la mitad del capital social, primero se instará a la junta a que restituya este capital hasta el importe propuesto por el administrador, el cual no podrá ser inferior a la mitad del capital sociaL.Se le instará igualmente a que decida la reducción y el aumento de capital en beneficio de una o varias personas que se comprometan a ejecutar el plan.
Las obligaciones a las que se comprometan los accionistas o socios o los nuevos suscriptores quedarán subordinadas, en su ejecución, a la aceptación del plan por parte del Tribunal.
Las cláusulas de autorización se tendrán por no puestas.
Artículo L.626-5 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 63 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las propuestas para el pago de los créditos serán comunicadas por el administrador al mandatario judicial, a los interventores, así como al comité de empresa o, en su defecto, a los delegados del personal, a medida que se vayan elaborando y bajo la supervisión del Juez Comisario.
El mandatario judicial recibirá individual o colectivamente el acuerdo de cada acreedor que haya declarado su crédito en conformidad con el artículo L.622-24, en los plazos y entregas que le sean propuestas. En caso de consultas por escrito, la falta de respuesta en el plazo de treinta días a partir de la recepción de la carta del mandatario judicial tendrá carácter de aceptación. Estas disposiciones serán aplicables a las instituciones citadas en el artículo L.143-11-4 del Código de Trabajo para las cantidades mencionadas en el párrafo cuarto del artículo L.621-24, incluso si sus créditos no hubieran sido aún declarados.
Artículo L.626-6 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 63 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las administraciones financieras, los organismos de seguridad social, las instituciones que gestionen el régimen de seguro de desempleo previsto por los artículos L.351-3 y siguientes del Código de Trabajo y las instituciones regidas por el libro IX del Código de Seguridad Social podrán conceder al deudor, paralelamente al esfuerzo realizado por otros acreedores, condonaciones de la totalidad o parte de sus deudas, en condiciones similares a las que en circunstancias normales del mercado le propondría un operador económico privado que se hallara en la misma situación.
En este supuesto, las administraciones financieras podrán conceder una condonación de los impuestos directos recaudados en beneficio del Estado y de las entidades territoriales, así como de diferentes gravámenes parafiscales del presupuesto del Estado adeudados por el deudor. En lo que refiere a los impuestos indirectos recaudados en beneficio del Estado y de las entidades territoriales, sólo podrán beneficiarse de una condonación los intereses por retraso, los recargos, las penalizaciones y las multas.
Las condiciones de condonación de la deuda serán establecidas por decreto adoptado en Conseil d'Etat. Los acreedores citados en el párrafo primero podrán asimismo decidir cesiones en el orden de prelación del
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CÓDIGO DE COMERCIO privilegio o de la hipoteca o del abandono de dichas garantías.
Artículo L.626-7 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 63 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El mandatario judicial elaborará un desglose de las respuestas dadas por los acreedores. Dicho desglose será enviado al administrador para que realice su informe y a los interventores.
Artículo L.624-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 62 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando la salvaguarda de la empresa lo requiera, el Tribunal, a instancia del Ministerio Fiscal, podrá subordinar la adopción del plan a la sustitución de uno o varios dirigentes de la empresa, salvo cuando el deudor ejerciera una profesión liberal sujeta a un estatuto legal o reglamentario.
Para ello y en las mismas condiciones, el Tribunal podrá acordar la intransferibilidad de las participaciones sociales, títulos de capital o valores mobiliarios que den acceso al capital, poseídos por uno o varios dirigentes de hecho o de derecho, y decidir que el derecho de voto vinculado a los mismos sea ejercido por un mandatario judicial designado a estos efectos por un periodo que determine dicho TribunaL.Podrá asimismo ordenar la cesión de estas participaciones sociales, títulos de capital o valores mobiliarios que den acceso al capital, poseídos por las mismas personas, fijándose el precio de cesión mediante tasación judicial.
Para la aplicación del presente artículo, se oirá o citará en debida forma a los dirigentes y a los representantes del comité de empresa o, en su defecto, a los delegados del personal.
Artículo L.626-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 64, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se informará y consultará al deudor, al comité de empresa o, en su defecto, a los delegados del personal, al o a los interventores y al mandatario judicial sobre el informe que reciban del administrador y que presente el balance económico y social y el proyecto del plan.
Dicho informe se enviará simultáneamente a la autoridad administrativa competente en materia de derecho laboraL.Se enviará al Tribunal y a la autoridad administrativa mencionada anteriormente el acta de la reunión en cuyo orden del día estuviera inscrita la consulta de los representantes del personal.
El informe se remitirá asimismo al Ministerio Publico.
Sección II De la resolución judicial de aprobación del plan y de la ejecución del mismo Artículos L626-9 a
L626-28
Artículo L.626-9 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 65 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras haber oído o citado en debida forma al deudor, al administrador, al mandatario judicial, a los interventores y a los representantes del comité de empresa o, en su defecto, a los delegados del personal, el Tribunal resolverá tras estudiar el informe del administrador y tras recabar el dictamen del Ministerio FiscaL.Cuando el procedimiento se haya abierto en beneficio de un deudor que tenga un número de trabajadores o una cifra de negocios superiores a los umbrales fijados por decreto adoptado en Conseil d'Etat, los debates deberán celebrarse en presencia del Ministerio Fiscal.
Artículo L.626-10 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 66 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El plan nombrará a las personas comprometidas en su ejecución y mencionará el conjunto de obligaciones que hubieran suscrito y que fueran necesarias para la salvaguarda de la empresa. Estas obligaciones se referirán al
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CÓDIGO DE COMERCIO porvenir de la actividad, a las condiciones del mantenimiento y de la financiación de la empresa, del pago del pasivo anterior a la resolución de apertura así como, si procediera, a las garantías aportadas para asegurar su ejecución.
El plan expondrá y justificará el nivel y las perspectivas de empleo y las condiciones sociales previstas para el mantenimiento de la actividad.
Las personas que ejecuten el plan, incluso como socios, no podrán ser obligadas a asumir más cargas que las obligaciones que hubieran suscrito a lo largo de su preparación, sin perjuicio de lo dispuesto en los artículos L.626-3 y L.626-16.
Artículo L.626-11 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 67 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución de aprobación del plan convertirá sus disposiciones en oponibles frente a todos. A excepción de las personas jurídicas, los codeudores y las personas que hayan concedido una fianza o una
garantía autónoma podrán prevalerse de las mismas.
Artículo L.626-12 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 68 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sin perjuicio de la aplicación de las disposiciones del artículo L.628-18, el Tribunal fijará la duración del plan. Dicha duración no podrá exceder de diez años. Cuando el deudor sea un agricultor, no podrá exceder de quince años.
Artículo L.626-13 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 69 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La aprobación del plan por el Tribunal conllevará la suspensión de pleno derecho de la inhabilitación para emitir cheques, de conformidad con lo dispuesto en el artículo L.131-73 del Código Monetario y Financiero, cuando esta hubiera sido provocada por el rechazo de pago de un cheque emitido antes de la resolución de apertura del procedimiento.
Artículo L.626-14 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 70 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En la resolución que apruebe o modifique el plan, el Tribunal podrá decidir que los bienes que considere indispensables para el mantenimiento de la empresa no puedan cederse sin su autorización durante un período fijado por éL.El plazo durante el cual dichos bienes no podrán cederse no podrá exceder del de la duración del plan.
Dicha intransferibilidad temporal será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Cualquier acto realizado infringiendo las disposiciones del primer párrafo será anulado a petición de cualquier interesado o del Ministerio Fiscal, debiéndose presentar el recurso de anulación dentro del plazo de tres años contados a partir de la conclusión del acto. Cuando el acto haya sido objeto de publicidad, el plazo empezará a contar a partir de la misma.
Artículo L.626-15 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 71 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El plan precisará las modificaciones que fuera necesario efectuar en los estatutos para la reorganización de la empresa.
Artículo L.626-16 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 72 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si fuera necesario, la resolución de aprobación del plan encargará al administrador que convoque, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat, a la junta competente para que aplique las modificaciones previstas por el plan.
Artículo L.626-17
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CÓDIGO DE COMERCIO (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los socios o accionistas estarán obligados a desembolsar el capital que suscriban en un plazo fijado por el TribunaL.En caso de desembolso inmediato podrán beneficiarse de la compensación en forma de deducciones o plazos hasta el importe de los créditos admitidos y con el límite de la reducción de la que sean objeto en el plan.
Artículo L.626-18 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 73 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal levantará acta de los plazos y condonaciones aceptados por los acreedores en las condiciones previstas en el párrafo segundo del artículo L.626-5 y en el artículo L.626-6. Estos plazos y condonaciones podrán, en su caso, ser reducidos por el TribunaL.Para los demás acreedores, el Tribunal impondrá plazos de pago uniformes, sin perjuicio, en lo que se refiere a los créditos a plazo fijo, de los plazos superiores estipulados por las partes antes de la apertura del procedimiento, los cuales podrán exceder del periodo de duración del plan.
El primer pago no podrá producirse después de cumplido el plazo de un año. Después del segundo año, el importe de cada una de las anualidades previstas por el plan no podrá ser inferior al
5% del pasivo admitido, salvo en el caso de una explotación agrícola. En el caso de los contratos de leasing, estos plazos se darán por finalizados si antes de su expiración, el
beneficiario de dicho contrato ejerciera la opción de compra. Esta no podrá ejercerse si, con la deducción de los descuentos aceptados, no se pagara la totalidad de las cantidades debidas en virtud del contrato.
Artículo L.626-19 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 74 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El plan podrá prever una opción para los acreedores que consista en pagos en plazos uniformes más breves pero con una reducción proporcional del importe del crédito.
La reducción del crédito no será definitivamente adquirida hasta el pago, en el plazo fijado, del último pago previsto en el plan.
Artículo L.626-20 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Por excepción a lo dispuesto en los artículos L.626-18 y L.626-19, no podrán ser objeto de reducciones o de concesión de plazos:
1º Los créditos garantizados por el privilegio determinado en los artículos L.143-10, L.143-11, L.742-6 y L.751-15 del Código de Trabajo;
2º Los créditos derivados de una relación laboral garantizados por los privilegios previstos en el apartado 4º del artículo 2101 y en el apartado 2º del artículo 2104 del Código Civil cuando el importe de estos no hubiera sido adelantado por las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo o no hubiera sido objeto de una subrogación.
II. - Hasta el límite del 5% del pasivo estimado, se reembolsarán sin reducciones ni concesión de plazos los créditos menores siguiendo el orden creciente de su importe siempre y cuando ninguno supere un determinado importe fijado por decreto. Esta disposición no se aplicará cuando el importe de los créditos pertenecientes a una misma persona exceda de la décima parte del porcentaje antes fijado o cuando se hubiera concedido una subrogación o se hubiera efectuado un pago para otra persona.
Artículo L.626-21 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 75 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La inscripción de un crédito en el plan y la concesión de plazos o reducciones por parte del acreedor no presupondrá la admisión definitiva del crédito en el pasivo.
Las cantidades a repartir que correspondan a los créditos en litigio no serán pagadas hasta obtener la admisión definitiva de estos créditos en el pasivo. Sin embargo, la instancia judicial competente para resolver dicho litigio podrá decidir que el acreedor participe provisionalmente, en totalidad o en parte, en las distribuciones realizadas antes de la admisión definitiva.
Salvo disposición legal en contrario, los pagos previstos por el plan serán realizados en el domicilio del acreedor. El Tribunal establecerá las modalidades para el pago de los dividendos decididos por el plan. Los dividendos serán
pagados al auditor para la ejecución del plan, quien procederá a su reparto.
Artículo L.626-22 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 76 Diario Oficial de 27 de julio de 2005, con
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CÓDIGO DE COMERCIO entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de venta de un bien sujeto a privilegio especial, de una pignoración o de una hipoteca, la parte proporcional del precio correspondiente a los créditos garantizados por estas garantías será ingresada en la cuenta de la Caja de Depósitos y Consignaciones y los acreedores beneficiarios de estas garantías o titulares de un privilegio general serán pagados sobre el precio tras el abono de los créditos garantizados por el privilegio establecido en los artículos L.143-10, L.143-11, L.742-6 y L.751-15 del Código de Trabajo.
Recibirán los dividendos por vencer según el plan, reducidos en función del pago anticipado según el orden de prelación existente entre ellos.
Si un bien estuviera sujeto a un privilegio, una pignoración o una hipoteca, podrán ser sustituidos por cualquier otra garantía en caso de necesidad, siempre que esta presentara ventajas equivalentes. Si no se llegara a un acuerdo, el Tribunal podrá ordenar dicha sustitución.
Artículo L.626-23 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 77 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de cesión parcial de activos, el precio será abonado al deudor sin perjuicio del artículo L.626-22.
Artículo L.626-24 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 78, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá confiarle al administrador las misiones que considere necesarias para la aplicación del plan. El mandatario judicial seguirá ejerciendo su función durante el tiempo necesario para la comprobación y la
determinación definitiva de la masa pasiva.
Artículo L.626-25 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 79 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal nombrará al administrador o al mandatario judicial para que ejerza las funciones de auditor encargado de velar por la ejecución del plan, por el periodo establecido en el artículo L.626-12. Si fuera necesario, el Tribunal podrá nombrar a varios auditores.
Las acciones judiciales que se hubieran iniciado antes de la resolución de aprobación del plan y en las que interviniera el administrador o el mandatario judicial serán continuadas por el auditor para la ejecución del plan o, si este ya no estuviera en funciones, por un mandatario judicial nombrado a estos efectos por el Tribunal.
El auditor para la ejecución del plan estará igualmente facultado para ejercitar acciones en favor del interés colectivo de los acreedores.
El auditor para la ejecución del plan podrá acceder a todos los documentos e informaciones útiles para realizar su misión.
Este responderá ante el presidente del Tribunal y ante el Ministerio Publico del incumplimiento del plan. Informará de ello al comité de empresa o, en su defecto, a los delegados del personal.
Toda cantidad que perciba el auditor para la ejecución del plan será inmediatamente ingresada en la cuenta de depósito de la Caja de Depósitos y Consignaciones. En caso de retraso, el auditor para la ejecución del plan deberá pagar el interés legal aumentado en cinco puntos por aquellas cantidades que no hubiera ingresado.
El auditor para la ejecución del plan podrá ser sustituido por el Tribunal, de oficio o a instancia del Ministerio Fiscal.
Artículo L.626-26 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 80 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sólo el Tribunal podrá decidir una modificación sustancial de los objetivos o los medios del plan, a petición del deudor y tras estudiar el informe del auditor para la ejecución del plan.
El Tribunal resolverá tras haber recabado el dictamen del Ministerio Fiscal, y tras haber oído o citado en debida forma al deudor, al auditor para la ejecución del plan, a los interventores, a los representantes del comité de empresa o, en su defecto, a los delegados del personal, así como a cualquier persona interesada.
Artículo L.626-27 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 81 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - El Tribunal que apruebe el plan, previo dictamen del Ministerio Publico, podrá poner fin a dicho plan si el deudor no cumpliera sus compromisos dentro de los plazos fijados en el mismo. Cuando el incumplimiento se derivara del impago de los dividendos por parte del deudor y el Tribunal no pusiera fin al plan, el auditor para la ejecución del plan procederá al pago de dichos dividendos, de conformidad con lo establecido en el plan.
Si se constatara el estado de insolvencia del deudor durante la ejecución del plan, el Tribunal que hubiera aprobado dicho plan, previo dictamen del Ministerio Fiscal, pondrá fin al mismo y dictará la resolución judiciaL.
La resolución que ponga fin al plan dará por finalizadas las operaciones y declarará la caducidad de cualquier plazo de pago que hubiera sido concedido.
II. - En los casos mencionados en el punto I, el Tribunal conocerá a instancia de un acreedor, del auditor para la ejecución del plan o del Ministerio FiscaL.Podrá igualmente conocer de oficio.
III. - Tras la rescisión del plan y la incoación o apertura del nuevo procedimiento, los acreedores sometidos a dicho
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CÓDIGO DE COMERCIO plan quedarán dispensados de la obligación de declarar sus créditos y garantías. Los créditos inscritos en dicho plan será admitidos de pleno derecho, tras el descuento de las cantidades percibidas.
Artículo L.626-28 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 82 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando quede establecido que los compromisos establecidos en el plan u ordenados por el Tribunal se han cumplido, este podrá constatar la finalización de la ejecución del plan a petición del deudor o de cualquier persona interesada.
Sección III De los comités de acreedores Artículos L626-29 a
L626-35
Artículo L.626-29 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los deudores cuyas cuentas hubieran sido certificadas por un auditor de cuentas o verificadas por un experto contable y cuyo número de empleados o cifra de negocios fueran superior a los umbrales fijados por decreto adoptado en Conseil d'Etat, estarán sujetos a lo dispuesto en la presente sección.
El Juez Comisario podrá autorizar, a petición del deudor o del administrador, que lo dispuesto en la presente sección también se aplique cuando el número de empleados o la cifra de negocios esté por debajo de los umbrales en cuestión.
Artículo L.626-30 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador judicial reunirá a las entidades de crédito y a los principales proveedores de bienes o servicios en dos comités de acreedores, dentro del plazo de treinta días a contar desde la resolución de apertura del procedimiento. Cada proveedor de bienes o servicios será miembro de pleno derecho del comité constituido por los principales acreedores cuando sus créditos representen más del 5% del total de los créditos de los proveedores. Los demás proveedores que fueran solicitados por el administrador también podrán ser miembros de dichos comités.
El deudor presentará a estos propuestas para elaborar el proyecto de plan mencionado en el artículo L.626-2, dentro del plazo de dos meses a contar desde su constitución, pudiendo el Juez Comisario renovar dicho plazo una vez a petición del deudor o del administrador.
Tras discusión con el deudor y el administrador judicial, los comités se pronunciarán sobre dicho proyecto, modificado en su caso para tener en cuenta dichas discusiones, como máximo en el plazo de treinta días a partir de la fecha de transmisión de las propuestas del deudor. Las decisiones de los comités se tomarán por mayoría de sus miembros, que deberá representar al menos los dos tercios del importe de los créditos del conjunto de los miembros del comité, calculándose dicho porcentaje a partir de las cuentas proporcionadas por el deudor y certificadas por los auditores de cuentas o, cuando no se hubieran nombrado auditores de cuentas, verificadas por un experto contable.
El proyecto de plan adoptado por los comités no estará sujeto a lo dispuesto en el artículo L.626-12 ni a lo dispuesto en los párrafos segundo y tercero del artículo L.626-18. Las entidades territoriales y sus organismos públicos no podrán ser miembros del comité constituido por los principales proveedores.
Artículo L.626-31 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el proyecto de plan hubiera sido adoptado por los comités de conformidad a lo dispuesto en el artículo L.626-30, el Tribunal se asegurará de que se respeten los intereses del conjunto de los acreedores. En dicho caso, el Tribunal aprobará el plan de conformidad con el proyecto adoptado y conforme a las modalidades definidas en la sección 2 del presente capítulo. Su resolución dará lugar a la aplicación por parte de todos los miembros de las propuestas aceptadas por cada uno de los comités.
Por excepción a lo dispuesto en el artículo L.626-26, sólo se podrá proceder a una modificación sustancial de los objetivos o los medios del plan aprobado por el Tribunal en virtud del párrafo primero, siguiendo las modalidades definidas en la presente sección.
Artículo L.626-32 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de haber obligacionistas, el administrador judicial convocará a los representantes del sindicato, si este existiese, dentro del plazo de quince días a contar desde la fecha de transmisión del proyecto de plan a los comités, con objeto de exponerles dicho proyecto de plan.
Los representantes del sindicato de obligacionistas convocarán posteriormente una junta general de obligacionistas, dentro del plazo de quince días, para deliberar sobre dicho proyecto. No obstante, en caso de carencia o ausencia de los representantes del sindicato constatada por el Juez Comisario, el administrador convocará la junta general de obligacionistas.
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CÓDIGO DE COMERCIO La deliberación podrá acordar el abandono total o parcial de los créditos de los obligacionistas.
Artículo L.626-33 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los acreedores que no fueran miembros de los comités creados en aplicación del artículo L.626-30 serán consultados según lo dispuesto en los artículos L.626-5 a L.626-7. El administrador judicial ejercerá a estos efectos la misión confiada al mandatario judicial por dichas disposiciones.
Las disposiciones del plan relativas a los acreedores que no fueran miembros de los comités creados en aplicación del artículo L.626-30 estarán sujetas a lo dispuesto en los artículos L.626-12 y L.626-18 a L.626-20.
Artículo L.626-34 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando uno de los comités no se hubiera pronunciado sobre un proyecto de plan dentro de los plazos previstos, o hubiera rechazado las propuestas realizadas por el deudor, o cuando el Tribunal no hubiera aprobado el plan en aplicación de lo dispuesto en el artículo L.626-31, se reanudará el procedimiento para preparar un plan en las condiciones previstas en los artículos L.626-5 a L.626-7, al objeto de que se apruebe dicho plan de conformidad con lo dispuesto en los artículos L.626-12 y L.626-18 a L.626-20. El procedimiento se reanudará con arreglo a las mismas modalidades cuando el deudor no hubiera presentado sus propuestas de plan a los comités dentro de los plazos previstos.
Artículo L.626-35 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación de la presente sección.
CAPITULO VII Disposiciones especiales aplicables en caso de no
judicial designación de administrador Artículos L627-1 a
L627-6
Artículo L.627-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 84 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el presente capítulo será de aplicación en caso de no designación de administrador judicial en aplicación de lo dispuesto en el penúltimo párrafo del artículo L.621-4. Las demás disposiciones del presente título serán aplicables siempre y cuando no sean contrarias a las del presente capítulo.
Artículo L.627-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 85 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras el visto bueno del mandatario judicial, el deudor ejercerá la facultad que tiene el administrador para continuar contratos en curso en aplicación de lo dispuesto en el artículo L.622-13. En caso de desacuerdo, el Juez Comisario conocerá a instancia de cualquier persona interesada.
Artículo L.627-3 (Ley nº 2001-1275 de 28 de diciembre de 2001 art. 152 Ley de finanzas para 2002 Diario Oficial de 29 de diciembre de 2001) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 86 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Durante el periodo de observación, el deudor elaborará un proyecto de plan con la eventual ayuda de un perito nombrado por el Tribunal.
El deudor comunicará al mandatario judicial y al Juez Comisario las propuestas de pago del pasivo previstas en el artículo L.626-5 y procederá a proporcionar las informaciones y a realizar las consultas previstas en el párrafo tercero del artículo L.623-3 y L.626-8.
Para la aplicación del artículo L.626-3, la junta general extraordinaria o la junta de socios y, si su aprobación fuera necesaria, las juntas especiales mencionadas en los artículos L.225-99 y L.228-35-6 o las juntas generales de sindicatos citadas en el artículo L.228-103 serán convocadas con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat. El Juez Comisario fijará el importe del aumento de capital propuesto a la junta para reconstituir los fondos propios.
Artículo L.627-4
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CÓDIGO DE COMERCIO (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 87 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Una vez depositado en la Secretaría del Tribunal el proyecto de plan por el deudor, el Tribunal resolverá tras estudiar el informe del Juez Comisario.
Artículo L627-5 Cualquier despido previsto por el administrador, el empresario o el liquidador, según el caso, del representante de
los empleados mencionados en los artículos L. 621-8, L. 621-135 y L. 622-2 será obligatoriamente sometido al comité de empresa, que emitirá su dictamen sobre dicho proyecto de despido.
El despido sólo podrá producirse con la autorización del inspector de trabajo del que dependa el establecimiento. Cuando no exista comité de empresa en el establecimiento, se instará directamente al inspector de trabajo.
Sin embargo, en caso de falta grave, el administrador, el empresario o el liquidador, según el caso, tendrá la facultad de acordar la suspensión temporal inmediata del interesado esperando la resolución definitiva. En caso de denegación del despido se anulará la suspensión temporal y sus efectos quedarán suprimidos de pleno derecho.
La protección instituida a favor del representante de los trabajadores para el ejercicio de su misión fijada en el artículo L.621-36 finalizará cuando todas las cantidades pagadas al representante de los acreedores por las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo, en aplicación del párrafo décimo del artículo L.143-11-7 de dicho Código, hayan sido devueltas por éste último a los trabajadores.
Cuando el representante de los trabajadores ejerza las funciones del comité de empresa o, en su defecto, de los delegados del personal, en aplicación del artículo L. 621-135, la protección terminará al final de la última audición o consulta prevista por el procedimiento de suspensión de pagos.
Artículo L627-6 (Introducido por la Ley nº 2003-7 de 3 de enero de 2003 Artículo 47 Diario Oficial de 4 de enero de 2003)
Los fondos detentados por las comunidades de propietarios en concepto de los procedimientos de suspensión de pagos o de liquidación de bienes regulados por la Ley n° 67-563 de 13 de julio de 1967 sobre el procedimiento de suspensión de pagos, la liquidación de bienes, la quiebra personal y las bancarrotas serán inmediatamente ingresados en la cuenta de depósito de la Caja de Depósitos y Consignaciones. En caso de retraso, el liquidador deberá pagar un interés por las cantidades que no haya ingresado, aplicando una tasa igual al interés legal incrementado en cinco puntos.
TITULO III DEL SANEAMIENTO JUDICIAL (REDRESSEMENT JUDICIAIRE) Artículos L631-1 a
L631-22
CAPITULO I De la apertura y del desarrollo del procedimiento de saneamiento judicial
(redressement judiciaire) Artículos L631-1 a L631-22
Artículo L.631-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 88 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se abrirá un procedimiento de saneamiento judicial a todo deudor, mencionado en los artículos L.631-2 y L.631-3 que, ante la imposibilidad de hacer frente al pasivo exigible con el activo del que dispone, se encontrase en estado de insolvencia.
El procedimiento de saneamiento judicial está destinado a permitir la continuidad de la actividad de la empresa, el mantenimiento del empleo y la liquidación del pasivo. El mismo dará lugar a un plan aprobado por resolución judicial tras un periodo de observación y, en su caso, a la constitución de dos comités de acreedores, de conformidad con lo dispuesto en los artículos L.626-29 y L.626-30.
Artículo L.631-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 88 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de saneamiento judicial será aplicable a cualquier comerciante, a cualquier persona inscrita en el Registro Central de Artesanos, a cualquier agricultor, a cualquier persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, así como a cualquier persona jurídica de derecho privado.
No podrá incoarse un nuevo procedimiento de saneamiento judicial respecto de una persona que ya estuviera incursa en un procedimiento de este tipo, o en un procedimiento de de liquidación judicial, en tanto no se haya puesto fin a las operaciones del plan que se derive del mismo o en tanto el procedimiento de liquidación no haya finalizado.
Artículo L.631-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 88 Diario Oficial de 27 de julio de 2005, con entrada
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CÓDIGO DE COMERCIO en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de saneamiento judicial se abrirá asimismo a las personas mencionadas en el párrafo primero del artículo L.631-2 tras el cese de su actividad profesional cuando la totalidad o parte de su pasivo se derivara de la misma.
En caso de fallecimiento de un comerciante, una persona inscrita en el Registro Central de Artesanos, un agricultor o cualquier otra persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, que se hubiera encontrado en estado de insolvencia, el Tribunal conocerá en el plazo de un año a partir de la fecha del fallecimiento, bien a instancia de un acreedor, sea cual fuere la naturaleza de su crédito, bien a instancia del Ministerio FiscaL.El Tribunal podrá igualmente conocer de oficio en el mismo plazo y a instancia de cualquier heredero del deudor sin ninguna condición de plazo.
Artículo L.631-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El deudor deberá solicitar la apertura de este procedimiento como máximo en los cuarenta y cinco días siguientes a la declaración de insolvencia, si en el transcurso de dicho plazo no hubiera solicitado la apertura de un procedimiento de conciliación.
En caso de fracasar el procedimiento de conciliación y cuando el informe del conciliador ponga en evidencia el estado de insolvencia del deudor, el Tribunal podrá declarar de oficio la apertura de un procedimiento de saneamiento judiciaL.
Artículo L.631-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal, de oficio o a instancia del Ministerio Fiscal, podrá declarar la apertura de un procedimiento de saneamiento judicial aún cuando no hubiera ningún procedimiento de conciliación en curso.
Sin perjuicio de esto último, el procedimiento podrá asimismo ser incoado a requerimiento de un acreedor, sea cual fuere la naturaleza de su crédito. No obstante, cuando el deudor haya cesado su actividad profesional, este requerimiento deberá realizarse dentro del plazo de un año a contar desde:
1° La baja en el Registro de Comercio y de Sociedades Si se tratara de una persona jurídica, el plazo empezará a contar desde la baja consiguiente a la publicación del cierre de las operaciones de liquidación;
2° El cese de la actividad, si se tratara de una persona inscrita en el Registro Central de Artesanos, de un agricultor o de una persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal, sujeta a un estatuto legal o reglamentario o cuyo título esté protegido;
3º Si se tratara de una persona jurídica no sujeta a inscripción, la publicación del cierre de la liquidación, Además, el procedimiento sólo podrá abrirse contra un deudor que ejerza una actividad agrícola no constituida en
forma de sociedad mercantil cuando, previamente al requerimiento de apertura del procedimiento por parte de un acreedor, se presentara ante el presidente del Tribunal de Grande Instance una solicitud de nombramiento de un conciliador en aplicación del artículo L.351-2 del Código Rural.
Artículo L.631-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El comité de empresa o, en su defecto, los delegados del personal podrán comunicar al presidente del Tribunal o al Ministerio Fiscal cualquier hecho que revele el estado de insolvencia del deudor.
Artículo L.631-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los artículos L.621-51 a L.621-2, L.621-3 se aplicarán al procedimiento de saneamiento judicial.
Artículo L.631-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal determinará la fecha de declaración de insolvencia. A falta de mención correspondiente, la insolvencia se considerará declarada en la fecha de la resolución que la constate.
Podrá ser aplazado una o varias veces, sin poder ser anterior en más de dieciocho meses a la fecha de la resolución que constate el estado de insolvencia. Salvo en caso de fraude, no podrá aplazarse a una fecha anterior a la decisión definitiva de homologación del acuerdo amistoso en aplicación del punto II del artículo L.611-8.
El Tribunal conocerá del asunto a instancia del administrador, del mandatario judicial o del Ministerio FiscaL.Se pronunciará tras haber oído o citado en debida forma al deudor.
Cualquier solicitud de modificación de fecha deberá ser presentada al Tribunal dentro del plazo de un año a contar desde la fecha de la resolución de apertura del procedimiento.
Artículo L.631-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los artículos L.621-4 a L.621-11 se aplicarán al procedimiento de saneamiento judiciaL.El Tribunal podrá actuar de
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CÓDIGO DE COMERCIO oficio en los casos mencionados en los párrafos tercero y cuarto del artículo L.621-4.
Artículo L.631-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 90 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
A partir de la resolución de apertura, los dirigentes de hecho o de derecho, remunerados o no, sólo podrán ceder sus participaciones sociales, títulos de capital o valores mobiliarios que den acceso al capital, los cuales representen sus derechos sociales en la sociedad que haya sido objeto de la resolución de apertura, en las condiciones establecidas por el Tribunal, bajo pena de nulidad.
Los títulos de capital o valores mobiliarios que den acceso al capital serán transferidos a una cuenta especial bloqueada, abierta por el administrador a nombre del titular y administrada por la sociedad o el intermediario financiero, según el caso. No se podrá efectuar ningún movimiento en esta cuenta sin la autorización del Juez Comisario.
El administrador hará mencionar, en su caso, en los registros de la persona jurídica la intransferibilidad de las participaciones de los dirigentes.
Artículo L.631-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 91 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario determinará el importe de la remuneración correspondiente a las funciones ejercidas por el deudor, si se trata de una persona física, o por los dirigentes de la persona jurídica.
En ausencia de remuneración, las personas mencionadas en el párrafo anterior podrán obtener, sobre el activo, subsidios para ellos y sus familias determinados por el Juez Comisario.
Artículo L.631-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Además de las facultades que les fueran atribuidas por el presente título, la misión de los administradores será determinada por el Tribunal.
Este último les encargará que, juntos o por separado, ayuden al deudor en todos los actos de gestión, o que se encarguen por sí solos, íntegramente o en parte, de la administración de la empresa. Cuando el o los administradores tengan por misión la administración íntegra de la empresa y se alcancen todos los umbrales mencionados en el párrafo cuarto del artículo L.621-4, el Tribunal nombrará a uno o varios peritos para que estos les ayuden en sus funciones de gestión. En los demás casos, el o los administradores tendrán la facultad de nombrar a los mismos. El presidente del Tribunal determinará el importe de la remuneración de los peritos, con cargo al procedimiento.
En su misión, el administrador estará obligado a respetar las obligaciones legales y convencionales correspondientes al deudor.
El Tribunal podrá en todo momento modificar la misión del administrador, bien a petición de este, del mandatario judicial, del Ministerio Fiscal, bien de oficio.
El administrador gestionará con su firma las cuentas bancarias o postales de las que fuera titular el deudor cuando este último haya sido objeto de las inhabilitaciones previstas en los artículos L.131-72 o L.163-6 del Código Monetario y Financiero.
Artículo L.631-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Desde la apertura del procedimiento, se admitirá que los terceros propongan al administrador ofertas que persigan el mantenimiento de la actividad de la empresa, mediante una cesión total o parcial de la misma, según lo dispuesto en la sección 1 del capítulo II del título IV.
Artículo L.631-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Lo dispuesto en los artículos L.622-2 a L.622-9 y L.622-13 a L.622-33 se aplicará al procedimiento de saneamiento judicial.
II. - No obstante, las personas físicas codeudoras o las que hayan concedido una fianza o una garantía autónoma no podrán prevalerse de lo dispuesto en el párrafo primero del artículo L.622-28.
Artículo L.631-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Como máximo tras finalizar el plazo de dos meses a contar desde la fecha de resolución de apertura, el Tribunal podrá ordenar la continuación del periodo de observación, si considerara que la empresa dispone a estos efectos de una capacidad de financiación suficiente. No obstante, cuando el deudor ejerza una actividad agrícola, dicho plazo podrá modificarse en función del año agrícola en curso y de los usos y costumbres específicos de las producciones de dicha explotación.
El Tribunal se pronunciará tras estudiar el informe elaborado por el administrador o, cuando este último no hubiera sido nombrado, por el deudor.
II. - En cualquier momento del periodo de observación, el Tribunal podrá ordenar, bien a instancia del
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CÓDIGO DE COMERCIO administrador, del mandatario judicial, de un interventor, del Ministerio Fiscal, o bien de oficio, el cese parcial de la actividad, o dictar la liquidación judicial si se cumplieran las condiciones previstas en el artículo L.640-1.
El Tribunal resolverá tras haber oído o citado en debida forma al deudor, al administrador, al mandatario judicial, a los interventores y a los representantes del comité de empresa o, en su defecto, a los delegados del personal, y tras haber recabado el dictamen del Ministerio Fiscal.
Cuando el Tribunal dicte la liquidación, pondrá fin al período de observación y, sin perjuicio de lo dispuesto en el artículo L.641-10, a la misión del administrador.
Artículo L.631-16 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si durante este periodo de observación se considerara que el deudor dispone de las cantidades suficientes para resarcir a los acreedores y pagar los gastos y las deudas derivados del procedimiento, el Tribunal podrá poner fin al mismo.
Dicho Tribunal conocerá a instancia del deudor, con arreglo a las condiciones previstas en el punto II del artículo L.631-15.
Artículo L.631-17 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando por motivos económicos se produzcan despidos que presenten un carácter urgente, inevitable e indispensable durante el período de observación, el administrador tendrá la autorización del Juez Comisario para proceder a efectuarlos.
Antes de someter el asunto al Juez Comisario, el administrador consultará con el comité de empresa o, en su defecto, con los delegados del personal en las condiciones previstas en el artículo L.321-9 del Código de Trabajo e informará a la autoridad administrativa competente mencionada en el artículo L.321-8 del mismo Código.
En apoyo de su solicitud al Juez Comisario, adjuntará como anexo el dictamen obtenido y los comprobantes de sus gestiones para facilitar la indemnización y la recolocación de los empleados.
Artículo L.631-18 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Lo dispuesto en los capítulos III, IV y V del título II del presente libro será aplicable al procedimiento de saneamiento judicial.
II. - No obstante, el recurso previsto en el párrafo primero del artículo L.624-3 también podrá ser interpuesto por el administrador cuando este quede encargado de la administración de la empresa.
Para la aplicación del artículo L.625-1, el mandatario judicial citado ante el Conseil de Prud'hommes o, en su defecto, el demandante convocará ante este órgano jurisdiccional a las instituciones citadas en el artículo L.143-11-4 del Código de Trabajo.
Del mismo modo, para la aplicación del artículo L.625-3 del presente Código, las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo serán convocadas por el mandatario judicial o, en su defecto, por los empleados demandantes, en los diez días siguientes a la resolución de apertura del procedimiento de saneamiento judicial o de la resolución que convierta un procedimiento de salvaguarda en un procedimiento de saneamiento judiciaL. Se proseguirán las instancias en curso ante la jurisdicción laboral en la fecha de la resolución de apertura, en presencia del administrador, cuando este tuviera por misión asegurar la administración de la empresa, o bien cuando hubiera sido citado en debida forma.
Artículo L.631-19 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Lo dispuesto en el capítulo VI del título II será aplicable al plan de saneamiento judicial. II. - Cuando el plan previera despidos por motivos económicos, el Tribunal no podrá resolver hasta que haya sido
consultado el comité de empresa o, en su defecto, los delegados del personal, en las condiciones previstas en el artículo L.321-9 del Código de Trabajo y hasta que haya sido informada la autoridad administrativa competente mencionada en el artículo L.321-8 del mismo Código.
El plan precisará sobre todo los despidos que deban producirse en el plazo de un mes desde la resolución. En ese plazo, dichos despidos se producirán por simple notificación del administrador, sin perjuicio de los plazos previstos por la Ley para la comunicación previa y en los convenios o acuerdos laborales colectivos.
Artículo L.631-20 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por excepción a lo dispuesto en el artículo L.626-11, los codeudores y las personas que hayan concedido una fianza o una garantía autónoma no podrán prevalerse de lo dispuesto en el plan.
Artículo L.631-21 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO Lo dispuesto en el capítulo VII del título II será aplicable al plan de saneamiento judicial. Durante el periodo de observación, el deudor que ejerza las prerrogativas atribuidas al administrador por el artículo
L.631-17 proseguirá la actividad y procederá a las notificaciones previstas en el párrafo segundo del punto II del artículo L.631-19.
El mandatario judicial ejercerá las funciones atribuidas al administrador por los párrafos segundo y tercero del artículo L.631-10.
Artículo L.631-22 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras examinar el informe del administrador, el Tribunal podrá ordenar la cesión total o parcial de la empresa siempre que el deudor se encontrara ante la imposibilidad de subsanar la situación. A excepción de lo dispuesto en el punto I del artículo L.642-2, lo dispuesto en la sección 1 del capítulo II del título IV será aplicable a dicha cesión. El mandatario judicial ejercerá las misiones atribuidas al liquidador.
El administrador se mantendrá en funciones para llevar a cabo todos los actos necesarios para realizar la cesión
TITULO IV DE LA LIQUIDACION JUDICIAL Artículos L640-1 a
L644-6
CAPITULO PRELIMINAR De la apertura y del desarrollo del procedimiento de liquidación judicia Artículos L640-1 a
L640-6
Artículo L.640-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se abrirá un procedimiento de liquidación judicial a todo deudor mencionado en el artículo L.640-2 en estado de insolvencia cuando el saneamiento de la empresa fuera manifiestamente imposible.
El procedimiento de liquidación judicial está destinado a poner fin a la actividad de la empresa o a ejecutar el patrimonio del deudor mediante una cesión global o por separado de sus derechos y de sus bienes.
Artículo L.640-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de liquidación judicial será aplicable a cualquier comerciante, a cualquier persona inscrita en el Registro Central de Artesanos, a cualquier agricultor, a cualquier persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, así como a cualquier persona jurídica de derecho privado.
No podrá incoarse un nuevo procedimiento de liquidación judicial respecto de una persona que ya estuviera incursa en un procedimiento de este tipo en tanto el mismo no haya finalizado.
Artículo L.640-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de liquidación judicial se abrirá asimismo a las personas mencionadas en el párrafo primero del artículo L.640-2 tras el cese de su actividad profesional cuando la totalidad o parte de su pasivo se derivara de la misma.
En caso de fallecimiento de un comerciante, una persona inscrita en el Registro Central de Artesanos, un agricultor o cualquier otra persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, que se hubiera encontrado en estado de insolvencia, el Tribunal conocerá en el plazo de un año a partir de la fecha del fallecimiento, bien a instancia de un acreedor, sea cual fuere la naturaleza de su crédito, bien a instancia del Ministerio FiscaL.El Tribunal podrá igualmente conocer de oficio en el mismo plazo y a instancia de cualquier heredero del deudor sin condición de plazo.
Artículo L.640-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El deudor deberá solicitar la apertura de este procedimiento como máximo en los cuarenta y cinco días siguientes a la declaración de insolvencia, si en el transcurso de dicho plazo no hubiera solicitado la apertura de un procedimiento de conciliación.
En caso de fracasar el procedimiento de conciliación, cuando el tribunal, en aplicación del párrafo segundo del artículo L.631-4, constatara que se cumplen las condiciones mencionadas en el artículo L.640-1, abrirá un procedimiento de liquidación judicial.
Artículo L.640-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO El Tribunal, de oficio o a instancia del Ministerio Fiscal, podrá pronunciarse sobre la apertura de un procedimiento
de liquidación judicial aún cuando no hubiera ningún procedimiento de conciliación en curso. Sin perjuicio de esto último, el procedimiento podrá asimismo ser incoado a solicitud de un acreedor, sea cual fuere
la naturaleza de su crédito. No obstante, cuando el deudor haya cesado su actividad profesional, esta solicitud deberá presentarse dentro del plazo de un año a contar desde:
1° La baja en el Registro de Comercio y de Sociedades Si se tratara de una persona jurídica, el plazo empezará a contar desde la baja consiguiente a la publicación del cierre de las operaciones de liquidación;
2° El cese de la actividad, si se tratara de una persona inscrita en el Registro Central de Artesanos, de un agricultor o de una persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal, sujeta a un estatuto legal o reglamentario o cuyo título esté protegido;
3º Si se tratara de una persona jurídica no sujeta a inscripción, la publicación del cierre de la liquidación, Además, el procedimiento sólo podrá abrirse contra un deudor que ejerza una actividad agrícola no constituida en
forma de sociedad mercantil cuando, previamente al requerimiento de apertura del procedimiento por parte de un acreedor, se presentara ante el presidente del Tribunal de Grande Instance una solicitud de nombramiento de un conciliador en aplicación del artículo L.351-2 del Código Rural.
Artículo L.640-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El comité de empresa o, en su defecto, los delegados del personal podrán comunicar al presidente del Tribunal o al Ministerio Fiscal cualquier hecho que revele el estado de insolvencia del deudor.
CAPITULO I De la resolución de liquidación judicial Artículos L641-1 a
L641-15
Artículo L.641-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 98 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Los artículos L.621-4 a L.621-2 se aplicarán al procedimiento de liquidación judicial. II. - En la resolución de apertura de la liquidación judicial, el Tribunal designará al Juez Comisario y, en calidad de
liquidador, a un mandatario judicial inscrito en el registro o a una persona escogida en base a los criterios establecidos en el párrafo primero del punto II del artículo L.812-2. El Tribunal, bien a propuesta del Juez Comisario o a instancia del Ministerio Fiscal, o bien de oficio, podrá proceder a la sustitución del liquidador o nombrarle como adjuntos, para que le asistan, uno o varios liquidadores. El deudor o un acreedor podrán solicitar al Juez Comisario que someta todo ello al Tribunal.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título estuviera protegido, el colegio profesional o la autoridad competente de la que eventualmente dependa, podrá recurrir al Ministerio Fiscal para los fines mencionados en el párrafo primero.
Se nombrará a un representante de los trabajadores en las condiciones previstas en el segundo párrafo del artículo L.621-4. El mismo será sustituido con arreglo a las condiciones previstas en el párrafo quinto del artículo L.621-7 y ejercerá la misión prevista en el artículo L.625-2.
Los interventores serán designados y ejercerán sus atribuciones en las mismas condiciones que las previstas en el título II.
III. - Cuando se dicte la liquidación judicial durante el periodo de observación de un procedimiento de salvaguarda o de saneamiento judicial, el Tribunal nombrará al mandatario judicial en calidad de liquidador. No obstante, mediante resolución motivada y a petición del administrador, de un acreedor, del deudor o del Ministerio Fiscal, el Tribunal podrá nombrar como liquidador a otra persona en las condiciones previstas en el artículo L.812-2.
El Tribunal podrá proceder a la sustitución del liquidador o nombrarle como adjuntos, para que le asistan, uno o varios liquidadores con arreglo a las normas previstas en el punto II del presente artículo.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título estuviera protegido, el colegio profesional o la autoridad competente de la que eventualmente dependa, podrá recurrir al Ministerio Fiscal para los fines mencionados en los párrafos primero y segundo del presente punto III.
IV. - La fecha de declaración de insolvencia será fijada en las condiciones previstas en el artículo L.631-8.
Artículo L.641-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 99 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Dentro del mes siguiente a su nombramiento, el liquidador elaborará un informe sobre la situación del deudor, salvo que el Tribunal dictara la liquidación judicial durante el periodo de observación. Será de aplicación lo dispuesto en el párrafo segundo del artículo L.621-9.
Será de aplicación el procedimiento de liquidación judicial simplificada prevista en el capítulo IV del presente título cuando el activo del deudor no incluyera bienes inmobiliarios y cuando el número de sus empleados en los seis meses anteriores a la apertura del procedimiento y su cifra de negocios antes de impuestos fueran inferiores a los umbrales fijados por decreto adoptado en Conseil d'Etat.
Artículo L.641-3
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CÓDIGO DE COMERCIO (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 100 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución que abra la liquidación judicial tendrá los mismos efectos que los previstos en caso de salvaguarda por los párrafos primero y cuarto del artículo L.622-7 y por los artículos L.622-21, L.622-22 L.622-28 y L.622-30.
Los acreedores declararán sus créditos al liquidador conforme a las modalidades previstas en los artículos L.622-24 a L.622-27 y L.622-31 a L.622-33.
Artículo L.641-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 101 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador procederá a las operaciones de liquidación al mismo tiempo que comprobará los créditos. Podrá iniciar o proseguir las actuaciones que sean competencia del mandatario judicial.
No se procederá a la comprobación de los créditos no privilegiados, si el producto de la realización del activo fuera íntegramente absorbido por las costas judiciales y los créditos privilegiados, a menos que, tratándose de una persona jurídica, se debiera cargar a cuenta de los dirigentes sociales de hecho o de derecho la totalidad o parte del pasivo de conformidad con lo dispuesto en los artículos L.51-2 y L.652-1.
El liquidador ejercerá las misiones atribuidas al administrador y al mandatario judicial por los artículos L.622-6, L.622-20, L.622-22, L.622-23, L.624-17, L.625-3, L.625-4 y L.625-8.
Al objeto de realizar el inventario previsto en el artículo L.622-6, el Tribunal nombrará a un perito tasador judicial, a un agente judicial, a un notario o a un corredor de mercancías jurado.
Estas personas realizarán una tasación de los activos del deudor. Los despidos a los que proceda el liquidador en aplicación de la resolución que dicte la liquidación estarán sujetos
a las disposiciones de los artículos L.321-8 y 321-9 del Código de Trabajo.
Artículo L.641-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 102 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando se dicte la liquidación judicial durante el periodo de observación de un procedimiento de salvaguarda o de saneamiento judicial, el liquidador procederá a las operaciones de liquidación al mismo tiempo que finalizará, si procede, la comprobación de los créditos y determinará el orden de prelación de los acreedores. Continuará las acciones entabladas antes de la resolución de liquidación por el administrador o por el mandatario judicial, y podrá entablar las acciones que sean de la competencia del mandatario judicial.
Artículo L.641-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No podrá ser nombrado liquidador ningún pariente del empresario o de los dirigentes si se trata de una persona jurídica, ni consanguíneo ni por afinidad, hasta el cuarto grado inclusive.
Artículo L.641-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 103 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador informará al Juez Comisario, al deudor y al Ministerio Fiscal del desarrollo de las operaciones como mínimo cada tres meses.
Artículo L.641-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Toda cantidad que perciba el liquidador en el ejercicio de sus funciones será inmediatamente ingresada en una cuenta de depósito de la Caja de Depósitos y Consignaciones. En caso de retraso, el liquidador deberá pagar un interés por las cantidades que no haya ingresado, aplicando una tasa igual al interés legal incrementado en cinco puntos.
Artículo L.641-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 104 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - La resolución que abra o dicte la liquidación judicial conllevará de pleno derecho para el deudor, a partir de su fecha, la privación de la administración y de la disposición de sus bienes incluso de aquellos que hubiera adquirido en cualquier concepto, hasta que el procedimiento de liquidación judicial no haya finalizado. El liquidador ejercerá los derechos y las acciones correspondientes al patrimonio del deudor mientras dure la liquidación judicial.
Sin embargo, el deudor podrá constituirse en parte civil con el fin de determinar la culpabilidad del autor de un crimen o de un delito del que hubiera sido víctima.
El deudor ejercerá los actos de disposición y administración de sus bienes así como los derechos y acciones que no estén incluidos en la misión del administrador cuando este haya sido nombrado.
II. - Cuando el deudor sea una persona jurídica, los dirigentes sociales que estén en funciones en el momento de dictarse la resolución de apertura de procedimiento de liquidación judicial conservarán sus cargos, salvo disposición de los estatutos o decisión de la junta general en contrario. En caso de necesidad y a petición de cualquier persona interesada, del liquidador o del Ministerio Fiscal, se podrá nombrar en su lugar a un mandatario por auto del presidente
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CÓDIGO DE COMERCIO del Tribunal.
Se considerará en dicho caso que el domicilio social de la empresa será el domicilio de su representante legal o el del mandatario designado.
III. - Cuando el deudor sea una persona física, no podrá ejercer durante la liquidación judicial ninguna de las actividades mencionadas en el párrafo primero del artículo L.640-2.
Artículo L.641-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 105 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si existiera la posibilidad de una cesión total o parcial de la empresa, o si el interés público o el de los acreedores lo exigiese, el Tribunal podrá autorizar el mantenimiento de la actividad por un periodo máximo fijado por decreto adoptado en Conseil d'Etat. Dicho periodo podrá ser prolongado a instancia del Ministerio Fiscal por un período fijado por la misma vía. Cuando se trate de una explotación agrícola, el Tribunal determinará este plazo en función del año agrícola en curso y de los usos y costumbres específicos de las producciones afectadas. Lo dispuesto en el artículo L.641-13 será de aplicación a los créditos contraídos durante dicho periodo.
El liquidador administrará la empresa. Tendrá la facultad de exigir la ejecución de los contratos en curso y ejercerá las prerrogativas atribuidas al administrador judicial por el artículo L.622-13.
Podrá proceder a los despidos, con arreglo a las condiciones previstas en el artículo L.631-17. Si procediera, preparará un plan de cesión, celebrará los actos necesarios para su realización y recibirá y
distribuirá el precio de la misma. No obstante, cuando el número de empleados o la cifra de negocios fuera superior a los umbrales fijados por
decreto adoptado en Conseil d'Etat, o cuando resultara necesario, el Tribunal nombrará a un administrador judicial para administrar la empresa. En tal caso, por excepción a lo dispuesto en los dos párrafos anteriores, el administrador estará sujeto a los dispuesto en el artículo L.622-13. Preparará el plan de cesión, celebrará los actos necesarios para su realización y, en las condiciones previstas en el artículo L.631-17, podrá proceder a los despidos.
Cuando el administrador no dispusiese de las cantidades necesarias para la continuidad de la actividad, podrá hacer que estas le sean entregadas por el liquidador previa autorización del Juez Comisario.
El liquidador o el administrador, cuando este haya sido nombrado, ejercerá las funciones atribuidas, según el caso, al administrador o al mandatario judicial por los artículos L.622-4 y L.624-6.
Artículo L.641-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 106 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario ejercerá las competencias que le son atribuidas por los artículos L.621-9, L.623-2, L.631-11, por el párrafo primero del artículo L.621-13 y el párrafo cuarto del artículo L.621-16.
El Ministerio Fiscal le comunicará las informaciones que obren en su poder con arreglo a las normas previstas por el párrafo segundo del artículo L.621-8.
El liquidador y el administrador, cuando este haya sido nombrado, recibirán del Juez Comisario todas las informaciones y documentos útiles para el cumplimiento de su misión.
Artículo L.641-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 107 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La liquidación judicial no conllevará de pleno derecho la rescisión del contrato de arrendamiento de los inmuebles destinados a la actividad de la empresa.
El liquidador o el administrador podrán dar continuidad al contrato de arrendamiento o cederlo en las condiciones previstas en el contrato concluido con el arrendador con todos los derechos y obligaciones vinculados a éL.En caso de cesión, será de aplicación lo dispuesto en el párrafo segundo del artículo L.221-15.
Si el liquidador o el administrador decidiera no continuar dicho contrato de arrendamiento, el mismo será rescindido previa solicitud. La rescisión será efectiva el día de la solicitud.
El arrendador podrá solicitar la rescisión judicial o hacer constatar la rescisión de pleno derecho del contrato de arrendamiento por causas anteriores a la resolución de liquidación judicial o, cuando esta haya sido dictada tras un procedimiento de salvaguarda o de saneamiento judicial, a la resolución de apertura del procedimiento que lo hubiera precedido. Deberá, si no lo hubiese hecho, presentar su solicitud en los tres meses siguientes a la publicación de la resolución de liquidación judicial.
El arrendador podrá solicitar igualmente la rescisión judicial o hacer constatar la rescisión de pleno derecho del contrato de arrendamiento por falta de pago de los alquileres y de las cargas derivadas de una ocupación posterior a la resolución de apertura, en las condiciones previstas en los párrafos tercero a quinto del artículo L.622-14.
El privilegio del arrendador será determinado con arreglo a los dispuesto en los tres primeros párrafos del artículo L.621-31.
Artículo L.641-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 108 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Los créditos contraídos válidamente con posterioridad a la resolución que abra o dicte la liquidación judicial o, en este último caso, tras la resolución de apertura del procedimiento de salvaguarda o de saneamiento judicial, para satisfacer las necesidades del desarrollo del procedimiento o, en su caso, las necesidades del periodo de observación,
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CÓDIGO DE COMERCIO o como contrapartida de una prestación al deudor, por su actividad profesional posterior a una de estas resoluciones, se pagarán en su fecha de vencimiento.
II. - Cuando no se paguen en su fecha de vencimiento, estos créditos serán pagados prioritariamente sobre los demás créditos contraídos, a excepción de los créditos garantizados por el privilegio establecido en los artículos L.143-10, L.143-11, L.742-6 y L.751-15 del Código de Trabajo, de los garantizados por el privilegio de las costas judiciales, de los garantizados por el privilegio establecido por el artículo L.611-11 del presente Código y de los que están asegurados por garantías inmobiliarias o mobiliarias especiales provistas de un derecho de retención o constituidas en aplicación del capítulo V del título II del libro V.
III. - Su pago se hará según el siguiente orden: 1º Los créditos sobre los salarios cuyo importe no hubiera sido adelantado en aplicación de los artículos L.143-11-1
a L.143-11-3 del Código de Trabajo; 2º Las costas judiciales; 3º Los préstamos concedidos así como las créditos resultantes de la continuación de la ejecución de contratos en
curso de conformidad con lo dispuesto en el artículo L.621-13 del presente Código y cuyo cocontratante aceptara recibir un pago aplazado. El Juez Comisario autorizará estos préstamos y plazos de pago hasta el límite necesario para la continuidad de la actividad, siendo los mismos objeto de publicidad. En caso de rescisión de un contrato válidamente concluido, las indemnizaciones y penalizaciones estarán excluidas del beneficio del presente artículo;
4º Las cantidades cuyo importe hubiera sido adelantado en aplicación del apartado 3º del artículo L.143-11-1 del Código de Trabajo;
5º Los otros créditos, según su orden de prelación. IV. - Los créditos impagados perderán el privilegio que les confiere el presente artículo si no hubieran sido puestos
en conocimiento del mandatario judicial, del administrador cuando este hubiera sido nombrado o del liquidador, del plazo de seis meses a contar desde la publicación de la resolución que abra o dicte la liquidación o, en su defecto, dentro del plazo de un año a contar desde la publicación de la resolución que apruebe el plan de cesión.
Artículo L.641-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 109 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las disposiciones de los capítulos IV y V del título II del presente libro relativas a la determinación del patrimonio del deudor y al pago de los créditos derivados de un contrato laboral, así como las disposiciones del capítulo II del título III del presente libro relativas la nulidad de determinados actos, se aplicarán al procedimiento de liquidación judiciaL.
No obstante, para la aplicación del artículo L.625-1, el liquidador citado ante el Conseil de Prud'hommes o, en su defecto, el demandante convocará ante la jurisdicción laboral a las instituciones citadas en el artículo L.143-11-4 del Código de Trabajo.
Para la aplicación del artículo L.625-3 del presente Código, las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo serán convocadas por el liquidador o, en su defecto, por los empleados demandantes, en los diez días siguientes a la resolución de apertura del procedimiento de liquidación judicial o de la resolución que la dicte. Del mismo modo, se proseguirán las instancias en curso ante la jurisdicción laboral en la fecha de la resolución de apertura, en presencia del administrador, cuando este haya sido nombrado o citado en debida forma.
Artículo L.641-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 110 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Durante el procedimiento de liquidación judicial, el Juez Comisario podrá ordenar que el liquidador o el administrador, cuando este haya sido nombrado, sea el destinatario del correo dirigido al deudor.
El deudor, previamente informado de ello, podrá asistir a la apertura de dicho correo. No obstante, cualquier convocatoria ante un órgano jurisdiccional, cualquier notificación de decisiones o cualquier correo de carácter personal deberán ser restituidos inmediatamente al deudor.
El Juez Comisario podrá autorizarle al liquidador el acceso al correo electrónico recibido por el deudor con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
No será de aplicación lo dispuesto en el presente artículo en el caso en que el deudor ejerciera una actividad para la cual estuviera obligado a guardar secreto profesional.
CAPITULO II De la realización del activo Artículos L642-1 a
L642-25
Sección I De la cesión de la empresa Artículos L642-1 a
L642-17
Artículo L.642-1 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2006-11 de 1 de enero de 2006 art. 14 V Diario Oficial de 6 de enero de 2006)
La cesión de la empresa tendrá por finalidad el mantenimiento de actividades susceptibles de explotación
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CÓDIGO DE COMERCIO autónoma, el mantenimiento de la totalidad o parte de los empleos vinculados a ella y el pago del pasivo.
La cesión podrá ser total o parciaL.En este último caso, se referirá a un conjunto de elementos de explotación que formen uno o varios sectores completos y autónomos de actividades.
Cuando un conjunto esté esencialmente constituido por el derecho a un arrendamiento rústico, el Tribunal podrá autorizar al arrendador, a su cónyuge o a uno de sus descendientes, a que vuelvan a hacerse cargo del negocio para explotarlo, respetando los derechos de indemnización del arrendatario saliente y las demás disposiciones del estatuto de arrendamiento rústico, o atribuir el contrato de arrendamiento rústico a otro arrendatario propuesto por el arrendador o, en su defecto a cualquier arrendatario cuya oferta hubiera sido admitida en las condiciones fijadas en los artículos L.621-2, L.621-4 y L.621-5. No serán de aplicación las disposiciones relativas al control de las estructuras de las explotaciones agrícolas. No obstante, cuando se hubieran recibido varias ofertas, el Tribunal tendrá en cuenta lo dispuesto en los apartados 1° a 4° y 6° a 9° del artículo L.331-3 del Código RuraL.
Cuando el deudor fuera una persona física que ejerciera una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título estuviera protegido, la cesión deberá limitarse a los activos materiales. No obstante, cuando se tratara de un oficial o fedatario público, el liquidador podrá ejercer el derecho del deudor a presentar su sucesor al Ministro de Justicia.
Artículo L.642-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Cuando el Tribunal considere posible prever la cesión total o parcial de la empresa, autorizará la continuidad de la actividad y fijará el plazo dentro del cual deberán remitirse las ofertas de compra al liquidador y al administrador, cuando este haya sido nombrado.
No obstante, si las ofertas recibidas en aplicación del artículo L.631-13 cumplieran las condiciones previstas en el punto II del presente artículo y fueran satisfactorias, el Tribunal podrá decidir no aplicar lo dispuesto en el párrafo anterior.
II. - Toda oferta deberá hacerse por escrito y deberá incluir la siguiente información: 1° La designación precisa de los bienes, derechos y contratos incluidos en la oferta; 2º Las previsiones de actividad y de financiación; 3° El precio ofertado, las modalidades de pago, la calidad de los aportantes de capitales y, eventualmente, de sus
garantes. Si la oferta propusiera recurrir al préstamo, deberá revisar las condiciones del mismo y en especial su duración;
4º La fecha de la realización de la cesión; 5º El nivel y las perspectivas de empleo justificadas por la actividad considerada; 6º Las garantías suscritas para asegurar la ejecución de la oferta; 7º Las previsiones de cesión de activos durante los dos años posteriores a la cesión; 8° La duración de cada uno de los compromisos suscritos por el autor de la oferta. III. - Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté
protegido, la oferta deberá asimismo mencionar la calificación profesional del cesionario. IV. - El liquidador o el administrador, cuando este haya sido nombrado, informará al deudor, al representante de los
trabajadores y a los interventores acerca del contenido de las ofertas recibidas. Depositará dichas ofertas en la secretaría del Tribunal donde cualquier persona interesada podrá tener acceso a ellas.
Las ofertas serán notificadas al colegio profesional o a la autoridad competente de la que dependiera el deudor. V. - La oferta no podrá ser modificada, a no ser que lo sea en un sentido más favorable a los objetivos
mencionados en el párrafo primero del artículo L.642-1, ni retirada. Su autor quedará vinculado por ella hasta la resolución de aprobación del plan.
En caso recurrirse la resolución de aprobación del plan, sólo el cesionario quedará vinculado por la oferta.
Artículo L.642-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No serán admitidos a presentar una oferta, ni directamente ni por persona interpuesta, ningún deudor, ni ningún dirigente de hecho o de derecho de la persona jurídica en liquidación judicial, ni ningún pariente por consanguinidad o por afinidad hasta el segundo grado inclusive de los dirigentes o del deudor, ni ninguna persona que ejerza o haya ejercido las funciones de interventor durante el procedimiento. Del mismo modo, en el plazo de cinco años a contar desde la fecha de la cesión, dichas personas tendrán prohibida la compra, directa o indirecta, de la totalidad o parte de los bienes resultantes de la liquidación, así como la compra de participaciones o títulos de capital de cualquier sociedad que tenga en su patrimonio, directa o indirectamente, la totalidad o parte de dichos bienes, y de valores mobiliarios que den acceso, dentro del mismo plazo, al capital de esta sociedad.
No obstante, cuando se trate de una explotación agrícola, el Tribunal podrá establecer una excepción a estas prohibiciones y autorizar la cesión de la misma a una de las personas citadas en el párrafo primero, a excepción de los interventores. En los demás casos y a instancia del Ministerio Fiscal, el Tribunal podrá autorizar mediante resolución motivada la cesión a una de las personas citadas en el párrafo primero, a excepción de los interventores.
Cualquier acto realizado infringiendo lo dispuesto en el presente artículo será anulado a petición de cualquier interesado o del Ministerio Fiscal, debiéndose presentar el recurso de anulación dentro del plazo de tres años contados a partir la conclusión del acto. Cuando el acto haya sido objeto de publicidad, el plazo empezará a contar a partir de la misma.
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CÓDIGO DE COMERCIO Artículo L.642-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador o el administrador, cuando este haya sido nombrado entregará al Tribunal cualquier elemento que permita verificar el carácter serio de la oferta así como la condición de tercero de su autor en el sentido de lo dispuesto en el artículo L.642-3.
Remitirá asimismo al Tribunal toda la información que permita valorar las condiciones de liquidación del pasivo, teniendo especialmente en cuenta el precio ofertado, los activos residuales a cobrar o realizar, las deudas del periodo de continuidad de la actividad y, en su caso, las otras deudas que siguiera teniendo el deudor.
Artículo L.642-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras recabar el dictamen del Ministerio Fiscal y oír o citar en debida forma al deudor, al liquidador, al administrador cuando haya sido nombrado, a los representantes del comité de empresa o, en su defecto, a los delegados del personal y a los interventores, el Tribunal seleccionará la oferta que garantice las mejores condiciones para el mantenimiento del empleo vinculado a la actividad cedida y para el pago de los acreedores, y que presente las mejores garantías de ejecución. El Tribunal aprobará uno o varios planes de cesión.
Los debates deberán celebrarse en presencia del Ministerio Fiscal cuando el procedimiento se haya abierto en beneficio de personas físicas o jurídicas cuyo número de empleados o cifra de negocios fuera superior a los umbrales fijados por decreto adoptado en Conseil d'Etat.
Lo dispuesto en la resolución de aprobación será de obligado cumplimiento. Cuando el plan previera despidos por motivos económicos, el Tribunal no podrá resolver hasta que haya sido
consultado el comité de empresa o, en su defecto, los delegados del personal, en las condiciones previstas en el artículo L.321-9 del Código de Trabajo y hasta que haya sido informada la autoridad administrativa competente en las condiciones previstas en el artículo L.321-8 del mismo Código. El plan precisará sobre todo los despidos que deban producirse en el plazo de un mes desde la resolución. En ese plazo, dichos despidos se producirán por simple notificación del liquidador o del administrador, cuando este haya sido nombrado, sin perjuicio de los derechos de preaviso previstos por la Ley, los convenios o los acuerdos laborales colectivos.
Artículo L.642-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sólo el Tribunal podrá decidir una modificación sustancial de los objetivos y los medios del plan, a petición del cesionario.
El Tribunal resolverá tras recabar el dictamen del Ministerio Fiscal, y tras oír o citar en debida forma al liquidador, al administrador judicial cuando este haya sido nombrado, a los interventores, a los representantes del comité de empresa o, en su defecto, a los delegados del personal, así como a cualquier persona interesada.
Sin embargo, no se podrá modificar el importe del precio de cesión fijado en la resolución de aprobación del plan.
Artículo L.642-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190, modificado por el Diario Oficial de la República Francesa de 22 de octubre de 2005)
El Tribunal establecerá los contratos de leasing, arrendamiento o suministro de bienes o servicios necesarios para el mantenimiento de la actividad tras considerar las observaciones de los cocontratantes del deudor transmitidas al liquidador o al administrador, cuando este haya sido nombrado.
La resolución de aprobación del plan llevará aparejada la cesión de estos contratos, incluso cuando esta estuviera precedida del arrendamiento de negocio previsto en el artículo L.642-13.
Dichos contratos deberán ser ejecutados en las condiciones vigentes el día de apertura del procedimiento, no obstante cualquier cláusula en contrario.
En caso de cesión de un contrato de leasing, el beneficiario sólo podrá ejercer su opción de compra en caso de abono de las cantidades que aún se adeudaran hasta el límite del valor del bien fijado de común acuerdo entre las partes o, si no se llegara a dicho acuerdo, por el Tribunal en la fecha de la cesión.
Artículo L.642-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En ejecución del plan determinado por el Tribunal, el liquidador, o el administrador cuando este haya sido nombrado, llevará a cabo todos los actos necesarios para la realización de la cesión. En espera de la realización de estos actos, y previa justificación de la consignación del importe del precio de cesión o de una garantía equivalente, el Tribunal podrá confiar al cesionario, a su solicitud y bajo su responsabilidad, la gestión de la empresa cedida.
Cuando la cesión incluya un fondo de comercio, no se admitirá ninguna sobrepuja.
Artículo L.642-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO En tanto el precio de la cesión no haya sido íntegramente pagado, el cesionario no podrá ceder o arrendar bajo la
forma de un arrendamiento de negocio los bienes materiales o inmateriales que haya adquirido, con excepción de las existencias.
No obstante, el Tribunal podrá autorizar su cesión total o parcial, su asignación en concepto de garantía, su alquiler o su arrendamiento bajo la forma de un arrendamiento de negocio, tras el examen del informe del liquidador, quien deberá consultar previamente con el comité de empresa o, en su defecto, con los delegados del personaL.El Tribunal deberá tener en cuenta las garantías ofrecidas por el cesionario.
Toda sustitución de cesionario deberá ser autorizada por el Tribunal en la resolución de aprobación del plan de cesión, sin perjuicio de la aplicación de las disposiciones del artículo L.642-6. El autor de la oferta seleccionada por el Tribunal será el garante solidario de la ejecución de los compromisos suscritos.
Cualquier acto realizado infringiendo las disposiciones párrafos anteriores será anulado a petición de cualquier persona interesada o del Ministerio Fiscal, debiéndose presentar el recurso de anulación dentro del plazo de tres años contados a partir de la conclusión del acto. Cuando el acto haya sido objeto de publicidad, el plazo empezará a contar a partir de la misma.
Artículo L.642-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá incluir en el plan de cesión de una cláusula que haga intransferibles todo o parte de los bienes cedidos por el periodo que él determine.
Se asegurará la publicidad de esta cláusula en las condiciones fijadas por decreto adoptado en Conseil d'Etat. Cualquier acto realizado infringiendo las disposiciones del primer párrafo será anulado a petición de cualquier
persona interesada o del Ministerio Fiscal, debiéndose presentar el recurso de anulación dentro del plazo de tres años contados a partir de la conclusión del acto. Cuando el acto haya sido objeto de publicidad, el plazo empezará a contar a partir de la misma.
Artículo L.642-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El cesionario responderá ante el liquidador de la aplicación de las disposiciones previstas en el plan de cesión. Si el cesionario no cumpliera sus compromisos, el Tribunal, a instancia del Ministerio Fiscal de una parte, del
liquidador, de un acreedor, de cualquier persona interesada, o de oficio, de la otra, podrá poner fin al plan, sin perjuicio de la indemnización por daños y perjuicios a la que hubiere lugar.
El tribunal podrá acordar la resolución o rescisión de los actos realizados en ejecución del plan al que se haya puesto fin. El cesionario no podrá recuperar el importe pagado.
Artículo L.642-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando la cesión se realice sobre bienes sujetos a privilegio especial, a una pignoración o a una hipoteca, el Tribunal asignará una parte proporcional del precio a cada uno de estos bienes para la distribución del precio y el ejercicio del derecho de preferencia.
El pago del precio de cesión obstaculizará el ejercicio de los derechos de los acreedores inscritos sobre estos bienes en contra del cesionario.
Hasta que no se efectúe el pago completo de la cantidad que comporte el levantamiento de las inscripciones que gravan los bienes incluidos en la cesión, los acreedores que se beneficien de un derecho de reclamación sobre los bienes sólo podrán ejercerlo en caso de transferencia del bien cedido por el cesionario.
Sin embargo, se transmitirá al cesionario la carga de las garantías inmobiliarias y mobiliarias especiales que garanticen el reembolso de un crédito concedido a la empresa para permitirle la financiación de un bien sobre el que recaigan estas garantías. Este estará entonces obligado a pagar al acreedor los plazos concertados con él y pendientes de pago a partir de la transferencia de la propiedad o, en caso de arrendamiento de negocio, del goce del bien sobre el que recaiga la garantía. Excepcionalmente podrán no ser aplicadas las disposiciones del presente párrafo por acuerdo entre el cesionario y los acreedores titulares de las garantías.
Artículo L.642-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En la resolución de aprobación del plan de cesión, el Tribunal podrá autorizar la conclusión de un contrato de arrendamiento de negocio, aún cuando exista cualquier cláusula en contrario, especialmente en el contrato de arrendamiento del inmueble, en beneficio de la persona que hubiera presentado la oferta de adquisición que garantizara las mejores condiciones para mantener el empleo por más tiempo y para el pago de los acreedores.
El Tribunal resolverá tras recabar el dictamen del Ministerio Fiscal, y tras oír o citar en debida forma al liquidador, al administrador judicial cuando este haya sido nombrado, a los interventores, a los representantes del comité de empresa o, en su defecto, a los delegados del personal, así como a cualquier persona interesada.
Artículo L.642-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con
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CÓDIGO DE COMERCIO entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No serán de aplicación las disposiciones de los artículos L.144-3, L.144-4 y L.144-7 relativas al arrendamiento de negocio.
Artículo L.642-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de arrendamiento de negocio, la empresa deberá ser cedida de modo efectivo en los dos años siguientes a la resolución de aprobación del plan.
Artículo L.642-16 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador podrá hacerse remitir por el arrendatario gerente todos los documentos e informaciones útiles para el cumplimiento de su misión. Dará cuenta al Tribunal de cualquier perjuicio que afecte a los elementos arrendados así como del incumplimiento de las obligaciones por parte del arrendatario gerente.
El Tribunal podrá ordenar la rescisión del contrato de arrendamiento de negocio y la cancelación del plan, de oficio o a instancia del liquidador o del Ministerio Fiscal.
Artículo L.642-17 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si el arrendatario gerente no cumpliera con su obligación de adquisición en las condiciones y plazos fijados por el plan, el Tribunal, de oficio o a instancia del liquidador o del Ministerio Fiscal, ordenará que se rescinda el contrato de arrendamiento de negocio y se ponga fin al plan, sin perjuicio de la indemnización por daños y perjuicios a la que hubiere lugar.
No obstante, cuando el arrendatario gerente justifique que no puede proceder a la adquisición en las condiciones inicialmente previstas por una causa que no pudiera imputársele, podrá solicitar al Tribunal que modifique dichas condiciones, salvo en lo relativo al importe del precio y al plazo previsto en el artículo L.642-15. El Tribunal resolverá antes de la expiración del contrato de arrendamiento y tras recabar el dictamen del Ministerio Fiscal y oír o citar en debida forma al liquidador, al administrador cuando este haya sido nombrado, a los interventores, a los representantes del comité de empresa o, en su defecto, a los delegados del personal, así como a cualquier persona interesada.
Sección II De la cesión de los activos del deudor Artículos L642-18 a
L642-21
Artículo L.642-18 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 112 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las ventas de inmuebles tendrán lugar siguiendo las formas prescritas en materia de embargo de inmuebles. Sin embargo, el Juez Comisario fijará la valoración, las condiciones esenciales de la venta y las condiciones previstas de publicidad, tras considerar las observaciones de los interventores, las declaraciones del deudor y del liquidador o tras citarlos en debida forma.
Cuando un procedimiento de embargo inmobiliario iniciado antes de la apertura del procedimiento de salvaguarda, de saneamiento judicial o de la liquidación judicial, hubiera sido suspendido por efecto de este último, el liquidador podrá subrogarse en los derechos del acreedor embargante para los actos que este hubiera efectuado, los cuales podrán considerarse efectuados por cuenta del liquidador, quien procederá a la venta de los inmuebles. El embargo inmobiliario podrá entonces retomar su curso en el trámite en que la resolución de apertura lo hubiera suspendido.
En las mismas condiciones, si la consistencia de los bienes, su emplazamiento o las ofertas recibidas fueran adecuadas para permitir una cesión amistosa en las mejores condiciones, el Juez Comisario podrá autorizar la venta por adjudicación voluntaria a partir de un precio fijado por él, o autorizar la venta de común acuerdo, con arreglo a los precios y condiciones que él determine. En caso de subasta voluntaria, siempre podrá realizarse una sobrepuja.
Las adjudicaciones realizadas en aplicación de los párrafos anteriores conllevarán el saneamiento de las hipotecas. El liquidador distribuirá el producto de las ventas y pagará a los acreedores según el orden de prelación, sin
perjuicio de las impugnaciones que hubieran sido presentadas ante el Tribunal de Grande Instance. En caso de liquidación judicial de un agricultor, el Tribunal, en consideración a la situación personal y familiar del
deudor, podrá fijar plazos de gracia para que este deje su vivienda principal. Las condiciones de aplicación del presente artículo serán establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.642-19 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 113 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras considerar las observaciones de los interventores, el Juez Comisario ordenará la venta en subasta pública o autorizará la venta de común acuerdo de los demás bienes del deudor, al que oirá o citará en debida forma. Cuando la venta se realice en subasta pública, esta se celebrará con arreglo a las condiciones previstas en el párrafo segundo del artículo L.322-2 o en los artículos L.3224 o L.322-7, según el caso.
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CÓDIGO DE COMERCIO El Juez Comisario podrá solicitar que se le presente el proyecto de venta amistosa para comprobar si se cumplen
las condiciones que él hubiera establecido.
Artículo L.642-20 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 114 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el artículo L.642-3 será de aplicación a las cesiones de activos realizadas en aplicación de los artículos L.642-18 y L.642-19. En este caso, el Juez Comisario ejercerá las facultades atribuidas al Tribunal.
Artículo L.642-21 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 114 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando se hubiera aplicado lo dispuesto en el artículo L.631-22 y el deudor no pudiera obtener del Tribunal la aprobación de un plan de saneamiento judicial, será de aplicación lo dispuesto en el presente título. Los bienes que no estuvieran incluidos en el plan de cesión será cedidos con arreglo a las condiciones establecidas en la presente sección.
Sección III Disposiciones comunes Artículos L642-22 a
L642-25
Artículo L.642-22 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 115 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier cesión de empresa y cualquier realización de activos deberá ser precedida de una publicidad cuyas modalidades serán establecidas por decreto adoptado en Conseil d'Etat en función de la dimensión de la empresa y de la naturaleza de los activos a vender.
Artículo L.642-23 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 116 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Antes de cualquier venta o de cualquier destrucción de archivos del deudor, el liquidador informará de ello a la autoridad administrativa competente en materia de conservación de archivos. Esta autoridad dispondrá de un derecho de tanteo.
El destino de los archivos del deudor que estuviera obligado a guardar el secreto profesional será determinado por el liquidador de común acuerdo con el colegio profesional o la autoridad competente de la que dependa.
Artículo L.642-24 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador podrá obligar y transigir en todas las impugnaciones que interesen colectivamente a los acreedores, incluso aquellas que sean relativas a derechos y acciones inmobiliarias, previa autorización del Juez Comisario y tras oír las declaraciones del deudor o citarlo en debida forma.
Si el objeto del compromiso o de la transacción fuera de un valor indeterminado o superase la competencia en última instancia del Tribunal, dicho compromiso o dicha transacción quedará condicionada a la homologación del Tribunal.
Artículo L.642-25 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 117 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador autorizado por el Juez Comisario podrá retirar los bienes constituidos en prenda por el deudor o la cosa retenida, pagando la deuda.
Si no hubiera dicha retirada, el liquidador, dentro de los seis meses siguientes a la resolución de liquidación judicial, deberá solicitar al Juez Comisario la autorización para proceder a su venta. El liquidador notificará la autorización al acreedor quince días antes de la realización.
El acreedor pignoraticio, aunque no hubiera sido aún admitido, podrá solicitar al Juez Comisario la adjudicación judicial antes de la realización. Si el crédito fuera rechazado en su totalidad o en parte, devolverá al liquidador el bien o su valor, ateniéndose al importe admitido de su crédito.
En caso de venta por parte del liquidador, el derecho de retención se trasladará al precio. La inscripción eventualmente formalizada para la conservación de la prenda será cancelada a instancia del liquidador.
CAPITULO III De la liquidación del pasivo Artículos L643-1 a
L643-13
Sección I Del pago a los acreedores Artículos L643-1 a
L643-8
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CÓDIGO DE COMERCIO Artículo L.643-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 118 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución que abra o dicte la liquidación judicial hará exigibles los créditos no devengados. No obstante, cuando el Tribunal autorice la continuidad de la actividad debido a que existe una posibilidad de cesión total o parcial de la empresa, los créditos no vencidos serán exigibles en la fecha de la resolución que apruebe la cesión.
Cuando estos créditos estén expresados en una moneda que no fuera la del lugar donde se hubiera dictado la liquidación judicial, se convertirá a la moneda de dicho lugar, según el cambio oficial el día de la fecha de la resolución.
Artículo L.643-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 119 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los acreedores titulares de un privilegio especial, de una pignoración o de una hipoteca y el Tesoro Público, para sus créditos privilegiados, podrán ejercer individualmente sus acciones contra el deudor, tras la declaración de sus créditos y aunque no hayan sido aún admitidos a ello, si el liquidador no hubiera iniciado la liquidación de los bienes gravados en el plazo de tres meses contados a partir de la resolución que abre o dicta la liquidación judicial.
Cuando el Tribunal haya fijado un plazo en aplicación del artículo L.642-2, los acreedores podrán ejercer individualmente sus acciones contra el deudor tras la expiración de dicho plazo, si no se hubiera presentado ninguna oferta incluyendo ese bien.
En caso de venta de inmuebles, se aplicarán las disposiciones de los párrafos primero, tercero y quinto del artículo L.621-16. Cuando se haya iniciado un procedimiento de embargo inmobiliario antes de la resolución de apertura, el acreedor titular de una hipoteca será dispensado, en el momento del inicio de las reclamaciones individuales, de los actos y requisitos formales efectuados antes de esta resolución.
Artículo L.643-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 120 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario podrá, de oficio o a instancia del liquidador o de un acreedor, ordenar el pago con carácter provisional de una parte proporcional de un crédito admitido definitivamente.
Este pago provisional se podrá subordinar al depósito de una garantía procedente de una entidad de crédito, por parte de su beneficiario.
Cuando la solicitud de provisión sea relativa a un crédito privilegiado de las administraciones financieras, de los organismos de seguridad social, de las instituciones que gestionen el régimen de seguro de desempleo previsto por los artículos L.351-3 y siguientes del Código de Trabajo y de las instituciones regidas por el libro IX del Código de la Seguridad Social, no se deberá la garantía prevista en el párrafo segundo.
Artículo L.643-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si el reparto del precio de los inmuebles fuese precedido de uno o varios repartos de cantidades, los acreedores privilegiados e hipotecarios admitidos concurrirán a dichos repartos en la proporción de sus créditos totales.
Tras la venta de los inmuebles y el pago definitivo en el debido orden de prelación a los acreedores hipotecarios y privilegiados, aquellos que se encuentren en posición adecuada para percibir el valor de los inmuebles por la totalidad de su crédito, sólo cobrarán el importe de su crédito hipotecario inscrito en la clasificación de créditos tras haber deducido las cantidades que ya hubieran recibido.
Estas cantidades deducidas beneficiarán a los acreedores no privilegiados.
Artículo L.643-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los derechos de los acreedores hipotecarios que hubieran sido parcialmente pagados con el reparto del precio de venta de los inmuebles, serán abonados en relación al importe que aún se les adeude tras el pago de la clasificación inmobiliaria. El excedente de los dividendos que hubieran percibido en repartos anteriores con relación al dividendo calculado tras la clasificación será retenido del importe de su clasificación hipotecaria y será incluido en las cantidades que se repartan entre los acreedores no privilegiados.
Artículo L.643-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los acreedores privilegiados o hipotecarios que no hubieran recibido el pago íntegro de sus créditos con el reparto del valor de los inmuebles, concurrirán con los acreedores no privilegiados para percibir lo que aún se les adeudara.
Artículo L.643-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No obstante lo establecido en el párrafo tercero del artículo L.624-25, lo dispuesto en los artículos L.643-4 a L.643-6 se aplicará a los acreedores beneficiarios de una garantía mobiliaria especial.
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CÓDIGO DE COMERCIO Artículo L.643-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El importe del activo se deducirá entre todos los acreedores al prorrateo del importe de sus créditos admitidos, una vez deducidos los gastos y costas de la liquidación judicial, los subsidios concedidos al empresario o a los directivos o a sus familias y las cantidades pagadas a los acreedores privilegiados.
La parte correspondiente a los créditos cuya admisión no fuera aún definitiva y, sobre todo las remuneraciones de los dirigentes sociales serán destinadas a la dotación en reserva en tanto que no se adopte una decisión al respecto.
Sección II Del cierre de las operaciones de liquidación judicial Artículos L643-9 a
L643-13
Artículo L.643-9 (Introducido por la Ley nº 2005-845 de 26 de julio de 2005 art 1, art. 121 Diario Oficial de 27 de julio de 2005)
En la resolución que abra o dicte la liquidación judicial, el Tribunal establecerá el plazo al término del cual se deba examinar el cierre del procedimiento. Si no se pudiera acordar el cierre tras la expiración de dicho plazo, el Tribunal podrá prorrogarlo mediante resolución motivada.
Cuando ya no hubiera pasivo exigible o el liquidador dispusiera de las cantidades suficientes para resarcir a los acreedores, o cuando resultara imposible continuar las operaciones de liquidación judicial debido a la insuficiencia del activo, el Tribunal ordenará el cierre del procedimiento de liquidación judicial, tras oír o citar en la debida forma al deudor.
El Tribunal conocerá del asunto a instancia del liquidador, del deudor o del Ministerio FiscaL.Podrá igualmente conocer de oficio. Tras la expiración del plazo de dos años a contar desde la resolución de liquidación judicial, cualquier acreedor tendrá la posibilidad de recurrir al Tribunal para solicitar el cierre del procedimiento.
En caso de haber un plan de cesión, el Tribunal sólo acordará el cierre del procedimiento previa comprobación del respeto de las obligaciones del cesionario.
Artículo L.643-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador deberá proceder a la rendición de cuentas. Será responsable de los documentos que le hayan sido entregados en el transcurso del procedimiento durante cinco años contados a partir de dicha rendición de cuentas.
Artículo L.643-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 122 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - La resolución de cierre de la liquidación judicial por insuficiencia de activo no hará recuperar a los acreedores el ejercicio individual de sus acciones contra el deudor, salvo si el crédito se derivara de:
1° Una condena penal del deudor; 2º Derechos vinculados a la persona del acreedor. II.- Sin embargo, el fiador o el codeudor que haya pagado en lugar del deudor podrá ejercitar acciones judiciales
contra este último. III. - Los acreedores recuperarán su derecho a reclamar el pago de su crédito a título individual en los siguientes
casos: 1° El deudor ha sido declarado en quiebra personal; 2° El deudor ha sido reconocido culpable de bancarrota; 3° El deudor o una persona jurídica de la que haya sido dirigente ha sido sometido a un procedimiento de
liquidación judicial concluido por insuficiencia de activos en los cinco años anteriores al procedimiento en el que esté incurso;
4° El procedimiento ha sido abierto como un procedimiento territorial, en el sentido del párrafo 2 del artículo 3 del Reglamento (CE) n° 1346/2000 del Consejo de 29 de mayo sobre procedimientos de insolvencia.
IV. - Además, en caso de fraude a uno o varios acreedores, el Tribunal autorizará el ejercicio de acciones judiciales contra el deudor por parte del acreedor. El Tribunal se pronunciará durante el cierre del procedimiento, tras oír o citar en debida forma al deudor, al liquidador y a los interventores. Podrá pronunciarse asimismo posteriormente al mismo, a petición de cualquier persona interesada, con arreglo a las mismas condiciones.
V. - Los acreedores que recuperen el ejercicio individual de sus acciones en aplicación del presente artículo podrán, si sus créditos hubieran sido admitidos, obtener un título ejecutivo por auto del presidente del Tribunal o, si sus créditos no hubieran sido verificados, obtenerlo en con arreglo a las condiciones de Derecho común.
Artículo L.632-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 123 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El cierre de la liquidación judicial suspenderá los efectos de la medida de prohibición de emitir cheques de la que el deudor fuera objeto en aplicación del artículo 65-3 del Decreto de 30 de octubre de 1935 que unifica el derecho en materia de cheques y relativo a las tarjetas de pago, medida aplicada en ocasión del rechazo de un cheque emitido antes de la resolución de apertura del procedimiento.
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CÓDIGO DE COMERCIO Si los acreedores recuperaran el ejercicio individual de sus acciones contra el deudor, la medida de prohibición
volverá a tener efecto a partir de la expedición del título ejecutivo citado en el último párrafo del artículo L.643-11.
Artículo L.643-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 124 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si el cierre de la liquidación judicial fuese acordado por insuficiencia de activo y se comprobara que los activos no se han realizado, o que no se han entablado acciones en interés de los acreedores durante el procedimiento, este podrá ser reabierto.
El Tribunal conocerá del asunto a instancia del liquidador designado anteriormente, del Ministerio Fiscal o de cualquier acreedor interesado. Podrá igualmente conocer de oficio. Si conociera a instancia de un acreedor, este deberá justificar que ha consignado los fondos necesarios a los gastos de las operaciones en la secretaría del TribunaL.El importe de los gastos consignados le será reembolsado prioritariamente sobre las cantidades recuperadas tras la reapertura del procedimiento.
Cuando los activos del deudor consistieran en una cantidad de dinero, el procedimiento previsto en el capítulo IV del presente título será aplicable de pleno derecho.
CAPITULO IV De la liquidación judicial simplificada Artículos L644-1 a
L644-6
Artículo L.644-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de liquidación judicial simplificada estará sujeto a las normas de la liquidación judicial, sin perjuicio de lo dispuesto en el presente capítulo.
Artículo L.644-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por excepción a lo dispuesto en el artículo L.642-19, cuando el Tribunal decida aplicar lo dispuesto en el presente capítulo, deberá determinar los bienes del deudor susceptibles de ser objeto de una venta de común acuerdo. El liquidador procederá a la misma dentro de los tres meses siguientes a la publicación de la resolución.
Al finalizar este periodo, se procederá a la subasta pública de los bienes restantes.
Artículo L.644-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por excepción a lo dispuesto en el artículo L.641-4, se procederá a la verificación de los créditos que se encuentren en posición adecuada en los repartos, así como de los créditos derivados de un contrato laboral.
Artículo L.644-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras la finalización del procedimiento de verificación y admisión de dichos créditos y tras la realización de los bienes, el liquidador elaborará un proyecto de reparto que depositará en la secretaría del Tribunal para consulta pública y que será objeto de una medida de publicidad.
Cualquier persona interesada podrá impugnar el proyecto de reparto ante el Juez Comisario dentro de un plazo fijado por decreto adoptado en Conseil d'Etat.
El Juez Comisario se pronunciará sobre dichas impugnaciones mediante una resolución que será objeto de una medida de publicidad y de una notificación dirigida a los acreedores interesados. Se podrá interponer un recurso dentro del plazo fijado por decreto adoptado en Conseil d'Etat.
El liquidador procederá al reparto de conformidad con el proyecto o la resolución dictada.
Artículo L.644-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Como máximo un año después de la apertura del procedimiento, el Tribunal acordará el cierre de la liquidación judicial, tras oír o citar en debida forma al deudor.
Mediante resolución motivada, podrá prorrogar el procedimiento por un periodo que no podrá exceder de tres meses.
Artículo L.644-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En cualquier momento el Tribunal, mediante resolución especialmente motivada, podrá decidir que se dejen de aplicar las excepciones previstas en el presente capítulo.
TITULO V
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CÓDIGO DE COMERCIO DE LAS RESPONSABILIDADES Y DE LAS SANCIONES Artículos L651-1 a
L650-1
Artículo L.650-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 126 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los acreedores no podrá ser considerados responsables de los perjuicios que se deriven de las ayudas otorgadas, salvo en caso de fraude, intromisión en la gestión del deudor, o si las garantías suscritas como contrapartida de estas ayudas fueran desproporcionados con relación a estos.
En caso de que fuera reconocida la responsabilidad de un acreedor, las garantías suscritas como contrapartida de estas ayudas serán nulas.
CAPITULO I De la responsabilidad por insuficiencia de activo Artículos L651-1 a
L651-4
Artículo L.651-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 127, art. 163 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el presente capítulo y en el capítulo II del presente título será de aplicación a los dirigentes de una persona jurídica de derecho privado que estuviera sometida a un procedimiento colectivo, así como a las personas físicas representantes permanentes de estos dirigentes personas jurídicas.
NOTA: No se han podido efectuar las modificaciones contempladas en el artículo 163 de la Ley n° 2005-845 de 26 de julio de 2005, debido a que la expresión "saneamiento judicial" no figuraba en el artículo L.651-1.
Artículo L.651-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 128 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando al finalizar un plan de salvaguarda o de saneamiento judicial, o un procedimiento de liquidación judicial de una persona jurídica, se pusiera de manifiesto una insuficiencia de activo, el Tribunal podrá decidir, en caso de que una falta de gestión haya contribuido a generar esta insuficiencia de activo, que los créditos de la persona jurídica sean sufragados, en su totalidad o en parte, por todos o algunos de los dirigentes de hecho o de derecho responsables directa o indirectamente de dicha falta. Si hubiera varios dirigentes, el Tribunal podrá declararlos solidariamente responsables, mediante resolución motivada.
La acción prescribirá a los tres años contados a partir de la resolución de aprobación del plan de saneamiento judicial o, en su defecto, de la resolución que dicte la liquidación judicial o ponga fin al plan.
Las cantidades pagadas por los dirigentes en aplicación del párrafo primero entrarán en el patrimonio del deudor. Estas cantidades serán distribuidas entre todos los acreedores al prorrateo.
Artículo L.651-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 129 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el caso previsto en el artículo L.651-2, el Tribunal conocerá a instancia del mandatario judicial, el liquidador o el Ministerio Fiscal.
En favor del interés colectivo de los acreedores, el Tribunal podrá igualmente conocer del asunto a instancia de la mayoría de los acreedores nombrados interventores cuando el mandatario judicial debidamente facultado para ello no hubiera ejercitado las acciones previstas en el mismo artículo, tras un requerimiento que no hubiera surtido efecto en el plazo y las condiciones establecidas por decreto adoptado en Conseil d'Etat.
En el caso previsto en el párrafo primero, el Juez Comisario no podrá formar parte del órgano de resolución ni participar en la deliberación.
Las costas judiciales a cuyo pago hubiera sido condenado el dirigente deberán pagarse con prioridad sobre aquellas que fueran destinadas a liquidar el pasivo.
Artículo L.651-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 130 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación de las disposiciones del artículo L.651-2, de oficio o a instancia de una de las personas mencionadas en el artículo L.651-2 el presidente del Tribunal podrá solicitar al Juez Comisario o, en su defecto, a un miembro del órgano jurisdiccional que él mismo designe, no obstante cualquier disposición legal en contrario, que obtenga las administraciones y organismos públicos, de los organismos de previsión y de seguridad social y de las entidades de crédito, todo tipo de documentación o de información sobre la situación patrimonial de los dirigentes y de los representantes permanentes de los dirigentes personas jurídicas mencionados en el artículo L.651-1 .
El presidente del Tribunal podrá ordenar asimismo, con arreglo a las mismas condiciones, cualquier medida cautelar que considere necesaria respecto de los bienes de los dirigentes o sus representantes citados en el párrafo anterior.
Lo dispuesto en el presente artículo será igualmente de aplicación a los miembros o socios de la persona jurídica en procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial, cuando los mismos sean
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CÓDIGO DE COMERCIO responsables indefinida y solidariamente de sus deudas.
CAPITULO II De la obligación de pago de las deudas sociales Artículos L652-1 a
L652-5
Artículo L.652-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 131 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Durante un procedimiento de liquidación judicial, el Tribunal podrá decidir cargar a cuenta de uno de los dirigentes de hecho o de derecho de una persona jurídica, la totalidad o parte de las deudas de esta última cuando quede establecido que dicho dirigente ha contribuido al estado de insolvencia cometiendo una de las siguientes faltas:
1º Haber dispuesto de bienes de la persona jurídica como si fueran propios; 2º Bajo la cobertura de la persona jurídica que encubra sus actuaciones, haber realizado actos mercantiles en su
propio interés; 3º Haber hecho de los bienes o del crédito de la persona jurídica un uso contrario al interés de esta con fines
personales o para favorecer a otra persona jurídica o empresa en la que estuviera directa o indirectamente interesado; 4º Haber continuado injustificadamente una explotación deficitaria, con un interés personal, que sólo pudiera
conducir al estado de insolvencia de la persona jurídica; 6º Haber desviado u ocultado la totalidad o parte del activo, o haber aumentado fraudulentamente el pasivo de la
persona jurídica; En los casos contemplados en el presente artículo, no podrá aplicarse lo dispuesto en el artículo L.651-2.
Artículo L.652-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 131 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si hubiera varios dirigentes responsables, el Tribunal deberá tener en cuenta la falta de cada uno de ellos para determinar la parte de las deudas que le corresponda pagar. Mediante resolución motivada, podrá declararlos solidariamente responsables.
Artículo L.652-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 131 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las cantidades recaudadas serán destinadas al resarcimiento de los acreedores, según el orden de prelación de sus garantías.
Artículo L.652-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 131 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La acción prescribirá a los tres años contados a partir de la resolución de aprobación de la liquidación judicial.
Artículo L.652-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 131 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en los artículos L.651-3 y L.651-4 será igualmente de aplicación a la acción prevista en el presente capítulo.
CAPITULO III De la quiebra personal y de otras medidas de inhabilitación Artículos L653-1 a
L653-11
Artículo L.653-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 132 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Cuando se abra un procedimiento de saneamiento judicial o de liquidación judicial, se aplicará las disposiciones del presente capítulo:
1° A las personas físicas que ejerzan la profesión de comerciante, de agricultor o que estén inscritas en el Registro Central de Artesanos, así como a cualquier persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal, sujeta a un estatuto legal o reglamentario o cuyo título esté protegido;
2º A las personas físicas, dirigentes de hecho o de derecho de personas jurídicas; 3º A las personas físicas, representantes permanentes de personas jurídicas, dirigentes de las personas jurídicas
definidas en el apartado 2º. Dichas disposiciones no serán de aplicación a las personas físicas o dirigentes de personas jurídicas que ejerzan
una actividad profesional autónoma y estén, en dicho concepto, sujetas a determinadas normas de disciplina. II. - Las acciones previstas por el presente capítulo prescribirán a los tres años contados a partir de la resolución de
apertura del procedimiento mencionado en el punto I.
Artículo L.653-2
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CÓDIGO DE COMERCIO (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 133 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La quiebra personal conllevará la prohibición de dirigir, gestionar, administrar o controlar, directa o indirectamente cualquier empresa comercial o artesanal, cualquier explotación agrícola o cualquier empresa que tenga otra actividad económica independiente, así como cualquier persona jurídica.
Artículo L.653-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 134 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá acordar la quiebra personal de cualquier persona de las mencionadas en el apartado 1° del punto I del artículo L.653-1, sin perjuicio de las excepciones previstas en el último párrafo del punto I del mismo artículo, que haya cometido alguno de los siguientes actos:
1º Haber continuado injustificadamente una explotación deficitaria que sólo podía conducir a la insolvencia; 2º Derogado. 3º Haber desviado u ocultado la totalidad o parte del activo, o haber aumentado fraudulentamente su pasivo.
Artículo L.653-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 135 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá acordar la quiebra personal de cualquier dirigente, de hecho o de derecho, de una persona jurídica, que haya cometido una de las faltas mencionadas en el artículo L.652-1.
Artículo L.653-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 136 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá acordar la quiebra personal de cualquier persona de las mencionadas en el artículo L.653-1, que haya cometido uno de los siguientes actos:
1º Haber ejercido una actividad comercial, artesanal o agrícola o una función de dirección o de administración de una persona jurídica, infringiendo una prohibición prevista por la Ley;
2º Haber realizado compras para una reventa por debajo de su precio o empleando métodos ruinosos para procurarse fondos con la intención de evitar o retardar la apertura del procedimiento de saneamiento judicial o de liquidación judicial;
3º Haber suscrito, por cuenta ajena, sin contrapartida, obligaciones consideradas demasiado importantes en el momento de su conclusión en atención a la situación de la empresa o de la persona jurídica;
4º Haber pagado o mandado pagar, tras la declaración de insolvencia y con conocimiento de causa de esta, a un acreedor en perjuicio de los demás acreedores;
5° Haber obstaculizado su buen desarrollo absteniéndose voluntariamente de cooperar con los órganos del procedimiento;
6° Haber hecho desaparecer documentos contables, no haber llevado ninguna contabilidad infringiendo los textos aplicables, o haber llevado una contabilidad ficticia manifiestamente incompleta o irregular con respecto a las disposiciones legales.
Artículo L.653-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá acordar la quiebra personal del dirigente de la persona jurídica que no haya saldado los créditos de esta que estuvieran a su cargo.
Artículo L.653-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 137 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En los casos previstos en el artículo L.653-3 a L.653-6 y L.653-8, el Tribunal conocerá del asunto a instancia del mandatario judicial, del liquidador o del Ministerio Fiscal.
En favor del interés colectivo de los acreedores, el Tribunal podrá igualmente conocer del asunto, en cualquier momento del procedimiento, a instancia de la mayoría de los acreedores nombrados interventores cuando el mandatario judicial debidamente facultado para ello no hubiera ejercitado las acciones previstas en el mismo artículo, tras un requerimiento que no hubiera surtido efecto en el plazo y las condiciones establecidas por decreto adoptado en Conseil d'Etat.
En los mismos casos previstos en el párrafo primero, el Juez Comisario no podrá formar parte del órgano de resolución ni participar en la deliberación.
Artículo L.653-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 138, art. 165 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En los casos previstos en los artículos L.653-3 a L.653-6, el Tribunal podrá acordar, en lugar de la quiebra personal, la prohibición de dirigir, gestionar, administrar o controlar, directa o indirectamente, cualquier empresa mercantil o artesanal, cualquier explotación agrícola o cualquier persona jurídica.
La prohibición mencionada en el primer párrafo podrá ser dictada igualmente contra cualquier persona mencionada
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CÓDIGO DE COMERCIO en el artículo L.625-1 que, de mala fe, no hubiera remitido al mandatario judicial, al administrador o al liquidador la información que la misma debiera remitirle dentro del plazo de un mes a partir de la resolución de apertura, en aplicación del artículo L.622-6.
Dicha prohibición podrá ser dictada asimismo contra cualquier persona de las mencionadas en el artículo L.653-1 que hubiera omitido realizar la declaración de insolvencia en el plazo de cuarenta y cinco días y que además no hubiera solicitado la apertura de un procedimiento de conciliación.
Artículo L.653-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 165 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El derecho de voto de los dirigentes afectados por la quiebra personal o por la prohibición prevista en el artículo L.653-8 será ejercido en las juntas de personas jurídicas sometidas a un procedimiento de saneamiento judicial o de liquidación judicial por un mandatario designado por el Tribunal a este efecto, a petición del administrador, del liquidador o del auditor para la ejecución del plan.
El Tribunal podrá requerir a sus dirigentes o a algunos de ellos, que cedan sus acciones o sus participaciones sociales a la persona jurídica o bien ordenar su cesión forzosa por diligencia de un mandatario judicial, previo informe pericial, si fuera necesario. El producto de la venta será destinado al pago de la parte de los créditos sociales en el caso de que dichos dirigentes hubieran sido declarados responsables de estos créditos.
Artículo L.653-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 139 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal que acuerde la quiebra personal podrá decretar la prohibición de ejercer una función pública electiva La incapacidad se declarará por un plazo igual al de la quiebra personal y no podrá exceder de cinco años. Cuando la decisión haya adquirido firmeza, el Ministerio Fiscal notificará al interesado la incapacidad, que surtirá efecto a partir de la fecha de dicha notificación.
Artículo L.653-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 140 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el Tribunal acuerde la quiebra personal o decrete la prohibición prevista en el artículo L.653-8, determinará la duración de la medida, que no podrá ser superior a quince años. Podrá ordenar la ejecución provisional de su resolución. Las inhabilitaciones, las prohibiciones y la incapacidad de ejercer una función pública electiva terminarán de pleno derecho en la fecha fijada, sin necesidad de resolución judicial.
La resolución de cierre por extinción del pasivo, incluso tras la ejecución de la obligación de pago de las deudas sociales por parte del empresario, restablecerá a este o a los dirigentes de la persona jurídica en todos sus derechos. Los dispensará o de todas las inhabilitaciones, prohibiciones e incapacidad de ejercer una función pública electiva.
El interesado podrá solicitar al Tribunal que lo releve, en su totalidad o en parte, de las inhabilitaciones, prohibiciones e incapacidad de ejercer una función pública electiva si hubiera aportado una contribución suficiente para el pago del pasivo.
Cuando se le hubiera impuesto la prohibición prevista en el artículo L.653-8, el interesado podrá ser relevado de la misma si demostrara mediante garantías su capacidad para dirigir o controlar una o varias empresas o personas de las citadas en el mismo artículo.
Cuando haya un levantamiento total de las inhabilitaciones, prohibiciones e incapacidad, la resolución del Tribunal tendrá valor de rehabilitación.
CAPITULO IV De la bancarrota y de otras infracciones Artículos L654-1 a
L654-20
Sección I De la bancarrota Artículos L654-1 a
L654-7
Artículo L.654-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 141 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en la presente sección será aplicable: 1° A cualquier comerciante, agricultor, a cualquier persona inscrita en el Registro Central de Artesanos y a
cualquier persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal, sujeta a un estatuto legal o reglamentario o cuyo título esté protegido;
2º A cualquier persona que, directa o indirectamente, de hecho o de derecho, haya dirigido o liquidado una persona jurídica de derecho privado;
3º A las personas físicas, representantes permanentes de personas jurídicas, dirigentes de las personas jurídicas definidas en el apartado 2º anterior.
Artículo L.654-2
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CÓDIGO DE COMERCIO (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 142 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de apertura de un procedimiento de saneamiento judicial o de liquidación judicial, serán consideradas culpables de bancarrota las personas mencionadas en el artículo L.654-1, que hayan cometido uno de los siguientes actos:
1º Haber realizado compras para una reventa por debajo de su precio, o haber empleado métodos ruinosos para procurarse fondos, con la intención de evitar o retrasar la apertura del procedimiento de saneamiento judicial;
2º Haber desviado u ocultado la totalidad o parte del activo del deudor; 3º Haber aumentado fraudulentamente el pasivo del deudor; 4º Haber llevado una contabilidad ficticia o hecho desaparecer documentos contables de la empresa o de la
persona jurídica, o haberse abstenido de llevar cualquier tipo de contabilidad cuando los textos aplicables obligasen a ello;
5º Haber llevado una contabilidad manifiestamente incompleta o irregular con respecto a las disposiciones legales.
Artículo L.654-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 142 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se castigará con cinco años de prisión y 75.000 euros de multa al culpable del delito de bancarrota. Estarán sujetos a la misma pena los cómplices de bancarrota, aunque no tengan la condición de comerciante,
agricultor o artesano y aunque no dirijan, directa o indirectamente, de hecho o de derecho, una persona jurídica de derecho privado.
Artículo L.654-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el autor o el cómplice de la bancarrota sea un dirigente de una empresa de servicios de inversión, las penas serán aumentadas a siete años de prisión y 100.000 euros de multa.
Artículo L.654-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 142 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las personas físicas que contravinieran lo dispuesto en los artículos L.654-3 y L.654-4 estarán asimismo sujetas a las penas complementarias siguientes:
1º La prohibición de ejercer sus derechos cívicos, civiles y familiares, con arreglo a las modalidades previstas por el artículo 131-26 del Código Penal;
2º La prohibición, por un período de cinco años como máximo, de ejercer una función pública o de ejercer la actividad profesional o social en cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción, a menos que una jurisdicción civil o comercial ya hubiera dictado una medida semejante mediante resolución definitiva;
3º La exclusión de los contratos públicos por un período de cinco años como máximo; 4º La prohibición, por un período de cinco años como máximo, de emitir cheques salvo los que permitan la retirada
de fondos por parte del librador ante el librado o aquellos que estén certificados; 5º La publicación mediante edictos o la difusión de la resolución judicial en las condiciones previstas por el artículo
131-35 del Código Penal;
Artículo L.654-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 143 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La jurisdicción penal que declarara culpable de bancarrota a una de las personas mencionadas en el artículo L.654-1, podrá acordar además la quiebra personal de esta, o la prohibición prevista en el artículo L.654-8, a menos que una jurisdicción civil o comercial ya hubiera dictado una medida semejante mediante resolución definitiva.
Artículo L.654-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Las personas jurídicas podrán ser declaradas responsables penalmente de las infracciones previstas por los artículos L.654-3 y L.654-4, con arreglo a las condiciones previstas en el artículo 121-2 del Código Penal.
II. - Las penas que se podrán imponer a las personas jurídicas son: 1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º Las penas mencionadas en el artículo 131-39 del Código Penal. III. - La prohibición mencionada en el apartado 2º del artículo 131-39 del Código Penal se aplicará a la actividad en
cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción.
Sección II De otras infracciones Artículos L654-8 a
L654-15
Artículo L.654-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 144 Diario Oficial de 27 de julio de 2005, con
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CÓDIGO DE COMERCIO entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se castigará con pena de dos años de prisión y multa de 30.000 euros: 1° A cualquier persona física de las mencionadas en el artículo L.654-1, por el hecho de suscribir una hipoteca o
una pignoración o de realizar un acto de disposición sin la autorización prevista en el artículo L.622-7 o de pagar, en su totalidad o en parte, una deuda infringiendo la prohibición mencionada en el párrafo primero del presente artículo, todo ello durante el período de observación.
2° A cualquier persona de las mencionadas en el artículo L.654-1, por el hecho de efectuar un pago infringiendo las condiciones de pago del pasivo previstas en el plan de salvaguarda o en el plan de saneamiento judicial, de realizar un acto de disposición sin la autorización prevista en el artículo L.626-14, o de proceder a la cesión de un bien intransferible en virtud de un plan de cesión, en aplicación del artículo L.642-10;
3º A cualquier persona, durante el período de observación o de ejecución del plan de salvaguarda o del plan de saneamiento judicial, que conociendo la situación del deudor, concertase con este alguno de los actos mencionados en los apartados 1º y 2º o recibiese del mismo un pago irregular.
Artículo L.654-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 145 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Será castigado con las penas previstas por los artículos L.626-3 a L.626-5 el que: 1º Sustrajera, ocultara o disimulara en interés de las personas mencionadas en el artículo L.626-1, todo o parte de
los bienes, muebles o inmuebles de estas, todo ello sin perjuicio de la aplicación del artículo 121-7 del Código Penal; 2º Declarara fraudulentamente créditos supuestos, en el procedimiento de salvaguarda, de saneamiento judicial o
de liquidación judicial, tanto en su nombre como por persona interpuesta; 3º Ejerciera una actividad comercial, artesanal, agrícola o cualquier otra actividad autónoma bajo nombre ajeno o
nombre supuesto, y fuera culpable de una de las infracciones previstas en el artículo L.654-14.
Artículo L.654-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 146 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Serán castigados con las penas previstas por el artículo 341-1 del Código Penal el cónyuge, los descendientes o los ascendientes o los colaterales o parientes por afinidad de las personas mencionadas en el artículo L.626-1, que desviaran, apartaran, ocultaran efectos que dependieran del activo del deudor sometido a un procedimiento de salvaguarda o de saneamiento judicial.
Artículo L.654-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 146 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En los casos previstos por los artículos anteriores, el órgano jurisdiccional que conociere del asunto resolverá, aunque hubiera sobreseimiento:
1º De oficio, sobre la reintegración en el patrimonio del deudor de todos los bienes, derechos o acciones que hubieran sido fraudulentamente sustraídos;
2º Sobre las indemnizaciones por daños y perjuicios que fueran reclamadas.
Artículo L.654-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 146 III, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Será castigado con las penas previstas por el artículo 314-2 del Código Penal el administrador, el mandatario judicial, el liquidador o el auditor para la ejecución del plan que:
1º Perjudicara voluntariamente los intereses de los acreedores o del deudor utilizando en su propio beneficio cantidades percibidas en ocasión del cumplimiento de su misión, o haciéndose atribuir ventas sabiendo que no le correspondían;
2º Hiciera uso de los poderes de los que dispusiera, para su propio interés, a sabiendas de que actúa en contra de los intereses de los acreedores o del deudor.
II. - Será castigado con las mismas penas cualquier administrador, mandatario judicial, liquidador, auditor para la ejecución del plan o cualquier otra persona, exceptuando los representantes de los trabajadores, que adquiriera por su cuenta, directa o indirectamente, bienes del deudor o los utilizara para su propio beneficio, tras haber participado de alguna manera en el procedimiento. El órgano jurisdiccional competente declarará la nulidad de la compra y resolverá sobre la indemnización por daños y perjuicios que fuera reclamada.
Artículo L.654-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 163 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Será castigado con las penas previstas por el artículo 314-1 del Código Penal el acreedor que concluya un contrato que conlleve una ventaja particular con relación al deudor tras la resolución de apertura del procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial.
El órgano jurisdiccional competente declarará la nulidad de dicho contrato.
Artículo L.654-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II, art. 163 Diario Oficial de 27 de julio de 2005, con
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CÓDIGO DE COMERCIO entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Serán castigadas con las penas previstas en los artículos L.654-3 a L.654-5 las personas mencionadas en los apartados 2º y 3º del artículo L.654-1, que desviaran u ocultaran o intentaran desviar u ocultar todo o parte de sus bienes, o se hicieran reconocer de modo fraudulento deudoras de cantidades que no debían con la intención de sustraer todo o parte de su patrimonio a las reclamaciones de la persona jurídica que hubiera sido objeto de una resolución de apertura de un procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial o a las reclamaciones de los socios o acreedores de la persona jurídica.
Artículo L.654-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Será castigado con dos años de prisión y 375.000 euros de multa el que ejerciera una actividad profesional o funciones infringiendo las prohibiciones, inhabilitaciones o incapacitación previstas por los artículos L.653-2 y L.653-8.
Sección III De las normas de los procedimientos Artículos L654-16 a
L654-20
Artículo L.654-16 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 146 IV Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación de las disposiciones de las secciones 1 y 2 del presente capítulo, la prescripción de la acción pública no será efectiva hasta el día de la resolución de apertura del procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial cuando los hechos de los que se le acusa se hubieran producido antes de dicha fecha.
Artículo L.654-17 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 146 V, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La jurisdicción penal será competente, bien a instancia del Ministerio Fiscal, bien por constitución de parte civil del administrador, del mandatario judicial, del representante de los trabajadores, del auditor para la ejecución del plan, del liquidador o de la mayoría de los acreedores nombrados interventores cuando el mandatario judicial debidamente facultado para ello no hubiera ejercitado las acciones previstas, tras un requerimiento que no hubiera surtido efecto en el plazo y las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.654-18 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Ministerio Fiscal podrá requerir del administrador o del liquidador la entrega de todas las actas y documentos detentados por estos últimos.
Artículo L.654-19 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las costas de la acción ejercitada por el administrador, el mandatario judicial, el representante de los trabajadores, el auditor para la ejecución del plan o el liquidador serán por cuenta del Tesoro Público en caso de sobreseimiento.
En caso de condena, el Tesoro Público sólo podrá ejercer su recurso contra el deudor tras el cierre de las operaciones de liquidación judicial.
Artículo L.654-20 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las resoluciones y sentencias condenatorias dictadas en aplicación del presente capítulo serán publicadas a cargo del condenado.
TITULO VI DE LAS DISPOSICIONES GENERALES DE PROCEDIMIENTO Artículos L661-1 a
L663-4
CAPITULO I De las vías de recurso Artículos L661-1 a
L661-11
Artículo L.661-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 147, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Serán susceptibles de recurso de apelación o de recurso de casación: 1º Las resoluciones relativas a la apertura de los procedimientos de salvaguarda, de saneamiento judicial y de
liquidación judicial por parte del deudor, del acreedor demandante así como del Ministerio Fiscal, aunque este no haya
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CÓDIGO DE COMERCIO actuado como parte principal;
2º Las resoluciones relativas a la liquidación judicial, o las resoluciones de aprobación o denegación del plan de salvaguarda o el plan de saneamiento judicial por parte del deudor, del administrador, del mandatario judicial, del comité de empresa o, en su defecto, de los delegados del personal, así como del Ministerio Fiscal, aunque este no haya actuado como parte principal;
3º Las resoluciones relativas a la modificación del plan de salvaguarda o del plan de saneamiento judicial por parte del deudor, del auditor para la ejecución del plan, del comité de empresa o, en su defecto de los delegados del personal, así como del Ministerio Fiscal, aunque este no haya actuado como parte principal.
II. - La apelación del Ministerio Fiscal será suspensiva, excepto la relativa a las resoluciones relativas a la apertura del procedimiento de salvaguarda o de saneamiento judicial.
III. - En ausencia del comité de empresa o del delegado de personal, el representante de los trabajadores ejercerá las vías de recurso abiertas a estas instituciones por las disposiciones del presente artículo.
Artículo L.661-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 148 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las resoluciones relativas a la apertura del procedimiento serán susceptibles de impugnación por parte de terceros. La resolución relativa a la tercería será susceptible de apelación y de un recurso de casación por parte del tercero oponente.
Artículo L.661-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 148 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las resoluciones relativas a la aprobación o modificación del plan de salvaguarda o del plan de saneamiento judicial serán susceptibles de impugnación por parte de terceros.
La resolución relativa a la tercería será susceptible de apelación y de recurso de casación por parte del tercero oponente.
Artículo L.661-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 149 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las resoluciones relativas al nombramiento o a la sustitución del Juez Comisario no será susceptibles de recurso.
Artículo L.661-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 150 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sólo serán susceptibles de recurso de apelación y de recurso de casación por parte del Ministerio Fiscal, las resoluciones relativas a los recursos interpuestos contra los autos del Juez Comisario dictados en aplicación de los artículos L.642-18 y L.642-19.
Artículo L.661-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 151, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Sólo serán susceptibles de recurso de apelación por parte del Ministerio Fiscal, aunque este no hubiera actuado como parte principal:
1º Las resoluciones relativas al nombramiento o la sustitución del administrador, del mandatario judicial, del liquidador, de los interventores y de los peritos;
2° Las resoluciones relativas a la duración del periodo de observación, a la continuidad o al cese de la actividad. II. - Sólo serán susceptibles de apelación, por parte del deudor o del Ministerio Fiscal, aunque este no haya
actuado como parte principal, o del cesionario o del cocontratante mencionado en el artículo L.642-7, las resoluciones de aprobación o denegación del plan de cesión de la empresa. El cesionario no podrá interponer apelación contra la resolución de aprobación del plan de cesión salvo que este le imponga otras cargas que no fueran las obligaciones suscritas durante la preparación del plan. El cocontratante mencionado en el artículo L.642-7 sólo podrá interponer una apelación contra la parte de la resolución que conlleve la cesión del contrato.
III. - Sólo serán susceptibles de apelación las resoluciones que modifiquen el plan de cesión, bien por parte del Ministerio Fiscal, aunque este no haya actuado como parte principal, o bien por parte del cesionario, dentro de los límites mencionados en el párrafo anterior.
IV. - La apelación del Ministerio Fiscal será suspensiva.
Artículo L.661-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No podrá ejercerse ni impugnación por parte de terceros, ni recurso de casación, contra las sentencias dictadas en aplicación del punto I del artículo L.661-6.
El recurso de casación sólo estará abierto al Ministerio Fiscal, contra las sentencias dictadas en aplicación de los puntos II y III del artículo L.623-6.
Artículo L.661-8
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CÓDIGO DE COMERCIO (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 163 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el Ministerio Fiscal deba tener comunicación de los procedimientos de salvaguarda, de saneamiento judicial o de liquidación judicial, así como de las causas relativas a la responsabilidad de los dirigentes sociales, el Ministerio Fiscal será el único legitimado a interponer un recurso de casación por defecto de comunicación.
Artículo L.661-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 152 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de invalidación del fallo que ordenara remitir el asunto ante el Tribunal, la Cour d'Appel podrá abrir un nuevo período de observación. Este periodo durará como máximo tres años.
En caso de apelación de la resolución relativa a la liquidación judicial durante el periodo de observación o de la resolución de aprobación o denegación de un plan de salvaguarda o de un plan de saneamiento judicial, y cuando se interrumpa la ejecución provisional, se prolongará el periodo de observación hasta la sentencia de la Cour d'Appel.
Artículo L.661-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del presente título, los miembros del comité de empresa o los delegados del personal designarán de entre sus miembros la persona habilitada para ejercer en su nombre las vías de recurso.
Artículo L.661-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 153 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las resoluciones dictadas en aplicación de los capítulos I, II y III del título V será susceptibles de recurso de apelación por parte del Ministerio Fiscal, aunque este no hubiera actuado como parte principal.
La apelación del Ministerio Fiscal será suspensiva.
CAPITULO II Otras disposiciones Artículos L662-1 a
L662-6
Artículo L.662-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No será admisible ninguna impugnación o procedimiento de ejecución, de cualquier tipo que fuere, sobre las cantidades pagadas a la Caja de Depósitos y Consignaciones.
Artículo L.662-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 154 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando lo justifiquen los intereses en juego, la Cour d'Appel podrá decidir remitir el asunto ante una jurisdicción del mismo tipo, competente en la demarcación de dicha Cour d'Appel, para conocer de los procedimientos de salvaguarda, de saneamiento judicial o de liquidación judicial, con arreglo a las condiciones establecidas por decreto. La Cour de Cassation, actuando con arreglo a las mismas condiciones, podrá remitir el asunto ante un órgano jurisdiccional situado en la demarcación de otra Cour d'Appel.
Artículo L.662-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 156 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los debates ante el Tribunal de Commerce y el Tribunal de Grande Instance se celebrarán a puerta cerrada. No obstante, será conforme a derecho la publicidad de los debates tras la apertura del procedimiento, siempre que el deudor, el mandatario judicial, el administrador, el liquidador, el representante de los trabajadores o el Ministerio Fiscal así lo soliciten. El presidente del Tribunal podrá decidir que los debates se celebren o se prosigan a puerta cerrada, si se produjeran incidentes susceptibles de obstaculizar el correcto funcionamiento de la Justicia.
Por excepción a lo dispuesto en el párrafo primero, los debates relativos a las medidas adoptadas en aplicación de los capítulos I, II y III del título V se celebrarán en audiencia pública. El presidente del Tribunal podrá decidir que se celebren a puerta cerrada siempre que el deudor lo solicite antes de su apertura.
Artículo L.662-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, II, art. 157, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier despido previsto por el administrador, el empresario o el liquidador, según el caso, del representante de los empleados mencionados en los artículos L.621-4 y L.641-1 será obligatoriamente sometido al comité de empresa, que emitirá su dictamen sobre el proyecto de despido.
El despido sólo podrá producirse con la autorización del inspector de trabajo del que dependa el establecimiento. Cuando no exista comité de empresa en el establecimiento, se recurrirá directamente al inspector de trabajo.
Sin embargo, en caso de falta grave, el administrador, el empresario o el liquidador, según el caso, tendrá la
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CÓDIGO DE COMERCIO facultad de acordar la suspensión temporal inmediata del interesado hasta que se dicte la resolución definitiva. En caso de denegación del despido, se anulará la suspensión temporal y sus efectos quedarán suprimidos de pleno derecho.
La protección instituida a favor del representante de los trabajadores para el ejercicio de su misión fijada en el artículo L.625-2 cesará cuando todas las cantidades pagadas al representante de los acreedores por las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo, en aplicación del párrafo décimo del artículo L.143-11-7 de dicho Código, hayan sido devueltas por este último a los trabajadores.
Cuando el representante de los trabajadores ejerza las funciones del comité de empresa o, en su defecto, de los delegados del personal, la protección cesará al final de la última audiencia o consulta prevista por el procedimiento de saneamiento judicial.
Artículo L.662-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los fondos detentados por las comunidades de propietarios en concepto de los procedimientos de saneamiento judicial o de liquidación de bienes regulados por la Ley n° 67-563 de 13 de julio de 1967 sobre el procedimiento de saneamiento judicial, la liquidación de bienes, la quiebra personal y las bancarrotas serán inmediatamente ingresados en la cuenta de depósito de la Caja de Depósitos y Consignaciones. En caso de retraso, el liquidador deberá pagar un interés por las cantidades que no haya ingresado, aplicando una tasa igual al interés legal incrementado en cinco puntos.
Artículo L.662-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 159 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El secretario del Tribunal de Commerce y el del Tribunal de Grande Instance elaborarán al final de cada semestre el registro de administradores judiciales y mandatarios judiciales designados por el órgano jurisdiccional, así como el listado de las demás personas a las que dicho órgano jurisdiccional hubiera otorgado durante el mismo periodo un mandato vinculado a los procedimientos regulados por el presente libro. Deberán indicar, para cada uno de los interesados, los diferentes asuntos que les hubieran sido confiados y las informaciones relativas a los deudores, siendo esta últimas precisadas por decreto adoptado en Conseil d'Etat. Adjuntarán como anexo el importe de la cifra de negocios realizada por el mismo en concepto de los mandatos que le hubieran sido confiados por el órgano jurisdiccional durante el semestre transcurrido.
Estas informaciones se remitirán al Ministro de Justicia, al Ministerio Fiscal, al órgano jurisdiccional correspondiente y a las autoridades encargadas del control y de la inspección de los administradores y mandatarios judiciales, conforme a las modalidades establecidas por decreto adoptado en Conseil d'Etat.
CAPITULO III De las costas del procedimiento Artículos L663-1 a
L663-4
Artículo L.663-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, II, art. 158 I, art. 163 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Cuando los fondos del deudor no bastasen inmediatamente para ello, el Tesoro Público, por resolución motivada del Juez Comisario o del presidente del Tribunal, adelantará los derechos, gravámenes, cánones o emolumentos percibidos por los secretarios de los órganos jurisdiccionales, las retribuciones y emolumentos de los procuradores y las remuneraciones des los abogados, en la medida en que estas estén reguladas, así como los gastos de comunicación y publicidad y la remuneración de los técnicos nombrados por el órgano jurisdiccional previo acuerdo del Ministerio Fiscal, siempre que sean relativos a:
1º Las decisiones que se produzcan en el transcurso del procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial, adoptadas en favor del interés colectivo de los acreedores o del deudor;
2º El ejercicio de las acciones emprendidas para conservar o para reconstituir el patrimonio del deudor, o ejercidas en favor del interés colectivo de los acreedores;
3º Y el ejercicio de las acciones citadas en los artículos L.653-3 a 653-6. No se requerirá el acuerdo del Ministerio Fiscal para abonar el adelanto de las remuneración de los oficiales
públicos designados por el Tribunal en aplicación del artículo L.621-4, para realizar el inventario previsto en el artículo L.622-6, ni para proceder a la tasación contemplada en el artículo L.641-4.
II. - El Tesoro Público, mediante auto motivado del presidente del Tribunal, adelantará también los gastos correspondientes al ejercicio de la acción de resolución y de modificación del plan.
III. - Estas disposiciones serán aplicables a los procedimientos de apelación o de casación de todas las resoluciones mencionadas anteriormente.
IV.- Para el reembolso de esos adelantos, el Tesoro Público tendrá la garantía del privilegio de las costas procesales.
Artículo L.663-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 158 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por decreto adoptado en Conseil d'Etat se establecerán las modalidades de remuneración de los administradores
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CÓDIGO DE COMERCIO judiciales, de los mandatarios judiciales, de los auditores para la ejecución del plan y de los liquidadores. Dicha remuneración excluirá cualquier otra remuneración o reembolso de gastos por el mismo procedimiento o por una misión derivada del mismo.
Artículo L.663-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 158 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el producto de la realización de los activos de la empresa no permita que el liquidador o el mandatario judicial obtengan, en concepto de la remuneración que se les debe en aplicación del artículo L.663-2, una cantidad por lo menos igual al umbral fijado por decreto adoptado en Conseil d'Etat, el Tribunal declarará el expediente escaso de recursos, a propuesta del Juez Comisario, basándose en los documentos justificantes presentados por el liquidador o el mandatario judicial.
La misma resolución fijará la cantidad correspondiente a la diferencia entre la remuneración efectivamente percibida por el liquidador o el mandatario judicial y el umbral mencionado en el párrafo anterior.
La cantidad abonada al mandatario judicial o al liquidador será retenida sobre una parte proporcional de los intereses pagados por la Caja de Depósitos y Consignaciones en concepto de los fondos depositados en aplicación de los artículos L.622-18, L.626-25 y L.641-8. Esta parte proporcional se destinará en especial a un fondo gestionado por la Caja de Depósitos y Consignaciones bajo el control de un comité de administración. Las condiciones de aplicación del presente párrafo serán establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.663-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario tendrá derecho al reembolso de sus gastos de desplazamiento sobre el activo del deudor.
TITULO VII DISPOSICIONES ESPECIALES APLICABLES A LOS DEPARTAMENTOS DE Artículos L670-1 a
MOSELLE, BAJO-RIN Y ALTO-RIN L670-8
Artículo L.670-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 160 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el presente título será de aplicación a las personas físicas, domiciliadas en los departamentos de Moselle, Bajo-Rin y Alto-Rin, y a sus sucesores, que no fueran comerciantes, ni personas inscritas en el Registro Central de Artesanos, ni agricultores, ni personas que ejercieran cualquier otra actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario, cuando fueran de buena fe y estuvieran en situación de insolvencia notoria. Las disposiciones de los títulos II a IV del presente libro serán de aplicación siempre y cuando no sean contrarias a las del presente título.
Antes de que se resuelva sobre la apertura del procedimiento, el Tribunal, si lo considera útil, podrá nombrar a una persona competente elegida de entre la lista de organismos autorizados, para recabar informaciones sobre la situación económica y social del deudor.
Las inhabilitaciones y prohibiciones derivadas de la quiebra personal no serán aplicables a estas personas. Las condiciones de aplicación del presente artículo serán fijadas por decreto.
Artículo L.670-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 160 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario podrá dispensar de la obligación de inventario a las personas citadas en el artículo L.670-1.
Artículo L.670-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 160 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de liquidación judicial, no se procederá a la comprobación de los créditos si el producto de la realización fuera íntegramente absorbido por las costas judiciales, salvo decisión en contrario del Juez Comisario.
Artículo L.670-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Durante el cierre de las operaciones de liquidación judicial, el Tribunal podrá imponer al deudor, de manera excepcional, una contribución destinada a la liquidación del pasivo en las proporciones que determine. En su resolución el Tribunal nombrará a un auditor encargado de velar por la ejecución de la contribución.
Para fijar las proporciones de la contribución, el Tribunal tendrá en cuenta las posibilidades de contribución del deudor, las cuales serán determinadas en función de sus recursos y gastos incompresibles. El tribunal reducirá el importe de la contribución en caso de disminución de los recursos o de aumento de los gastos del deudor.
El deudor deberá abonar su contribución dentro del plazo de dos años. Las condiciones de aplicación del presente artículo serán establecidas por decreto.
Artículo L.670-5
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CÓDIGO DE COMERCIO (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II, art. 160 IV Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Además de los casos previstos en el artículo L.643-11, los acreedores recuperarán su derecho de reclamación individual en contra del deudor cuando el Tribunal constatara, de oficio o a petición del comisario, la no ejecución de la contribución mencionada en el artículo L.670-4.
Artículo L.670-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se hará mención de la resolución de liquidación judicial en el archivo previsto en el artículo L.333-4 del Código de Consumo durante un periodo de ocho años, dejándose de hacer mención de la misma en el certificado de penales del interesado.
Artículo L.670-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La base y la liquidación de la tasa sobre las costas judiciales en materia de saneamiento judicial o de liquidación judicial se pagarán provisionalmente según las disposiciones de las leyes locales.
Artículo L.670-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el artículo 1 de la Ley nº 75-1256 de 27 de diciembre de 1975 relativa a determinadas ventas de bienes inmuebles en los Departamentos de Alto-Rin, Bajo-Rin y Moselle dejarán de ser aplicables a las ventas forzosas de inmuebles incluidos en el patrimonio de un deudor que sea objeto de un procedimiento de saneamiento judicial iniciado con posterioridad al 1 de enero de 1986.
LIBRO VII DE LA ORGANIZACIÓN DEL COMERCIO Artículos L711-1 a
L740-3 TITULO I DE LAS CÁMARAS DE COMERCIO E INDUSTRIA Artículos L711-1 a
L713-18
CAPITULO I De la organización y de las atribuciones Artículos L711-1 a
L711-10
Artículo L711-1 Las Cámaras de Comercio e Industria son los órganos representativos de los intereses comerciales e industriales
de su circunscripción ante los poderes públicos. Son establecimientos públicos económicos.
Artículo L711-2 Las Cámaras de Comercio e Industria tendrán como atribuciones: 1º Dar al Gobierno los dictámenes e informaciones que les fueran solicitados sobre cuestiones industriales y
comerciales; 2º Presentar sus puntos de vista sobre los medios para aumentar la prosperidad de la industria y el comercio; 3º Asegurar, ateniéndose a las autorizaciones previstas en los artículos L.711-6 y L.711-8, la ejecución de los
trabajos y la prestación de los servicios necesarios para los intereses que éstas defienden.
Artículo L711-3 Se deberá solicitar la opinión de las cámaras para: 1º Los reglamentos relativos a los usos comerciales; 2º La creación, en su circunscripción, de nuevas Cámaras de Comercio e Industria, de corredores de buques, de
Tribunaux de commerce, de Cours des comptes, de establecimientos comerciales generales y salas públicas de venta en subasta y al por mayor de mercancías nuevas.
3º Las tasas destinadas a remunerar los servicios de transporte concedidos por la autoridad pública en su circunscripción;
4º Sobre cualquier asunto determinado por leyes o reglamentos especiales, en particular sobre la utilidad de ejecución de obras públicas en su circunscripción y sobre las tasas o peajes que deberá cobrar para hacer frente a los gastos que originaran estas obras;
5º Sobre las tarifas de mano de obra para el trabajo en las prisiones.
Artículo L711-4 Independientemente de los dictámenes que el Gobierno tendrá siempre derecho a solicitarles, las Cámaras de
Comercio e Industria podrán emitirlos por su propia iniciativa:
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CÓDIGO DE COMERCIO 1º Sobre los cambios proyectados en la legislación comercial, aduanera y económica; 2º Sobre los aranceles de aduana; 3º Sobre las tarifas y los pagos de los servicios de transportes concedidos por la autoridad pública fuera de su
circunscripción, pero que afecten a la suya. 4º Sobre las tarifas y reglamentos de los establecimientos de uso comercial abiertos en su circunscripción, en virtud
de autorizaciones administrativas.
Artículo L711-5 Los artículos L.121-4 a L.121-6 del Código de Urbanismo, seguidamente reproducidos, definen las competencias
de las Cámaras de Comercio e Industria para el establecimiento de los esquemas de base y la implantación de los equipamientos comerciales y artesanales:
"Art. L. 121-4.- Tras consultar a los organismos profesionales, las Cámaras de Comercio e Industria y las Cámaras de Profesionales de Artesanía se han asociado a petición propia, para el establecimiento de esquemas de base.
Los informes adjuntos de los esquemas de base fijarán, provisionalmente, la importancia y la localización de las zonas preferenciales de implantación de los diferentes equipamientos comerciales y artesanales.
"Art. L. 121-5.- Los estudios económicos necesarios para la preparación de los documentos provisionales de organización comercial y artesanal podrán ser realizados por iniciativa de las Cámaras de Comercio e Industria y de las Cámaras Profesionales de Artesanía.
"Art. L. 121-6.- Las Cámaras de Comercio e Industria y las Cámaras Profesionales de Artesanía se han asociado por petición propia para la elaboración de los planes de ocupación de suelos en lo que se refiere a la implantación de los equipamientos comerciales y artesanos. Éstas asegurarán los vínculos con las organizaciones profesionales interesadas." "
Artículo L711-6 Las Cámaras de Comercio e Industria podrán ser autorizadas a fundar y administrar establecimientos para uso
comercial, como por ejemplo los almacenes generales, salas de venta públicas, bancos de pruebas para las armas, oficinas de embalaje y etiquetado, exposiciones permanentes y museos comerciales, escuelas de comercio, escuelas profesionales, clases para la divulgación de los conocimientos comerciales e industriales.
La administración de aquellos establecimientos que hayan sido fundados por iniciativa privada podrá ser remitida a las Cámaras de Comercio e Industria según el deseo de los suscriptores o donantes.
Se podrá delegar en ellas la administración de los establecimientos del mismo tipo creados por el Estado, el departamento o el Ayuntamiento.
Las autorizaciones citadas en el presente artículo se concederán a tal efecto a las Cámaras de Comercio e Industria por decisión del Ministro encargado de su tutela administrativa, a no ser que debido a la naturaleza del establecimiento fuese necesario un decreto o una ley.
Así mismo, salvo por la misma consideración, el Ministro aprobará los pagos y tarifas máximas. El Prefecto homologará las tasas y precios efectivos a percibir a no ser que el acta de institución exija una Orden Ministerial.
Las Cámaras de Comercio e Industria podrán adquirir o construir, con la autorización ministerial, edificios para su propia instalación o la de establecimientos de uso comercial.
Artículo L711-7 Las Cámaras de Comercio e Industria y las Cámaras Profesionales de Artesanía, en unión de las organizaciones
profesionales, podrán crear fondos para asegurar la formación de comerciantes y artesanos con arreglo a la aplicación del artículo L.961-10 del Código de Trabajo.
Artículo L711-8 Las Cámaras de Comercio e Industria podrán ser declaradas concesionarias de obras públicas o encargadas de
servicios públicos.
Artículo L711-9 En el marco de operaciones de urbanismo, las Cámaras de Comercio e Industria o las Cámaras Profesionales de
Artesanía, en colaboración con la Entidad local o el organismo constructor, podrán realizar cualquier tipo de equipamiento comercial y artesanal en concepto de entidad adjudicadora, con el fin de instalar o reconvertir su actividad o su traslado.
Podrán en todo caso facilitar el acceso de los comerciantes y artesanos a la propiedad del fondo y, eventualmente, de los locales, sin aportación inicial de capital.
Para la realización de equipamientos comerciales o artesanales, se les podrá igualmente delegar el derecho de tanteo urbano y podrán ser titulares o podrá delegárseles el derecho de tanteo establecido en las zonas de ordenación urbanística diferida.
Los préstamos suscritos por las Cámaras de Comercio e Industria y las Cámaras Profesionales de Artesanía para la realización de las operaciones citadas anteriormente podrán ser avalados por las Entidades locales. Las Cámaras de Comercio e Industria, las Circunscripciones y sus asambleas permanentes podrán suscribir préstamos en la Caja de Depósitos y Consignaciones y en la Caja de Ayuda para el Equipamiento de las Entidades locales.
Artículo L711-10 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Las Cámaras de Comercio e Industria estarán agrupadas en Cámaras Regionales de Comercio e Industria. Además del derecho que conservan las Cámaras de Comercio e Industria a formar agrupaciones para la defensa de
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CÓDIGO DE COMERCIO intereses especiales y comunes a algunas de ellas, las Cámaras Regionales de Comercio e Industria representarán, ante los poderes públicos, los órganos consultivos sobre los intereses regionales del comercio y de la industria.
Las Cámaras Regionales de Comercio e Industria constituyen establecimientos públicos dotados de personalidad civil.
El reparto de las Cámaras de Comercio en Cámaras Regionales de Comercio e Industria, sus atribuciones, la organización y el funcionamiento administrativo y financiero de estas Cámaras Regionales serán definidos por decreto adoptado en Conseil d'Etat.
CAPITULO II De la administración financiera Artículos L712-1 a
L712-3
Artículo L712-1 Los gastos ordinarios de las Cámaras de Comercio e Industria se cubrirán por medio de una tasa adicional a la
tasa profesional.
Artículo L712-2 Las Cámaras de Comercio podrán asignar todo o parte de los excedentes de los ingresos, procedentes de la
gestión de su servicio ordinario, a la constitución de un fondo de reserva para hacer frente a los gastos urgentes e imprevistos. El importe de este fondo de reserva, que deberá ser mencionado en las cuentas y presupuestos de este servicio en un artículo especial, no podrá, en ningún caso, ser superior a la mitad de la totalidad de los recursos anuales de dicho presupuesto.
Artículo L712-3 Las Cámaras de Comercio e Industria citadas en el artículo L.711-1, las Cámaras Regionales de Comercio e
Industria, las agrupaciones interprofesionales, la Asamblea de Cámaras francesas de Comercio e Industria estarán obligadas a nombrar al menos a un auditor de cuentas y a un suplente elegidos de la lista mencionada en el artículo L.225-219, que ejercerán sus funciones en las condiciones previstas por las disposiciones del libro II, sin perjuicio de las normas que les sean propias.
Les serán aplicables las disposiciones del artículo L.242-27. Las penas previstas por el artículo L.242-8 serán aplicables a los dirigentes que no hubieran realizado cada año un
balance, una cuenta de resultados y un anexo explicativo. Se les aplicarán igualmente las disposiciones de los artículos L. 242-25 y L. 242-28.
CAPITULO III De la elección de los miembros de las cámaras de comercio y de industria y de los Artículos L713-1 a
delegados consulares L713-18
Artículo L713-1 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 1 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004)
I. - Los miembros de las Cámaras de Comercio e Industria serán elegidos por un período de cinco años. Un miembro de una Cámara de Comercio e Industria o de una Cámara Regional de Comercio e Industria no podrá
ejercer más de tres mandatos de presidente de esta cámara, cualquiera que sea la duración efectiva de dichos mandatos; (1)
II. - Serán electores en las elecciones de los miembros de las Cámaras de Comercio e Industria: 1º A título personal: a) Los comerciantes inscritos en el Registro de Comercio y de Sociedades en la circunscripción de la Cámara de
Comercio e Industria, sin perjuicio, para los socios de sociedades colectivas y los socios de sociedades comanditarias, de lo dispuesto en el punto III del artículo L. 713-2 ;
b) Los empresarios inscritos en el Registro Central de Artesanos e inscritos en el Registro de Comercio y de Sociedades de la circunscripción;
c) Los cónyuges de las personas enumeradas en las letras a o b anteriores que hubieran declarado en el Registro de Comercio y de Sociedades que colaboran en la actividad de sus cónyuges sin tener otra actividad profesional;
2º Por medio de un representante: a) Las sociedades mercantiles en el sentido del apartado segundo del artículo L. 210-1 del presente Código y los
establecimientos públicos de carácter industrial y comercial cuyo domicilio social esté situado en la circunscripción; b) En el caso de un establecimiento que sea objeto en la circunscripción de una inscripción complementaria o de
una matriculación secundaria, a no ser que hubieran sido dispensados de ello por las leyes y reglamentos en vigor, las personas físicas mencionadas en las letras a y b del apartado 1° y las personas físicas mencionadas en la letra a del presente apartado 2°, cualquiera que sea la circunscripción en las que esta personas ejerzan su propio derecho de voto;
c) Las sociedades de carácter mercantil cuyo domicilio social esté situado fuera del territorio nacional, que dispongan en la circunscripción de un establecimiento inscrito en el Registro de Comercio y de Sociedades.
Nota (1): Estas disposiciones se aplicarán solamente a los mandatos obtenidos a partir de las elecciones organizadas en 2004.
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CÓDIGO DE COMERCIO Artículo L713-2 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 2 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004)
I.- En razón de su domicilio social y del conjunto de sus establecimientos situados en la circunscripción de la Cámara de Comercio e Industria, las personas físicas o jurídicas mencionadas en los apartados 1º y 2º del punto II del artículo L.713-1 dispondrán:
1º De un representante suplementario, cuando empleen de diez a cuarenta y nueve trabajadores en la circunscripción de la Cámara de Comercio e Industria;
2º De dos representantes suplementarios, cuando empleen de cincuenta a ciento noventa y nueve trabajadores en la circunscripción;
3º De tres representantes suplementarios, cuando empleen de doscientos a cuatrocientos noventa y nueve trabajadores en la circunscripción;
4º De cuatro representantes suplementarios, cuando empleen de quinientos a mil novecientos noventa y nueve trabajadores en la circunscripción;
5º De cinco representantes suplementarios, cuando empleen dos mil trabajadores o más en la circunscripción. II. II.- Sin embargo, las personas físicas enumeradas en las letras a y b del apartado 1º del punto II del artículo
L.713-1 cuyo cónyuge se beneficie de las disposiciones de la letra c del apartado 1º del punto II del citado artículo no designarán ningún representante suplementario si emplean a menos de cincuenta asalariados en la circunscripción de la Cámara de Comercio e Industria.
III. - Las sociedades colectivas y las sociedades comanditarias designarán por deliberación expresa, de conformidad con las disposiciones estatutarias, a un representante único para representar a los socios y a la sociedad, sin perjuicio de la posibilidad de designar a representantes complementarios en aplicación del punto I anterior.
Artículo L713-3 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 3 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 I, Artículo 15 Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 IV Diario Oficial de 10 de diciembre de 2004)
I. - Los representantes mencionados en los artículos L.713-1 y L.713-2 deberán ejercer en la empresa las funciones de presidente director general, de presidente o de miembro del consejo de administración, de director general, de presidente o de miembro del directorio, de presidente del consejo de supervisión, de gerente, de presidente o de miembro del consejo de administración o de director de un establecimiento público de carácter industrial y comercial, o bien, en su defecto y para representarlos en concepto de mandatario, funciones que impliquen responsabilidades de dirección comercial, técnica o administrativa de la empresa o del establecimiento.
II. - Los electores a título personal mencionados en el apartado 1° del punto II del artículo L. 713-1 y los representantes de las personas físicas o jurídicas mencionadas en el apartado 2° del punto II del mismo artículo deberán ser nacionales de un Estado miembro de la Comunidad Europea o de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo.
Para tomar parte en la votación, deberán: 1º Reunir los requisitos establecidos en el artículo L. 2 del Código Electoral, con excepción de la nacionalidad; 2º No haber sido objeto de la inhabilitación prevista en el artículo L. 6 del Código Electoral; 2º bis No haber sido afectado por la quiebra personal o por una de las medidas de inhabilitación o de caducidad
previstas en el capítulo V del título II del libro VI del presente Código, en el título VI de la Ley nº 85-98 de 25 de enero 1985 relativa al procedimiento de suspensión de pagos y la liquidación judicial de las empresas o, en el régimen anterior de esta Ley, en el título II de la Ley nº 67-563 de 13 de julio 1967 sobre la suspensión de pagos, la liquidación de bienes, la quiebra personal y las bancarrotas, de una medida de prohibición definida en el artículo L. 625-8 del presente Código o de una medida de prohibición de ejercer una actividad comercial;
3º No haber sido condenado a penas, inhabilitaciones o sanciones dictadas en aplicación de legislaciones en vigor en los Estados miembros de la Comunidad Europea o en los Estados partes en el acuerdo sobre el Espacio Económico Europeo y que sean equivalentes a las mencionadas en los apartados 2° y 2° bis.
Artículo L713-4 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 I, II Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 IV Diario Oficial de 10 de diciembre de 2004)
I. - Podrán ser candidatos a las funciones de miembro de una Cámara de Comercio e Industria, las personas mayores de dieciocho años que cumplan las condiciones determinadas en el punto II del artículo 713-3:
1º Los electores a título personal mencionados en el apartado 1° del punto II del artículo L. 713-1 inscritos en la lista electoral de la circunscripción correspondiente y que prueben que están inscritos desde hace dos años como mínimo en el Registro de Comercio y de Sociedades;
2º Los electores inscritos en calidad de representantes, mencionados en el apartado 2º del punto II del artículo L. 713-1 y en el artículo L. 713-2, inscritos en la lista electoral de la circunscripción y que prueben que la empresa que representan ejerce su actividad desde hace dos años como mínimo.
II. - El miembro de una Cámara de Comercio e Industria que deje de cumplir las condiciones de elegibilidad determinadas en el punto I anterior presentará su dimisión al Prefecto. En su defecto, el Prefecto lo declarará
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CÓDIGO DE COMERCIO dimisionario de oficio.
No obstante, un cese de actividad inferior a seis meses no conllevará la dimisión, salvo en los casos mencionados en los apartados 2º, 2º bis y 3º del punto II del artículo L. 713-3.
Artículo L713-5 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 I, II Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 IV Diario Oficial de 10 de diciembre de 2004)
I. - En caso de disolución de una Cámara de Comercio e Industria, se procederá a su renovación en un plazo de seis meses.
No obstante, si esta disolución fuera dictada menos de un año antes de una renovación general, no se procederá a la renovación.
II. - Cuando el número de miembros de una Cámara de Comercio e Industria se reduzca a menos de la mitad del número inicial, el prefecto constará esta situación mediante una orden y organizará nuevas elecciones para cubrir la totalidad de los puestos dentro de un plazo de seis meses.
No obstante, si esta situación fuera constatada menos de un año antes de una renovación general, no se procederá a la renovación.
III. - Los miembros elegidos en aplicación del presente artículo seguirán en funciones durante el periodo restante del mandato del titular inicial.
Artículo L713-6 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 4 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, III Diario Oficial de 17 de abril de 2004)
Los delegados de las Cámaras de Comercio e Industria serán elegidos por cinco años en la circunscripción de cada Cámara de Comercio e Industria.
No obstante, ningún delegado de una cámara profesional podrá ser elegido en una circunscripción o parte de una circunscripción que esté bajo la jurisdicción de un tribunal competente en materia comercial que no tenga en su seno ningún juez elegido.
Artículo L713-7 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, III Diario Oficial de 17 de abril de 2004)
Serán electores en las elecciones de los delegados de las Cámaras de Comercio e Industria: 1º A título personal: a) Los comerciantes inscritos en el Registro de Comercio y de Sociedades en la circunscripción de la Cámara de
Comercio e Industria, sin perjuicio, para los socios de sociedades colectivas y los socios de sociedades comanditarias, de lo dispuesto en el punto III del artículo L. 713-2 ;
b) Los empresarios inscritos en el Registro Central de Artesanos e inscritos en el Registro de Comercio y de Sociedades de la circunscripción;
c) Los cónyuges de las personas enumeradas en las letras a o b anteriores que hubieran declarado en el Registro de Comercio y de Sociedades que colaboran en la actividad de sus cónyuges sin tener otra actividad profesional;
d) Los capitanes de navegación de altura o capitanes de la marina mercante que ejerzan el mando de un buque matriculado en Francia cuyo puerto de amarre esté situado en la circunscripción, los pilotos marítimos que ejerzan sus funciones en un puerto situado en la circunscripción, los pilotos de aviación civil domiciliados en la circunscripción y que ejerzan el mando de una aeronave matriculada en Francia;
e) Los miembros en ejercicio de los tribunaux de commerce, así como las antiguos miembros de dichos tribunales que hayan solicitado su inscripción en la lista electoral;
2º Por medio de un representante: a) Las sociedades de carácter mercantil en el sentido del artículo L. 210-1 y los establecimientos públicos de
carácter industrial y comercial cuyo domicilio social esté situado en la circunscripción; b) En el caso de un establecimiento que sea objeto en la circunscripción de una inscripción complementaria o de
una matriculación secundaria, a no ser que hubieran sido dispensados de ello por las leyes y reglamentos en vigor, las personas físicas mencionadas en las letras a y b del apartado 1° y las personas físicas mencionadas en la letra a del presente apartado 2°, cualquiera que sea la circunscripción en las que esta personas ejerzan su propio derecho de voto;
c) Las sociedades de carácter mercantil cuyo domicilio social esté situado fuera del territorio nacional, que dispongan en la circunscripción de un establecimiento inscrito en el Registro de Comercio y de Sociedades;
3º Los directivos empleados en la circunscripción por los electores mencionados en los apartados 1° y 2°, que desempeñan funciones que impliquen responsabilidades de dirección comercial, técnica o administrativa de la empresa o del establecimiento.
Artículo L713-8 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, III Diario Oficial de 17 de abril de 2004)
- Los representantes mencionados en el apartado 2° del artículo L.713-7 deberán ejercer en la empresa las
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CÓDIGO DE COMERCIO funciones de presidente director general, de presidente o de miembro del consejo de administración, de director general, de presidente o de miembro del directorio, de presidente del consejo de supervisión, de gerente, de presidente o de miembro del consejo de administración o de director de un establecimiento público de carácter industrial y comercial, o bien, en su defecto y para representarlos en concepto de mandatario, funciones que impliquen responsabilidades de dirección comercial, técnica o administrativa de la empresa o del establecimiento.
Artículo L713-9 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, III, Artículo 4 Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XIX Diario Oficial de 10 de diciembre de 2004)
Los electores a título personal y los directivos mencionados en los apartados 1° y 3° del artículo L. 713-7 y los representantes de las personas físicas o jurídicas mencionadas en el apartado 2° del punto II del mismo artículo deberán ser nacionales de un Estado miembro de la Comunidad Europea o de un Estado parte en acuerdo sobre el Espacio Económico Europeo.
Deberán asimismo: 1º Reunir los requisitos establecidos en el artículo L. 2 del Código Electoral, sin perjuicio de lo dispuesto en primer
párrafo del presente artículo; 2º No haber sido el autor de hechos que hayan dado lugar a una condena penal por hechos contrarios al honor, a
la moral y a las buenas costumbres; 2º bis No haber sido afectado por la quiebra personal o por una de las medidas de inhabilitación o de caducidad
previstas en el capítulo V del título II del libro VI del presente Código, en el título VI de la Ley nº 85-98 de 25 de enero 1985 relativa al procedimiento de suspensión de pagos y la liquidación judicial de las empresas o, en el régimen anterior de esta Ley, en el título II de la Ley nº 67-563 de 13 de julio 1967 sobre la suspensión de pagos, la liquidación de bienes, la quiebra personal y las bancarrotas, de una medida de prohibición definida en el artículo L. 625-8 del presente Código o de una medida de prohibición de ejercer una actividad comercial;
3º No haber sido condenado a penas, inhabilitaciones o sanciones dictadas en aplicación de legislaciones en vigor en los Estados miembros de la Comunidad Europea o en los Estados partes en el acuerdo sobre el Espacio Económico Europeo y que sean equivalentes a las mencionadas en los apartados 2° y 2° bis.
Artículo L713-10 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 5 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, III, Artículo 5 Diario Oficial de 17 de abril de 2004)
Podrán ser candidatos a las funciones de delegado de la Cámara de Comercio e Industria las personas que pertenezcan al colegio electoral tal y como se define en el artículo L.713-7.
Artículo L713-11 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 6 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV Diario Oficial de 17 de abril de 2004)
Los electores de los delegados de las Cámaras de Comercio e Industria y de los miembros de las Cámaras de Comercio e Industria serán repartidos en cada circunscripción administrativa en tres categorías profesionales correspondientes respectivamente a las actividades comerciales, industriales o de servicios.
En el seno de estas tres categorías, los electores podrán eventualmente ser repartidos en subcategorías profesionales definidas en función de la envergadura de la empresa o bien de sus actividades específicas.
Artículo L713-12 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV Diario Oficial de 17 de abril de 2004)
El número de puestos de delegados de las Cámaras de Comercio e Industria, que no podrá ser inferior a sesenta ni superior a seiscientos, será determinado teniendo en cuenta la importancia del cuerpo electoral de las cámaras profesionales de la circunscripción, del número de miembros elegidos por la Cámara de Comercio e Industria y del número de Tribunaux de commerce incluidos en la circunscripción de esta Cámara.
El número de puestos de una Cámara de Comercio e Industria será de veinticuatro a cincuenta para las Cámaras de Comercio e Industria cuya circunscripción cuente con menos de 30.000 electores, de treinta y ocho a setenta para aquéllas cuya circunscripción cuente entre 30.000 y 100.000 y de sesenta y cuatro a cien para aquéllas cuya circunscripción cuente con más de 100.000 electores.
Artículo L713-13 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV Diario Oficial de 17 de abril de 2004)
La distribución de los puestos por categorías y subcategorías profesionales será realizada teniendo en cuenta las bases imponibles de los profesionales pertenecientes a su circunscripción, el número de éstos y el número de trabajadores que empleen.
Ninguna de las categorías profesionales podrá disponer de una representación superior a la mitad del número de
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CÓDIGO DE COMERCIO puestos.
Artículo L713-14 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 7 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV Diario Oficial de 17 de abril de 2004)
Las listas electorales se establecerán en la circunscripción del Tribunal de commerce por una comisión presidida por el juez adscrito a la supervisión del Registro de Comercio y de Sociedades y estarán sujetas a las prescripciones del párrafo primero del artículo L.25 y de los artículos L.27, L.34 y L.35 del Código Electoral.
Artículo L713-15 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 8 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV, Artículo 6 Diario Oficial de 17 de abril de 2004)
Para la elección de los miembros de las Cámaras de Comercio e Industria, cada elector dispondrá de tantos votos como condiciones para ser elector en aplicación del artículo L.713-1.
Para la elección de los delegados de las Cámaras de Comercio e Industria, cada elector dispondrá de un solo voto. El derecho de voto en las elecciones de los miembros de Cámaras de Comercio e Industria y de los delegados de
las Cámaras de Comercio e Industria podrá ser ejercido por correspondencia o por vía electrónica. En caso de que un mismo elector utilice, en una misma calidad, dos vías de votación, solamente la vía electrónica será considerada válida.
Artículo L713-16 (introducido por la Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV, Artículo 6-1 Diario Oficial de 17 de abril de 2004)
Los delegados de las Cámaras de Comercio e Industria y los miembros de las Cámaras de Comercio e Industria serán elegidos por votación mayoritaria plurinominal a una sola vuelta. Si varios candidatos obtuvieran el mismo número de votos, se proclamará elegido el de mayor edad.
NOTA: El artículo 6-1 de la disposición 2004-328 está introducido por el artículo 78 XIX de la Ley 2004-1343 de 9 de diciembre de 2004 DORF de 10 de diciembre de 2004.
Artículo L713-17 (introducido por la Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV, Artículo 7 Diario Oficial de 17 de abril de 2004)
Las operaciones relativas a la elección de los delegados de las Cámaras de Comercio e Industria y a la elección de los miembros de las Cámaras de Comercio e Industria serán organizadas en la misma fecha, por la autoridad administrativa y, bajo control de ésta, por las Cámaras de Comercio e Industria. Dichas operaciones estarán sujetas a lo dispuesto en los artículos L. 49, L. 50, L. 58 a L. 67 del Código Electoral. El que incumpliera estas disposiciones será castigado con las penas previstas en los artículos L. 86 a L. 117 del mismo Código.
Una comisión presidida por el Prefecto o su representante se encargará de velar por la regularidad de la votación y de la proclamación de los resultados.
Los recursos contra las elecciones de delegados de las Cámaras de Comercio e Industria y miembros de las Cámaras de Comercio e Industria se someterán al Tribunal Administrativo como en las elecciones municipales.
Artículo L713-18 (introducido por la Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV Diario Oficial de 17 de abril de 2004)
Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de los artículos L.713-1 al 713-14. Este decreto determinará en particular las condiciones en las que se repartirán los puestos de delegados de cámaras profesionales y de miembros de una Cámara de Comercio e Industria entre las diferentes categorías profesionales.
TITULO II DEL EQUIPAMIENTO COMERCIAL Artículos L720-1 a
L720-11
Artículo L720-1 (Ley nº 2004-804 de 9 de agosto de 2004 Artículo 18 I Diario Oficial de 11 de agosto de 2004)
Las implantaciones, ampliaciones, traslados de actividades existentes y cambios de sector de actividad de empresas comerciales y artesanales deberán responder a las exigencias de ordenación territorial, de protección medioambiental y de calidad del urbanismo. Deberán contribuir en particular al mantenimiento de las actividades en las zonas rurales y de montaña, así como al reequilibrio de las aglomeraciones por medio del desarrollo de actividades en el centro de las ciudades y en las zonas de dinamización urbana.
Deberán igualmente contribuir a la modernización de los equipamientos comerciales, a su adaptación a la evolución de las modas de consumo y de las técnicas de comercialización, a la comodidad del consumidor en sus compras y a la mejora de las condiciones laborales de los trabajadores.
El programa nacional de desarrollo y de modernización de las actividades comerciales y artesanales mencionado en el Artículo 1 de la Ley N° 73-1193 de 27 de diciembre de 1973 de orientación del comercio y de la artesanía
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CÓDIGO DE COMERCIO establecerá las orientaciones del equipamiento comercial para la consecución de los objetivos definidos en el presente artículo.
Artículo L720-2 Los poderes públicos facilitarán la reagrupación de empresas comerciales y artesanales y la creación de servicios
comunes que permitan mejorar su productividad y su competitividad y eventualmente beneficiar a su clientela con servicios complementarios.
Artículo L720-3 (Ley nº 2000-1208 de 13 de diciembre de 2000 Artículo 97 Diario Oficial de 14 de diciembre de 2000) (Ley nº 2004-804 de 9 de agosto de 2004 Artículo 18 II Diario Oficial de 11 de agosto de 2004)
I.- La comisión departamental de equipamiento comercial decidirá sobre las solicitudes de autorización que le sean presentadas en virtud de las disposiciones de los artículos L.720-5 y L.720-6.
II. II.- En el marco de los principios definidos en los artículos L.720-1 y L.720-2, la comisión decidirá teniendo en cuenta:
1º La oferta y la demanda globales para cada sector de actividad en el área de mercado en cuestión; - El impacto global del proyecto sobre los flujos de coches particulares y de vehículos de reparto; - La calidad del servicio de transporte público u otros medios de transporte alternativos; - Las capacidades de admisión de carga y descarga de mercancías; 2º La densidad de equipamiento en medianas y grandes superficies de esa zona; 3º El efecto potencial del proyecto sobre el sistema comercial y artesanal de la zona y de las aglomeraciones
urbanas afectadas, y sobre el equilibrio deseable entre las diferentes formas de comercio. Cuando el proyecto sea relativo a la creación o la extensión de un conjunto comercial, mayoritariamente compuesto de tiendas especializadas en la comercialización de artículos de marca a precio reducido, la repercusión potencial de dicho proyecto se apreciará independientemente de la especificidad de la política comercial de este tipo de tiendas;
4º El impacto eventual del proyecto en términos de empleos directos e indirectos; 5º Las condiciones de ejercicio de la libre competencia en el seno del sector del comercio y de la artesanía; 6º Los compromisos de los que demandan la creación de establecimientos minoristas predominantemente de
alimentación de creación de establecimientos del mismo tipo en las zonas de dinamización urbana o los territorios rurales de desarrollo prioritario, con una superficie de venta inferior a 300 metros cuadrados, para al menos un 10% de las superficies solicitadas.
III. - Las decisiones de la comisión departamental serán fruto de la labor realizada por el observatorio departamental de equipamiento comercial.
IV. - El observatorio departamental de equipamiento comercial recopilará los datos necesarios para la elaboración de los planes de desarrollo comercial respetando las orientaciones definidas en el artículo L.720-1. Tendrá en cuenta, si procede, las orientaciones de las normas urbanísticas mencionadas en el artículo L.111-1-1 del Código de Urbanismo y los esquemas regionales de ordenación urbanística y de desarrollo del territorio previstos en el artículo 34 de la Ley nº 83-8 de 7 de enero de 1983 relativa al reparto de competencias entre los Ayuntamientos, los departamentos, las Regiones y el Estado.
V.- El plan de desarrollo comercial será elaborado y hecho público en las condiciones establecidas por un decreto adoptado en Conseil d'Etat.
VI.- Además, cuando la operación prevista afectara a una aglomeración en la que se hayan implantado los procedimientos previstos en los artículos L.303.1 del Código de la Construcción y de la Vivienda y el L. 123-11 del Código de Urbanismo, la comisión tendrá en cuenta las acciones destinadas a asegurar la permanencia o la implantación de comercios de proximidad, de artesanos o actividades artesanales.
VII. - Los proyectos sólo se someterán al examen de la comisión si van acompañados de la indicación de la firma comercial del o de los futuros explotadores de los establecimientos cuya superficie sea igual o superior a un umbral fijado por decreto.
VIII. - Las solicitudes referidas a la creación de un establecimiento de comercio minorista o de un complejo comercial tal y como se define en el artículo L.720-6 de una superficie de venta superior a 6.000 metros cuadrados irán acompañadas de las conclusiones de una consulta pública en relación con los aspectos económicos, sociales y de ordenación urbanística del proyecto, prescrita en las condiciones determinadas por un decreto adoptado en Conseil d'Etat. Esta consulta se realizará conjuntamente con la consulta pública prevista en aplicación del artículo 1º de la Ley nº 83-630 de 12 de julio de 1983 relativa a la democratización de las consultas públicas y a la protección del medio ambiente cuando ésta se impone en el marco de la tramitación de la licencia de obra.
Artículo L720-4 (Ley nº 2003-660 de 21 de julio de 2003 Artículo 56 Diario Oficial de 22 de julio de 2003)
En los departamentos de Ultramar, salvo la excepción justificada por parte de la comisión departamental de equipamiento comercial, la autorización solicitada no podrá ser otorgada cuando se considere que tendría como consecuencia sobrepasar el umbral del 25% en el conjunto del departamento, o aumentar la superficie de venta total de los comercios minoristas predominantemente de alimentación con más de 300 metros cuadrados de superficie de venta, si ésta ya fuera superior a este umbral, tanto si ésta afectara al conjunto del proyecto o sólo a una parte, y cuando dicha superficie pertenezca:
1ºA una misma marca; 2° O a una misma sociedad o una de sus filiales, o una sociedad en la que esta sociedad posea una fracción del
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CÓDIGO DE COMERCIO capital comprendida entre un 10% y un 50%, o una sociedad controlada por esta misma sociedad en el sentido del artículo L.233-3;
3°O controlada directa o indirectamente por un socio por lo menos que ejerza sobre ella una influencia en el sentido del artículo L.233-16, o que tenga un dirigente común de hecho o de derecho.
Artículo L.720-5 (Ley nº 2005-157 de 23 de febrero de 2005 art. 40, art. 49 Diario Oficial de 24 de febrero de 2005) (Ley nº 2006-10 de 5 de enero de 2006 art. 37 Diario Oficial de 6 de enero de 2006)
I.- Estarán sujetos a una autorización de explotación comercial los proyectos que tengan por objeto: 1º La creación de un establecimiento comercial minorista de una superficie de venta superior a 300 metros
cuadrados, instalado en una nueva construcción, o bien en un inmueble ya existente reformado; 2º La ampliación de la superficie de venta de un establecimiento comercial minorista que hubiera alcanzado el
umbral de los 300 metros cuadrados o que lo fuera a sobrepasar al realizar el proyecto. Será considerada como ampliación la utilización suplementaria de cualquier espacio, cubierto o no, fijo o móvil, que no entrara en el ámbito de aplicación del artículo L.310-2;
3º La creación o la ampliación de un complejo comercial tal como ha sido definido en el artículo L.720-6 de una superficie de venta total superior a 300 metros cuadrados o que fuera a sobrepasar este umbral al realizar el proyecto;
4º La creación o la ampliación de cualquier instalación de distribución minorista de combustibles y de carburantes, sea cual fuere su superficie de venta, anexa a un establecimiento comercial minorista de los mencionados en el apartado 1º anterior o a un complejo comercial de los mencionados en el apartado 3º anterior y situado fuera del dominio público de autopistas o vías rápidas;
Las disposiciones relativas a las instalaciones de distribución de combustibles serán establecidas por decreto; 5º La reutilización para uso comercial minorista de una superficie de venta superior a 300 metros cuadrados
liberada como consecuencia de una autorización para la creación de un establecimiento comercial mediante traslado de las actividades existentes, sea cual fuere la fecha en que hubiera sido autorizado ese traslado;
6º La reapertura al público, en el mismo lugar, de un establecimiento comercial minorista de una superficie de venta superior a 300 metros cuadrados cuyos locales hubieran dejado de ser explotados durante dos años, teniendo en cuenta que en el caso de un procedimiento de saneamiento judicial del empresario que lo explotara, este plazo sólo empieza a contar a partir del día en que el propietario haya recuperado la plena y entera disposición de los locales;
7º Las construcciones nuevas, las ampliaciones o las reformas de inmuebles existentes orientadas a la creación de establecimientos hoteleros de una capacidad superior a treinta habitaciones fuera de la región de Ile-de-France, y de cincuenta habitaciones en esta última.
Cuando se trate de decidir sobre estas solicitudes, la comisión departamental de infraestructuras comerciales tendrá en cuenta el dictamen previo de la comisión departamental de acción turística, presentado por el delegado regional de turismo que asista a la sesión. Además de los criterios contemplados en el artículo L.720-3, la comisión resolverá considerando la densidad de establecimientos hoteleros de la zona en cuestión.
8º Cualquier cambio de sector de actividad de un comercio de una superficie de venta superior a 2.000 metros cuadrados estará igualmente supeditado a la autorización de explotación comercial prevista en el presente artículo. Este umbral será rebajado a 300 metros cuadrados cuando la nueva actividad del establecimiento sea predominantemente del sector de la alimentación.
En el caso de los viveristas y los horticultores, la superficie de venta mencionada en el apartado 1° será la que estos dediquen a la venta al por menor de productos no procedentes de su explotación, con arreglo a las condiciones establecidas por decreto.
II. - Las reagrupaciones de superficies de venta de establecimientos vecinos, sin creación de superficies suplementarias, que no excedan de 1.000 metros cuadrados, o 300 metros cuadrados cuando la nueva actividad sea predominantemente del sector de la alimentación, no estarán obligadas a solicitar una autorización de explotación comercial.
III. - Las farmacias no estarán obligadas a la obtención de una autorización de explotación comercial, ni serán tenidas en cuenta para la aplicación del apartado 3º del punto I anterior.
IV. - Tampoco necesitarán una autorización de explotación especial las plazas de abastos y mercados de abastecimiento de minoristas, cubiertos o no, establecidos en terreno público y cuya creación fuera decidida por el Consejo Municipal, los establecimientos accesibles únicamente a los viajeros provistos de billetes, situados en las instalaciones de los aeropuertos, así como las partes del dominio público ferroviario de una superficie máxima de 1.000 metros cuadrados.
V.- La creación o la ampliación de garajes o comercios de vehículos automóviles que dispongan de taller de mantenimiento y reparación no estará obligada a solicitar una autorización de explotación comercial, cuando no esté previsto superar la superficie total de 1.000 metros cuadrados.
VI.- La autorización de explotación comercial deberá ser expedida previamente a la concesión de la licencia de obra, si procede, o antes de la realización del proyecto si no fuera necesaria la licencia de obra.
La autorización se concederá por metro cuadrado de superficie de venta o por habitación. Será necesaria una nueva solicitud cuando el proyecto, durante su tramitación o su realización, sufra
modificaciones sustanciales en la naturaleza del comercio o de las superficies de venta. Lo mismo ocurrirá en caso de modificación de la o de las marcas designadas por el solicitante.
La autorización previa requerida para la creación de establecimientos comerciales minoristas no será transmisible ni transferible.
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CÓDIGO DE COMERCIO VII.- Lo dispuesto en el apartado 7º del punto II no será de aplicación a los Departamentos de Ultramar.
Artículo L720-6 I.- Se considerará que forman parte de un mismo complejo comercial los establecimientos reunidos en un mismo
emplazamiento, estén o no situados en edificios diferentes y sean una o varias personas los propietarios o titulares de la explotación y que:
1º Hayan sido concebidos en el marco de una misma operación de ordenación urbanística realizada en una o varias etapas;
2º O se beneficien de planificaciones concebidas para permitir el acceso a los diferentes establecimientos a una misma clientela;
3º O realicen una gestión común de algunos elementos de su explotación, sobre todo la creación de servicios colectivos o la utilización habitual de publicidad y de prácticas comerciales comunes;
4º O estén reunidos bajo una estructura jurídica común, controlada directa o indirectamente por al menos un socio, que ejerza sobre ella una influencia en el sentido del artículo L.233-16 o que tengan un dirigente común, de hecho o de derecho.
II. - Sin embargo, las disposiciones del presente artículo no serán aplicables a las zonas de ordenación urbanística concertada, creadas en un centro urbano en virtud del artículo L.311-1 del Código de Urbanismo.
Artículo L720-7 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
No obstante las disposiciones particulares aplicables a las Entidades locales y a las sociedades de economía mixta locales, todos los contratos realizados por personas públicas o privadas, para la realización de un proyecto autorizado en virtud de los artículos L.720-5 y L.720-6, serán comunicados por cada parte contratante al Prefecto y a la Cámara Regional de Cuentas, según las condiciones determinadas por decreto.
Esta obligación se extenderá igualmente a los contratos anteriores a la autorización y que se refieran al acondicionamiento y urbanización de los terrenos en los que se ha realizado la implantación de los establecimientos que se hubieran beneficiado de la autorización. Afectará a todo tipo de contratos, incluidos los que prevean cesiones gratuitas, prestaciones en especie y contrapartidas no materiales.
Esta comunicación se producirá en los dos meses siguientes a la conclusión de los contratos o, si se trata de contratos anteriores a la autorización, en un plazo de dos meses contados a partir de la autorización.
Toda infracción a lo dispuesto en el presente artículo será sancionada con multa de 15.000 euros.
Artículo L720-8 I.- El Prefecto presidirá la comisión departamental de equipamiento comercial y sin tomar parte en la votación,
informará a la comisión sobre el contenido del programa nacional previsto en el artículo L.720-1 y sobre el plan de desarrollo comercial mencionado en el artículo L.720-3.
II. - En los departamentos, excluido París, ésta estará compuesta: 1º De los tres representantes políticos siguientes: a) El alcalde del ayuntamiento de implantación; b) El presidente de la entidad pública de cooperación mancomunal competente en materia de acondicionamiento
del espacio y de desarrollo, de la que forme parte el ayuntamiento de implantación o, en su defecto, el Consejero General del Cantón de implantación;
c) El alcalde del ayuntamiento más poblado de la circunscripción, aparte del ayuntamiento de implantación; excluidos los departamentos de Hauts-de-Seine, de Seine-Saint-Denis, de Val-de-Marne y de los ayuntamientos de Essonne, de Val-d'Oise, de Yvelines y de Seine-et-Marne que pertenecen al núcleo parisino, en el caso de que el ayuntamiento de implantación pertenezca a una mancomunidad que incluya al menos cinco ayuntamientos, el alcalde del ayuntamiento más poblado será escogido entre los alcaldes de los ayuntamientos de dicha mancomunidad;
2º De las tres personalidades siguientes: a) El presidente de la cámara de comercio y de industria cuya circunscripción territorial incluya al ayuntamiento de
implantación, o su representante; b) El presidente de la Cámara Profesional de Artesanía cuya circunscripción territorial incluya al ayuntamiento de
implantación, o su representante; c) Un representante de las asociaciones de consumidores del departamento. Cuando el alcalde del ayuntamiento de implantación o el alcalde del ayuntamiento más poblado citado
anteriormente fuera también Consejero General del Cantón, el Prefecto nombrará para sustituir a este último, a un alcalde de un ayuntamiento situado en la mancomunidad o en la circunscripción afectadas.
III. - En París se compondrá: 1º De los tres representantes políticos siguientes: a) El alcalde de París; b) El alcalde de la circunscripción del lugar de implantación; c) Un consejero de la circunscripción designado por el consejo de París; 2º De las tres personalidades siguientes: a) El presidente de la Cámara de Comercio e Industria de París o su representante; b) El Presidente de la Cámara Profesional de Artesanía de París o su representante; c) Un representante de las asociaciones de consumidores del departamento.
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CÓDIGO DE COMERCIO IV. - Cualquier miembro de la comisión departamental de equipamiento comercial deberá informar al Prefecto de
los intereses que posea y de la función que ejerza en una actividad económica. Ningún miembro de la comisión podrá deliberar en un asunto en que posea un interés personal y directo o si
representa o ha representado a una de las partes interesadas. V.- Asistirán a las sesiones los responsables de los servicios descentralizados del Estado encargados del
equipamiento, de la competencia y del consumo así como del empleo. VI.- En la región de Ile-de-France, asistirá también a las sesiones un representante del Prefecto de región. La tramitación de las solicitudes de autorización será realizada por los servicios descentralizados del Estado. VII. - Las solicitudes de autorización serán presentadas en las condiciones determinadas por decreto adoptado en
Conseil d'Etat ; las solicitudes no destinadas a superficies de venta superiores a los 1.000 metros cuadrados se beneficiarán de un procedimiento simplificado.
VIII. - Las condiciones de designación de los miembros de la comisión y las modalidades de su funcionamiento serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L720-9 La comisión departamental de equipamiento comercial, siguiendo un procedimiento establecido por decreto,
autorizará los proyectos por una votación favorable de cuatro de sus miembros. El acta indicará el sentido del voto emitido por cada uno de los miembros.
Artículo L720-10 La comisión departamental de equipamiento comercial deberá decidir sobre las solicitudes de autorización citadas
en el artículo L.720-5 en un plazo de cuatro meses, contados desde el momento de la presentación de cada solicitud, y sus decisiones deberán ser motivadas sobre todo en razón a las disposiciones de los artículos L.720-1 y L.720-3. Pasado este plazo, se considerará que la autorización ha sido concedida. Los miembros de la comisión tendrán conocimiento de las solicitudes presentadas al menos un mes antes de tener que tomar la decisión.
Por iniciativa del Prefecto, de los dos miembros de la comisión, de los que uno será una autoridad, o del solicitante, la decisión de la comisión departamental podrá ser objeto de un recurso ante la comisión nacional de equipamiento comercial prevista en el artículo L.720-11, en un plazo de dos meses contados a partir de su notificación o de su intervención implícita y se resolverá en un plazo de cuatro meses.
Las comisiones autorizarán o denegarán los proyectos en su totalidad. Antes de la expiración del plazo de recurso o, en caso de recurso, antes de la resolución en apelación de la
comisión nacional, no podrá concederse la licencia de obra ni iniciarse su realización y no podrán ser presentadas nuevas solicitudes para el mismo terreno de asentamiento ante la comisión departamental de equipamiento comercial.
En caso de denegación por un motivo de fondo de la solicitud de autorización por la comisión nacional antes mencionada, el mismo solicitante no podrá presentar nueva solicitud para un mismo proyecto, en el mismo terreno, durante un período de un año contado a partir de la fecha de la resolución de la comisión nacional.
Artículo L720-11 I.- La comisión nacional de equipamiento comercial constará de ocho miembros nombrados, por un período de seis
años no renovables, por decreto adoptado tras el informe del Ministro de Comercio. La comisión será renovada en su mitad cada tres años.
II. - Se compondrá de: 1º Un miembro del Conseil d'Etat nombrado por el vicepresidente del Conseil d'Etat, como presidente; 2º Un miembro de la Cour des comptes nombrado por el primer presidente de la Cour des comptes; 3º Un miembro de la Inspección General de Hacienda nombrado por el jefe de dicho servicio; 4º Un miembro del cuerpo de inspectores generales del equipamiento nombrado por el vicepresidente del Consejo
General de Caminos y Puentes; 5º Cuatro personalidades designadas por su competencia en materia de distribución, de consumo, de ordenación
del territorio o de empleo, en razón de una por el presidente de la Asamblea Nacional, una por el presidente del Senado, una por el Ministro de Comercio y una por el Ministro competente en materia de empleo.
II. - El presidente de la comisión dispondrá de voto determinante en caso de empate de votos. III. - Todo miembro de la Comisión deberá informar al presidente de los intereses que posea o de la función que
ejerza en una actividad económica. IV. - Ningún miembro de la comisión podrá deliberar en un asunto en que posea un interés personal y directo o si
representa o ha representado a una de las partes interesadas. V.- El alcalde del ayuntamiento de implantación miembro de la comisión departamental cuya decisión fuera objeto
de un recurso será escuchado por la Comisión Nacional a petición propia. VI.- El Comisario del Gobierno designado por el Ministro de Comercio asistirá a las sesiones de la Comisión. Será
el encargado de informar sobre los expedientes. VII. - Las condiciones de nombramiento de los miembros de la comisión y del presidente de ésta, así como sus
normas de funcionamiento se determinarán por decreto adoptado en Conseil d'Etat.
TITULO III DE LOS MERCADOS CENTRALES DE ABASTECIMIENTO Artículos L730-1 a
L730-16
Artículo L730-1
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CÓDIGO DE COMERCIO (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 34 Diario Oficial de 27 de marzo de 2004)
Los "Mercados de Interés Nacional" son servicios públicos de gestión de mercados, cuyo acceso está reservado a los productores y comerciantes, que participan en la organización y productividad de los circuitos de distribución de productos agrícolas y alimentarios, en la promoción de la competencia en estos sectores económicos y en la seguridad alimentaria de la población.
La clasificación de los mercados de productos agrícolas y alimentarios dentro de los "Mercados de Interés Nacional" o la creación de dichos mercados se acordará por decreto, previa propuesta de los Consejos Regionales.
Estos mercados podrán establecerse en el dominio público o en el dominio privado de una o varias personas jurídicas de derecho público o en inmuebles pertenecientes a personas privadas.
La desclasificación de la condición de Mercado de Interés Nacional podrá ser acordada por orden del Ministro de Comercio y del Ministro de Agricultura, previa propuesta del Consejo Regional si la actividad del mercado ya no permitiera responder a las misiones definidas en el primer párrafo o en la organización general determinada en las condiciones establecidas en el artículo L. 730-15.
Artículo L730-2 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 35 Diario Oficial de 27 de marzo de 2004)
La lista de "Mercados de Interés Nacional" que el Estado prevé planificar y gestionar serán establecida por decreto.
Para los demás "Mercados de Interés Nacional", los municipios de los territorios donde éstos estén implantados, o las agrupaciones de municipios interesadas, se encargarán de su planificación y gestión, en régimen de gestión administrativa, o a través de la designación de una persona jurídica pública o privada. En este último caso, esta persona jurídica será designada tras una convocatoria de ofertas en las condiciones establecidas por el artículo L. 1411-1 del Código General de Entidades Territoriales.
Estos municipios, o estas agrupaciones de municipios, podrán no obstante delegar esta competencia de designación en la región, o en el caso de Córcega, en la entidad territorial de Córcega.
Artículo L730-3 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 36 I, II Diario Oficial de 27 de marzo de 2004)
La tarifa de las rentas pagadas por los titulares de autorización de ocupación o de otras formas de contribución de los usuarios del Mercado para su funcionamiento será fijada por el gestor y aprobada por el Prefecto.
El gestor del Mercado deberá presentar una cuenta de pérdidas y ganancias que le permita hacer frente al conjunto de sus obligaciones sociales, financieras y sanitarias establecidas o previsibles (1).
Si la explotación financiera de un mercado presentase o dejase prever un desequilibrio grave, los Ministros encargados de su tutela, tras haber aconsejado al gestor y, en su caso, a las entidades públicas que hubieran avalado los préstamos, podrán aumentar de oficio los cánones existentes, crear nuevas fuentes de ingresos, reducir los gastos y, de un modo general, tomar todas las disposiciones adecuadas para restablecer el equilibrio.
(1) NOTA - Estas disposiciones sólo serán aplicables a partir del primer ejercicio abierto tras la publicación de la primera disposición (véase el punto III del artículo 45 de la disposición n° 2004-274).
Artículo L730-4 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 37 Diario Oficial de 27 de marzo de 2004)
Se podrá crear un perímetro de referencia en torno al Mercado de Interés Nacional por decreto adoptado en Conseil d'Etat.
El perímetro de referencia implicará la aplicación de las prohibiciones previstas en el artículo L. 730-5. Las prohibiciones previstas se aplicarán a las ventas y a las operaciones accesorias a la venta de aquéllos
productos que se encuentren en las listas determinadas en cada caso por orden de los Ministros encargados. El decreto mencionado en el primer párrafo determinará la implantación del Mercado de Interés Nacional. La supresión anticipada de la totalidad o parte del perímetro, la extensión o la implantación del Mercado o su
traslado dentro del perímetro podrán ser determinados por decisión de la autoridad administrativa competente.
Artículo L730-5 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 38 Diario Oficial de 27 de marzo de 2004)
El decreto por el que se establece el perímetro de referencia prohibirá, en el interior de éste, la ampliación, el traslado o la creación de cualquier establecimiento en el que una persona física o jurídica practique ventas relativas a los productos o a operaciones accesorias a esas ventas, de otra forma que no sea al por menor, cuyas listas serán establecidas por orden interministerial como se prevé en el artículo L.730-4.
Esta prohibición no se aplicará a los productores y agrupaciones de productores para los productos que procedan de explotaciones situadas en el interior del perímetro de referencia.
No se considerará como una creación de establecimiento el cambio de titular del fondo de comercio. La extensión del establecimiento podrá referirse a la creación de nuevas actividades, o bien a la ampliación de los
locales comerciales. Las condiciones de aplicación de las disposiciones del presente artículo serán determinadas por decreto adoptado
en Conseil d'Etat.
Artículo L730-7 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 39 Diario Oficial de 27 de marzo de 2004)
Cuando el perímetro de referencia de un Mercado de Interés Nacional englobe el recinto de un puerto, las ventas
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CÓDIGO DE COMERCIO que no sean al detalle correspondientes a productos inscritos en las listas mencionadas en el artículo L.730-4 se regirán, en este recinto, por las disposiciones siguientes.
No se aplicarán las prohibiciones previstas en el artículo L.730-5 a las ventas relativas a productos dirigidos directamente por vía marítima a este puerto o a partir de este puerto y que correspondan a lotes cuya importancia sobrepase los límites establecidos por una orden conjunta de los Ministros encargados de la tutela de los "Mercados de Interés Nacional" y del Ministro competente en materia de puertos.
El decreto por el que se establece el perímetro de referencia podrá prohibir en el recinto del puerto las ventas de productos de importación dirigidos por otra vía que no sea la marítima, o autorizarlas solamente por lotes de una importancia que exceda de ciertos límites y en las condiciones que él establezca.
Artículo L730-8 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 40 Diario Oficial de 27 de marzo de 2004)
Excepcionalmente, la autoridad administrativa competente podrá conceder excepciones a la aplicación de las prohibiciones previstas en los artículos L.730-5 a L.730-7, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L730-10 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 41 Diario Oficial de 27 de marzo de 2004)
Las infracciones a las prohibiciones de los artículos L. 730-5 y L.730-7 así como a las disposiciones tomadas en aplicación de estos artículos deberán ser comprobadas y perseguidas en las condiciones determinadas por el párrafo primero del artículo L.450-1 y los artículos L.450-2 y L.450-3 y sancionadas con multa de 15.000 euros. Serán aplicables los artículos L.470-1 y L.470-4.
Artículo L730-12 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 42 Diario Oficial de 27 de marzo de 2004)
El derecho de ocupación privativa del emplazamiento del que disponga un comerciante establecido en el recinto de un Mercado de Interés Nacional será susceptible de ser incluido en la pignoración de su fondo de comercio.
Artículo L730-15 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 43 Diario Oficial de 27 de marzo de 2004)
Las disposiciones legislativas y reglamentarias relativas a la gestión y a la explotación de los mercados de productos agrícolas y de alimentación no serán aplicables a los "Mercados de Interés Nacional".
La organización general de los "Mercados de Interés Nacional" será determinada por decreto adoptado en Conseil d'Etat.
La modificación del recinto de los "Mercados de Interés Nacional" desprovistos de perímetro de referencia, así como su traslado, se realizarán libremente.
Artículo L730-16 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 44 Diario Oficial de 27 de marzo de 2004)
El Prefecto ejercerá las competencias de policía en el recinto del Mercado de Interés Nacional. En todo el perímetro de referencia, velará por la aplicación de las leyes y reglamentos que afecten al mercado y denunciará a este efecto al Fiscal de la República las infracciones cometidas. Cuando el mercado con su perímetro de referencia se extienda a varios departamentos, las competencias mencionadas pertenecerán al Prefecto nombrado por el Ministro de Interior.
TITULO IV DE LOS EVENTOS COMERCIALES Artículos L740-1 a
L740-3
Artículo L740-1 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 30 Diario Oficial de 27 de marzo de 2004)
Un recinto ferial es un conjunto inmobiliario cerrado e independiente dotado de infraestructuras y equipamientos adecuados, con carácter permanente y no sujeto a la declaración prevista en el artículo L. 720-5, y que alberga durante todo o parte del año diferentes eventos comerciales o de otra índole, con carácter temporal.
El recinto ferial deberá ser objeto de una inscripción ante la autoridad administrativa competente. El programa de los eventos comerciales que albergue deberá ser objeto, una vez por año, de una declaración previa a la autoridad administrativa competente.
Artículo L740-2 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 30 Diario Oficial de 27 de marzo de 2004)
Una feria profesional es un evento comercial destinado a promover un conjunto de actividades profesionales y reservado a visitantes provistos de un pase. Durante la feria profesional, sólo se podrán ofrecer en venta aquéllas mercancías que estén destinadas a un uso personal y cuyo valor no sobrepase un valor límite fijado por decreto.
La feria profesional deberá ser objeto de una declaración previa a la autoridad administrativa competente.
Artículo L740-3 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 30 Diario Oficial de 27 de marzo de 2004)
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CÓDIGO DE COMERCIO Las condiciones de aplicación del presente título serán establecidas por decreto adoptado en Conseil d'Etat.
LIBRO VIII DE ALGUNAS PROFESIONES SOMETIDAS A REGLAMENTACIÓN Artículos L811-1 a
L822-16 TITULO I DE LOS ADMINISTRADORES JUDICIALES, DE LOS MANDATARIOS JUDICIALES Artículos L811-1 a
PARA LA LIQUIDACIÓN DE EMPRESAS Y DE LOS PERITOS EN DIAGNÓSTICO L814-11 EMPRESARIAL
CAPITULO I De los administradores judiciales Artículos L811-1 a
L811-16
Sección I De la misión, de las condiciones para acceder al cargo y del ejercicio y de las Artículos L811-1 a
incompatibilidades L811-10
Subsección 1 De las misiones Artículo L811-1
Artículo L.811-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 1 y 13 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.158 VI, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales son los mandatarios, personas físicas o jurídicas, encargados en razón de una resolución judicial, de administrar los bienes ajenos o de ejercer funciones de asistencia o de supervisión en la gestión de estos bienes.
Son personalmente responsables de las tareas inherentes a la ejecución de su mandato. No obstante, cuando el buen desarrollo del procedimiento lo requiera y siempre que dispongan de una autorización motivada del presidente del Tribunal, podrán confiar a terceros, bajo su responsabilidad, una parte de dichas tareas.
Cuando los administradores judiciales encomienden a terceros tareas que forman parte de la misión que les ha encomendado el Tribunal, retribuirán a estos últimos sobre la remuneración que perciben en aplicación del decreto previsto en el artículo L.663-2.
Subsección 2 De las condiciones para acceder a la profesión Artículos L811-2 a
L811-5
Artículo L.811-2 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 2 y 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sin perjuicio de lo dispuesto en determinados ámbitos específicos del Derecho, especialmente en lo concerniente a los menores y mayores de edad que precisen protección, y sin perjuicio de las misiones ocasionales que pudieran ser confiadas a los profesionales de la Justicia en materia civil, nadie podrá ser designado judicialmente para ejercer las funciones de administrador judicial, si no estuviera inscrito en el registro elaborado por una comisión nacional creada a estos efectos.
No obstante, de manera excepcional, mediante una resolución especialmente motivada y previa autorización del Fiscal de la República, el Tribunal podrá nombrar como administrador judicial a una persona física que atestigüe una experiencia o una competencia particular en relación con el asunto y que reúna las condiciones definidas en los apartados 1° a 4° del artículo L.811-5.
Las personas citadas en el párrafo anterior no deberán haber recibido en los últimos cinco años, directa o indirectamente, una remuneración o un pago de cualquier tipo de la persona física o jurídica que fuera objeto de una medida de administración, de asistencia o de supervisión, de una persona que posea el control de esta persona jurídica o de una de las sociedades controladas por ella en el sentido de los puntos II y III del artículo L.233-16, ni deberán haberse encontrado en la situación de asesores o de subordinados de dicha persona física o jurídica. Además, no deberán tener ningún interés personal en el mandato que se les confíe, ni haber sido administradores o mandatarios judiciales objeto de una decisión de exclusión o de baja de los registros en aplicación de los artículos L.811-6, L.811-12 y L.812-4. Estarán obligadas a ejecutar los mandatos que se les confíe y deberán ajustarse a las mismas obligaciones correspondientes a las actividades profesionales de los administradores judiciales inscritos en el registro nacionaL.No podrán desempeñar las funciones de administrador judicial de manera habitual.
Las personas nombradas en aplicación del segundo párrafo, al aceptar su mandato deberán declarar bajo honor
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CÓDIGO DE COMERCIO que reúnen las condiciones determinadas en los apartados 1° a 4° del artículo L.811-5, que se ajustan a las obligaciones mencionadas en el párrafo anterior y que no se encuentran bajo el peso de una prohibición del ejercicio en aplicación del apartado penúltimo del artículo L.814-10.
Cuando el Tribunal nombre a una persona jurídica, designará en su seno a una o varias personas físicas para representarla en el cumplimiento del mandato que se le haya confiado.
Artículo L.811-3 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 3 y 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El registro nacional se dividirá en secciones correspondientes a la circunscripción de cada Cour d'Appel .
Artículo L.811-4 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 4 y 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La comisión nacional mencionada en el artículo L.811-2 estará compuesta del siguiente modo: - Un consejero de la Cour de Cassation, como presidente, nombrado por el primer presidente de la Cour de
Cassation; - un magistrado de la Cour des comptes, nombrado por el primer presidente de la Cour des comptes; - un miembro de la Inspección General de Hacienda, nombrado por el Ministro de Economía y de Hacienda; - un magistrado de una Cour d'Appel, nombrado por el primer presidente de la Cour de Cassation; - un miembro de una jurisdicción mercantil de primer grado, nombrado por el primer presidente de la Cour de
Cassation; - un profesor de Derecho, de Ciencias Económicas o de Gestión, nombrado por el Ministro competente en materia
de Universidades; - un representante del Conseil d'Etat, nombrado por el vicepresidente del Conseil d'Etat; - dos personas cualificadas en materia económica o social, nombradas por el Ministro de Justicia; - tres administradores judiciales, inscritos en el registro nacional, elegidos por sus colegas en condiciones
determinadas por decreto adoptado en Conseil d'Etat. En caso de empate en la votación, el presidente tendrá voto de calidad. Se nombrará por tres años al presidente y a los miembros de la comisión, así como a sus suplentes, en igual
número y elegidos de entre las mismas categorías profesionales. El mandato será renovable una vez. Se nombrará a un magistrado de la Fiscalía y a su suplente para ejercer las funciones de Comisario del Gobierno
ante la comisión nacional y garantizar en especial la tramitación de las solicitudes de inscripción. El Estado cubrirá los gastos de funcionamiento de esta comisión.
Artículo L.811-5 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 5, art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Nadie podrá ser inscrito en el registro por la comisión si no reúne las siguientes condiciones: 1° Ser de nacionalidad francesa o ciudadano de un Estado miembro de la Comunidad Europea o de un Estado
parte del acuerdo sobre el Espacio Económico Europeo; 2° No haber sido el autor de hechos contrarios al honor o a la moral que hayan dado lugar a una condena penal; 3° No haber sido el autor de hechos de la misma índole que hayan dado lugar a una sanción disciplinaria o
administrativa de destitución, exclusión, revocación, retirada de habilitación o retirada de autorización; 4° No haber sido objeto de una resolución de quiebra personal o de una de las medidas de prohibición del ejercicio
o de privación de derechos previstas en el Capítulo V del Título II del Libro VI del presente Código, en el Título VI de la Ley n° 85-95 de 25 de enero de 1985 relativa al procedimiento de saneamiento judicial y a la liquidación judicial de las empresas o, en el régimen anterior de esta Ley, en el Título II de la Ley n° 67-563 de 13 de julio de 1967 sobre el procedimiento de saneamiento judicial, la liquidación de bienes, la quiebra personal y las bancarrotas;
5° Haber superado el examen de acceso al curso formativo profesional, haber realizado dicho curso formativo profesional y haber superado el examen de aptitud para las funciones de administrador judicial.
Sólo se admitirá a presentarse al examen de acceso al curso formativo profesional a las personas en posesión de los títulos o los diplomas determinados por decreto.
Por excepción a lo dispuesto anteriormente, las personas que reúnan las condiciones de competencia y de experiencia profesional fijadas por decreto adoptado en Conseil d'Etat quedarán dispensadas del examen de acceso al curso formativo profesionaL.La comisión podrá además dispensar a estas personas, en las condiciones fijadas por decreto adoptado en Conseil d'Etat, de una parte del curso formativo profesional y de la totalidad o parte del examen de aptitud para las funciones de administrador judicial.
Las personas jurídicas inscritas en el registro sólo podrán desempeñar las funciones de administrador judicial por medio de uno se sus miembros que esté a su vez inscrito en el registro.
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CÓDIGO DE COMERCIO Quedarán exentas de los requisitos del diploma, del curso y del examen profesional previstos en los apartados
sexto y séptimo las personas que justifiquen haber adquirido una calificación suficiente para el ejercicio de la profesión de administrador judicial en un Estado miembro de las Comunidades europeas que no sea Francia o un Estado parte en el Acuerdo sobre el Espacio Económico europeo, con la condición de realizar un examen de control de conocimientos cuyas condiciones serán determinadas igualmente por decreto adoptado en Conseil d'Etat. La lista de candidatos admitidos a presentarse al examen será establecida por la comisión.
Subsección 3 De las condiciones del ejercicio de la profesión Artículos L811-6 a
L811-9
Artículo L.811-6 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 6 y 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La comisión nacional, por su propia iniciativa o por requerimiento del Ministro de Justicia, del presidente del Consejo Nacional de administradores judiciales y de mandatarios judiciales, del comisario del Gobierno o del Fiscal de la República en cuya circunscripción esté establecido el administrador judicial, podrá, mediante decisión motivada y tras haber emplazado al interesado para que presente sus observaciones, retirar del registro mencionado en el artículo L.811-2 al administrador judicial que, en razón de su estado físico o mental, no pudiera asegurar el ejercicio normal de sus funciones.
Causar baja en el registro no impedirá el ejercicio de las diligencias disciplinarias en contra del administrador judicial si los hechos imputados se hubieran cometido durante el ejercicio de sus funciones.
Artículo L.811-7 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales podrán constituir entre ellos sociedades civiles profesionales reguladas por la Ley nº 66-879 de 29 de noviembre de 1966 relativa a las sociedades civiles profesionales, para el ejercicio en común de su profesión. Podrán asimismo ejercer su profesión al amparo de sociedades de profesiones liberales reguladas por la Ley n° 90-1258 de 31 de diciembre de 1990 relativa el ejercicio en forma de sociedades de profesiones liberales sujetas a un estatuto legal o reglamentario o cuyo título esté protegido. Podrán también ser miembros de una agrupación de interés económico o de una agrupación europea de interés económico o socios de una sociedad participativa regulada por el Título II de la Ley nº 90-1258 de 31 de diciembre de 1990 relativa al ejercicio en forma de sociedades de profesiones liberales sujetas a un estatuto legal o reglamentario o cuyo título esté protegido.
Artículo L.811-8 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 7, art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los expedientes tramitados por el administrador judicial que abandone el ejercicio sus funciones, sea por el motivo que fuere, serán distribuidos por el órgano jurisdiccional entre los demás administradores en un plazo de tres meses contados desde el cese en sus funciones.
Sin embargo, para asegurar la eficacia en la administración de la Justicia, el órgano jurisdiccional podrá autorizar al antiguo administrador judicial a que prosiga la tramitación de uno o varios expedientes abiertos, salvo si la causa del abandono de sus funciones fuera su exclusión del registro. Este administrador judicial continuará sujeto a las disposiciones de los artículos L.811-10 à L.811-16, L.814-1 y L.814-5.
Artículo L.811-9 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las personas inscritas en el registro estarán habilitadas para ejercer sus funciones en todo el territorio nacional.
Subsección 4 De las incompatibilidades Artículo L811-10
Artículo L.811-10 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 8 y art. 13 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.164 II, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La condición de administrador judicial inscrito en el registro será incompatible con el ejercicio de cualquier otra
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CÓDIGO DE COMERCIO profesión, salvo la de abogado.
Además, será incompatible con: 1° Todas las actividades de carácter mercantil, tanto si fueran ejercidas directamente como por persona
interpuesta; 2° La calidad de socio en una sociedad colectiva, de socio comanditario en una sociedad comanditaria simple o por
acciones, de gerente de una sociedad de responsabilidad limitada, de presidente del consejo de administración, miembro del directorio, director general o director general delegado de una sociedad anónima, de presidente o de dirigente de una sociedad por acciones simple, de miembro del consejo de supervisión o de administrador de una sociedad mercantil, de gerente de una sociedad civil, salvo si estas sociedad tuvieran como finalidad el ejercicio de la profesión de administrador judicial o la adquisición de locales para dicho ejercicio. Un administrador judicial podrá asimismo ejercer las funciones de gerente de una sociedad civil cuya finalidad exclusiva sea la gestión de intereses de carácter familiar.
La condición de administrador judicial inscrito en el registro no impedirá el ejercicio de una actividad de consulta para otras materias correspondientes a la calificación del interesado ni el cumplimiento de los mandatos de mandatario ad hoc y de conciliador previstos en los artículos L.611-3 y L.611-6 del presente Código y en el artículo L.351-4 del Código Rural, de auditor para la ejecución de un plan, de administrador o de liquidador en la forma amistosa, de perito judicial y de depositario por arreglo amistoso o por orden judiciaL.Esta actividad y estos mandatos, con excepción de los mandatos de mandatario ad hoc, de conciliador y de auditor de la ejecución del plan, sólo podrán ejercerse con carácter accesorio.
Las condiciones del presente artículo, a excepción de las del párrafo cuarto, serán aplicables a las personas jurídicas inscritas en el registro.
Sección II De la supervisión, de la inspección y de la disciplina Artículos L811-11 a
L811-16
Subsección 1 De la supervisión y de la inspección Artículos L811-11 a
L811-11-2
Artículo L.811-11 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 9 y art. 13 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 155, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales estarán sometidos a la supervisión del Ministerio FiscaL.En su actividad profesional, habrán de someterse a inspecciones confiadas a la autoridad pública y en cuyo proceso estarán obligados a suministrar todas las informaciones o documentos útiles sin poder objetar el secreto profesional.
La organización y las condiciones de tales inspecciones serán determinadas por decreto adoptado en Conseil d'Etat.
En el marco del control ejercido por el consejo nacional mencionado en el artículo L.814-2, los administradores judiciales estarán obligados, sin poder objetar el secreto profesional, a someterse a los requerimientos de las personas encargadas del control para acceder a todas las informaciones o documentos útiles.
El auditor de cuentas del administrador judicial sometido a un control o a una inspección estará obligado, sin poder objetar el secreto profesional, a someterse a los requerimientos de las personas encargadas del control o de la inspección, y a comunicarles toda la información recabada o a todo documento realizado en el marco de su misión.
La Caja de Depósitos y Consignaciones estará obligada, sin poder objetar el secreto profesional, a someterse a los requerimientos de las personas encargadas de la inspección y del consejo nacional mencionado en el artículo L.814-2 en lo concerniente al ejercicio de sus funciones, debiendo comunicarles cualquier información y documento que estos considerasen necesarios para conocer los movimientos de fondos de las cuentas abiertas a nombre de cada administrador judicial y las cantidades que en ellas hubieran sido depositadas en concepto de los mandatos objeto de la inspección o control.
NOTA: Ley 2005-845 2005-07-26 art. 190: El último párrafo del artículo L.811-11-1 del Código de Comercio entrará en vigor a partir de la publicación de la Ley, es decir el 27 de julio de 2005.
Artículo L.811-11-1 (Disposición nº 2005-1126 de 8 de septiembre de 2005 art. 2 Diario Oficial de 9 de septiembre de 2005) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales estarán obligados a nombrar a un auditor de cuentas encargado de realizar el control de su contabilidad especial y de ejercer, en dicho concepto, una misión permanente de control del conjunto de fondos, efectos, títulos y demás valores pertenecientes a terceros, de los que los administradores judiciales sean los únicos tenedores en virtud de un mandato conferido en el ejercicio de sus funciones.
Dicho control se ejercerá igualmente sobre las cuentas bancarias o postales que hayan sido abiertas para las necesidades de la actividad a nombre de los deudores incursos en uno de los procedimientos previstos en el título II del libro IV y que funcionen bajo el control exclusivo del administrador o de sus delegados debidamente autorizados.
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CÓDIGO DE COMERCIO Los auditores de cuentas, a efectos de control, podrán igualmente acceder a la contabilidad general del estudio, a
los procedimientos confiados al administrador y a cualquier información útil para el cumplimiento de su misión que pudiera proporcionarle el administrador o los terceros tenedores de los fondos, no obstante cualquier disposición en contrario.
Artículo L.811-11-2 (Introducido por la Disposición nº 2005-1126 de 8 de septiembre de 2005 art. 2 Diario Oficial de 9 de septiembre de 2005)
Con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat, los auditores de cuentas informarán a las autoridades encargadas de la supervisión, inspección y control de los administradores judiciales, sobre los resultados de su trabajo y señalarán las anomalías o irregularidades que hubieran detectado en el ejercicio de sus funciones
Subsección 2 De la disciplina Artículos L811-12 A a
L811-16
Artículo L.811-12 A (Ley nº 2003-7 de 3 de enero de 2003 art. 10 y art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier infracción a las leyes y a los reglamentos, cualquier incumplimiento de las reglas profesionales, del honor y de la moral, incluso si estos fueran relativos a hechos cometidos fuera del ejercicio profesional, expondrán al mandatario judicial autor de dichos hechos a diligencias disciplinarias.
Artículo L.811-12 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 11 y art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La acción disciplinaria será interpuesta por el Ministro de Justicia, el Fiscal General de la Cour d'Appel en cuya circunscripción se hayan cometido los actos, el Comisario del Gobierno o el presidente del Consejo Nacional de administradores judiciales y mandatarios judiciales. La admisión de la dimisión de una persona inscrita en el registro de administradores judiciales no impedirá el ejercicio de las diligencias disciplinarias si los hechos imputados se hubieran cometido durante el ejercicio de sus funciones.
I. - La comisión nacional de inscripción actuará como cámara disciplinaria. El Comisario del Gobierno ejercerá en ella las funciones del Ministerio FiscaL.Podrá dictar las sanciones disciplinarias siguientes:
1º El apercibimiento; 2º La reprensión; 3º La inhabilitación profesional temporal por una plazo que no podrá exceder de los tres años; 4º La exclusión del registro de administradores judiciales. II. - El apercibimiento y la reprensión podrán ir acompañados, durante un año, de medidas de control que sometan
al administrador judicial a determinadas obligaciones especiales determinadas por la comisión. También podrá ser sometido a estas obligaciones el administrador judicial inhabilitado temporalmente cuando reemprenda el ejercicio de sus funciones.
III. - Cuando dicte una medida disciplinaria, la comisión podrá decidir, en función de la gravedad de los hechos cometidos, cargar a cuenta del administrador judicial la totalidad o parte de los gastos ocasionados por la presencia de un auditor de cuentas o de un perito durante los controles o inspecciones que hayan permitido constatar dichos hechos.
Artículo L.811-13 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Ley nº 2004-130 de 11 de febrero de 2004 art. 69 3° Diario Oficial de 12 de febrero de 2004) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier administrador judicial que hubiera sido objeto de diligencias penales o disciplinares podrá ser suspendido cautelarmente en el ejercicio de sus funciones por el Tribunal de Grande Instance de lugar en que esté establecido.
En caso de urgencia, si las inspecciones o verificaciones hubieran detectado riesgos para las sumas percibidas por el administrador judicial en razón de sus funciones, se podrá decidir la suspensión cautelar incluso antes de emprender las diligencias penales o disciplinares.
El tribunal podrá declarar en todo momento el fin de la suspensión cautelar, si el Comisario del Gobierno, o el administrador judicial así lo requiriesen.
La suspensión quedará sin efecto de pleno derecho cuando las acciones penales o disciplinares se hayan extinguido. Quedarán igualmente sin efecto de pleno derecho, en el caso previsto en el segundo párrafo, si no se hubiera iniciado ninguna diligencia penal o disciplinar al cabo de un mes de haber sido acordada la suspensión.
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CÓDIGO DE COMERCIO Artículo L.811-14 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La acción disciplinaria prescribirá a los diez años.
Artículo L.811-15 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador judicial inhabilitado, excluido del registro o suspendido deberá abstenerse de realizar cualquier acto profesional.
Los actos realizados infringiendo esta inhabilitación podrán ser declarados nulos por el Tribunal, que resolverá a puerta cerrada a petición de cualquier interesado o del Ministerio FiscaL.La resolución tendrá fuerza ejecutiva frente a todos.
Cualquier infracción a las disposiciones anteriores será castigada con las penas establecidas en caso de delito de usurpación de título previsto en el artículo 433-17 del Código Penal.
Artículo L.811-16 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 12, art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Nadie que no esté inscrito en el registro de administradores judiciales podrá hacer uso de dicho título para otra cosa que no sea la misión que se le hubiera encomendado en virtud del segundo párrafo del artículo L.811-2 o del segundo párrafo del artículo L.811-8.
Cualquier infracción a esta disposición será castigada con las penas establecidas en caso de delito de usurpación de título previsto por el artículo 433-17 del Código Penal.
Se aplicarán las mismas penas al que utilice una denominación que presente un parecido con el título de administrador judicial susceptible de crear confusión entre los ciudadanos.
CAPITULO II De los mandatarios judiciales para la liquidación de empresas Artículos L812-1 a
L812-10
Sección I De las misiones, de las condiciones para acceder a esta profesión y a su Artículos L812-1 a
ejercicio y de las incompatibilidades L812-8
Subsección 1 De las misiones Artículo L812-1
Artículo L.812-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 14 Diario Oficial de 4 de enero de 2003) (Ley nº 2004-130 de 11 de febrero de 2004 art. 69 1° Diario Oficial de 12 de febrero de 2004) (Ley nº 2005-845 de 26 de julio de 2005 art.158 V, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los mandatarios judiciales son los mandatarios, personas físicas o jurídicas, encargados por resolución judicial de representar a los acreedores y proceder a la liquidación de una empresa en las condiciones definidas por el título II del libro VI.
Son personalmente responsables de las tareas inherentes a la ejecución de su mandato. No obstante, cuando el buen desarrollo del procedimiento lo requiera y siempre que dispongan de una autorización motivada del presidente del Tribunal, podrán confiar a terceros, bajo su responsabilidad, una parte de dichas tareas.
Cuando los mandatarios judiciales encomienden a terceros tareas que forman parte de la misión que les haya confiado el Tribunal, retribuirán a estos últimos sobre la remuneración que perciban en aplicación del decreto previsto en el artículo L.663-2.
Subsección 2 De las condiciones para acceder a la profesión Artículos L812-2 a
L812-3
Artículo L.812-2 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 15 Diario Oficial de 4 de enero de 2003)
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CÓDIGO DE COMERCIO (Ley nº 2004-130 de 11 de febrero de 2004 art. 69 2º Diario Oficial de 12 de febrero de 2004) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Nadie podrá ser designado para ejercer las funciones de mandatario judicial si no estuviera inscrito en el registro elaborado a estos efectos por una comisión nacional.
II. - No obstante, de manera excepcional, mediante resolución especialmente motivada y previa autorización del Fiscal de la República, el Tribunal podrá nombrar como mandatario judicial a una persona física que atestigüe una experiencia o una competencia particular en relación con el asunto y que reúna las condiciones definidas en los apartados 1° a 4° del artículo L.812-3.
Las personas citadas en el párrafo anterior no deberán haber recibido en los últimos cinco años, directa o indirectamente, una remuneración o un pago de cualquier tipo de la persona física o jurídica incursa en un procedimiento de saneamiento judicial o de liquidación judicial, de una persona que posea el control de esta persona jurídica o de una de las sociedades controladas por ella en el sentido de los puntos II y III del artículo L.233-16, ni deberán haberse encontrado en la situación de asesores o subordinados de dicha persona física o jurídica. Además, no deberán tener ningún interés personal en el mandato que se les confíe, ni haber sido administradores o mandatarios judiciales objeto de una decisión de exclusión o baja de los registros en aplicación de los artículos L.811-6, L.811-12, L.812-4 y L.812-9. Estarán obligadas a ejecutar los mandatos que se les confíe y deberán ajustarse a las mismas obligaciones correspondientes a las actividades profesionales de los mandatarios judiciales inscritos en el registro nacionaL.No podrán desempeñar las funciones de mandatario judicial de manera habitual.
Las personas nombradas en aplicación del primer párrafo del presente punto II, al aceptar su mandato deberán declarar bajo honor que reúnen las condiciones determinadas en los epígrafes 1 a 4 del artículo L.812-3, que se ajustan a las obligaciones mencionadas en el párrafo anterior y que no están bajo el peso de una prohibición del ejercicio según lo dispuesto en el apartado penúltimo del artículo L.814-10.
III. - Cuando el Tribunal nombre a una persona jurídica, designará en su seno a una o varias personas físicas para representarla en el cumplimiento del mandato que se le haya confiado.
Artículo L.812-2-1 (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 16 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El registro mencionado en el artículo L.812-2 se dividirá en secciones correspondientes a la circunscripción de cada Cour d'Appel .
Artículo L.812-2-2 (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 16 Diario Oficial de 4 de enero de 2003) (Ley nº 2004-130 de 11 de febrero de 2004 art. 53 II 1° Diario Oficial de 12 de febrero de 2004) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La comisión nacional mencionada en el artículo L.812-2 estará compuesta del siguiente modo: - Un consejero de la Cour de Cassation, como presidente, nombrado por el primer presidente de la Cour de
Cassation; - un magistrado de la Cour des Comptes, nombrado por el primer presidente de la Cour des Comptes; - un miembro de la Inspección General de Hacienda, nombrado por el Ministro de Economía y de Hacienda; - un magistrado de una Cour d'Appel, nombrado por el primer presidente de la Cour de Cassation; - un miembro de una jurisdicción mercantil de primer grado, nombrado por el primer presidente de la Cour de
Cassation; - un profesor de Derecho, de Ciencias Económicas o de Gestión, nombrado por el Ministro competente en materia
de Universidades; - un representante del Conseil d'Etat, nombrado por el vicepresidente del Conseil d'Etat; - dos personas cualificadas en materia económica o social, nombradas por el Ministro de Justicia; - tres mandatarios judiciales, inscritos en el registro nacional, elegidos por sus colegas en condiciones
determinadas por decreto adoptado en Conseil d'Etat. Uno de ellos podrá ser reemplazado por una persona inscrita en el registro de analistas de empresa cuando la comisión, en aplicación de lo dispuesto en el último párrafo del artículo L.813-1 L.813-2, emita un dictamen sobre la inscripción de un experto en esta especialidad, sobre su exclusión o su baja del registro.
En caso de empate en la votación, el presidente tendrá voto de calidad. Se nombrará por tres años al presidente y a los miembros de la comisión, así como a sus suplentes, en igual
número y elegidos de entre las mismas categorías profesionales. El mandato será renovable una vez. Se nombrará a un magistrado de la Fiscalía y a su suplente para ejercer las funciones de Comisario del Gobierno
ante la comisión nacional y garantizar en especial la tramitación de las solicitudes de inscripción. El Estado cubrirá los gastos de funcionamiento de esta comisión.
Artículo L.812-3 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 17 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el
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CÓDIGO DE COMERCIO 1 de enero de 2006, bajo reserva art. 190)
Nadie podrá ser inscrito en el registro por la comisión si no reuniera las siguientes condiciones: 1° Ser de nacionalidad francesa o ciudadano de un Estado miembro de la Comunidad Europea o de un Estado
parte del acuerdo sobre el Espacio Económico Europeo; 2° No haber sido el autor de hechos contrarios al honor o a la moral que hayan dado lugar a una condena penal; 3° No haber sido el autor de hechos de la misma índole que hayan dado lugar a una sanción disciplinaria o
administrativa de destitución, exclusión, revocación, retirada de habilitación o retirada de autorización; 4° No haber sido objeto de una resolución de quiebra personal o de una de las medidas de prohibición del ejercicio
o de privación de derechos previstas en el Capítulo V del Título II del Libro VI del presente Código, en el Título VI de la Ley n° 85-95 de 25 de enero de 1985 anteriormente citada, o en el régimen anterior de esta Ley, en el Título II de la Ley n° 67-563 de 13 de julio de 1967 anteriormente citada;
5° Haber superado el examen de acceso al curso formativo profesional, haber realizado dicho curso formativo profesional y haber superado el examen de aptitud para las funciones de mandatario judicial.
Sólo se admitirá a presentarse al examen de acceso al curso formativo profesional a las personas en posesión de los títulos o los diplomas determinados por decreto.
Por excepción a lo dispuesto anteriormente, las personas que reúnan las condiciones de competencia y de experiencia profesional fijadas por decreto adoptado en Conseil d'Etat quedarán dispensadas del examen de acceso al curso formativo profesionaL.La comisión podrá además dispensar a estas personas, en las condiciones establecidas por decreto adoptado en Conseil d'Etat, de una parte del curso formativo profesional y de la totalidad o parte del examen de aptitud para las funciones de mandatario judicial.
Las personas jurídicas inscritas en el registro sólo podrán desempeñar las funciones de mandatario judicial por medio de uno se sus miembros que esté a su vez inscrito en el registro.
Quedarán también exentos de los requisitos del diploma, del curso formativo y del examen profesional previstos en los apartados segundo y tercero las personas que demuestren haber adquirido una calificación suficiente para el ejercicio de la profesión de mandatario judicial para la liquidación de empresas, en un Estado miembro de las Comunidades Europeas que no sea Francia u otro Estado parte en el Acuerdo sobre el Espacio económico europeo, a condición de superar un examen de control de conocimientos. La lista de candidatos admitidos a presentarse al examen será establecida por la comisión.
Subsección 3 De las condiciones para ejercer la profesión Artículos L812-4 a
L812-7
Artículo L.812-4 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 18 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La comisión nacional, por su propia iniciativa o por requerimiento del Ministro de Justicia, del presidente del Consejo Nacional de administradores judiciales y de mandatarios judiciales, del comisario del Gobierno o del Fiscal de la República en cuya circunscripción esté establecido el mandatario judicial, mediante decisión motivada y tras haber emplazado al interesado para que presente sus observaciones, podrá acordar la baja en el registro mencionado en el artículo L.812-2 del mandatario judicial que, en razón de su estado físico o mental, no pudiera asegurar el ejercicio normal de sus funciones o del mandatario judicial que hubiera dado muestras de inaptitud en el ejercicio normal de sus funciones.
El hecho de causar baja en el registro no impedirá que se tramiten las diligencias disciplinarias contra el mandatario judicial para la saneamiento judicial y la liquidación de empresas si los hechos que se le imputan hubieran sido cometidos durante el ejercicio de sus funciones.
Artículo L.812-5 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los mandatarios judiciales podrán constituir entre ellos sociedades civiles profesionales reguladas por la Ley nº 66-879 de 29 de noviembre de 1966 anteriormente citada, para el ejercicio en común de su profesión. Podrán asimismo ejercer su profesión al amparo de sociedades de profesiones liberales reguladas por la Ley n° 90-1258 de 31 de diciembre de 1990 relativa el ejercicio en forma de sociedades de profesiones liberales sujetas a un estatuto legal o reglamentario o cuyo título esté protegido. Podrán también ser miembros de una agrupación de interés económico o de una agrupación europea de interés económico o socios de una sociedad participativa regulada por el Título II de la Ley nº 90-1258 de 31 de diciembre de 1990 relativa al ejercicio en forma de sociedades de profesiones liberales sujetas a un estatuto legal o reglamentario o cuyo título esté protegido.
Artículo L.812-6 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 19 Diario Oficial de 4 de enero de 2003)
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CÓDIGO DE COMERCIO (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los expedientes tramitados por el mandatario judicial que abandone el ejercicio sus funciones, sea por el motivo que fuere, serán distribuidos por el órgano jurisdiccional entre los demás mandatarios en un plazo de tres meses contados desde el cese en sus funciones.
No obstante, para asegurar la eficacia en la administración de la Justicia, el órgano jurisdiccional podrá autorizar al antiguo mandatario a que prosiga la tramitación de uno o varios expedientes abiertos, salvo si la causa del abandono de sus funciones fuera su exclusión del registro. Este mandatario continuará sujeto a las disposiciones de los artículos L.812-8 à L.812-10, L.814-1 y L.814-5.
Artículo L.812-7 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 20 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las personas inscritas en el registro estarán autorizadas a ejercer sus funciones en todo el territorio nacional.
Subsección 4 De las incompatibilidades Artículo L812-8
Artículo L.812-8 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 21 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.164 II, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La condición de mandatario judicial inscrito en el registro será incompatible con el ejercicio de cualquier otra profesión.
Además, será incompatible con: 1° Todas las actividades de carácter mercantil, tanto si fueran ejercidas directamente como por persona
interpuesta; 2° La calidad de socio en una sociedad colectiva, de socio comanditario en una sociedad comanditaria simple o por
acciones, de gerente de una sociedad de responsabilidad limitada, de presidente del consejo de administración, miembro del directorio, director general o director general delegado de una sociedad anónima, de presidente o de dirigente de una sociedad por acciones simple, de miembro del consejo de supervisión o de administrador de una sociedad mercantil, de gerente de una sociedad civil, salvo si estas sociedades tuvieran como finalidad el ejercicio de la profesión de mandatario judicial para la saneamiento judicial y la liquidación de empresas o la adquisición de locales para dicho ejercicio. Un mandatario podrá asimismo ejercer las funciones de gerente de una sociedad civil cuya finalidad exclusiva sea la gestión de intereses de carácter familiar.
La condición de mandatario judicial inscrito en el registro no impedirá el ejercicio de una actividad de consulta en los temas relativos a la calificación del interesado, ni el desempeño de mandatos de mandatario ad hoc y de conciliador previstos por el artículo L.611-3 del presente Código y por el artículo L.351-4 del Código Rural, de auditor para la ejecución del plan o de liquidador de bienes de una persona física o jurídica en forma amistosa, de perito judicial y de depositario judiciaL.Esta actividad y estos mandatos, con excepción de los mandatos de mandatario ad hoc, de conciliador y de auditor de la ejecución del plan, sólo podrán ejercerse con carácter accesorio. La misma persona no podrá ejercer sucesivamente las funciones de conciliador y mandatario judicial en la misma empresa hasta transcurrido el plazo de un año entre ambas funciones.
Las condiciones del presente artículo, a excepción de las del párrafo cuarto, serán aplicables a las personas jurídicas inscritas en el registro.
Sección II De la supervisión, de la inspección y de la disciplina Artículos L812-9 a
L812-10
Artículo L.812-9 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 22 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las disposiciones relativas a la supervisión, a la inspección y a la disciplina de los administradores judiciales previstas por los artículos L.811-11 a L.811-15 serán aplicables a los mandatarios judiciales.
La comisión nacional de inscripción actuará como cámara disciplinaria. El Comisario del Gobierno ejercerá en ella las funciones del Ministerio Fiscal.
Artículo L.812-10 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 23 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el
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CÓDIGO DE COMERCIO 1 de enero de 2006, bajo reserva art. 190)
Nadie que no esté inscrito en el registro de mandatarios judiciales podrá hacer uso de dicho título para otra cosa que no sea la misión que se le hubiera encomendado en virtud del párrafo primero del punto II del artículo L.812-2 o del párrafo segundo del artículo L.812-6.
Cualquier infracción a esta disposición será castigada con las penas establecidas en caso de delito de usurpación de título previsto por el artículo 433-17 del Código Penal.
Será castigado con las mismas penas el que hiciera uso de una denominación que presentara un parecido con el título previsto en el primer párrafo susceptible de crear confusión entre los ciudadanos.
CAPITULO III De los peritos en diagnóstico empresarial Artículo L813-1
Artículo L.813-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 24 Diario Oficial de 4 de enero de 2003) (Ley nº 2004-130 de 11 de febrero de 2004 art. 53 1 1° y 2°, II Diario Oficial de 12 de febrero de 2004) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los analistas de empresa serán nombrados judicialmente para realizar un informe sobre la situación económica y financiera de una empresa en caso de procedimiento de conciliación o de procedimiento de salvaguarda o de saneamiento judicial, o para participar en la elaboración de dicho informe en caso de procedimiento de salvaguarda o de saneamiento judicial.
Estos analistas no deberán haber recibido en los últimos cinco años, directa o indirectamente, una remuneración o un pago de cualquier tipo de la persona física o jurídica objeto de una medida de administración, asistencia o supervisión, de una persona que posea el control de esta persona jurídica o de una de las sociedades controladas por ella en el sentido de los puntos II y III del artículo L.233-16, ni deberán haberse encontrado en la situación de asesores o de subordinados de dicha persona física o jurídica. Además, no deberán tener ningún interés personal en el mandato que se les confíe.
Los analistas de empresa así designados deberán declarar bajo honor, al aceptar su mandato, que se ajustan a las obligaciones enumeradas en el párrafo anterior.
Estos analistas podrán ser elegidos entre los analistas de esta especialidad inscritos en los registros elaborados para la información de los jueces, en aplicación del artículo 2 de la Ley nº 71-498 de 29 de junio de 1971 relativa a los peritos judiciales.
Cada Cour d'Appel procederá a la inscripción de los peritos de esta especialidad según lo dispuesto en el artículo 2 de la Ley n° 71-498 de 29 de junio de 1971 relativa a los peritos judiciales. Su inscripción en el registro nacional de peritos judiciales se hará previo dictamen de la comisión nacional creada en el artículo L.812-2.
CAPITULO IV Disposiciones comunes Artículos L814-1 a
L814-11
Sección I De los recursos contra las decisiones de las comisiones de inscripción y de la Artículos L814-1 a
representación ante los poderes públicos L814-2
Subsección 1 De los recursos contra las resoluciones de las comisiones de inscripción Artículo L814-1
Artículo L.814-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 26 Diario Oficial de 4 de enero de 2003) (Ley nº 2004-130 de 11 de febrero de 2004 art. 69 4º Diario Oficial de 12 de febrero de 2004) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los recursos contra las decisiones tomadas por las comisiones nacionales, tanto en materia de inscripción o de baja como en materia de disciplina, serán llevados ante la Cour d'Appel de París.
Estos recursos tendrán carácter suspensivo.
Subsección 2 De la representación de las profesiones ante los poderes públicos Artículo L814-2
Artículo L.814-2 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 26 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las profesiones de administrador judicial y de mandatario judicial estarán representadas ante los poderes públicos
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CÓDIGO DE COMERCIO por un Consejo Nacional de administradores judiciales y de mandatarios judiciales, entidad de utilidad pública dotada de personalidad jurídica que estará encargada de velar por la defensa de los intereses colectivos de estas profesiones. Además, el Consejo Nacional tendrá la responsabilidad de velar por el cumplimiento de las obligaciones profesionales de sus miembros, de organizar su formación profesional, de asegurarse de que cumplen con su obligación de actualización y de perfeccionamiento de sus conocimientos, de controlar sus estudios y de hacer un informe anual sobre el cumplimiento de su misión, el cual remitirá al Ministro de Justicia.
Las modalidades de elección y funcionamiento del Consejo Nacional, compuesto en igual número por representantes de los administradores judiciales y por representantes de los mandatarios judiciales, serán establecidas por decreto adoptado en Conseil d'Etat.
Sección II De la garantía de la representación de los fondos, de la responsabilidad civil Artículos L814-3 a
profesional y de la remuneración L814-11
Subsección 1 De la garantía de la representación de los fondos y de la responsabilidad Artículos L814-3 a
civil profesional L814-7
Artículo L.814-3 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 27 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Existirá una caja dotada de personalidad civil y gestionada por los cotizantes que tendrá por finalidad garantizar el reembolso de los fondos, efectos o valores recibidos o gestionados por cada administrador judicial y cada mandatario judicial inscrito en los registros, durante las operaciones llevadas a cabo en el marco de sus funciones. Serán nombrados dos magistrados de la Fiscalía, uno en calidad de titular y el otro en calidad de suplente, para ejercer las funciones de Comisario del Gobierno ante la caja.
Los administradores judiciales y los mandatarios judiciales inscritos en los registros nacionales estarán obligados a adherirse a esta caja.
Los recursos de la caja estarán constituidos por el importe de una cotización especial anual pagada por los administradores judiciales y los mandatarios judiciales inscritos en los registros.
Las cotizaciones pagadas por los administradores judiciales y los mandatarios judiciales serán asignadas a la garantía exclusiva de los administradores judiciales y mandatarios judiciales inscritos en los registros.
Si los recursos de la caja resultaran insuficientes para cumplir con sus obligaciones, la caja procederá a una recaudación de fondos complementaria entre los profesionales inscritos en los registros.
La garantía de la caja actuará sin que pueda oponerse a los acreedores el beneficio de excusión previsto en el artículo 2021 del Código Civil y con la única razón de la exigibilidad de la deuda y de la no representación de los fondos por parte del administrador judicial o mandatario judicial inscrito en los registros.
La caja estará obligada a contratar un seguro frente a los riesgos que derivaran para ella de la aplicación del presente Código.
Los recursos contra las decisiones de la caja serán llevados ante el Tribunal de Grande Instance de París.
Artículo L.814-4 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 28 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales y los mandatarios judiciales inscritos en los registros deberán demostrar que poseen un seguro suscrito por medio de la caja de garantía. Este seguro cubrirá las consecuencias financieras de la responsabilidad civil en la que incurran los administradores judiciales mandatarios judiciales en caso de negligencias y faltas cometidas durante el ejercicio de sus funciones.
Artículo L.814-5 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 29 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Al aceptar su misión, el administrador judicial no inscrito en el registro nacional que fuera nombrado en las condiciones previstas en el párrafo segundo del artículo L.811-2, o el mandatario no inscrito en el registro nacional que fuera nombrado en las condiciones previstas en el párrafo primero del punto II del artículo L.812-2, deberán probar que han suscrito una garantía para el reembolso de fondos, efectos o valores así como, en su caso, un seguro ante la caja de garantía. Este seguro cubrirá las consecuencias financieras de la responsabilidad civil en la que incurran dicho administrador judicial o dicho mandatario judicial, en caso de negligencias y faltas cometidas durante el ejercicio de sus funciones.
Artículo L814-6
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CÓDIGO DE COMERCIO (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 1° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 13, Artículo 33 Diario Oficial de 2 de agosto de 2003)
Las condiciones de remuneración de los administradores judiciales y de los síndicos para la suspensión de pagos y la liquidación de empresas, tanto si están o no inscritos en los registros nacionales, así como las normas de subvención de la remuneración de las personas llamadas, a petición de aquéllos, para efectuar en beneficio de la empresa determinadas tareas técnicas no incluidas en las misiones que les sean encomendadas, serán determinadas por un decreto adoptado en Conseil d'Etat.
Artículo L814-7 (Introducido por la Ley nº 2003-7 de 3 de enero de 2001 Artículo 13 y Artículo 34 I Diario Oficial de 4 de enero de 2003)
Cuando el producto de la realización de los activos de la empresa no permiten que el liquidador o el representante de los acreedores obtengan, en concepto de la remuneración que se les debe en aplicación del artículo L. 814-6, una cantidad por lo menos igual al umbral fijado por decreto adoptado en Conseil d'Etat, el Tribunal declarará el expediente escaso de recursos, a propuesta del Juez Comisario y en base a los documentos justificantes presentados por el liquidador o el representante de los acreedores.
La misma resolución fijará la cantidad, que corresponderá a la diferencia entre la remuneración efectivamente percibida por el liquidador o el representante de los acreedores y el umbral mencionado en el párrafo anterior.
La cantidad abonada al representante de los acreedores o al liquidador será retenida sobre una parte proporcional de los intereses pagados por la Caja de Depósitos y Consignaciones en concepto de los fondos depositados en aplicación de los artículos L. 621-33, L. 621-68 y L. 622-8. Esta parte proporcional se destina en especial a un fondo gestionado por la Caja de Depósitos y Consignaciones bajo el control de un comité de administración. Las condiciones de aplicación del presente párrafo serán determinadas por decreto adoptado en Conseil d'Etat.
Subsección 2 De la remuneración Artículos L814-8 a
L814-11
Artículo L.814-8 (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 30, art. 31 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando un administrador judicial o un mandatario judicial inscrito en los registros y nombrado por un órgano jurisdiccional para desempeñar en una empresa las misiones previstas en las disposiciones del Libro IV, ya hubiera actuado por cuenta de esta en calidad de asesor o en concepto de las misiones previstas en el párrafo penúltimo del artículo L.811-10 y en el párrafo penúltimo del artículo L.812-8, informará a dicho órgano jurisdiccional de la naturaleza y la importancia de las actividades realizadas en los últimos cinco años.
El incumplimiento de lo dispuesto en el párrafo anterior dará lugar a las diligencias disciplinarias correspondientes.
Artículo L.814-9 (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 30, art. 32 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales y los mandatarios judiciales inscritos en los registros tendrán la obligación de seguir una formación continuada que les permita actualizar y perfeccionar sus conocimientos. Esta formación estará organizada por el Consejo Nacional mencionado en el artículo L.814-2.
Artículo L.814-10 (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 30 y art. 35 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.164 III, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales y los mandatarios judiciales no inscritos en los registros nacionales, nombrados en las condiciones previstas en el párrafo segundo del artículo L.811-2 o en el párrafo primero del punto II del artículo L.812-2, estarán sometidos a la supervisión del Ministerio Fiscal y estarán sujetos, en su actividad profesional, a inspecciones de la autoridad pública para las cuales deberán proporcionar todas las informaciones o documentos útiles sin poder objetar el secreto profesional.
Los auditores de cuentas de los administradores judiciales o de los mandatarios judiciales no inscritos que estén sometidos a un control o a una inspección, estarán obligados, sin poder objetar el secreto profesional, a someterse a los requerimientos de las personas encargadas del control o de la inspección y a comunicarles toda la información recabada o todo documento elaborado en el marco de su misión.
En el caso de que dichos administradores judiciales o mandatarios judiciales fueran culpables algún acto constitutivo de las infracciones o del incumplimiento mencionados en el artículo L.811-12 A, el Fiscal de la República podrá solicitar al Tribunal de Grande Instance que les prohíba el ejercicio de las funciones de administrador judicial o de mandatario judicial.
Las medidas de prohibición tomadas en aplicación del párrafo anterior serán comunicadas al Ministro de Justicia, para ser difundidas a los Fiscales Generales.
Artículo L.814-11
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CÓDIGO DE COMERCIO (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 30 y art. 36 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier cantidad detentada por un administrador judicial o un mandatario judicial en concepto de un mandato amistoso será ingresada en la cuenta de depósito de la Caja de Depósitos y Consignaciones, salvo si el mandante decidiera de manera expresa optar por otra entidad financiera. En caso de retraso, el administrador judicial o el mandatario judicial deberá pagar el interés legal aumentado en cinco puntos por aquellas cantidades que no hubiera ingresado.
TITULO II DE LOS AUDITORES DE CUENTAS Artículos L820-1 a
L822-16
CAPITULO PRELIMINAR Disposiciones generales Artículos L820-1 a
L820-7
Artículo L820-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99, Artículo 110 1° Diario Oficial de 2 de agosto de 2003)
No obstante cualquier disposición en contrario, los artículos L.225-227 a L.225-242, así como las disposiciones del presente título, serán aplicables a los auditores de cuentas nombrados en todas las personas jurídicas sea cual fuere la clase de certificación prevista en su misión. También serán aplicables a estas personas sea cual fuere su estatuto jurídico, siempre ateniéndose a las normas que les sean propias.
Las obligaciones de los presidentes del consejo de administración, directores generales, administradores, miembros del directorio, gerentes de las sociedades comerciales, reguladas por los artículos citados en el párrafo anterior, serán aplicables también a los dirigentes de las personas jurídicas obligadas a tener un auditor de cuentas.
Artículo L820-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99, Artículo 110 2° Diario Oficial de 2 de agosto de 2003)
Nadie podrá prevalerse en el título de auditor de cuentas si no cumple las condiciones citadas en los artículos L.225-227 a L.225-242 y en las disposiciones del presente título.
Artículo L820-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99, Artículo 109 Diario Oficial de 2 de agosto de 2003)
Con miras a su designación, el auditor de cuentas informará por escrito a la persona cuyas cuentas se propone certificar acerca de su afiliación a una red, nacional o internacional, que no tenga como actividad exclusiva el control legal de cuentas y cuyos miembros tengan algún interés económico en común. Llegado el caso, dará a conocer a la persona cuyas cuentas se propone certificar el importe global de honorarios percibidos por esta red en concepto de servicios que no estén directamente ligados a su misión de auditor de cuentas y que hayan sido prestados por la red a una persona controlada o que controle, en el sentido de los puntos I y II del artículo L. 233-3. Estas informaciones se incorporarán a los documentos puestos a disposición de los accionistas en aplicación del artículo L. 225-108. Actualizadas cada año por el auditor de cuentas, estas informaciones se pondrán a disposición de los socios y accionistas y, en el caso de las asociaciones, de los adherentes y donantes, en la sede de la persona cuyas cuentas certifique.
La información relativa al importe de los honorarios abonados a los auditores de cuentas se pondrán a disposición de los socios y accionistas y, en el caso de las asociaciones, de los adherentes y donantes, en la sede de la persona controlada.
Artículo L820-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99 Diario Oficial de 2 de agosto de 2003)
No obstante cualquier disposición en contrario: 1º Será castigado con dos años de prisión y 30.000 euros de multa el dirigente de una persona jurídica obligada a
tener un auditor de cuentas, que no promoviera el nombramiento de éste o no lo convocara a alguna junta general (sanciones penales);
2º Serán castigados con cinco años de prisión y 75.000 euros los dirigentes de una persona jurídica o de toda persona al servicio de una persona jurídica obligada a tener un auditor de cuentas, que obstaculizaran las comprobaciones o controles de los auditores de cuentas o de los peritos nombrados en ejecución de los artículos L.223-37 y L.225-231, o les denagaran la presentación inmediata de todos los documentos útiles para el ejercicio de su misión y, en particular, de todos los contratos, libros, documentos contables y registros de actas.
Artículo L820-5
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CÓDIGO DE COMERCIO (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99, Artículo 116 Diario Oficial de 2 de agosto de 2003)
Será castigado con un año de prisión y 15.000 euros de multa el que (sanciones penales: 1º Hiciera uso de la denominación de auditor de cuentas o de una denominación que presentara un parecido
susceptible de provocar confusión en el público, sin estar regularmente inscrito en el registro mencionado en el punto I del artículo L. 822-1 ni haber prestado juramento en las condiciones previstas en el artículo L. 822-10;
2º Ejerciera ilegalmente la profesión de auditor de cuentas, infringiendo las disposiciones del punto I del artículo L.822-1 y del artículo L.822-10 o una medida de inhabilitación o de suspensión temporal;
Se aplicarán a los auditores de cuentas los artículos 226-13 y 226-14 del Código Penal relativos al secreto profesional.
Artículo L820-6 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99 Diario Oficial de 2 de agosto de 2003)
Será castigado con seis meses de prisión y 7.500 euros de multa (sanciones penales), el que aceptara, ejerciera o conservara las funciones de auditores de cuentas, a pesar de las incompatibilidades legales, tanto en su nombre personal como en calidad de socio en una sociedad de auditores de cuentas.
Artículo L820-7 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99 Diario Oficial de 2 de agosto de 2003)
Será castigado con cinco años de prisión y de 75.000 euros de multa (sanciones penales) el que diera o confirmara, tanto en su propio nombre como en calidad de socio de una sociedad de auditores de cuentas, informaciones falsas sobre la situación de la persona jurídica o de no revelar al Fiscal de la República los hechos delictivos de los que hubiera tenido conocimiento.
CAPITULO I De la organización y del control de la profesión Artículos L821-1 a
L821-12
Artículo L821-1 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Se creará un Alto Consejo de auditoría de cuentas que estará bajo la autoridad del Ministro de Justicia y cuya misión consistirá en:
- supervisar la profesión, con la ayuda del Colegio Nacional de auditores de cuentas instituido por el artículo L. 821-6;
- velar por el respeto de la deontología y de la independencia de los auditores de cuentas. Para el cumplimiento de su misión, el Alto Consejo de auditoría de cuentas estará en particular encargado de: - identificar y promover las buenas prácticas profesionales; - dar su opinión sobre las normas del ejercicio de la profesión elaboradas por el Colegio Nacional de auditores de
cuentas antes de su homologación por orden del Ministro de Justicia; - proceder a la inscripción de los auditores de cuentas en su calidad de instancia de apelación de las decisiones de
las comisiones regionales mencionadas en el artículo L.822-2; - definir las orientaciones y el marco de los controles periódicos previstos en el artículo L. 821-7 y supervisar su
aplicación y su seguimiento en las condiciones definidas por el artículo L. 821-9; - hacer aplicar la disciplina por parte de los auditores de cuentas en su calidad de instancia de apelación de las
decisiones tomadas por las cámaras regionales mencionadas en el artículo L. 822-6.
Artículo L821-2 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
La opinión mencionada en el apartado seis del artículo L. 821-1 será recabada por el Ministro de Justicia, previa consulta de la Autoridad de Mercados financieros, de la Comisión bancaria y de la Comisión de control de seguros, mutuas y organismos de previsión, a partir del momento en que dicha opinión se refiera a sus competencias respectivas.
Artículo L821-3 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
El Alto Consejo de auditoría de cuentas constará de: 1º Tres magistrados, entre los cuales un miembro de la Cour de Cassation, como presidente, un magistrado de la
Cour des comptes y un magistrado de la Orden Judicial; 2º El presidente de la Autoridad de Mercados Financieros o su representante, un representante del Ministro de
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CÓDIGO DE COMERCIO Economía y un profesor de Universidad especializado en materia jurídica, económica o financiera;
3º Tres personas cualificadas en materia económica o financiera; dos de las cuales escogidas por sus competencias en materia de empresas que hacen un llamamiento público al ahorro y la tercera por sus competencias en el ámbito de las pequeñas y medianas empresas, en el de las personas jurídicas de derecho privado que tienen una actividad económica y en el de las asociaciones;
4º Tres auditores de cuentas, dos de los cuales experimentados en auditoría de cuentas de las personas que hacen un llamamiento público al ahorro o a la generosidad pública.
Las decisiones serán tomadas por mayoría de votos. En caso de empate de votos, el del presidente será determinante.
El presidente y los miembros del Alto Consejo de auditoría de cuentas serán nombrados por decreto por un periodo de seis años renovables. El Alto Consejo de auditoría de cuentas será renovado en su mitad cada tres años.
El Alto Consejo constituirá comisiones consultivas especializadas para la preparación de sus decisiones y dictámenes. Estas comisiones, llegado el caso, podrán recurrir a expertos.
Artículo L821-4 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
El Ministro de Justicia nombrará a un Comisario del Gobierno ante el Alto Consejo de auditoría de cuentas. Éste no tendrá derecho al voto. El Comisario del Gobierno no tomará parte en las deliberaciones de carácter disciplinar. Salvo en materia disciplinaria, podrá solicitar una segunda deliberación en las condiciones fijadas por decreto adoptado en Conseil d'Etat.
Artículo L821-5 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Los fondos necesarios para el funcionamiento del Alto Consejo quedarán inscritos en el presupuesto del Ministerio de Justicia.
Artículo L821-6 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Se creará ante el Ministro de Justicia un Colegio Nacional de auditores de cuentas, entidad de utilidad pública dotada de una personalidad jurídica, encargada de representar a la profesión de auditor de cuentas ante los poderes públicos.
Velará por el buen ejercicio de la profesión, su supervisión y la defensa del honor y de la independencia de sus miembros.
Se creará un Colegio Regional de auditores de cuentas, dotado de una personalidad jurídica, en cada circunscripción de Cour d'appel. No obstante, el Ministro de Justicia podrá proceder a reagrupaciones, a propuesta del Colegio Nacional y previa consulta, a través de este último, de los Colegios Regionales interesados.
Los recursos del Colegio Nacional y de los Colegios Regionales estarán constituidos en su mayor parte por el producto de una cotización anual pagada por los auditores de cuentas.
Artículo L821-7 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
En el marco de su actividad profesional, los auditores de cuentas estarán sujetos a los siguientes controles: a) Las inspecciones mencionadas en el artículo L. 821-8; b) Los controles periódicos organizados en las condiciones definidas por el Alto Consejo; c) Los controles ocasionales decididos por el Colegio Nacional o los Colegios Regionales.
Artículo L821-8 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
El Ministro de Justicia podrá diligenciar inspecciones y solicitar, con este fin, la colaboración de la Autoridad de mercados financieros, del Colegio Nacional de auditores de cuentas, de la Comisión bancaria o de la Comisión de control de seguros, mutuas e instituciones de previsión.
La Autoridad de mercados financieros podrá diligenciar cualquier inspección de un auditor de cuentas de una persona que haga un llamamiento público al ahorro o de un organismo de inversión colectiva y solicitar, con este fin, la colaboración del Colegio Nacional de auditores de cuenta y, llegado el caso, de las personas y autoridades enumeradas en el apartado segundo del artículo L. 621-9-2 del Código Monetario y Financiero. El presidente de la Autoridad de mercados financieros o su representante no tomará parte en las deliberaciones de carácter disciplinar del Alto Consejo que, llegado el caso, tuvieran lugar a raíz de dicha inspección.
Artículo L821-9 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Los controles previstos en las letras b y c del artículo L. 821-7 serán efectuados por el Colegio Nacional o los Colegios Regionales.
Cuando estos controles sean relativos a auditores de cuentas de personas que hagan un llamamiento público al ahorro o de organismos de inversión colectiva, serán efectuados por el Colegio Nacional con la colaboración de la Autoridad de mercados financieros.
Artículo L821-10 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
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CÓDIGO DE COMERCIO En el caso de hechos de particular gravedad que justifiquen sanciones penales o disciplinarias, y cuando la
urgencia y el interés público lo justifiquen, el Ministro de Justicia podrá decidir la suspensión cautelar de un auditor de cuentas, persona física, desde el momento de la apertura del sumario y previa presentación de observaciones por parte del auditor de cuentas. El presidente de la Autoridad de mercados financieros y el presidente del Colegio Nacional de auditores de cuentas podrán recurrir al Ministro de Justicia para que tome esta decisión.
En cualquier momento, el Ministro de Justicia podrá poner fin a la suspensión cautelar por iniciativa propia o a solicitud del interesado o de las autoridades mencionadas en el apartado primero.
La suspensión cautelar finalizará de pleno derecho cuando las acciones penales o disciplinarias se hayan extinguido.
Artículo L821-11 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Las condiciones de aplicación de los artículos L. 821-3 y L. 821-6 a L.821-10 serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L821-12 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas estarán obligados a proporcionar toda la información y los documentos que les sean solicitados con motivo de las inspecciones y controles, sin poder objetar el secreto profesional.
CAPITULO II Estatuto de los auditores de cuentas Artículos L822-1 a
L822-16
Sección I De la inscripción y de la disciplina Artículos L822-1 a
L822-8
Subsección 1 De la inscripción Artículos L822-1 a
L822-5
Artículo L822-1 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Nadie podrá ejercer las funciones de auditor de cuentas, si no ha sido previamente inscrito en un lista elaborada con este fin.
Artículo L822-2 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Se creará una comisión regional de inscripción en la circunscripción de cada Cour d'appel. Estará encargada de elaborar y actualizar la lista mencionada en el artículo L. 822-1.
Cada comisión regional de inscripción estará compuesta de: 1º Un magistrado de la Orden Judicial, como presidente; 2º Un magistrado de la Cámara Regional de Cuentas; 3º Un profesor de Universidad especializado en materia jurídica, económica o financiera; 4º Dos personas cualificadas en materia jurídica, económica o financiera; 5º Un representante del Ministro de Economía; 6º Un miembro del Colegio Regional de auditores de cuentas. El presidente y los miembros de la comisión regional de inscripción, así como sus suplentes, estarán nombrados
por una Orden del Ministro de Justicia, por un periodo de tres años renovables. Las decisiones serán tomadas por mayoría de votos. En caso de empate de votos, el del presidente será
determinante. Los recursos contra las decisiones de las comisiones regionales de inscripción serán presentados ante el Alto
Consejo de auditoría de cuentas.
Artículo L822-3 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Todo auditor de cuentas deberá prestar juramento, ante la Cour d'appel competente, de que cumplirá con los deberes propios de su profesión con honor y lealtad y respetará y hará cumplir las leyes.
Artículo L822-4 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Toda persona inscrita en la lista mencionada en el artículo L. 822-1 que no hubiera ejercido las funciones de auditor de cuantas durante un periodo de tres años, estará obligada a seguir una formación continuada particular antes
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CÓDIGO DE COMERCIO de aceptar una misión de certificación.
Artículo L822-5 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Las condiciones de aplicación de la presente subsección serán precisadas por decreto adoptado en Conseil d'Etat.
Subsección 2 De la disciplina Artículos L822-6 a
L822-8
Artículo L822-6 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
La Comisión Regional de Inscripción se constituirá en cámara regional de disciplina y será competente en materia de acción disciplinaria interpuesta contra un auditor de cuentas miembro de un colegio regional, cualquiera que sea el lugar en el que se hayan cometido los hechos reprochados.
Artículo L822-7 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
La Cámara Regional de disciplina podrá conocer a instancia del Ministro de Justicia, del Fiscal de la República, del presidente del Colegio Nacional de auditores de cuentas o del presidente del Colegio Regional.
Además de las personas determinadas por decreto adoptado en Conseil d'Etat, el presidente de la Autoridad de mercados financieros podrá recurrir al Fiscal General para el ejercicio de la acción disciplinaria. Cuando ejerza esta facultad, no podrá tomar parte en las deliberaciones de la instancia disciplinaria del Alto Consejo al que se recurra para el mismo procedimiento.
Las decisiones de la Cámara Regional de disciplina serán susceptibles de recurso ante el Alto Consejo de auditoría de cuentas, a instancia de las autoridades mencionadas en el presente artículo y del profesional interesado.
Un magistrado del Orden Judicial, designado por el Ministro de Justicia, que pertenezca a la fiscalía o a la fiscalía general, ejercerá las funciones del Ministerio Público ante cada cámara regional y ante el Alto Consejo competente en materia disciplinaria.
Las condiciones de aplicación del presente artículo serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L822-8 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Las sanciones disciplinarias serán las siguientes: 1º El apercibimiento; 2º La reprensión; 3º La prohibición temporal del ejercicio durante un plazo que no podrá exceder de cinco años; 4º La exclusión de la lista de auditores de cuentas. También se podrá proceder a la retirada del título honorario. El apercibimiento, la reprensión y la prohibición temporal del ejercicio profesional podrán acompañarse de una
sanción complementaria de ineligibilidad a los organismos profesionales por un periodo de diez años o más. El auditor de cuentas que haya sido sancionado con una prohibición temporal del ejercicio profesional podrá
beneficiarse de una medida de suspensión de la sanción. La suspensión de la pena no se extenderá a las sanciones complementarias que se tomen en aplicación del apartado anterior. Si, en un plazo de cinco años contados desde que se hubiera dictado la sanción, el auditor de cuentas cometiera una infracción o una falta que diera lugar a una nueva sanción disciplinaria, ésta tendría como consecuencia la ejecución de la primera sanción sin confusión posible con la segunda.
Cuando dicten una sanción disciplinaria, el Alto Consejo y las Cámaras Regionales podrán decidir cargar a cuenta del auditor de cuentas la totalidad o parte de los gastos ocasionados por las inspecciones o controles que hubieran permitido constatar los hechos sancionados.
Sección II De la deontología y de la independencia de los auditores de cuentas Artículos L822-9 a
L822-16
Artículo L822-9 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Las funciones de auditor de cuentas serán ejercidas por personas físicas o sociedades constituidas entre ellas bajo cualquier forma.
Las tres cuartas partes del capital de las sociedades de auditores serán detentadas por auditores de cuentas. Cuando una sociedad de auditores de cuentas tenga una participación en el capital de otra sociedad de auditores de cuentas, los accionistas o socios no auditores de cuentas no podrán detentar más del 25% del conjunto del capital de las dos sociedades. Las funciones de gerente, de presidente del consejo de administración o del directorio, de
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CÓDIGO DE COMERCIO presidente del consejo de supervisión y del director general serán asumidas por auditores de cuentas. Las tres cuartas partes al menos de los miembros de los órganos de gestión, de administración, de dirección o de supervisión y las tres cuartas partes al menos de los accionistas o socios deberán ser auditores de cuentas. Los representantes permanentes de las sociedades de auditores de cuentas, socios o accionistas, deberán ser auditores de cuentas.
En las sociedades de auditores de cuentas inscritas, las funciones de auditores de cuentas serán ejercidas, en nombre de la sociedad, por auditores de cuentas personas físicas que sean socios, accionistas o dirigentes de esta sociedad. Estas personas sólo podrán ejercer las funciones de auditor de cuentas en el seno de una única sociedad de auditores de cuentas. Los miembros del consejo de administración o del consejo de supervisión podrán ser empleados de la sociedad sin limitación de número ni condición de antigüedad en su calidad de trabajador.
En caso de fallecimiento de un accionista o socio auditor de cuentas, sus derechohabientes dispondrán de un plazo de dos años para ceder sus acciones en todo o en parte a un auditor de cuentas.
La admisión de cualquier nuevo accionista o socio estará subordinada a una autorización previa que, en las condiciones previstas por los estatutos, podrá ser otorgada o bien por la junta de accionistas o de los poseedores de participaciones, o bien por el consejo de administración, el consejo de supervisión o los gerentes, según corresponda.
Por excepción a lo dispuesto anteriormente, el ejercicio de estas funciones es simultáneamente posible en una sociedad de auditores de cuentas y de otra sociedad de auditores de cuentas en la que la primera posea más de la mitad del capital social o en el caso en que las dos sociedades tengan como mínimo la mitad de los socios en común.
Artículo L822-10 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Las funciones de auditor de cuentas serán incompatibles: 1º Con cualquier actividad o cualquier acto que pueda afectar su independencia; 2º Con cualquier empleo remunerado; sin embargo, un auditor de cuentas podrá impartir docencia en relación con
el ejercicio de su profesión o bien ocupar un empleo remunerado a cuenta de un auditor de cuentas o de un censor de cuentas;
3º Con cualquier actividad comercial, tanto si es ejercida directamente como por persona interpuesta.
Artículo L822-11 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
I. - El auditor de cuentas no podrá tener, recibir o conservar, directa o indirectamente, ningún interés en relación con la persona cuyas cuentas vaya a certificar, o en relación con una persona que la controle o que esté controlada por ella, en el sentido de los puntos I y II del artículo L. 233-3..
Sin perjuicio de lo dispuesto en el presente Libro o en el Libro II, el Código deontológico mencionado en el artículo L. 822-16 definirá las relaciones personales, financieras y profesionales, concomitantes o anteriores a la misión del auditor de cuentas, que son incompatibles con el ejercicio de la profesión. Precisará, en particular, las situaciones en las que la independencia del auditor de cuentas se ve afectada, cuando pertenece a una red pluridisciplinar, nacional o internacional, cuyos miembros tienen un interés económico en común, debido a la prestación de servicios a una persona controlada o que controla, en el sentido de los puntos I y II del artículo L. 233-3, la persona cuyas cuentas están certificadas por el auditor de cuentas en cuestión. El Código deontológico precisará igualmente las restricciones que se deberá aplicar a la posesión de intereses financieros por parte de los empleados y los colaboradores del auditor de cuentas en las sociedades cuyas cuentas certifica.
II. - Estará prohibido para un auditor de cuentas el hecho de prestar una asesoría o cualquier otro servicio que no forme parte de las funciones directamente ligadas a su misión de auditor de cuentas tal y como está definida por las normas de ejercicio profesional mencionadas en el apartado sexto del artículo L. 821-1,a toda persona que le haya encomendado la certificación de sus cuentas o a las personas que la controlan o que están controladas por ésta en el sentido de los puntos I y II del artículo L. 233-3.
Cuando un auditor de cuentas esté afiliado a una red nacional o internacional cuyos miembros tengan un interés económico en común y cuya actividad no sea exclusivamente la auditoría legal de cuentas, no podrá certificar las cuentas de una persona que, en virtud de un contrato suscrito con esta red o un miembro de esta red, se beneficie de una prestación de servicios que no esté directamente ligada a la misión de auditor de cuentas según la apreciación dada por el Alto Consejo de auditoría de cuentas en aplicación del apartado tercero del artículo L. 821-1.
Artículo L822-12 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas y los miembros firmantes de una sociedad de auditores de cuentas no podrán ser nombrados dirigentes o empleados asalariados de las personas jurídicas que controlan hasta pasados cinco años tras el cese en sus funciones.
Durante este plazo, no podrán ejercer las mismas funciones en una persona jurídica controlada o que controla en el sentido de los puntos I y II del artículo L. 233-3 la persona jurídica cuyas cuentas hayan certificado.
Artículo L822-13 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Las personas que hayan sido dirigentes o empleados de una persona jurídica no podrán ser nombradas auditores de cuentas de esta persona hasta que transcurran cinco años desde el cese en sus funciones.
Durante el mismo plazo, no podrán ser nombradas auditores de cuentas en las personas jurídicas que posean un 10% del capital de la persona jurídica en la que ejercían sus funciones o de las que ésta poseía al menos un 10% del capital en el momento del cese en sus funciones.
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CÓDIGO DE COMERCIO Las prohibiciones previstas en el presente artículo para las personas mencionadas en el párrafo primero serán
aplicables a las sociedades de auditores de cuentas de las que dichas personas fueran socias, accionistas o dirigentes.
Artículo L822-14 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Estará prohibido para un auditor de cuentas, persona física, así como para un miembro firmante de una sociedad de auditores de cuentas, el hecho de certificar durante más de seis ejercicios consecutivos las cuentas de personas jurídicas que hagan un llamamiento público al ahorro.
Esta disposición también será de aplicación a las personas jurídicas mencionadas en el artículo L. 612-1 y a las asociaciones mencionadas en el artículo L. 612-4 a partir del momento en que hacen llamamiento a la generosidad pública.
Artículo L.822-15 (Ley nº 2003-706 de 1 de agosto de 2003 art. 104 II Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 162 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No obstante las disposiciones del artículo L.225-40 y las disposiciones legales particulares, los auditores de cuentas, así como sus colaboradores y peritos, estarán obligados a guardar secreto profesional sobre los hechos, actos e informaciones de los que hubieran tenido conocimiento en razón al ejercicio de sus funciones. No obstante, quedarán liberados de la obligación de guardar secreto profesional cuando declaren ante el presidente del Tribunal de Commerce o del Tribunal de Grande Instance en aplicación del capítulo IV del título III del libro II o del capítulo II del título I del libro VI.
Cuando una persona jurídica presente las cuentas consolidadas, los auditores de cuentas de la persona jurídica consolidante y los auditores de cuentas de las personas consolidadas serán liberados de su obligación de guardar secreto profesional unos con relación a los otros. Estas disposiciones serán también de aplicación cuando una persona presente cuentas combinadas.
Artículo L822-16 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Un decreto adoptado en Conseil d'Etat aprobará un Código deontológico para la profesión, previo dictamen del Alto Consejo de auditoría de cuentas y, para las disposiciones que se aplican a los auditores de cuentas que intervienen en las personas que hacen un llamamiento público al ahorro, de la Autoridad de mercados financieros.
LIBRO IX DISPOSICIONES RELATIVAS A LOS DEPARTAMENTOS DE ULTRAMAR Artículos L911-1 a
L950-7 TITULO I DISPOSICIONES ESPECÍFICAS PARA SAINT-PIERRE-ET-MIQUELON Artículos L911-1 a
L910-5
Artículo L.910-1 (Disposición nº 2004-328 de 15 de abril de 2004 art. 8 Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XIX Diario Oficial de 10 de diciembre de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 III Diario Oficial de 27 de julio de 2005)
Los siguientes artículos no serán de aplicación en Saint-Pierre-et-Miquelon: 1º L.125-3, L.126-1; 2º L.225-245-1, L.229-1 a L.229-15, L.238-6, L.244-5 y L.252-1 a L.252-13; 3º L.470-6; 2º L.522-1 a L.522-40 y L.524-20; 5º L.711-5, L.711-9, L.713-6 a L.713-10, L.713-11 a L.713-17 en lo concerniente a los delegados de las cámaras
profesionales; L.720-1 a L.730-17.
Artículo L910-2 Para la aplicación del presente Código en Saint-Pierre-et-Miquelon, los términos enumerados a continuación
deberán ser sustituidos del siguiente modo: 1º"Tribunal de grande instance " o "Tribunal d'instance" por "Tribunal de première instance"; 2º "Tribunal de commerce" o "Justicia consular" por "Tribunal de première instance competente en materia
mercantil"; 3º "departamento" o "circunscripción" por "Entidad territorial" 4º "Boletín oficial de anuncios civiles y comerciales" por "Recopilatorio de actas administrativas de la Entidad
territorial".
Artículo L910-3 Las referencias hechas por disposiciones del presente Código aplicables a Saint-Pierre-et-Miquelon a otros
artículos del presente Código sólo afectarán a los artículos aplicables a dicha Entidad territorial con las adaptaciones previstas en los capítulos siguientes.
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CÓDIGO DE COMERCIO Artículo L910-4
A falta de adaptación, las referencias hechas por disposiciones del presente Código aplicables a Saint-Pierre-et-Miquelon a disposiciones que no sean aplicables allí, serán sustituidas por las referencias a las disposiciones que tengan el mismo objeto y sean de aplicación local.
Artículo L910-5 Los artículos que hagan referencia a la Comunidad Europea serán aplicables respetando la decisión de asociación
prevista en el artículo 136 del Tratado Constitutivo de la Comunidad Europea. No serán aplicables las referencias al acuerdo sobre el Espacio Económico Europeo.
CAPITULO I Disposiciones de adaptación del libro I Artículos L911-1 a
L911-14
Artículo L911-1 (Disposición nº 2004-279 de 25 de marzo de 2004 Artículo 6 Diario Oficial de 27 de marzo de 2004)
En el artículo L. 122-1, las palabras: "por el Prefecto del departamento en el que prevé ejercer su actividad por primera vez" serán sustituidas por las palabras: "por el Prefecto de la Entidad territorial en el caso de que el extranjero deba ejercer allí por primera vez su actividad".
Artículo L911-2 Las excepciones previstas por los artículos L. 123-25 a L. 123-27 se aplicarán a las personas físicas sujetas a un
régimen impositivo simplificado por la normativa vigente en Saint-Pierre-et-Miquelon.
Artículo L911-3 En el artículo L. 133-7, las palabras: "los derechos, tasas, gastos y multas de aduana vinculados a una operación
de transporte".
Artículo L911-4 La inscripción en la secretaría del Tribuna de Primera Instancia competente en materia mercantil dispensará del
requisito formal del registro de las actas y declaraciones que estaban sujetas a ello en aplicación del artículo L. 141-5.
Artículo L911-5 Para la aplicación de los artículos L. 141-15, L. 143-7 y L. 145-28, el presidente podrá delegar en un magistrado del
Tribuna de Primera Instancia.
Artículo L911-6 En el artículo L. 141-13, las palabras: "por los artículos 638 y 653 del Código General de Impuestos" serán
sustituidas por las palabras: "por las disposiciones del derecho fiscal localmente aplicables".
Artículo L911-7 En el artículo L. 144-5, las palabras: "los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud
Pública" serán sustituidas por las palabras: "los artículos del Código de la Salud Pública localmente aplicable relativos a la hospitalización e internamiento con o sin consentimiento del interesado".
Artículo L911-8 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El artículo L. 145-2 quedará redactado del modo siguiente: I. - En el apartado 4º, las palabras: "al Estado, a los departamentos, a los Ayuntamientos, a las entidades públicas"
serán sustituidas por las palabras: "al Estado, a las Entidades Territoriales y a las entidades públicas"; II. - En el apartado 6º, las palabras: "en la Caja de Seguridad Social de la Casa de los artistas y autores
reconocidos de obras gráficas y plásticas, tal y como son definidos por el artículo 71 del anexo III del Código General de Impuestos" serán sustituidas por las palabras: "en la Caja Local de Seguridad Social y reconocidos autores de obras gráficas y plásticas en el sentido del Código de impuestos aplicable localmente".
Artículo L911-9 Para la aplicación del artículo L. 145-6, las palabras: "la evacuación de los locales incluidos en un sector o
perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo" serán sustituidas por las palabras: "la evacuación de los locales prevista en el artículo L. 145-
Artículo L911-10 En el artículo L. 145-13, las palabras: "no obstante las disposiciones de la Ley de 28 de mayo de 1943 relativa a la
aplicación a los extranjeros de las leyes en materia de arrendamientos de inmuebles y arrendamientos rústicos".
Artículo L911-11 El párrafo segundo del artículo L. 145-18 quedará redactado del modo siguiente: "Lo mismo ocurrirá para efectuar operaciones de restauración inmobiliarias que conlleven obras de rehabilitación,
de conservación, de modernización o de demolición que tengan como consecuencia la transformación de las condiciones de habitabilidad de un conjunto de inmuebles que necesiten la evacuación de los locales. Estas operaciones podrán ser decididas y ejecutadas respetando la normativa vigente, por las autoridades públicas localmente competentes o por iniciativa de uno o varios propietarios, unidos o no en asociación sindical. En este último
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CÓDIGO DE COMERCIO caso, el o los propietarios estarán especialmente autorizados para ello en las condiciones determinadas por el representante del Estado, que determinará sobre todo los compromisos exigidos a los propietarios en cuanto a la naturaleza y a la importancia de las obras. Los inmuebles adquiridos por un organismo de renovación sólo podrán ser cedidos según lo libremente acordado ateniéndose a un pliego de condiciones tipo aprobado por el representante del Estado. "
Artículo L911-12 En el artículo L. 145-26, tras las palabras: "al Estado, a los departamentos, a los Ayuntamientos", se añadirán las
palabras: "a la Entidad territorial".
Artículo L911-13 El primer párrafo del artículo L. 145-34 quedará redactado del modo siguiente: "Salvo que haya una modificación notable de los elementos que afecten al valor de arrendamiento del local, el
índice de variación del alquiler aplicable en el momento de renovar el contrato no podrá exceder de la variación sufrida por el índice nacional trimestral que mide el coste de la construcción desde la determinación inicial del contrato de arrendamiento expirado, si su duración no fuese superior a nueve años. Este índice se calculará en las condiciones establecidas por una orden del representante del Estado. A falta de dicha cláusula contractual que fije el trimestre de referencia de este índice, se tendrá en cuenta una variación del índice local trimestral que mide el coste de la construcción determinado a este efecto por la orden antes citada. "
Artículo L911-14 El artículo L. 145-35 quedará redactado del modo siguiente: I. - En el primer párrafo, las palabras: "departamental" queda suprimida; II. - El último párrafo quedará redactado del modo siguiente: "La composición de la comisión, el modo de nombramiento de sus miembros y sus normas de funcionamiento
serán determinadas por una orden del representante del Estado". "
CAPITULO II Disposiciones de adaptación del libro II Artículos L912-1 a
L912-6
Artículo L912-1 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 46 Diario Oficial de 27 de marzo de 2004)
En los artículos L. 223-18 y L. 225-36 y L. 225-65, las palabras: "en el mismo departamento o en un departamento limítrofe" serán sustituidas por las palabras: "en la Entidad territorial".
Artículo L912-2 Se suprimirán el último párrafo del artículo L. 225-43 y el del artículo L. 225-91.
Artículo L912-3 En el párrafo segundo del artículo L. 225-102, se suprimirán las palabras: "así como por los trabajadores de una
sociedad cooperativa obrera de producción en el sentido de la Ley nº 78-763 de 19 de julio de 1978 relativa al estatuto de sociedades cooperativas obreras de producción".
Artículo L912-4 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 59 Diario Oficial de 26 de junio de 2004)
En el apartado 5º del artículo L. 225-115, las palabras: "pagos realizados en aplicación de los apartados 1 y 4 del artículo 238 bis del Código General de Impuestos" serán sustituidas por las palabras: "deducciones fiscales previstas por las disposiciones del Código de Impuestos localmente aplicables relativas al total de deducciones del importe de los beneficios imponibles de las sociedades que realicen pagos en beneficio de obras de organismos de interés general, o de sociedades autorizadas o donaciones de obras de arte al Estado".
Artículo L912-6 En el punto VI del artículo L. 225-270, las palabras: "las disposiciones del artículo 94 A del Código General de
Impuestos" serán sustituidas por las palabras: "las disposiciones del Código de los Impuestos localmente aplicable relativas a los beneficios netos en capital realizados por la cesión a título oneroso de valores mobiliarios y de derechos sociales".
CAPITULO III Disposiciones de adaptación del libro III Artículo L913-1
Artículo L913-1 El párrafo segundo del artículo L. 322-9 quedará redactado del modo siguiente: "Se someterán a las disposiciones prescritas por el Código de Impuestos localmente aplicable relativas a las ventas
públicas y en subasta". "
CAPITULO IV Disposiciones de adaptación del libro IV Artículos L914-1 a
L914-2
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CÓDIGO DE COMERCIO Artículo L914-1
En el párrafo segundo del artículo L. 442-2, antes de las palabras: "tasas sobre el volumen de negocio", se añadirá la palabra: "eventuales".
Artículo L914-2 El artículo L. 443-1 quedará redactado del modo siguiente: I. - En el apartado 3º, las palabras: "en el artículo 403 del Código General de Impuestos" serán sustituidas por las
palabras: "por las disposiciones del Código de Impuestos localmente aplicable". II. - El apartado 4º quedará redactado del modo siguiente: "4º A setenta y cinco días tras el día de la entrega para las compras de las bebidas alcohólicas sujetas a derechos
de circulación previstos por el Código de Impuestos localmente aplicable". "
CAPITULO V Disposiciones de adaptación del libro V Artículos L915-1 a
L915-5
Artículo L915-1 El párrafo segundo del artículo L. 511-62 quedará redactado del modo siguiente: "La letra de resaca incluirá las cantidades indicadas en los artículos L. 511-45 y L. 511-46, además de los derechos
de corretaje y de timbre eventualmente previstos por las disposiciones del Código de Impuestos localmente aplicable". "
Artículo L915-2 El primer párrafo del artículo L. 524-19 quedará redactado del modo siguiente: "El importe de los derechos a percibir por el secretario del Tribunal de Primera Instancia competente en materia
mercantil será fijada por decreto". "
Artículo L915-3 En el primer párrafo del artículo L. 525-2, tras las palabras "por el impuesto mínimo alzado", se añadirán las
palabras: "según las condiciones vigentes localmente".
Artículo L915-4 En el punto II del artículo L. 525-9, las palabras: "al privilegio citados en el artículo L. 243-4 del Código de la
Seguridad Social" serán sustituidas por las palabras: "al privilegio organizado en beneficio de la caja de previsión social de la Entidad territorial".
Artículo L915-5 El artículo L. 525-18 quedará redactado del modo siguiente: I. - En el apartado 1º, la referencia al decreto nº 53-968 de 30 de septiembre de 1953 será sustituida por la
referencia nº 55-639 del 20 de mayo de 1955. II. - El apartado 2º quedará redactado del modo siguiente: "2º Los buques de mar". "
CAPITULO VI Disposiciones de adaptación del libro VI Artículo L916-1
Artículo L.916-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 193 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No será de aplicación en Saint-Pierre-et-Miquelon el apartado 4° del punto III del artículo L.643-11.
CAPITULO VII Disposiciones de aplicación del libro VII Artículos L917-1 a
L917-4
Artículo L917-1 En los artículos L. 711-2 y L. 711-4, la palabra: "Gobierno" será sustituida por las palabras: "representante del
Estado en la Entidad territorial".
Artículo L917-2 En el párrafo tercero del artículo L. 711-6, las palabras: "o el Ayuntamiento" serán sustituidas por las palabras: "el
Ayuntamiento o la Entidad territorial".
Artículo L917-3 En el artículo L. 711-7, las palabras: "en el sentido y para la aplicación del artículo L. 961-10 del Código de
Trabajo".
Artículo L917-4 En el artículo L. 712-1, las palabras: "por medio de una tasa adicional a la tasa profesional" serán sustituidas por
las palabras: "como se establece en las disposiciones del Código de Impuestos aplicable en la Entidad territorial".
TITULO II
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CÓDIGO DE COMERCIO DISPOSICIONES APLICABLES A MAYOTTE Artículos L921-1 a
L920-7
Artículo L.920-1 (Ley nº 2003-710 de 1 de agosto de 2003 art. 38 II Diario Oficial de 2 de agosto de 2003) (Disposición nº 2005-43 de 20 de enero de 2005 art. 3 I Diario Oficial de 22 de enero de 2005, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 III Diario Oficial de 27 de julio de 2005)
No obstante las adaptaciones previstas en los capítulos posteriores, las disposiciones siguientes del presente Código serán aplicables en Mayotte:
1º El libro I, salvo los artículos L.125-3, L.126-1; 2º El libro II, salvo los artículos L.225-245-1, L.229-1 a L.229-15, L.238-6, L.244-5 y L.252-1 a L.252-13; 3º El libro III, salvo los artículos L.321-1 a L.321-38; 4º El libro IV, salvo los artículos L.441-1, L.442-1 y L.470-6; 5º El libro V, salvo los artículos L.522-1 a L.522-40, L.524-12, L.524-20 y L.524-21; 6º El libro VI, excluyendo los artículos L.622-19, L.625-9 y L.670-1 a L.670-8; 7º El título I del libro VII, salvo los artículos L.711-5 y L.712-1 y las disposiciones relativas a los delegados de las
cámaras profesionales; 8º El libro VIII.
Artículo L920-2 Para la aplicación del presente Código en la Entidad territorial de Mayotte, los términos enumerados a continuación
serán sustituidos de la siguiente manera: 1º"Tribunal de grande instance " o "Tribunal d'instance" por "Tribunal de première instance"; 2º "Tribunal de commerce" o "Justicia consular" por "Tribunal de grande instance competente en materia mercantil"; 3º "Conseil des prud'hommes" por "Tribunal du travail" 3º "departamento" o "circunscripción" por "Entidad territorial" 4º "Boletín oficial de anuncios civiles y comerciales" por "Recopilatorio de actas administrativas de la Entidad
territorial".
Artículo L920-3 Las referencias hechas a otros artículos del presente Código, por disposiciones del presente Código aplicables en
Mayotte, sólo afectarán a los artículos aplicables en la Entidad territorial con las adaptaciones previstas en los capítulos siguientes.
Artículo L920-4 A falta de adaptación, las referencias hechas por disposiciones del presente Código aplicables en Mayotte, a
disposiciones que no sean aplicables se sustituirán por referencias a las disposiciones que tengan el mismo objeto aplicables localmente.
Artículo L920-5 Las referencias hechas por disposiciones del presente Código aplicables en Mayotte a disposiciones del Código de
Trabajo sólo serán aplicables allí si existiese una disposición localmente aplicable con el mismo fin.
Artículo L920-7 Los artículos que hagan referencia a la Comunidad Europea serán aplicables respetando la decisión de asociación
prevista en el artículo 136 del Tratado Constitutivo de la Comunidad Europea. No serán aplicables las referencias al acuerdo sobre el Espacio Económico Europeo.
CAPITULO I Disposiciones de adaptación del libro I Artículos L921-1 a
L921-14
Artículo L921-1 (Disposición nº 2004-279 de 25 de marzo de 2004 Artículo 7 Diario Oficial de 27 de marzo de 2004)
En el artículo L. 122-1, las palabras: "por el Prefecto del departamento en el que prevé ejercer su actividad por primera vez" serán sustituidas por las palabras: "por el Prefecto de Mayotte en el caso de que el extranjero deba ejercer allí por primera vez su actividad".
Artículo L921-2 Las excepciones a las disposiciones de los artículos L. 123-25 a L. 123-27 serán aplicables a las personas físicas
sujetas a un régimen impositivo simplificado según la normativa vigente en Mayotte.
Artículo L921-3 En el artículo L. 133-6, las palabras: "las que tienen su origen en las disposiciones del artículo 1269 del nuevo
Código de Proceso Civil" serán sustituidas por las palabras: "las solicitudes de revisión de cuenta y de liquidación de los resultados presentadas para subsanar un error, una omisión o una presentación inexacta".
Artículo L921-4
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CÓDIGO DE COMERCIO En el artículo L. 133-7, las palabras: "los derechos, tasas, gastos y multas de aduana vinculados a una operación
de transporte".
Artículo L921-5 Para la aplicación de los artículos L. 141-15, L. 143-7, L. 144-1 a L. 144-13 y L. 145-28, el presidente podrá delegar
en un magistrado del Tribunal de Primera Instancia.
Artículo L921-6 En el artículo L. 141-13, las palabras: "de la declaración prescrita por los artículos 638 y 653 del Código General de
Impuestos" serán sustituidas por las palabras: "de la declaración prescrita en las condiciones establecidas por las disposiciones del Código de Impuestos aplicable en la Entidad territorial".
Artículo L921-7 En el artículo L. 144-5, las palabras: "los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud
Pública" serán sustituidas por las palabras: "los artículos del Código de la Salud Pública aplicable en la Entidad territorial relativos a la hospitalización y al internamiento con o sin consentimiento del interesado".
Artículo L921-8 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El artículo L. 145-2 quedará redactado del modo siguiente: I. - En el apartado 4º, las palabras: "al Estado, a los departamentos, a los Ayuntamientos, a las entidades públicas"
serán sustituidas por las palabras: "al Estado, a las Entidades Territoriales y a los establecimientos públicos". II. - En el apartado 6º, las palabras: "en la Caja de Seguridad Social de la Casa de los artistas y autores
reconocidos de obras gráficas y plásticas, tal y como son definidos por el artículo 71 del anexo III del Código General de Impuestos" serán sustituidas por las palabras: "en la Caja Local de Seguridad Social y reconocidos autores de obras gráficas y plásticas en el sentido del Código de impuestos aplicable en la Entidad territorial".
Artículo L921-9 Para la aplicación del artículo L. 145-6, las palabras: "la evacuación de los locales incluidos en un sector o
perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo" serán sustituidas por las palabras: "la evacuación de los locales prevista en el artículo L. 145-
Artículo L921-10 En el artículo L. 145-13, las palabras: "no obstante las disposiciones de la Ley de 28 de mayo de 1943 relativa a la
aplicación a los extranjeros de las leyes en materia de arrendamientos de inmuebles y arrendamientos rústicos".
Artículo L921-11 El párrafo segundo del artículo L. 145-18 quedará redactado del modo siguiente: "Lo mismo ocurrirá para efectuar operaciones de restauración inmobiliarias que conlleven obras de rehabilitación,
de conservación, de modernización o de demolición que tengan como consecuencia la transformación de las condiciones de habitabilidad de un conjunto de inmuebles que necesiten la evacuación de los locales. Estas operaciones podrán ser decididas y ejecutadas respetando la normativa vigente, por las autoridades públicas localmente competentes o por iniciativa de uno o varios propietarios, unidos o no en asociación sindical. En este último caso, el o los propietarios estarán especialmente autorizados para ello en las condiciones determinadas por el representante del Estado, que determinará sobre todo los compromisos exigidos a los propietarios en cuanto a la naturaleza y a la importancia de las obras. Los inmuebles adquiridos por un organismo de renovación sólo podrán ser cedidos según lo libremente acordado ateniéndose a un pliego de condiciones tipo aprobado por el representante del Estado. "
Artículo L921-12 En el artículo L. 145-26, tras las palabras: "al Estado, a los departamentos, a los Ayuntamientos", se añadirán las
palabras: "a la Entidad territorial".
Artículo L921-13 El primer párrafo del artículo L. 145-34 quedará redactado del modo siguiente: "Salvo que haya una modificación notable de los elementos que afecten al valor de arrendamiento del local, el
índice de variación del alquiler aplicable en el momento de renovar el contrato no podrá exceder de la variación sufrida por el índice nacional trimestral que mide el coste de la construcción desde la determinación inicial del contrato de arrendamiento expirado, si su duración no fuese superior a nueve años. Este índice se calculará en las condiciones establecidas por una orden del representante del Estado. A falta de dicha cláusula contractual que fije el trimestre de referencia de este índice, se tendrá en cuenta una variación del índice local trimestral que mide el coste de la construcción determinado a este efecto por la orden antes citada. "
Artículo L921-14 El artículo L. 145-35 quedará redactado del modo siguiente: I. - En el primer párrafo, las palabras: "departamental" queda suprimida; II. - El último párrafo quedará redactado del modo siguiente: "La composición de la comisión, el modo de nombramiento de sus miembros y sus normas de funcionamiento
serán determinadas por una orden del representante del Estado". "
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CÓDIGO DE COMERCIO CAPITULO II Disposiciones de adaptación del libro II Artículos L922-1 a
L922-10
Artículo L922-1 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 56 Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-177 y L. 225-179 y L. 233-11, las palabras: "la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001" serán sustituidas por las palabras: "la fecha de publicación de la disposición nº 2004-604 de 24 de junio de 2004 relativa a la reforma del régimen de valores mobiliarios emitidos por las sociedades comerciales y la aplicación a los territorios de Ultramar de las disposiciones de modificación de la legislación comercial".
Artículo L922-2 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 47 III Diario Oficial de 27 de marzo de 2004)
En los artículos L. 223-18 y L. 225-36 y L. 225-65, las palabras: "en el mismo departamento o en un departamento limítrofe" serán sustituidas por las palabras: "en la Entidad territorial".
Artículo L922-3 Se suprimirán el último párrafo del artículo L. 225-43 y el del artículo L. 225-91.
Artículo L922-4 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 60 Diario Oficial de 26 de junio de 2004)
En el apartado 5º del artículo L. 225-115, las palabras: "pagos realizados en aplicación de los apartados 1 y 4 del artículo 238 bis del Código General de Impuestos" serán sustituidas por las palabras: "deducciones fiscales previstas por las disposiciones de derecho fiscal aplicables en la Entidad territorial y relativas al total de las deducciones del importe de los beneficios imponibles de las sociedades que desembolsen cantidades en beneficio de obras de organismos de interés general o de sociedades autorizadas o donaciones de obras de arte al Estado".
Artículo L922-5 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 56 Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-105 y L. 225-230 y L. 225-231, las palabras: "el comité de empresa" serán sustituidas por las palabras: "los delegados del personal".
Artículo L922-6 En los artículos L. 225-231, L. 232-3, L. 232-4, L. 234-1 y L. 234-2, las palabras: "al comité de empresa" serán
sustituidas por las palabras: "a los delegados del personal".
Artículo L922-7 En el punto VI del artículo L. 225-270, las palabras: "las disposiciones del artículo 94 A del Código General de
Impuestos" serán sustituidas por las palabras: "las disposiciones del Código de Impuestos aplicables en la Entidad territorial relativas a los beneficios netos en capital realizados por la cesión a título oneroso de valores mobiliarios y de derechos sociales".
Artículo L922-8 Quedará suprimido el último párrafo del artículo L. 228-36.
Artículo L922-9 En el artículo L. 233-24, las palabras: "o del punto VII del artículo 97" quedarán suprimidas.
Artículo L922-10 Quedará suprimido el párrafo segundo del artículo L. 251-7.
CAPITULO III Disposiciones de adaptación del libro III Artículos L923-1 a
L923-2
Artículo L923-1 En el artículo L. 322-1, las palabras: "en los artículos 53 de la Ley nº 91-650 de 9 de julio de 1991 relativa a la
reforma del procedimiento de ejecución y 945 del Código de Proceso Civil" serán sustituidas por las palabras: "en las disposiciones de procedimiento civil vigentes aplicables en la Entidad territorial relativas a la venta de bienes muebles procedentes de una herencia".
Artículo L923-2 El párrafo segundo del artículo L. 322-9 quedará redactado del modo siguiente: "Se sujetarán a las disposiciones prescritas por el Código de Impuestos aplicable en la Entidad territorial relativas a
las ventas públicas y en subasta". "
CAPITULO IV Disposiciones de adaptación del libro IV Artículos L924-1 a
L924-6
Artículo L924-1
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CÓDIGO DE COMERCIO (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
En el primer párrafo del artículo L. 430-2, la palabra: "tres" será sustituida por la palabra: "dos". Se suprimirán los apartados cuarto y quinto de este artículo.
Artículo L924-2 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
En el artículo L. 430-3, se suprimirá la última frase del primer párrafo. En el tercer párrafo del mismo artículo, las palabras: ", o la remisión total o parcial de una operación de dimensión comunitaria" serán suprimidos.
Artículo L924-3 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
El último párrafo del artículo L. 441-2 será sustituido por cuatro párrafos redactados del siguiente modo: "El juez de instrucción o el Tribunal incoado para estas diligencias podrá ordenar que cese la publicidad, realizada
en condiciones no conformes a las disposiciones del párrafo 1, por requerimiento del Ministerio Público o de oficio. La medida tomada de este modo será ejecutoria pese a que puedan interponerse recursos.
La jurisdicción que haya ordenado el embargo o que haya sido encargada del asunto podrá ordenar su levantamiento. La medida dejará de tener efecto en caso de sobreseimiento o de absolución.
Las resoluciones que resuelvan las solicitudes de embargo podrán ser objeto de un recurso ante el Tribunal Superior de Apelación si hubieran sido acordadas por un juez de instrucción o por el Tribunal incoado para las diligencias.
El Tribunal Superior de Apelación resolverá en un plazo de diez días contados a partir de la fecha de recepción de los documentos."
Artículo L924-4 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
En el párrafo segundo del artículo L. 442-2, antes de las palabras: "tasas sobre el volumen de negocio", se añadirá la palabra: "tasas sobre la facturación";
Artículo L924-5 (introducido por la Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
El último párrafo del artículo L. 442-3 será sustituido por cuatro párrafos redactados del siguiente modo: "El juez de instrucción o el Tribunal encargado de las diligencias podrá ordenar la interrupción del anuncio
publicitario, o bien por requerimiento del Ministerio Público o de oficio. La medida tomada de este modo será ejecutoria pese a que puedan interponerse recursos.
La jurisdicción que haya ordenado el embargo o que haya sido encargada del asunto podrá ordenar su levantamiento. La medida dejará de tener efecto en caso de sobreseimiento o de absolución.
Las resoluciones que resuelvan sobre las solicitudes de embargo podrán ser objeto de un recurso ante el Tribunal Superior de Apelación.
El Tribunal Superior de Apelación resolverá en un plazo de diez días contados a partir de la fecha de recepción de los documentos." "
Artículo L924-6 (introducido por la Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
El artículo L. 443-1 quedará redactado del modo siguiente: I. - En el apartado 1º, las palabras: "citados en los artículos L. 326-1 a L. 326-3 del Código Rural" serán sustituidas
por las palabras: "previstos por las disposiciones del Código Rural aplicable en la Entidad territorial"; II. - En el apartado 3º, las palabras: "en el artículo 403 del Código General de Impuestos" serán sustituidas por las
palabras: "por las disposiciones del Código de Impuestos aplicable en la Entidad territorial"; III. - El apartado 4º quedará redactado del modo siguiente: "4º A setenta y cinco días después del día de la entrega para las compras de bebidas alcohólicas sujetas a
derechos de circulación previstos por el Código de Impuestos aplicable en la Entidad territorial." "
CAPITULO V Disposiciones de adaptación del libro V Artículos L925-1 a
L925-6
Artículo L925-1 El párrafo segundo del artículo L. 511-62 quedará redactado del modo siguiente: "La letra de resaca incluirá las cantidades indicadas en los artículos L. 511-45 y L. 511-46, además de los derechos
de corretaje y de timbre eventualmente previstos por las disposiciones aplicables en la Entidad territorial". "
Artículo L925-2 En los artículos L. 523-8 y L. 524-6, las palabras: "Artículos 1426 al 1429 del nuevo Código de Proceso Civil" serán
sustituidas por las palabras: "disposiciones de procedimiento civil aplicables localmente relativas a las ofertas de pago y
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CÓDIGO DE COMERCIO a la consignación".
Artículo L925-3 El primer párrafo del artículo L. 524-19 quedará redactado del modo siguiente: "El importe de los derechos a percibir por el secretario del Tribunal de Primera Instancia competente en materia
mercantil será fijada por decreto". "
Artículo L925-4 En el primer párrafo del artículo L. 525-2, tras las palabras: "al impuesto mínimo alzado" se añadirán las palabras:
"según las modalidades vigentes en la Entidad territorial".
Artículo L925-5 En el punto II del artículo L. 525-9, las palabras: "al privilegio citado en el artículo L. 243-4 del Código de la
Seguridad Social" serán sustituidas por las palabras: "al privilegio organizado en beneficio de la caja de previsión social de la Entidad territorial".
Artículo L925-6 El artículo L. 525-18 quedará redactado del modo siguiente: I. - En el apartado 1º, la referencia al decreto nº 53-968 de 30 de septiembre de 1953 será sustituida por la
referencia nº 55-639 del 20 de mayo de 1955. II. - El apartado 2º quedará redactado del modo siguiente: "2º Los buques de mar así como las embarcaciones de navegación fluvial". "
CAPITULO VI Disposiciones de adaptación del libro VI Artículos L926-1 a
L927-1
Artículo L.926-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.625-2 las palabras: "mencionada en el artículo L.432-7 del Código de Trabajo" serán sustituidas por las palabras: "con relación a las informaciones que tuvieran un carácter confidencial y hayan sido presentadas como tales".
Artículo L.926-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.622-24, les organismos citados en el artículo L.351-21 del Código de Trabajo serán los organismos locales que se encarguen del servicio de la prestación del seguro de desempleo y del cobro de las contribuciones.
Artículo L.926-3 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación de los artículos L.622-24, L.622-26, L.626-5, L.626-7, L.626-20, L.625-3, L.625-4 y L.662-4, las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo serán las instituciones locales encargadas de la aplicación del régimen de seguros contra el riesgo de impago de los salarios, en caso de procedimiento de saneamiento judicial o de liquidación judicial.
Artículo L.926-4 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.626-5 a L.626-7, las instituciones reguladas por el libro IX del Código de la Seguridad Social serán las instituciones locales de jubilación complementaria o suplementaria o de previsión previstas por las disposiciones aplicables en la entidad territorial y relativas a los regímenes de seguridad y protección sociales.
Artículo L.926-5 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO En el artículo L.626-14, la referencia al artículo 28 del Decreto nº 55-22 de 4 de enero de 1955 relativo a la reforma
de la publicidad inmobiliaria será sustituida por la referencia a las disposiciones aplicables en la entidad territorial y relativas a la publicidad de los derechos sobre los inmuebles que no sean ni privilegios ni hipotecas.
Artículo L.926-6 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.642-1, la obligación para el Tribunal de tener en cuenta las disposiciones contenidas en los apartados 1º, 2º, 3º y 4º del artículo L.331-3 del Código Rural se referirá a los siguientes requisitos:
"Observar el orden de prioridades establecido entre la instalación de los jóvenes agricultores y la ampliación de las explotaciones, teniendo en cuenta el interés económico y social del mantenimiento de la autonomía de la explotación objeto de la solicitud;
En caso de ampliación o de reunión de explotaciones, tener en cuenta las posibilidades de instalación en una explotación viable, la situación de las tierras en cuestión con relación a la sede de la explotación del o de los solicitantes, la superficie de los bienes que sean objeto de la solicitud y de las superficies ya aprovechadas por el o los solicitantes, así como por el arrendatario actual;
Considerar la situación personal del o de los solicitantes: edad, situación familiar y profesional y, en su caso, la del arrendatario actual, así como el número y la naturaleza de los puestos de trabajo asalariados en juego;
Tener en cuenta la estructura parcelaria de las explotaciones en cuestión, tanto con relación a la sede de la explotación, como para evitar que determinados cambios en la posesión puedan cuestionar los acondicionamientos obtenidos con ayuda de fondos públicos".
Artículo L.926-7 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No será de aplicación el apartado 4° del punto III del artículo L.643-11.
Artículo L.927-1 (introducido por la Disposición nº 2005-43 de 20 de enero de 2005 art. 3III Diario Oficial de 22 de enero de 2005, con entrada en vigor el 1 de febrero de 2005)
Para la aplicación en Mayotte del artículo L.711-6, el representante del Estado en Mayotte estará habilitado a conceder a la Cámara de Comercio e Industria de Mayotte la autorización prevista en este artículo, por delegación permanente del Ministro encargado de la tutela de las Cámaras de Comercio e Industria.
TITULO III DISPOSICIONES APLICABLES EN NUEVA CALEDONIA Artículos L931-1 a
L930-7
Artículo L.930-1 (Ley nº 2003-706 de 1 de agosto de 2003 art. 116 Diario Oficial de 2 de agosto de 2003) (Ley nº 2003-710 de 1 de agosto de 2003 art. 38 II Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 art. 57 III Diario Oficial de 26 de junio de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 III Diario Oficial de 27 de julio de 2005) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sin perjuicio de las adaptaciones previstas en los siguientes capítulos, las disposiciones enumeradas a continuación serán aplicables en Nueva Caledonia:
1º El libro I, salvo los artículos L.124-1 a L.126-1, L.131-1 a L.131-6, L.131-9, L.134-1 a L.134-17, L.145-34 a L.145-36, L.145-38 y L.145-39;
2º El libro II, salvo los artículos L.225-245-1, L.229-1 a L.229-15, L.238-6, L.244-5 y L.252-1 a L.252-13; 3º El libro III, salvo los artículos L.310-4, L.321-1 a L.321-38, L.322-7 y L.322-10; 4º El libro V, salvo los artículos L.522-1 a L.522-40, L.524-12, L.524-20 y L.524-21; 5º El libro VI, salvo los artículos L.622-19, L.625-9 y L.670-1 a L.670-8; 6º El título II del libro VIII.
Artículo L930-2 Para la aplicación del presente código en el territorio, los términos enumerados a continuación serán sustituidos del
modo siguiente: 1º"Tribunal de grande instance " o "Tribunal d'instance" por "Tribunal de première instance"; 2º "Tribunal de commerce" o "Justicia consular" por "Tribunal mixto de comercio"; 3º "Conseil de prud'hommes" por "Tribunal du travail" 4º "Boletín oficial de anuncios civiles y comerciales" por "Diario Oficial de Nueva Caledonia"; 5º "departamento" o "circunscripción" por "Nueva Caledonia" o por "provincia";
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CÓDIGO DE COMERCIO 6º "Prefecto" o "Subprefecto" por "representante del Estado en Nueva Caledonia".
Artículo L930-3 Las referencias hechas por disposiciones del presente Código aplicables en Nueva Caledonia a otros artículos del
presente Código, sólo afectarán a los artículos convertidos en aplicables en Nueva Caledonia debido a las adaptaciones previstas en los capítulos siguientes.
Artículo L930-4 A falta de adaptación, las referencias hechas por disposiciones del presente Código aplicables en Nueva
Caledonia, a disposiciones que no puedan ser aplicables allí, serán sustituidas por las referencias a las disposiciones que tengan el mismo objeto y que sean localmente aplicables.
Artículo L930-5 Las referencias hechas por disposiciones del presente Código aplicables en Nueva Caledonia a disposiciones del
Código de Trabajo sólo serán aplicables allí si existe una disposición aplicable localmente que tenga el mismo objeto.
Artículo L930-6 Las referencias a la inscripción en el Registro Central de Artesanos serán sustituidas por las referencias a la
inscripción realizada en conformidad a la normativa aplicable en Nueva Caledonia.
Artículo L930-7 Los artículos que hagan referencia a la Comunidad Europea serán aplicables respetando la decisión de asociación
prevista en el artículo 136 del Tratado Constitutivo de la Comunidad Europea. No serán aplicables las referencias al acuerdo sobre el Espacio Económico Europeo.
CAPITULO I Disposiciones de adaptación del libro I Artículos L931-1 a
L931-19
Artículo L931-1 En el artículo L. 122-1, las palabras: "El Prefecto del departamento en el que el extranjero deberá ejercer su
actividad" serán sustituidas por las palabras: "la autoridad competente de Nueva Caledonia".
Artículo L931-2 Las excepciones previstas por los artículos L. 123-25 a L. 123-27 se aplicarán a las personas físicas sujetas a un
régimen impositivo simplificado por la normativa vigente en Nueva Caledonia.
Artículo L931-3 En el artículo L. 131-11, las palabras: "Si estuviera inscrito en la lista de los corredores, elaborada de acuerdo a las
disposiciones reglamentarias vigentes al respecto, será eliminado de ella y no podrá ser inscrito de nuevo".
Artículo L931-4 Para la aplicación del artículo L. 133-6: 1º Las palabras: "las que tienen su origen en las disposiciones del artículo 1269 del nuevo Código de Proceso Civil"
serán sustituidas por las palabras: "las acciones presentadas de revisión de cuenta y de liquidación de los productos para subsanar un error, una omisión o una presentación inexacta";
2º Las disposiciones del último párrafo se aplicarán en el caso de transporte realizado por cuenta de Nueva Caledonia.
Artículo L931-5 En el artículo L. 133-7, las palabras: "los derechos, tasas, gastos y multas de aduana vinculados a una operación
de transporte".
Artículo L931-6 Para la aplicación de los artículos L. 141-15, L. 143-7, L. 144-1 a L. 144-13 y L. 145-28, el presidente podrá delegar
en un magistrado del Tribunal de Primera Instancia.
Artículo L931-7 En el artículo L. 141-13, las palabras: "por los artículos 638 y 653 del Código General de Impuestos" serán
sustituidas por las palabras: "por las disposiciones del Código de Impuestos aplicable en Nueva Caledonia relativas a las declaraciones verbales de cambio de titular".
Artículo L931-8 En el artículo L. 144-5, las palabras: "los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud
Pública" serán sustituidas por las palabras: "los artículos del Código de la Salud Pública aplicable en Nueva Caledonia relativos a la hospitalización o internamiento con o sin el consentimiento del interesado".
Artículo L931-9 El artículo L. 144-11 quedará redactado del modo siguiente: "Art. L. 144-11. - Si, de acuerdo a la normativa local, el contrato de arrendamiento de negocio incluyera una
cláusula de revisión - actualización, se podrá solicitar la revisión del importe del alquiler en las condiciones fijadas por un acuerdo de la autoridad local, no obstante cualquier contrato en contrario, si por el juego de dicha cláusula, este
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CÓDIGO DE COMERCIO contrato de alquiler se viera aumentado o disminuido en más de un cuarto con relación al precio anteriormente fijado contractual o judicialmente". "
Artículo L931-10 El artículo L. 144-12 quedará redactado del modo siguiente: "Art. L. 144-12. - Si no hay acuerdo amistoso entre las partes sobre la revisión del precio del alquiler, la acción será
emprendida y juzgada según las disposiciones previstas en materia de revisión del precio de los arrendamientos de inmuebles o de locales comerciales o industriales.
El juez deberá adaptar el juego de la cláusula de revisión actualización al valor del alquiler del día de la notificación, teniendo en cuenta todos los elementos de apreciación. El nuevo precio será aplicable a partir de esta misma fecha, a menos que las partes se hayan puesto de acuerdo antes o durante la instancia en una fecha anterior o más reciente. "
Artículo L931-11 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El artículo L. 145-2 quedará redactado del modo siguiente: I. - En el apartado 4º, las palabras: "al Estado, a los departamentos, a los Ayuntamientos, a las entidades públicas"
serán sustituidas por las palabras: "al Estado, a las Entidades Territoriales y a las entidades públicas"; II. - En el apartado 6º, las palabras: "en la Caja de Seguridad Social de la Casa de los artistas y autores
reconocidos de obras gráficas y plásticas, tal y como son definidos por el artículo 71 del anexo III del Código General de Impuestos" serán sustituidas por las palabras: "en la caja local de Seguridad Social y reconocidos autores de obras gráficas o plásticas en el sentido del Código de Impuestos aplicable en Nueva Caledonia".
Artículo L931-12 Para la aplicación del artículo L. 145-6, las palabras: "la evacuación de los locales incluidos en un sector o
perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo" serán sustituidas por las palabras: "la evacuación de los locales prevista en el artículo L. 145-
Artículo L931-13 En el artículo L. 145-13, las palabras: "no obstante las disposiciones de la Ley de 28 de mayo de 1943 relativa a la
aplicación a los extranjeros de las leyes en materia de arrendamientos de inmuebles y arrendamientos rústicos".
Artículo L931-14 El párrafo segundo del artículo L. 145-18 quedará redactado del modo siguiente: "Lo mismo ocurrirá para efectuar operaciones de restauración inmobiliarias que conlleven obras de rehabilitación,
de conservación, de modernización o de demolición que tengan como consecuencia la transformación de las condiciones de habitabilidad de un conjunto de inmuebles que necesiten la evacuación de los locales. Estas operaciones podrán ser decididas y ejecutadas respetando la normativa vigente, por las autoridades públicas localmente competentes o por iniciativa de uno o varios propietarios, unidos o no en asociación sindical. En este último caso, el o los propietarios serán autorizados especialmente para ello en las condiciones determinadas por las autoridades locales competentes que precisarán sobre todo las obligaciones exigidas a los propietarios en cuanto a la naturaleza e importancia de las obras. Los inmuebles adquiridos por un organismo de renovación sólo podrán ser cedidos, tras la restauración, según lo libremente acordado ateniéndose a un pliego de condiciones tipo aprobado por dichas autoridades". "
Artículo L931-15 En el artículo L. 145-26, las palabras: "a los departamentos" serán sustituidas por las palabras: "a Nueva
Caledonia, a las provincias".
Artículo L931-16 El artículo L. 145-37 quedará redactado del modo siguiente: "Art. L. 145-37. - Los contratos de los alquileres de inmuebles o de locales regulados por el presente capítulo,
renovados o no, podrán ser revisados a petición de una u otra de las partes, en las condiciones previstas por los acuerdos de la autoridad competente en Nueva Caledonia" "
Artículo L931-17 El artículo L. 145-43 quedará redactado del modo siguiente: "Art. L. 145-43. - Quedarán dispensados de la obligación de explotar durante el período del curso formativo, los
comerciantes y artesanos, arrendatarios del local en el que esté situado su fondo de comercio, que sean admitidos a realizar un curso de readaptación profesional o un curso de cualificación según las disposiciones del Código de trabajo aplicable en la Nueva Caledonia". "
Artículo L931-18 Se suprimirá el párrafo tercero del artículo L. 145-47.
Artículo L931-19 En el artículo L. 145-56, las palabras: "y de procedimiento" serán suprimidas.
CAPITULO II Disposiciones de adaptación del libro II Artículos L932-6 a
L932-17
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CÓDIGO DE COMERCIO Artículo L932-6 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 57 III Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-177 y L. 225-179 y L. 233-11, las palabras: "la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001 relativa a las nuevas regulaciones económicas" serán sustituidas por las palabras: "la fecha de publicación de la disposición nº 2004-604 de 24 de junio de 2004 relativa a la reforma del régimen de valores mobiliarios emitidos por las sociedades comerciales y la aplicación a los territorios de Ultramar de las disposiciones de modificación de la legislación comercial".
Artículo L932-7 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 48 V Diario Oficial de 27 de marzo de 2004)
En los artículos L. 223-18 y L. 225-36 y L. 225-65, las palabras: "en el mismo departamento o en un departamento limítrofe" serán sustituidas por las palabras: "en Nueva Caledonia".
Artículo L932-8 Se suprimirán el último párrafo del artículo L. 225-43 y el del artículo L. 225-91.
Artículo L932-10 El apartado 5º del artículo L. 225-115 quedará redactado del modo siguiente: "5º Del importe global, certificada por los auditores de cuentas, las deducciones del importe de los beneficios
imponibles de sociedades que realicen pagos a obras de organismos de interés general o de sociedades autorizadas o donaciones de obras de arte al Estado o a Nueva Caledonia, tal y como está previsto por las disposiciones del derecho fiscal aplicables en Nueva Caledonia, así como la lista de las acciones nominativas de padrinazgo, de mecenazgo". "
Artículo L932-11 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 57 III Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-105 y L. 225-230 y L. 225-231, las palabras: "el comité de empresa" se añadirán las palabras: "o en su defecto los delegados del personal".
Artículo L932-12 En los artículos L. 225-231, L. 232-3, L. 232-4, L. 234-1 y L. 234-2, a las palabras: "al comité de empresa" se
añadirán las palabras: "o en su defecto a los delegados del personal".
Artículo L932-14 En el punto VI del artículo L. 225-270, las palabras: "las disposiciones del artículo 94 A del Código General de
Impuestos" serán sustituidas por las palabras: "las disposiciones del Código de Impuestos aplicable en Nueva Caledonia relativas a los beneficios netos en capital obtenidos por la cesión a título oneroso de valores mobiliarios o derechos sociales".
Artículo L932-15 Quedará suprimido el último párrafo del artículo L. 228-36.
Artículo L932-16 En el artículo L. 233-24 se suprimen las palabras "o del punto VII del artículo 97".
Artículo L932-17 Quedará suprimido el párrafo segundo del artículo L. 251-7.
CAPITULO III Disposiciones de adaptación del libro III Artículos L933-1 a
L933-8
Artículo L933-1 Quedarán suprimidos los párrafos segundo y tercero del artículo L. 310-1.
Artículo L933-2 Quedarán suprimidos los párrafos segundo y tercero del punto I y II del artículo L. 310-2.
Artículo L933-3 Se suprimirá el párrafo segundo del punto I del artículo L. 310-3.
Artículo L933-4 Se suprimirán los apartados 1º, 2º y 3º del artículo L. 310-5.
Artículo L933-5 En el artículo L. 322-1, las palabras: "en los artículos 53 de la Ley nº 91-650 de 9 de julio de 1991 relativa a la
reforma del procedimiento de ejecución y 945 del Código de Proceso Civil" serán sustituidas por las palabras: "a las disposiciones de procedimiento civil aplicables en Nueva Caledonia y relativas a la venta de bienes muebles procedentes de una herencia".
Artículo L933-6 El artículo L. 322-11 quedará redactado del modo siguiente: "Art L. 322-11. - Las impugnaciones relativas a las ventas realizadas en aplicación de los acuerdos localmente
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CÓDIGO DE COMERCIO vigentes relativas a la venta voluntaria, en subasta, al por mayor, de mercancías por parte de los corredores jurados serán presentadas ante el Tribunal mixto del comercio". "
Artículo L933-7 El artículo L. 322-15 quedará redactado del modo siguiente: "Art. L. 322-15.- Sigue siendo competencia del Tribunal o del Juez que autoriza la venta en virtud del artículo
anterior, el nombrar eventualmente a otra clase de funcionarios públicos diferentes a los corredores jurados para proceder a dicha venta". "
Artículo L933-8 El artículo L. 322-16 quedará redactado del modo siguiente: "Art. L. 322-16. - Las disposiciones del artículo L. 322-11 serán aplicables a las ventas citadas en los artículos L.
322-14 y L. 322-15".
CAPITULO V Disposiciones de adaptación del libro V Artículos L935-1 a
L935-9
Artículo L935-1 Se suprimirá la palabra "destitución" en el artículo L. 511-55.
Artículo L935-2 El artículo L. 511-60 quedará redactado del modo siguiente: "Art. L. 511-60. - Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de las
disposiciones de la presente subsección, salvo el importe de las remuneraciones que correspondan a los notarios o huissiers que hayan levantado los protestos en todos aquellos supuestos de los que se hayan encargado". "
Artículo L935-3 En el artículo L. 511-61, las palabras: "o de las Entidades Territoriales serán sustituidas por las palabras: "de los
Ayuntamientos, de las provincias o de Nueva Caledonia".
Artículo L935-4 El párrafo segundo del artículo L. 511-62 quedará redactado del modo siguiente: "La letra de resaca incluirá las cantidades indicadas en los artículos L. 511-45 y L. 511-46, además de los derechos
de corretaje y de timbre eventualmente previstos por las disposiciones del Código de Impuestos aplicable en Nueva Caledonia". "
Artículo L935-5 En los artículos L. 523-8 y L. 524-6, las palabras: "Artículos 1426 al 1429 del nuevo Código de Proceso Civil" serán
sustituidas por las palabras: "disposiciones de procedimiento civil aplicables localmente relativas a las ofertas de pago y a la consignación".
Artículo L935-6 El primer párrafo del artículo L. 524-19 quedará redactado del modo siguiente: "El importe de los derechos que el secretario del Tribunal mixto de comercio deberá percibir será determinado por
decreto". "
Artículo L935-7 En el primer párrafo del artículo L. 525-2, tras las palabras: "al impuesto mínimo alzado" se añadirán las palabras:
"según las disposiciones vigentes en Nueva Caledonia".
Artículo L935-8 En el punto II del artículo L. 525-9, las palabras: "al privilegio citado en el artículo L. 243-4 del Código de la
Seguridad Social" serán sustituidas por las palabras: "al privilegio organizado en beneficio de la Caja de Previsión Social del territorio".
Artículo L935-9 El artículo L. 525-18 quedará redactado del modo siguiente: "I. - En el apartado 1º, la referencia al decreto nº 53-968 de 30 de septiembre de 1953 será sustituida por la
referencia nº 55-639 del 20 de mayo de 1955. II. - El apartado 2º quedará redactado del modo siguiente: "2º Los buques de mar así como las embarcaciones de navegación fluvial". "
CAPITULO VI Disposiciones de adaptación del libro VI Artículos L936-1 a
L936-13
Artículo L.936-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las medidas de aplicación previstas en los artículos L.621-4, L.625-1, L.626-3, L.626-6, L.626-14 y L.626-16 serán
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CÓDIGO DE COMERCIO determinadas por la autoridad competente en Nueva Caledonia.
Artículo L.936-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el primer párrafo del artículo L.611-1, la orden del representante del Estado en la región será sustituida por una resolución del gobierno de Nueva Caledonia.
Artículo L.936-3 Para la aplicación del artículo L.612-1, los auditores de cuentas y sus suplentes serán elegidos y ejercerán sus
funciones según la normativa vigente localmente.
Artículo L.936-4 Queda suprimido el párrafo tercero del artículo L.612-1.
Artículo L.936-5 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.621-2, las palabras: "en cada departamento", serán sustituidas por las palabras: "en Nueva Caledonia".
Artículo L.936-6 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.625-2, las palabras: "mencionada en el artículo L.432-7 del Código de Trabajo" serán sustituidas por las palabras: "respecto de las informaciones que tuvieran un carácter confidencial y hubieran sido presentadas como tales".
Artículo L.936-7 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.622-24, los organismos citados en el artículo L.351-21 del Código de Trabajo serán los organismos de Nueva Caledonia que se encarguen del servicio de la prestación del seguro de desempleo y del cobro de las contribuciones.
Artículo L.936-8 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación de los artículos L.622-24, L.622-26, L.625-3, L.625-4, L.626-5 a L.626-7, L.626-20 y L.662-4, las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo serán las instituciones de Nueva Caledonia encargadas de la aplicación del régimen de seguros contra el riesgo de impago de los salarios, en caso de procedimiento de saneamiento judicial o de liquidación judicial.
Artículo L.936-9 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.626-5 a L.626-7, las instituciones reguladas por el libro IX del Código de la Seguridad Social serán las instituciones de jubilación complementaria o suplementaria o de previsión previstas por las disposiciones aplicables en Nueva Caledonia y relativas a los regímenes de seguridad y protección sociales.
Artículo L.936-10 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.621-72, la referencia al artículo 28 del decreto nº 55-22 del 4 de enero de 1955 relativo a la reforma de la publicidad inmobiliaria será sustituida por la referencia a las disposiciones aplicables localmente y relativas a la publicidad de los derechos sobre los inmuebles que no sean ni privilegios ni hipotecas.
Artículo L.936-11
Fecha de actualización 20/03/2006 - Page 304/317
CÓDIGO DE COMERCIO (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.642-1, la obligación para el Tribunal de tener en cuenta las disposiciones contenidas en los apartados 1º, 2º, 3º y 4º del artículo L.331-3 del Código Rural se referirá a los siguientes requisitos:
"Observar el orden de prioridades establecido entre la instalación de los jóvenes agricultores y la ampliación de las explotaciones, teniendo en cuenta el interés económico y social del mantenimiento de la autonomía de la explotación objeto de la solicitud;
En caso de ampliación o de reunión de explotaciones, tener en cuenta las posibilidades de instalación en una explotación viable, la situación de las tierras en cuestión con relación a la sede de la explotación del o de los solicitantes, la superficie de los bienes que sean objeto de la solicitud y de las superficies ya aprovechadas por el o los solicitantes, así como por el arrendatario actual;
Considerar la situación personal del o de los solicitantes: edad, situación familiar y profesional y, en su caso, la del arrendatario actual, así como el número y la naturaleza de los puestos de trabajo asalariados en juego;
Tener en cuenta la estructura parcelaria de las explotaciones en cuestión, tanto con relación a la sede de la explotación, como para evitar que determinados cambios en la posesión puedan cuestionar los acondicionamientos obtenidos con ayuda de fondos públicos".
Artículo L.936-12 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No será de aplicación el apartado 4° del punto III del artículo L.643-11.
Artículo L936-13 (Introducido por la Ley nº 2003-7 de 3 de enero de 2003 Artículo 49 I Diario Oficial de 4 de enero de 2003)
El primer párrafo del artículo L. 622-2 será sustituido por una frase redactada del siguiente modo: "En las mismas condiciones se le podrá añadir uno o varios liquidadores." "
CAPITULO VIII Disposiciones de adaptación del libro VIII Artículo L938-1
Artículo L938-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 57 III Diario Oficial de 26 de junio de 2004)
Para la aplicación en Nueva Caledonia de los artículos L. 822-2 a L. 822-7, los términos enumerados a continuación serán sustituidos del modo siguiente:
1º "comisión regional de inscripción" por "comisión territorial de inscripción"; 1º "Cámara Regional de Cuentas" por "Cámara Territorial de Cuentas"; 3º "Cámara Regional de Disciplina" por "Cámara Territorial de Disciplina".
TITULO IV DISPOSICIONES APLICALBLES EN LA POLINESIA FRANCESA Artículos L941-1 a
L940-8
Artículo L940-1 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 116 Diario Oficial de 2 de agosto de 2003) (Ley nº 2003-710 de 1 de agosto de 2003 Artículo 38 II Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 66 Diario Oficial de 26 de junio de 2004)
Las disposiciones siguientes del presente Código serán aplicables en el territorio de Polinesia Francesa , no obstante las adaptaciones previstas en los siguientes capítulos:
1º El libro I, salvo los artículos L. 124-1 a L. 126-1, L. 145-34 a L. 145-36, L. 145-38 y L. 145-39; 2º El libro II, salvo los artículos L. 822-1 a L. 822-10, L. 252-1 a L. 252-13; 3º El libro III, salvo los artículos L. 310-4, L. 321-1 a L. 321-38, L. 322-7 y L. 322-10; 4º El libro V, salvo los artículos L. 522-1 a L. 522-40, L. 524-12, L. 524-20 y L. 524-21; 5º El libro VI, salvo los artículos L. 621-38, L. 621-132 y L. 628-1 a L. 628-8. Las anteriores disposiciones entrarán en vigor en la fecha de publicación de la Ley orgánica nº 2004-192 de 27 de
febrero 2004 relativa al estatuto de autonomía de la Polinesia Francesa. Sólo podrán ser modificadas en las condiciones previstas en el artículo 11 de esta ley orgánica.
Artículo L940-2 Para la aplicación del presente Código en la Polinesia Francesa, los términos enumerados a continuación serán
sustituidos del siguiente modo: 1º"Tribunal de grande instance " o "Tribunal d'instance" por "Tribunal de première instance"; 2º "Tribunal de commerce" o "Justicia consular" por "Tribunal mixto de comercio"; 3º "Conseil de prud'hommes" por "Tribunal du travail" 4º "Boletín oficial de anuncios civiles y comerciales" por "Diario Oficial de Polinesia Francesa";
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CÓDIGO DE COMERCIO 5º "departamento" o "circunscripción" por "territorio de Polinesia Francesa"; 6º "Prefecto" o "Subprefecto" por "representante del Estado en el territorio".
Artículo L940-3 Las referencias realizadas por disposiciones del presente Código aplicables en la Polinesia Francesa, a otros
artículos del presente Código, sólo afectarán a los artículos convertidos en aplicables en Polinesia Francesa por las adaptaciones previstas en los capítulos siguientes.
Artículo L940-4 A falta de adaptación, las referencias hechas por disposiciones del presente Código aplicables en la Polinesia
Francesa, a disposiciones que no sean aplicables allí, se sustituirán por las referencias a las disposiciones localmente aplicables que tengan el mismo objeto.
Artículo L940-5 Las referencias hechas por disposiciones del presente Código aplicables en la Polinesia Francesa, a disposiciones
del Código de Trabajo sólo serán aplicables allí si existiese una disposición localmente aplicable que tenga el mismo objeto.
Artículo L940-6 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Las referencias hechas, por disposiciones del presente Código aplicables en la Polinesia Francesa, a disposiciones de naturaleza reglamentaria se sustituirán por referencias a acuerdos tomados por la autoridad competente en la Polinesia Francesa, sin perjuicio de las disposiciones previstas en los capítulos siguientes.
Artículo L940-7 Las referencias a la inscripción en el Registro Central de Artesanos serán sustituidas por las referencias a la
inscripción hecha según la normativa vigente en la Polinesia Francesa.
Artículo L940-8 Los artículos que hagan referencia a la Comunidad Europea serán aplicables respetando la decisión de asociación
prevista en el artículo 136 del Tratado Constitutivo de la Comunidad Europea. No serán aplicables las referencias al acuerdo sobre el Espacio Económico Europeo.
CAPITULO I Disposiciones de adaptación del libro I Artículos L941-1 a
L941-19
Artículo L941-1 Como excepción a lo establecido en el artículo L. 940-6, se mantendrá la referencia a disposiciones de naturaleza
reglamentaria mencionada en el artículo L.143-23 en lo que se refiere al Instituto Nacional de la Propiedad Industrial.
Artículo L941-2 En el artículo L. 122-1, las palabras: "El Prefecto del departamento en el que el extranjero deberá ejercer su
actividad" serán sustituidas por las palabras: "El Consejo de Ministros de Polinesia Francesa".
Artículo L941-3 Las excepciones previstas por los artículos L. 123-25 a L. 123-27 serán aplicables a las personas físicas sujetas a
un régimen impositivo simplificado por la normativa vigente en la Polinesia Francesa.
Artículo L941-4 Para la aplicación del artículo L. 133-6: I. - Las palabras: "las que tienen su origen en las disposiciones del artículo 1269 del nuevo Código de Proceso
Civil" serán sustituidas por las palabras: "las solicitudes de revisión de cuenta y de liquidación de los resultados presentadas para subsanar un error, una omisión o una presentación inexacta".
II. - Las disposiciones del último párrafo serán aplicables en el caso de que el transporte fuera realizado por cuenta de Polinesia Francesa.
Artículo L941-5 En el artículo L. 133-7, las palabras: "los derechos, tasas, gastos y multas de aduana vinculados a una operación
de transporte".
Artículo L941-6 Para la aplicación de los artículos L. 141-15, L. 143-7, L. 144-1 a L. 144-13 y L. 145-28, el presidente podrá delegar
en un magistrado del Tribunal de Primera Instancia.
Artículo L941-7 En el artículo L. 141-13, las palabras: "por los artículos 638 y 653 del Código General de Impuestos" serán
sustituidas por las palabras: "por las disposiciones del Código de Impuestos aplicable en la Polinesia Francesa".
Artículo L941-8 En el artículo L. 144-5, las palabras: "los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud
Pública" serán sustituidas por las palabras: "los artículos del Código de la Salud Pública aplicable en el territorio
Fecha de actualización 20/03/2006 - Page 306/317
CÓDIGO DE COMERCIO relativos a la hospitalización o al internamiento con o sin consentimiento del interesado".
Artículo L941-9 El artículo L. 144-11 quedará redactado del modo siguiente: "Art. L. 144-11. - Si, de acuerdo con la normativa territorial, el contrato de arrendamiento de negocio incluye una
cláusula de revisión - actualización, la revisión del precio del alquiler podrá ser solicitada, no obstante cualquier acuerdo en contrario, según las condiciones determinadas por un acuerdo de la asamblea de Polinesia Francesa cuando, por el juego de esa cláusula, dicho precio se vea aumentado o disminuido en más de un cuarto con relación a la cantidad fijada con anterioridad de forma contractual o judicial". "
Artículo L941-10 El artículo L. 144-12 quedará redactado del modo siguiente: "Art. L. 144-12. - Si no hay acuerdo amistoso entre las partes sobre la revisión del precio del alquiler, la acción será
emprendida y juzgada según las disposiciones previstas en materia de revisión del precio de los arrendamientos de inmuebles o de locales comerciales o industriales.
El juez deberá adaptar el juego de la cláusula de revisión actualización al valor del alquiler del día de la notificación, teniendo en cuenta todos los elementos de apreciación. El nuevo precio será aplicable a partir de esta misma fecha, a menos que las partes se hayan puesto de acuerdo antes o durante la instancia en una fecha anterior o más reciente. "
Artículo L941-11 El artículo L. 145-2 quedará redactado del modo siguiente: I. - En el apartado 4º, las palabras: "al Estado, a los departamentos, a los Ayuntamientos, a las entidades públicas"
serán sustituidas por las palabras: "al Estado, a las Entidades Territoriales y a las entidades públicas"; II. - En el apartado 6º, las palabras: "en la Caja de Seguridad Social de la Casa de los artistas y autores
reconocidos de obras gráficas y plásticas, tal y como son definidos por el artículo 71 del anexo III del Código General de Impuestos" serán sustituidas por las palabras: "En la Caja local de Seguro Social y reconocidos autores de obras gráficas y plásticas en el sentido del Código de Impuestos aplicable en el territorio".
Artículo L941-12 Para la aplicación del artículo L. 145-6, las palabras: "la evacuación de los locales incluidos en un sector o
perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo" serán sustituidas por las palabras: "la evacuación de los locales prevista en el artículo L. 145-
Artículo L941-13 En el artículo L. 145-13, las palabras: "no obstante las disposiciones de la Ley de 28 de mayo de 1943 relativa a la
aplicación a los extranjeros de las leyes en materia de arrendamientos de inmuebles y arrendamientos rústicos".
Artículo L941-14 El párrafo segundo del artículo L. 145-18 quedará redactado del modo siguiente: "Lo mismo ocurrirá para efectuar operaciones de restauración inmobiliarias que conlleven obras de rehabilitación,
de conservación, de modernización o de demolición que tengan como consecuencia la transformación de las condiciones de habitabilidad de un conjunto de inmuebles que necesiten la evacuación de los locales. Estas operaciones podrán ser decididas y ejecutadas respetando la normativa vigente, por las autoridades públicas localmente competentes o por iniciativa de uno o varios propietarios, unidos o no en asociación sindical. En este último caso, el o los propietarios serán especialmente autorizados para ellos, en las condiciones fijadas por las . las autoridades territoriales competentes, que determinarán sobre todo los compromisos exigidos a los propietarios en cuanto a la naturaleza y a la importancia de las obras. Los inmuebles adquiridos por un organismo de renovación sólo podrán ser cedidos, tras la restauración, según lo libremente acordado ateniéndose a un pliego de condiciones tipo aprobado por dichas autoridades". "
Artículo L941-15 En el artículo L. 145-26, las palabras: "a los departamentos" serán sustituidas por las palabras: "a la Polinesia
Francesa".
Artículo L941-16 El artículo L. 145-37 quedará redactado del modo siguiente: "Art. L. 145-37. - Los precios de los arrendamientos de inmuebles o de locales regulados por el presente capítulo,
renovados o no, podrán ser revisados a petición de una u otra de las partes, en las condiciones previstas por decisión de la Asamblea de la Polinesia Francesa". "
Artículo L941-17 El artículo L. 145-43 quedará redactado del modo siguiente: "Art. L. 145-43. - Quedarán dispensados de la obligación de explotar durante el período del curso formativo, los
comerciantes y artesanos, arrendatarios del local en el que esté situado su fondo de comercio, que sean admitidos a realizar un curso de readaptación profesional o un curso de cualificación según las disposiciones del Código de trabajo aplicable en la Nueva Caledonia". "
Artículo L941-18 Se suprimirá el párrafo tercero del artículo L. 145-47.
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CÓDIGO DE COMERCIO Artículo L941-19
En el artículo L. 145-56, las palabras: "y de procedimiento" serán suprimidas.
CAPITULO II Disposiciones de adaptación del libro II Artículos L942-1 a
L942-15
Artículo L942-1 Como excepción al artículo L. 940-6, se mantendrán las referencias a los decretos mencionados en los artículos L.
225-35 y L. 225-68.
Artículo L942-2 Para la aplicación del libro II, los auditores de cuentas y sus suplentes serán elegidos y ejercerán allí sus funciones
de acuerdo a la normativa vigente en la Polinesia Francesa.
Artículo L942-3 Se suprimirán los apartados 4º y 5º del punto III del artículo L. 225-21.
Artículo L942-4 En los artículos L. 225-25 y L. 225-72, se suprimirá la referencia a los artículos 20 y 21 de la Ley nº 88-1201 de 23
de diciembre de 1988 relativa a los organismos de inversión colectiva en valores mobiliarios que conlleven la creación de fondos comunes de créditos.
Artículo L942-5 En los artículos L. 225-36 y L. 225-65, las palabras: "en el mismo departamento o en un departamento limítrofe"
serán sustituidas por las palabras: "en la Polinesia Francesa".
Artículo L942-6 Se suprimirán el último párrafo del artículo L. 225-43 y el del artículo L. 225-91.
Artículo L942-7 Se suprimirán el apartado 4º del punto IV del artículo L. 225-67 y el apartado 4º del punto III del artículo L. 225-77.
Artículo L942-8 El apartado 5º del artículo L. 225-115 quedará redactado del modo siguiente: "5º Del importe global, certificada por los auditores de cuentas, las deducciones del importe de los beneficios
imponibles de sociedades que realicen pagos a obras de organismos de interés general o de sociedades autorizadas o donaciones de obras de arte al Estado o a la Polinesia Francesa, tal y como está previsto por las disposiciones del derecho fiscal aplicables en Nueva Caledonia, así como la lista de las acciones nominativas de padrinazgo, de mecenazgo". "
Artículo L942-9 En el artículo L. 225-230, tras las palabras: "el comité de empresa", se añadirán las palabras: " ou à défaut les
délégués du personnel ".
Artículo L942-10 En los artículos L. 225-231, L. 232-3, L. 232-4, L. 234-1 y L. 234-2, a las palabras: "al comité de empresa", se
añadirán las palabras: "o en su defecto a los delegados del personal".
Artículo L942-11 Quedará suprimido el párrafo segundo del artículo L. 225-239.
Artículo L942-12 En el punto VI del artículo L. 225-270, las palabras: "las disposiciones del artículo 94 A del Código General de
Impuestos" serán sustituidas por las palabras: "las disposiciones del Código de Impuestos aplicables en el territorio y relativas a los beneficios netos en capital realizados por la cesión a título oneroso de valores mobiliarios y de derechos sociales".
Artículo L942-13 Quedará suprimido el último párrafo del artículo L. 228-36.
Artículo L942-14 En el artículo L. 233-24, las palabras: "o del punto VII del artículo 97" quedarán suprimidas.
Artículo L942-15 Quedará suprimido el párrafo segundo del artículo L. 251-7.
CAPITULO III Disposiciones de adaptación del libro III Artículos L943-1 a
L943-8
Artículo L943-1 Quedarán suprimidos los párrafos segundo y tercero del artículo L. 310-1.
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CÓDIGO DE COMERCIO Artículo L943-2
Quedarán suprimidos los párrafos segundo y tercero del punto I y II del artículo L. 310-2.
Artículo L943-3 Se suprimirá el párrafo segundo del punto I del artículo L. 310-3.
Artículo L943-4 Se suprimirán los apartados 1º, 2º y 3º del artículo L. 310-5.
Artículo L943-5 En el artículo L. 322-1, las palabras: "en los artículos 53 de la Ley nº 91-650 de 9 de julio de 1991 relativa a la
reforma del procedimiento de ejecución y 945 del Código de Proceso Civil" serán sustituidas por las palabras: "en las disposiciones de procedimiento civil localmente aplicables y relativas a la venta de bienes muebles procedentes de una herencia".
Artículo L943-6 El artículo L. 322-11 quedará redactado del modo siguiente: "Art L. 322-11. - Las impugnaciones relativas a las ventas realizadas en aplicación de los acuerdos localmente
vigentes relativas a la venta voluntaria, en subasta, al por mayor, de mercancías por parte de los corredores jurados serán presentadas ante el Tribunal mixto del comercio". "
Artículo L943-7 El artículo L. 322-15 quedará redactado del modo siguiente: "Art. L. 322-15.- Sigue siendo competencia del Tribunal o del Juez que autoriza la venta en virtud del artículo
anterior, el nombrar eventualmente a otra clase de funcionarios públicos diferentes a los corredores jurados para proceder a dicha venta". "
Artículo L943-8 El artículo L. 322-16 quedará redactado del modo siguiente: "Art. L. 322-16. - Las disposiciones del artículo L. 322-11 serán aplicables a las ventas citadas en los artículos L.
322-14 y L. 322-15".
CAPITULO V Disposiciones de adaptación del libro V Artículos L945-1 a
L945-9
Artículo L945-1 Como excepción al artículo L. 940-6, se mantendrán las referencias a disposiciones de naturaleza reglamentaria
mencionados en los artículos L. 523-14 y L. 524-19.
Artículo L945-2 Se suprimirá la palabra "destitución" en el artículo L. 511-55.
Artículo L945-3 El artículo L. 511-60 quedará redactado del modo siguiente: "Art. L. 511-60. - Las condiciones de aplicación de las disposiciones de la presente subsección serán establecidas
por acuerdo de la autoridad territorial competente". "
Artículo L945-4 En el artículo L. 511-61, las palabras: "o de las Entidades Territoriales serán sustituidas por las palabras: "o de los
Ayuntamientos o de Polinesia Francesa".
Artículo L945-5 El párrafo segundo del artículo L. 511-62 quedará redactado del modo siguiente: "La letra de resaca incluirá las cantidades indicadas en los artículos L. 511-45 y L. 511-46, además de los derechos
de corretaje y de timbre eventualmente previstos por las disposiciones aplicables en la Polinesia Francesa". "
Artículo L945-6 En los artículos L. 523-8 y L. 524-6, las palabras: "Artículos 1426 al 1429 del nuevo Código de Proceso Civil" serán
sustituidas por las palabras: "disposiciones de procedimiento civil aplicables localmente relativas a las ofertas de pago y a la consignación".
Artículo L945-7 En el primer párrafo del artículo L. 525-2, tras las palabras: "al impuesto mínimo alzado" se añadirán las palabras:
"según las condiciones vigentes en la Polinesia Francesa".
Artículo L945-8 En el punto II del artículo L. 525-9, las palabras: "al privilegio citado en el artículo L. 243-4 del Código de la
Seguridad Social" serán sustituidas por las palabras: "al privilegio organizado en beneficio de la Caja de Previsión Social del Territorio".
Artículo L945-9
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CÓDIGO DE COMERCIO El artículo L. 525-18 quedará redactado del modo siguiente: I. - En el apartado 1º, la referencia al decreto nº 53-968 de 30 de septiembre de 1953 será sustituida por la
referencia nº 55-639 del 20 de mayo de 1955; II. - El apartado 2º quedará redactado del modo siguiente: "2º Los buques de mar así como las embarcaciones de navegación fluvial". "
CAPITULO VI Disposiciones de adaptación del libro VI Artículos L946-1 a
L946-13
Artículo L946-1 Como excepción al artículo L. 940-6, se mantiene la remisión a disposiciones de naturaleza reglamentaria
mencionada en el artículo L. 621-5.
Artículo L946-2 El artículo L. 611-1 quedará redactado del modo siguiente: I. - En el primer párrafo, la orden del representante del Estado en la región será reemplazada por una resolución
del gobierno de Polinesia Francesa. "II. - En el párrafo cuarto, se suprimirán las palabras: "sobre todo en aplicación de los artículos 5, 48 y 66 de la Ley
nº 82-213 de 2 de marzo de 1982 modificada, relativa a los derechos y libertades de los Ayuntamientos, de los departamentos y de las regiones".
Artículo L946-3 Para la aplicación del artículo L. 612-1, los auditores de cuentas y sus suplentes serán elegidos y ejercerán sus
funciones según la normativa localmente vigente.
Artículo L946-4 Se suprimirá el párrafo tercero del artículo L. 612-1.
Artículo L946-5 En el artículo L. 612-2, tras las palabras: "al comité de empresa" se añadirán las palabras: "o, en su defecto, a los
delegados de personal".
Artículo L946-6 En el artículo L. 621-5, las palabras: "en cada departamento" serán sustituidas por las palabras: "en la Polinesia
Francesa".
Artículo L946-7 En el artículo L. 621-36, las palabras: "mencionada en el artículo L. 432-7 del Código de Trabajo" serán sustituidas
por las palabras: "con relación a las informaciones que tuvieran un carácter confidencial y hayan sido presentadas como tales".
Artículo L946-8 Para la aplicación del artículo L. 621-43, los organismos citados en el artículo L. 351-21 del Código de Trabajo
serán los organismos territoriales que se encarguen del servicio de prestación del seguro de desempleo y del cobro de las contribuciones.
Artículo L946-9 Para la aplicación de los artículos L. 621-43, L. 621-46, L. 621-60, L. 621-78, L. 621-126, L. 621-127 y L. 627-5, las
instituciones mencionadas en el artículo L. 143-11-4 del Código de Trabajo serán las instituciones territoriales encargadas de la aplicación del régimen de seguros contra el riesgo de impago de los salarios, en caso de procedimiento de suspensión de pagos o de liquidación judicial.
Artículo L946-10 Para la aplicación del artículo L. 621-60, las instituciones reguladas por el libro IX del Código de la Seguridad
Social serán las instituciones territoriales de jubilación complementaria o suplementaria o de previsión, previstas por las disposiciones aplicables en la Entidad territorial y relativas a los regímenes de seguridad y de protección sociales.
Artículo L946-11 En el artículo L. 621-72, la referencia al artículo 28 del decreto nº 55-22 del 4 de enero de 1955 relativo a la
reforma de la publicidad inmobiliaria será sustituida por la referencia a las disposiciones aplicables en el territorio y relativas a la publicidad de los derechos sobre los inmuebles que no sean ni privilegios ni hipotecas.
Artículo L946-12 En el artículo L. 621-84, el compromiso ante el Tribunal de tener en cuenta las disposiciones contenidas en los
apartados 1º, 2º, 3º y 4º del artículo L. 331-7 del Código Rural se presumirá así mismo de las prescripciones siguientes: "Observar el orden de prioridades establecido entre la instalación de los jóvenes agricultores y la ampliación de las
explotaciones, teniendo en cuenta el interés económico y social del mantenimiento de la autonomía de la explotación objeto de la solicitud;
En caso de ampliación o de reunión de explotaciones tener en cuenta las posibilidades de instalación en una explotación viable, la situación de las tierras afectadas con relación a la sede de la explotación del o de los solicitantes,
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CÓDIGO DE COMERCIO la superficie de los bienes que sean objeto de la solicitud y de las superficies ya aprovechadas por el o los solicitantes, así como por el arrendatario actual;
Considerar la situación personal del o de los solicitantes: edad, situación familiar y profesional y, en su caso, la del arrendatario actual, así como el número y la naturaleza de los puestos de trabajo asalariados en juego;
Tener en cuenta la estructura parcelaria de las explotaciones afectadas, tanto con relación a la sede de la explotación, como para evitar que cambios en la posesión puedan poner en peligro los acondicionamientos ya realizados con ayuda de fondos públicos". "
Artículo L946-13 (Introducido por la Ley nº 2003-7 de 1 de enero de 2003 Artículo 49 II Diario Oficial de 4 de enero de 2003)
El primer párrafo del artículo L. 622-2 será sustituido por una frase redactada del siguiente modo: "En las mismas condiciones se le podrá añadir uno o varios liquidadores." "
TITULO V DISPOSICIONES APLICABLES EN LAS ISLAS DE WALLIS Y FUTUNA Artículos L951-1 a
L950-7
Artículo L.950-1 (Ley nº 2003-710 de 1 de agosto de 2003 art. 38 II Diario Oficial de 2 de agosto de 2003) (Ley nº 2004-130 del 11 de febrero de 2004 art. 53 II 2° Diario Oficial de 12 de febrero de 2004) (Disposición nº 2004-274 de 25 de marzo de 2004 art. 49 V Diario Oficial de 27 de marzo de 2004 ) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 III Diario Oficial de 27 de julio de 2005) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sin perjuicio de las adaptaciones previstas en los siguientes capítulos, las disposiciones enumeradas a continuación serán aplicables en las islas Wallis y Futuna:
1º El libro I, salvo los artículos L.124-1 a L.126-1; 2º El libro II, salvo los artículos L.225-245-1, L.229-1 a L.229-15, L.238-6, L.244-5 y L.252-1 a L.252-13; 3º El libro III, salvo los artículos L.321-1 a L.321-38; 4º El libro IV, salvo los artículos L.441-1, L.442-1 y L.470-6; 5º El libro V, salvo los artículos L.522-1 a L.522-40, L.524-12, L.524-20 y L.524-21; 6º El libro VI, salvo los artículos L.622-19, L.625-9, L.653-10 y L.670-1 a L.670-8; 7º El libro VII, salvo los artículos L.711-5, L.711-9, L.720-1 a L.740-3. 8º El libro VIII, salvo los artículos L.812-1 a L.813-1.
Artículo L950-2 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VI Diario Oficial de 27 de marzo de 2004)
Para la aplicación del presente Código en las islas Wallis y Futuna, los términos enumerados a continuación serán sustituidos del siguiente modo:
1º "Tribunal de grande instance " o "Tribunal d'instance" por Tribunal de première instance"; 2º "Tribunal de commerce" o "justicia consular" por "Tribunal de première instance" competente en materia
comercial"; 3º "Conseil de prud'hommes" por "Tribunal du travail"; 4º "Boletín oficial de anuncios civiles y comerciales" por "Diario Oficial del territorio" 5º "departamento" o "circunscripción" por "territorio"; 6º "Prefecto" o "Subprefecto" por "representante del Estado en el territorio". 7º "alcalde" por "jefe de circunscripción".
Artículo L950-3 Las referencias hechas por disposiciones del presente Código aplicables en las islas Wallis y Futuna, a otros
artículos del presente Código, sólo afectarán a los artículos aplicables en las islas Wallis y Futuna con las adaptaciones previstas en los capítulos posteriores.
Artículo L950-4 A falta de adaptación, las referencias hechas por las disposiciones del presente Código aplicables en las islas
Wallis y Futuna, a disposiciones que no sean aplicables allí, serán sustituidas por las referencias a las disposiciones que tengan el mismo objeto y que sean localmente aplicables.
Artículo L950-5 Las referencias hechas por las disposiciones del presente Código aplicables en las islas Wallis y Futuna, a
disposiciones del Código de Trabajo sólo serán allí aplicables si existe una disposición localmente aplicable que tenga el mismo objeto.
Artículo L950-6 Las referencias a la inscripción en el Registro Central de Artesanos serán sustituidas por las referencias a la
inscripción realizada según la normativa aplicable en las islas Wallis y Futuna.
Artículo L950-7 Los artículos que hagan referencia a la Comunidad Europea serán aplicables respetando la decisión de asociación
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CÓDIGO DE COMERCIO prevista en el artículo 136 del Tratado Constitutivo de la Comunidad Europea. No serán aplicables las referencias al acuerdo sobre el Espacio Económico Europeo.
CAPITULO I Disposiciones de adaptación del libro I Artículos L951-1 a
L951-14
Artículo L951-1 En el artículo L. 122-1, las palabras: "por el Prefecto del departamento en el que el extranjero deba ejercer su
actividad" serán sustituidas por las palabras: "por el representante del Estado en el territorio en el caso de que el extranjero tenga que ejercer allí su actividad".
Artículo L951-2 Las excepciones previstas en los artículos L. 123-25 a L. 123-27 serán aplicables a las personas físicas sujetas a
un régimen impositivo simplificado por la normativa localmente vigente.
Artículo L951-3 En el artículo L. 133-6, las palabras: "las que tienen su origen en las disposiciones del artículo 1269 del nuevo
Código de Proceso Civil" serán sustituidas por las palabras: "las solicitudes de revisión de cuenta y de liquidación de los resultados presentadas para subsanar un error, una omisión o una presentación inexacta".
Artículo L951-4 Para la aplicación de los artículos L. 141-15, L. 143-7, L. 144-1 a L. 144-13 y L. 145-28, el presidente podrá delegar
en un magistrado del Tribunal de Primera Instancia.
Artículo L951-5 En el artículo L. 141-13, las palabras: "por los artículos 638 y 653 del Código General de Impuestos" serán
sustituidas por las palabras: "por las disposiciones del Código de Impuestos aplicable en el territorio".
Artículo L951-6 En el artículo L. 144-5, las palabras: "los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud
Pública" serán sustituidas por las palabras: "los artículos del Código de la Salud Pública aplicable en el territorio relativos a la hospitalización y al internamiento con o sin consentimiento del interesado".
Artículo L951-7 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El artículo L. 145-2 quedará redactado del modo siguiente: I. - En el apartado 4º, las palabras: "al Estado, a los departamentos, a los Ayuntamientos, a las entidades públicas"
serán sustituidas por las palabras: "al Estado, a las Entidades Territoriales y a las entidades públicas"; II. - En el apartado 6º, las palabras: "en la Caja de Seguridad Social de la Casa de los artistas y autores
reconocidos de obras gráficas y plásticas, tal y como son definidos por el artículo 71 del anexo III del Código General de Impuestos" serán sustituidas por las palabras: "En la Caja local de Seguro Social y reconocidos autores de obras gráficas y plásticas en el sentido del Código de Impuestos aplicable en el territorio".
Artículo L951-8 Para la aplicación del artículo L. 145-6, las palabras: "la evacuación de los locales incluidos en un sector o
perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo" serán sustituidas por las palabras "la evacuación de los locales prevista en el artículo L. 145-18".
Artículo L951-9 En el artículo L. 145-13, se suprimirán las palabras "no obstante las disposiciones de la Ley de 28 de mayo de
1943 relativa a la aplicación a los extranjeros de los arrendamientos de inmuebles y arrendamientos rústicos".
Artículo L951-10 El párrafo segundo del artículo L. 145-18 quedará redactado del modo siguiente: "Lo mismo ocurrirá para efectuar operaciones de restauración inmobiliarias que conlleven obras de rehabilitación,
de conservación, de modernización o de demolición que tengan como consecuencia la transformación de las condiciones de habitabilidad de un conjunto de inmuebles que necesiten la evacuación de los locales. Estas operaciones podrán ser decididas y ejecutadas respetando la normativa vigente, por las autoridades públicas localmente competentes o por iniciativa de uno o varios propietarios, unidos o no en asociación sindical. En este último caso, el o los propietarios estarán especialmente autorizados para ello en las condiciones determinadas por el representante del Estado, que determinará sobre todo los compromisos exigidos a los propietarios en cuanto a la naturaleza y a la importancia de las obras. Los inmuebles adquiridos por un organismo de renovación sólo podrán ser cedidos según lo libremente acordado ateniéndose a un pliego de condiciones tipo aprobado por el representante del Estado. "
Artículo L951-11 En el artículo L. 145-26, tras las palabras: "al Estado, a los departamentos, a los Ayuntamientos", se añadirán las
palabras: "en el territorio".
Artículo L951-12
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CÓDIGO DE COMERCIO (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 58 III Diario Oficial de 26 de junio de 2004)
El primer párrafo del artículo L. 145-34 quedará redactado del modo siguiente: "Salvo que haya una modificación notable de los elementos mencionados en los apartados 1° a 4° del artículo L.
145-33, el índice de variación del alquiler aplicable en el momento de renovar el contrato no podrá exceder de la variación sufrida por el índice nacional trimestral que mide el coste de la construcción desde la determinación inicial del contrato de arrendamiento expirado, si su duración no fuese superior a nueve años. Este índice se calculará en las condiciones establecidas por una orden del representante del Estado. A falta de dicha cláusula contractual que fije el trimestre de referencia de este índice, se tendrá en cuenta una variación del índice local trimestral que mide el coste de la construcción determinado a este efecto por la orden antes citada. "
Artículo L951-13 El artículo L. 145-35 quedará redactado del modo siguiente: I. - En el primer párrafo, las palabras: "departamental" queda suprimida; II. - El último párrafo quedará redactado del modo siguiente: "La composición de la comisión, el modo de nombramiento de sus miembros y sus normas de funcionamiento
serán determinadas por una orden del representante del Estado". "
Artículo L951-14 El artículo L. 145-43 quedará redactado del modo siguiente: "Art. L. 145-43. - Quedarán dispensados de la obligación de explotar durante el período del curso formativo, los
comerciantes y artesanos, arrendatarios del local en el que esté situado su fondo de comercio, que sean admitidos a realizar un curso de readaptación profesional o un curso de cualificación según las disposiciones del Código de trabajo aplicable en la Nueva Caledonia". "
CAPITULO II Disposiciones de adaptación del libro II Artículos L952-1 a
L952-10
Artículo L952-1 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 58 III Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-177 y L. 225-179 y L. 233-11, las palabras: "la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001 relativa a las nuevas regulaciones económicas" serán sustituidas por las palabras: "la fecha de publicación de la disposición nº 2004-604 de 24 de junio de 2004 relativa a la reforma del régimen de valores mobiliarios emitidos por las sociedades comerciales y la aplicación a los territorios de Ultramar de las disposiciones de modificación de la legislación comercial".
Artículo L952-2 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VII Diario Oficial de 27 de marzo de 2004)
En los artículos L. 223-18 y L. 225-36 y L. 225-65, las palabras: "en el mismo departamento o en un departamento limítrofe" serán sustituidas por las palabras: "en el territorio".
Artículo L952-3 Se suprimirán el último párrafo del artículo L. 225-43 y el del artículo L. 225-91.
Artículo L952-4 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 62 Diario Oficial de 26 de junio de 2004)
En el apartado 5º del artículo L. 225-115, las palabras: "pagos realizados en aplicación de los apartados 1 y 4 del artículo 238 bis del Código General de Impuestos" serán sustituidas por las palabras: "deducciones fiscales previstas por las disposiciones de derecho fiscal aplicables en el territorio y relativas al total de las deducciones del importe de los beneficios imponibles de las sociedades que desembolsen cantidades en beneficio de obras de organismos de interés general o de sociedades autorizadas o donaciones de obras de arte al Estado".
Artículo L952-5 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 58 III Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-105 y L. 225-230 y L. 225-231, las palabras: "el comité de empresa" serán sustituidas por las palabras: "los delegados del personal".
Artículo L952-6 En los artículos L. 225-231, L. 232-3, L. 232-4, L. 234-1 y L. 234-2, las palabras: "al comité de empresa" serán
sustituidas por las palabras: "a los delegados del personal".
Artículo L952-7 En el punto VI del artículo L. 225-270, las palabras: "las disposiciones del artículo 94 A del Código General de
Impuestos" serán sustituidas por las palabras: "las disposiciones del Código de Impuestos aplicables en el territorio y relativas a los beneficios netos en capital realizados por la cesión a título oneroso de valores mobiliarios y de derechos sociales".
Artículo L952-8 Quedará suprimido el último párrafo del artículo L. 228-36.
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CÓDIGO DE COMERCIO Artículo L952-9
En el artículo L. 233-24, las palabras: "o del punto VII del artículo 97" quedarán suprimidas.
Artículo L952-10 Quedará suprimido el párrafo segundo del artículo L. 251-7.
CAPITULO III Disposiciones de adaptación del libro III Artículos L953-1 a
L953-3
Artículo L953-1 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VIII Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VIII Diario Oficial de 27 de marzo de 2004)
Se suprimirán el punto III del artículo L. 310-2 y el apartado 6° del artículo L. 310-5.
Artículo L953-2 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VIII Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VIII Diario Oficial de 27 de marzo de 2004)
En el artículo L. 322-1, las palabras: "en los artículos 53 de la Ley nº 91-650 de 9 de julio de 1991 relativa a la reforma del procedimiento de ejecución y 945 del Código de Proceso Civil" serán sustituidas por las palabras: "en las disposiciones de procedimiento civil aplicables en el territorio relativas a la venta de bienes muebles procedentes de una herencia".
Artículo L953-3 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VIII Diario Oficial de 27 de marzo de 2004)
El párrafo segundo del artículo L. 322-9 quedará redactado del modo siguiente: "Se sujetarán a las disposiciones prescritas por el Código de Impuestos aplicable en el territorio relativas a las
ventas públicas y en subasta".
CAPITULO IV Disposiciones de adaptación del libro IV Artículos L954-1 a
L954-7
Artículo L954-1 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
En el primer párrafo del artículo L. 430-2, la palabra: "tres" será sustituida por la palabra: "dos". Se suprimirán los apartados cuarto y quinto de este artículo.
Artículo L954-2 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
En el artículo L. 430-3, se suprimirá la última frase del primer párrafo. En el tercer párrafo del mismo artículo, las palabras: ", o la remisión total o parcial de una operación de dimensión comunitaria" serán suprimidos.
Artículo L954-3 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
El último párrafo del artículo L. 441-2 será sustituido por cuatro párrafos redactados del siguiente modo: "El juez de instrucción o el Tribunal incoado para estas diligencias podrá ordenar que cese la publicidad, realizada
en condiciones no conformes a las disposiciones del párrafo 1, por requerimiento del Ministerio Público o de oficio. La medida tomada de este modo será ejecutoria pese a que puedan interponerse recursos.
La jurisdicción que haya ordenado el embargo o que haya sido encargada del asunto podrá ordenar su levantamiento. La medida dejará de tener efecto en caso de sobreseimiento o de absolución.
Las resoluciones que resuelvan sobre las demandas de embargo podrán ser objeto de un recurso ante la Cour d'appel La Cour d'appel resolverá en un plazo de diez días contados a partir de la recepción de la documentación. "
Artículo L954-4 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
En el párrafo segundo del artículo L. 442-2, antes de las palabras: "tasas sobre el volumen de negocio", se añadirá la palabra: "eventuales".
Artículo L954-5 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
El último párrafo del artículo L. 442-3 será sustituido por cuatro párrafos redactados del siguiente modo: "El juez de instrucción o el Tribunal encargado de las diligencias podrá ordenar la interrupción del anuncio
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CÓDIGO DE COMERCIO publicitario, o bien por requerimiento del Ministerio Público o de oficio. La medida tomada de este modo será ejecutoria pese a que puedan interponerse recursos.
La jurisdicción que haya ordenado el embargo o que haya sido encargada del asunto podrá ordenar su levantamiento. La medida dejará de tener efecto en caso de sobreseimiento o de absolución.
Las resoluciones que resuelvan sobre las demandas de embargo podrán ser objeto de un recurso ante la Cour d'appel.
La Cour d'appel resolverá en un plazo de diez días contados a partir de la recepción de la documentación. "
Artículo L954-6 (introducido por la Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
En el artículo L. 442-7, las palabras: "o cooperativa de empresa o de administración" serán suprimidas.
Artículo L954-7 (introducido por la Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
El artículo L. 443-1 quedará redactado del modo siguiente: I. - En el apartado 1º, las palabras: "citados en los artículos L. 326-1 a L. 326-3 del Código Rural" serán sustituidas
por las palabras: "previstos por las disposiciones de derecho rural aplicables en el territorio"; II. - En el apartado 3º, las palabras: "en el artículo 403 del Código General de Impuestos" serán sustituidas por las
palabras: "por las disposiciones del Código de Impuestos aplicable en el territorio". " III. - El apartado 4º quedará redactado del modo siguiente: "4º A setenta y cinco días tras el día de la entrega para las compras de bebidas alcohólicas sujetas a derechos de
circulación previstos por el Código de Impuestos aplicable en el territorio".
CAPITULO V Disposiciones de adaptación del libro V Artículos L955-1 a
L955-7
Artículo L955-1 En el artículo L. 511-61, las palabras: "o de las Entidades Territoriales serán sustituidas por las palabras: "o de las
islas Wallis y Futuna".
Artículo L955-2 El párrafo segundo del artículo L. 511-62 quedará redactado del modo siguiente: "La letra de resaca incluirá las cantidades indicadas en los artículos L. 511-45 y L. 511-46, además de los derechos
de corretaje y de timbre eventualmente previstos por las disposiciones del Código de Impuestos aplicable en las islas Wallis y Futuna".
Artículo L955-3 En los artículos L. 523-8 y L. 524-6, las palabras: "Artículos 1426 al 1429 del nuevo Código de Proceso Civil" serán
sustituidas por las palabras: "disposiciones de procedimiento civil aplicables localmente relativas a las ofertas de pago y a la consignación".
Artículo L955-4 El primer párrafo del artículo L. 524-19 quedará redactado del modo siguiente: "El importe de los derechos a percibir por el secretario del Tribunal de Primera Instancia competente en materia
mercantil será fijada por decreto". "
Artículo L955-5 En el primer párrafo del artículo L. 525-2, tras las palabras: "al impuesto mínimo alzado" se añadirán las palabras:
"según las condiciones vigentes en las islas Wallis y Futuna".
Artículo L955-6 En el punto II del artículo L. 525-9, las palabras: "al privilegio citado en el artículo L. 243-4 del Código de la
Seguridad Social" serán sustituidas por las palabras: "al privilegio organizado en beneficio de la Caja de Previsión Social del territorio".
Artículo L955-7 El artículo L. 525-18 quedará redactado del modo siguiente: I. - En el apartado 1º, la referencia al decreto nº 53-968 de 30 de septiembre de 1953 será sustituida por la
referencia nº 55-639 del 20 de mayo de 1955; II. - El apartado 2º quedará redactado del modo siguiente: "2º Los buques de mar así como las embarcaciones de navegación fluvial". "
CAPITULO VI Disposiciones de adaptación del libro VI Artículos L956-1 a
L956-9
Artículo L.956-1
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CÓDIGO DE COMERCIO (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las medidas de aplicación previstas en los artículos L.625-1, L.626-3, L.626-5 a L.626-7, L.626-14 y L.626-16 serán determinadas por la asamblea territorial.
Artículo L.956-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.625-2, las palabras: "mencionada en el artículo L.432-7 del Código de Trabajo" serán sustituidas por las palabras: "respecto de las informaciones que tuvieran un carácter confidencial y hubieran sido presentadas como tales".
Artículo L.956-3 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.622-24, les organismos citados en el artículo L.351-21 del Código de Trabajo serán los organismos locales que se encarguen del servicio de la prestación del seguro de desempleo y del cobro de las contribuciones.
Artículo L.956-4 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación de los artículos L.622-24, L.622-26, L.625-3, L.625-4, L.626-5 a L.626-7, L.626-20 y L.662-4, las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo serán las instituciones locales encargadas de la aplicación del régimen de seguros contra el riesgo de impago de los salarios, en caso de procedimiento de saneamiento judicial o de liquidación judicial.
Artículo L.956-5 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.626-5 a L.626-7, las instituciones reguladas por el libro IX del Código de la Seguridad Social serán las instituciones locales de jubilación complementaria o suplementaria o de previsión previstas por las disposiciones aplicables en las islas Wallis y Futuna y relativas a los regímenes de seguridad y protección sociales.
Artículo L.956-6 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.626-14, la referencia al artículo 28 del Decreto nº 55-22 de 4 de enero de 1955 relativo a la reforma de la publicidad inmobiliaria será sustituida por la referencia a las disposiciones aplicables en el territorio y relativas a la publicidad de los derechos sobre los inmuebles que no sean ni privilegios ni hipotecas.
Artículo L.956-7 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.642-2, la obligación para el Tribunal de tener en cuenta las disposiciones contenidas en los apartados 1º, 2º, 3º y 4º del artículo L.331-3 del Código Rural se referirá a los siguientes requisitos:
"Observar el orden de prioridades establecido entre la instalación de los jóvenes agricultores y la ampliación de las explotaciones, teniendo en cuenta el interés económico y social del mantenimiento de la autonomía de la explotación objeto de la solicitud;
En caso de ampliación o de reunión de explotaciones, tener en cuenta las posibilidades de instalación en una explotación viable, la situación de las tierras en cuestión con relación a la sede de la explotación del o de los solicitantes, la superficie de los bienes que sean objeto de la solicitud y de las superficies ya aprovechadas por el o los solicitantes, así como por el arrendatario actual;
Considerar la situación personal del o de los solicitantes: edad, situación familiar y profesional y, en su caso, la del arrendatario actual, así como el número y la naturaleza de los puestos de trabajo asalariados en juego;
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CÓDIGO DE COMERCIO Tener en cuenta la estructura parcelaria de las explotaciones afectadas, tanto con relación a la sede de la
explotación, como para evitar que cambios en la posesión puedan poner en peligro los acondicionamientos ya realizados con ayuda de fondos públicos".
Artículo L.956-8 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras la primera frase del párrafo primero del punto II del artículo L.641-1, se añadirá la siguiente frase: "En las mismas condiciones se le podrá nombrar como adjuntos, para que le asistan, uno o varios liquidadores."
Artículo L.956-9 (Ley nº 2003-7 de 3 de enero de 2003 art. 49 III Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No será de aplicación el apartado 4° del punto III del artículo L.643-11.
CAPITULO VII Disposiciones de adaptación del libro VII Artículos L957-1 a
L957-3
Artículo L957-1 En los artículos L. 711-2 y L. 711-4, la palabra: "Gobierno" será sustituida por las palabras: "representante del
Estado en el territorio".
Artículo L957-2 En el párrafo tercero del artículo L. 711-6, las palabras: "o el Ayuntamiento" serán sustituidas por las palabras: "o el
territorio".
Artículo L957-3 En el artículo L. 712-1, las palabras: "por medio de una tasa adicional a la tasa profesional" serán sustituidas por
las palabras: "como se determina en las disposiciones del Código de Impuestos aplicable en las islas Wallis y Futuna".
CAPITULO VIII Disposiciones de adaptación del libro VIII Artículos L958-1 a
L958-2
Artículo L.958-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los artículos L.814-1 a L.814-5 serán aplicables en lo que afecten a los administradores judiciales.
Artículo L958-2 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 58 III Diario Oficial de 26 de junio de 2004)
Para la aplicación en las islas Wallis y Futuna de los artículos L. 822-2 a L. 822-7, los términos enumerados a continuación serán sustituidos del modo siguiente:
1º "comisión regional de inscripción" por "comisión territorial de inscripción"; 2º "Cámara Regional de Cuentas" por "Cámara Territorial de Cuentas de Nueva Caledonia"; 3º "Cámara Regional de Disciplina" por "Cámara Territorial de Disciplina".
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