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
supervisory board Article L242-30
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
supervisory board Article L247-9
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
Auction Articles L321-29 to 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
composition procedure Articles L611-1 to 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
restitution Articles L624-9 to 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
representatives Articles L713-1 to 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
corporate analysis experts Articles L811-1 to 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
the public authorities Articles L814-1 to 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
remuneration Articles L814-3 to L814-11
Subsection 1 Guarantee of the representation of businesses and professional civil
liability Articles L814-3 to 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
inscripción Artículos L123-6 a 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,
personas físicas Artículos L123-25 a 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
una actividad económica Artículos L127-1 a 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
anónimas Artículos L225-94 a 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
las sociedades de sus propias acciones Artículos L225-206 a 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
representativos de una porción del capital Artículos L228-91 a 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
de consejo de supervisión Artículo L242-30
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
por acciones Artículos L245-3 a 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
de consejo de supervisión Artículo L245-17
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
sociedades controladas Artículos L247-1 a 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
de consejo de supervisión Artículo L247-9
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
anónimas Artículo L248-1
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 EXCLUSIVIDAD
Artículos L310-1 a L330-3
TITULO I DE LAS LIQUIDACIONES, DE LAS VENTAS AMBULANTES, DE LAS REBAJAS Y DE
LAS VENTAS EN FÁBRICA Artículos L310-1 a 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
pública Artículos L321-4 a 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
muebles en subasta pública por los ciudadanos de los Estados miembros de la Comunidad Europea y de los Estados que forman
Artículos L321-24 a L321-28
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
muebles en subasta pública Artículos L321-18 a 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
EMPRESAS Artículos L611-1 a 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 designación de administrador
judicial 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
MOSELLE, BAJO-RIN Y ALTO-RIN Artículos L670-1 a 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
delegados consulares Artículos L713-1 a 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
PARA LA LIQUIDACIÓN DE EMPRESAS Y DE LOS PERITOS EN DIAGNÓSTICO EMPRESARIAL
Artículos L811-1 a L814-11
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
incompatibilidades Artículos L811-1 a 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
ejercicio y de las incompatibilidades Artículos L812-1 a 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
representación ante los poderes públicos Artículos L814-1 a 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
profesional y de la remuneración Artículos L814-3 a L814-11
Subsección 1 De la garantía de la representación de los fondos y de la responsabilidad
civil profesional Artículos L814-3 a 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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Code de commerce
Partie législative
LIVRE Ier : Du commerce en général.
TITRE Ier : De l'acte de commerce.
Article L110-1
La loi répute actes de commerce :
1° Tout achat de biens meubles pour les revendre, soit en nature, soit après les avoir travaillés et mis en oeuvre ;
2° Tout achat de biens immeubles aux fins de les revendre, à moins que l'acquéreur n'ait agi en vue d'édifier un ou plusieurs bâtiments et de les vendre en bloc ou par locaux ;
3° Toutes opérations d'intermédiaire pour l'achat, la souscription ou la vente d'immeubles, de fonds de commerce, d'actions ou parts de sociétés immobilières ;
4° Toute entreprise de location de meubles ;
5° Toute entreprise de manufactures, de commission, de transport par terre ou par eau ;
6° Toute entreprise de fournitures, d'agence, bureaux d'affaires, établissements de ventes à l'encan, de spectacles publics ;
7° Toute opération de change, banque, courtage et tout service de paiement ;
8° Toutes les opérations de banques publiques ;
9° Toutes obligations entre négociants, marchands et banquiers ;
10° Entre toutes personnes, les lettres de change.
Article L110-2
La loi répute pareillement actes de commerce :
1° Toute entreprise de construction, et tous achats, ventes et reventes de bâtiments pour la navigation intérieure et extérieure ;
2° Toutes expéditions maritimes ;
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3° Tout achat et vente d'agrès, apparaux et avitaillements ;
4° Tout affrètement ou nolissement, emprunt ou prêt à la grosse ;
5° Toutes assurances et autres contrats concernant le commerce de mer ;
6° Tous accords et conventions pour salaires et loyers d'équipages ;
7° Tous engagements de gens de mer pour le service de bâtiments de commerce.
Article L110-3
A l'égard des commerçants, les actes de commerce peuvent se prouver par tous moyens à moins qu'il n'en soit autrement disposé par la loi.
Article L110-4
I.-Les obligations nées à l'occasion de leur commerce entre commerçants ou entre commerçants et non-commerçants se prescrivent par cinq ans si elles ne sont pas soumises à des prescriptions spéciales plus courtes.
II.-Sont prescrites toutes actions en paiement :
1° Pour nourriture fournie aux matelots par l'ordre du capitaine, un an après la livraison ;
2° Pour fourniture de matériaux et autres choses nécessaires aux constructions, équipements et avitaillements du navire, un an après ces fournitures faites ;
3° Pour ouvrages faits, un an après la réception des ouvrages.
III.-Les actions en paiement des salaires des officiers, matelots et autres membres de l'équipage se prescrivent par cinq ans .
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Partie législative
LIVRE Ier : Du commerce en général.
TITRE II : Des commerçants.
Chapitre Ier : De la définition et du statut.
Section 1 : De la qualité de commerçant.
Article L121-1
Sont commerçants ceux qui exercent des actes de commerce et en font leur profession habituelle.
Article L121-2
Le mineur, même émancipé, ne peut être commerçant.
Article L121-3
Le conjoint d'un commerçant n'est réputé lui-même commerçant que s'il exerce une activité commerciale séparée de celle de son époux.
Section 2 : Du conjoint du chef d'entreprise ou du partenaire lié au chef d'entreprise par un pacte civil de solidarité, travaillant dans l'entreprise familiale
Article L121-4
I. - Le conjoint du chef d'une entreprise artisanale, commerciale ou libérale qui y exerce de manière
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régulière une activité professionnelle opte pour l'un des statuts suivants :
1° Conjoint collaborateur ;
2° Conjoint salarié ;
3° Conjoint associé.
II. - En ce qui concerne les sociétés, le statut de conjoint collaborateur n'est autorisé qu'au conjoint du gérant associé unique ou du gérant associé majoritaire d'une société à responsabilité limitée ou d'une société d'exercice libéral à responsabilité limitée répondant à des conditions de seuils fixées par décret en Conseil d'Etat.
Le choix effectué par le conjoint du gérant associé majoritaire de bénéficier du statut de conjoint collaborateur est porté à la connaissance des associés lors de la première assemblée générale suivant la mention de ce statut auprès des organismes mentionnés au IV.
III. - Les droits et obligations professionnels et sociaux du conjoint résultent du statut pour lequel il a opté.
IV. - Le chef d'entreprise déclare le statut choisi par son conjoint auprès des organismes habilités à enregistrer l'immatriculation de l'entreprise. Seul le conjoint collaborateur fait l'objet d'une mention dans les registres de publicité légale à caractère professionnel.
V. - La définition du conjoint collaborateur, les modalités selon lesquelles le choix de son statut est mentionné auprès des organismes visés au IV et les autres conditions d'application du présent article sont fixées par décret en Conseil d'Etat.
Article L121-5
Une personne immatriculée au répertoire des métiers ou un commerçant ne peut, sans le consentement exprès de son conjoint, lorsque celui-ci participe à son activité professionnelle en qualité de conjoint travaillant dans l'entreprise, aliéner ou grever de droits réels les éléments du fonds de commerce ou de l'entreprise artisanale dépendant de la communauté, qui, par leur importance ou par leur nature, sont nécessaires à l'exploitation de l'entreprise, ni donner à bail ce fonds de commerce ou cette entreprise artisanale. Il ne peut, sans ce consentement exprès, percevoir les capitaux provenant de telles opérations.
Le conjoint qui n'a pas donné son consentement exprès à l'acte peut en demander l'annulation. L'action en nullité lui est ouverte pendant deux années à compter du jour où il a eu connaissance de l'acte, sans pouvoir jamais être intentée plus de deux ans après la dissolution de la communauté.
Article L121-6
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Le conjoint collaborateur, lorsqu'il est mentionné au registre du commerce et des sociétés, au répertoire des métiers ou au registre des entreprises tenu par les chambres de métiers d'Alsace et de Moselle est réputé avoir reçu du chef d'entreprise le mandat d'accomplir au nom de ce dernier les actes d'administration concernant les besoins de l'entreprise.
Par déclaration faite devant notaire, à peine de nullité, chaque époux a la faculté de mettre fin à la présomption de mandat, son conjoint présent ou dûment appelé. La déclaration notariée a effet, à l'égard des tiers, trois mois après que mention en aura été portée au registre du commerce et des sociétés, au répertoire des métiers ou au registre des entreprises tenu par les chambres de métiers d'Alsace et de Moselle. En l'absence de cette mention, elle n'est opposable aux tiers que s'il est établi que ceux-ci en ont eu connaissance.
La présomption de mandat cesse également de plein droit en cas d'absence présumée de l'un des époux, de séparation de corps ou de séparation de biens judiciaire, de même que lorsque les conditions prévues au premier alinéa ci-dessus ne sont plus remplies.
Article L121-7
Dans les rapports avec les tiers, les actes de gestion et d'administration accomplis pour les besoins de l'entreprise par le conjoint collaborateur sont réputés l'être pour le compte du chef d'entreprise et n'entraînent à la charge du conjoint collaborateur aucune obligation personnelle.
Article L121-8
La présente section est également applicable aux personnes qui sont liées au chef d'entreprise par un pacte civil de solidarité.
Chapitre II : Des commerçants étrangers.
Article L122-1
Un étranger qui exerce sur le territoire français, sans y résider, une profession commerciale, industrielle ou artisanale, dans des conditions rendant nécessaire son inscription ou sa mention au registre du commerce et des sociétés ou au répertoire des métiers, doit en faire la déclaration au préfet du département dans lequel il envisage d'exercer pour la première fois son activité dans des conditions définies par décret.
Les ressortissants des Etats membres de l'Union européenne, des autres Etats parties à l'accord sur l'Espace économique européen ou de la Confédération suisse sont dispensés de l'obligation de déclaration prévue au premier alinéa.
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Article L122-2
Toute infraction aux prescriptions de l'article L. 122-1 et à celles du décret d'application qu'il prévoit est punie d'un emprisonnement de six mois et d'une amende de 3 750 euros. Le tribunal peut, en outre, ordonner la fermeture de l'établissement.
Chapitre III : Des obligations générales des commerçants.
Section 1 : Du registre du commerce et des sociétés
Sous-section 1 : Des personnes tenues à l'immatriculation.
Article L123-1
I.-Il est tenu un registre du commerce et des sociétés auquel sont immatriculés, sur leur déclaration :
1° Les personnes physiques ayant la qualité de commerçant, même si elles sont tenues à immatriculation au répertoire des métiers ;
2° Les sociétés et groupements d'intérêt économique ayant leur siège dans un département français et jouissant de la personnalité morale conformément à l'article 1842 du code civil ou à l'article L. 251-4 ;
3° Les sociétés commerciales dont le siège est situé hors d'un département français et qui ont un établissement dans l'un de ces départements ;
4° Les établissements publics français à caractère industriel ou commercial ;
5° Les autres personnes morales dont l'immatriculation est prévue par les dispositions législatives ou réglementaires ;
6° Les représentations commerciales ou agences commerciales des Etats, collectivités ou établissements publics étrangers établis dans un département français.
II.-Figurent au registre, pour être portés à la connaissance du public, les inscriptions et actes ou pièces déposés prévus par décret en Conseil d'Etat.
Article L123-1-1
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Par dérogation à l'article L. 123-1, les personnes physiques exerçant une activité commerciale à titre principal ou complémentaire sont dispensées de l'obligation de s'immatriculer au registre du commerce et des sociétés tant qu'elles bénéficient du régime prévu à l'article L. 133-6-8 du code de la sécurité sociale.
Un décret en Conseil d'Etat précise les conditions d'application du présent article et, notamment, les modalités de déclaration d'activité, en dispense d'immatriculation, auprès du centre de formalités des entreprises compétent, les conditions de l'information des tiers sur l'absence d'immatriculation, ainsi que les modalités de déclaration d'activité consécutives au dépassement de seuil.
Les personnes mentionnées au premier alinéa dont l'activité principale est salariée ne peuvent exercer à titre complémentaire auprès des clients de leur employeur, sans l'accord de celui-ci, l'activité professionnelle prévue par leur contrat de travail.
Article L123-2
Nul ne peut être immatriculé au registre s'il ne remplit les conditions nécessaires à l'exercice de son activité. Les personnes morales doivent, en outre, avoir accompli les formalités prescrites par la législation et la réglementation en vigueur les concernant.
Article L123-3
Faute par un commerçant personne physique de requérir son immatriculation dans le délai prescrit, le juge commis soit d'office, soit à la requête du procureur de la République ou de toute personne justifiant y avoir intérêt, rend une ordonnance lui enjoignant de demander son immatriculation.
Dans les mêmes conditions, le juge peut enjoindre à toute personne immatriculée au registre du commerce et des sociétés qui ne les aurait pas requises dans les délais prescrits, de faire procéder soit aux mentions complémentaires ou rectifications qu'elle doit y faire porter, soit aux mentions ou rectifications nécessaires en cas de déclarations inexactes ou incomplètes, soit à la radiation.
Le greffier d'une juridiction qui rend une décision impliquant l'obligation pour une personne de s'immatriculer doit notifier cette décision au greffier du tribunal de commerce dans le ressort duquel l'intéressé a son siège ou son établissement principal. Le greffier du tribunal de commerce destinataire de la décision saisit le juge commis à la surveillance du registre.
Article L123-4
Le fait pour toute personne tenue de requérir une immatriculation, une mention complémentaire ou rectificative, ou une radiation au registre du commerce et des sociétés, de ne pas, sans excuse jugée valable, dans les quinze jours de la date à laquelle est devenue définitive l'ordonnance rendue par le juge commis à la surveillance du registre lui enjoignant de requérir l'une de ces formalités, déférer à cette injonction, est puni d'une amende de 3750 euros.
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Le tribunal peut, en outre, priver l'intéressé, pendant un temps qui n'excédera pas cinq ans, du droit de vote et d'éligibilité aux élections des tribunaux de commerce, chambres de commerce et d'industrie et conseils de prud'hommes.
Le tribunal ordonne que l'immatriculation, les mentions ou la radiation devant figurer au registre du commerce et des sociétés y seront portées dans un délai déterminé, à la requête de l'intéressé.
Article L123-5
Le fait de donner, de mauvaise foi, des indications inexactes ou incomplètes en vue d'une immatriculation, d'une radiation ou d'une mention complémentaire ou rectificative au registre du commerce et des sociétés est puni d'une amende de 4500 euros et d'un emprisonnement de six mois.
Les dispositions des deuxième et troisième alinéas de l'article L. 123-4 sont applicables dans les cas prévus au présent article.
Article L123-5-1
A la demande de tout intéressé ou du ministère public, le président du tribunal, statuant en référé, peut enjoindre sous astreinte au dirigeant de toute personne morale de procéder au dépôt des pièces et actes au registre du commerce et des sociétés auquel celle-ci est tenue par des dispositions législatives ou réglementaires.
Le président peut, dans les mêmes conditions et à cette même fin, désigner un mandataire chargé d'effectuer ces formalités.
Sous-section 2 : Tenue du registre et effets attachés à l'immatriculation.
Article L123-6
Le registre du commerce et des sociétés est tenu par le greffier de chaque tribunal de commerce, sous la surveillance du président ou d'un juge commis à cet effet, qui sont compétents pour toutes contestations entre l'assujetti et le greffier.
Article L123-7
L'immatriculation d'une personne physique emporte présomption de la qualité de commerçant.
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Toutefois, cette présomption n'est pas opposable aux tiers et administrations qui apportent la preuve contraire. Les tiers et administrations ne sont pas admis à se prévaloir de la présomption s'ils savaient que la personne immatriculée n'était pas commerçante.
Article L123-8
La personne assujettie à immatriculation qui n'a pas requis cette dernière à l'expiration d'un délai de quinze jours à compter du commencement de son activité, ne peut se prévaloir, jusqu'à immatriculation, de la qualité de commerçant tant à l'égard des tiers que des administrations publiques. Toutefois, elle ne peut invoquer son défaut d'inscription au registre pour se soustraire aux responsabilités et aux obligations inhérentes à cette qualité.
Sans préjudice de l'application de l'article L. 144-7, le commerçant inscrit qui cède son fonds ou qui en concède l'exploitation notamment sous forme de location-gérance ne peut opposer la cessation de son activité commerciale, pour se soustraire aux actions en responsabilité dont il est l'objet du fait des obligations contractées par son successeur dans l'exploitation du fonds, qu'à partir du jour où a été opérée la radiation ou la mention correspondante.
Article L123-9
La personne assujettie à immatriculation ne peut, dans l'exercice de son activité, opposer ni aux tiers ni aux administrations publiques, qui peuvent toutefois s'en prévaloir, les faits et actes sujets à mention que si ces derniers ont été publiés au registre.
En outre, la personne assujettie à un dépôt d'actes ou de pièces en annexe au registre ne peut les opposer aux tiers ou aux administrations, que si la formalité correspondante a été effectuée. Toutefois, les tiers ou les administrations peuvent se prévaloir de ces actes ou pièces.
Les dispositions des alinéas précédents sont applicables aux faits ou actes sujets à mention ou à dépôt même s'ils ont fait l'objet d'une autre publicité légale. Ne peuvent toutefois s'en prévaloir les tiers et administrations qui avaient personnellement connaissance de ces faits et actes.
Article L123-9-1
Le greffier du tribunal ou l'organisme mentionné au dernier alinéa de l'article 2 de la loi n° 94-126 du 11 février 1994 relative à l'initiative et à l'entreprise individuelle délivre gratuitement un récépissé de dépôt de dossier de création d'entreprise à toute personne assujettie à l'immatriculation au registre, dès que celle-ci a déposé un dossier de demande d'immatriculation complet. Ce récépissé permet d'accomplir, sous la responsabilité personnelle de la personne physique ayant la qualité de commerçant ou qui agit au nom de la société en formation, les démarches nécessaires auprès des organismes publics et des organismes privés chargés d'une mission de service public. Il comporte la mention : " En attente d'immatriculation ".
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Les conditions d'application du présent article sont définies par décret en Conseil d'Etat.
Sous-section 3 : Domiciliation des personnes immatriculées.
Paragraphe 1 : Dispositions applicables aux personnes physiques
Article L123-10
Les personnes physiques demandant leur immatriculation au registre du commerce et des sociétés ou au répertoire des métiers doivent déclarer l'adresse de leur entreprise et en justifier la jouissance. Elles peuvent notamment domicilier leur entreprise dans des locaux occupés en commun par plusieurs entreprises dans des conditions fixées par décret en Conseil d'Etat. Ce décret précise, en outre, les équipements ou services requis pour justifier la réalité de l'installation de l'entreprise domiciliée.
Les personnes physiques peuvent déclarer l'adresse de leur local d'habitation et y exercer une activité, dès lors qu'aucune disposition législative ou stipulation contractuelle ne s'y oppose.
Lorsqu'elles ne disposent pas d'un établissement, les personnes physiques peuvent, à titre exclusif d'adresse de l'entreprise, déclarer celle de leur local d'habitation. Cette déclaration n'entraîne ni changement d'affectation des locaux, ni application du statut des baux commerciaux.
Paragraphe 2 : Dispositions applicables aux personnes morales
Article L123-11
Toute personne morale demandant son immatriculation au registre du commerce et des sociétés doit justifier de la jouissance du ou des locaux où elle installe, seule ou avec d'autres, le siège de l'entreprise, ou, lorsque celui-ci est situé à l'étranger, l'agence, la succursale ou la représentation établie sur le territoire français.
La domiciliation d'une personne morale dans des locaux occupés en commun par plusieurs entreprises est autorisée dans des conditions fixées par décret en Conseil d'Etat. Ce décret précise, en outre, les équipements ou services requis pour justifier la réalité du siège de la personne morale domiciliée.
Article L123-11-1
Toute personne morale est autorisée à installer son siège au domicile de son représentant légal et y exercer une activité, sauf dispositions législatives ou stipulations contractuelles contraires.
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Lorsque la personne morale est soumise à des dispositions législatives ou stipulations contractuelles mentionnées à l'alinéa précédent, son représentant légal peut en installer le siège à son domicile, pour une durée ne pouvant ni excéder cinq ans à compter de la création de celle-ci, ni dépasser le terme légal, contractuel ou judiciaire de l'occupation des locaux.
Dans ce cas, elle doit, préalablement au dépôt de sa demande d'immatriculation ou de modification d'immatriculation, notifier par écrit au bailleur, au syndicat de la copropriété ou au représentant de l'ensemble immobilier son intention d'user de la faculté ainsi prévue.
Avant l'expiration de la période mentionnée au deuxième alinéa, la personne doit, sous peine de radiation d'office, communiquer au greffe du tribunal les éléments justifiant son changement de situation, selon les modalités fixées par décret en Conseil d'Etat.
Il ne peut résulter des dispositions du présent article ni le changement de destination de l'immeuble, ni l'application du statut des baux commerciaux.
Paragraphe 3 : Dispositions communes.
Article L123-11-2
L'activité de domiciliation ne peut être exercée dans un local à usage d'habitation principale ou à usage mixte professionnel.
Article L123-11-3
I. # Nul ne peut exercer l'activité de domiciliation s'il n'est préalablement agréé par l'autorité administrative, avant son immatriculation au registre du commerce et des sociétés.
II. # L'agrément n'est délivré qu'aux personnes qui satisfont aux conditions suivantes :
1° Justifier la mise à disposition des personnes domiciliées de locaux dotés d'une pièce propre à assurer la confidentialité nécessaire et à permettre une réunion régulière des organes chargés de la direction, de l'administration ou de la surveillance de l'entreprise ainsi que la tenue, la conservation et la consultation des livres, registres et documents prescrits par les lois et règlements ;
2° Justifier être propriétaire des locaux mis à la disposition de la personne domiciliée ou titulaire d'un bail commercial de ces locaux ;
3° N'avoir pas fait l'objet d'une condamnation définitive :
a) Pour crime ;
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b) A une peine d'au moins trois mois d'emprisonnement sans sursis pour :
# l'une des infractions prévues au titre Ier du livre III du code pénal et pour les délits prévus par des lois spéciales et punis des peines prévues pour l'escroquerie et l'abus de confiance ;
# recel ou l'une des infractions assimilées au recel ou voisines de celui-ci, prévues à la section 2 du chapitre Ier du titre II du livre III du code pénal ;
# blanchiment ;
# corruption active ou passive, trafic d'influence, soustraction et détournement de biens ;
# faux, falsification de titres ou autres valeurs fiduciaires émises par l'autorité publique, falsification des marques de l'autorité ;
# participation à une association de malfaiteurs ;
# trafic de stupéfiants ;
# proxénétisme ou l'une des infractions prévues par les sections 2 et 2 bis du chapitre V du titre II du livre II du code pénal ;
# l'une des infractions prévues à la section 3 du chapitre V du titre II du livre II du code pénal ;
# l'une des infractions à la législation sur les sociétés commerciales prévues au titre IV du livre II du présent code ;
# banqueroute ;
# pratique de prêt usuraire ;
# l'une des infractions prévues par la loi du 21 mai 1836 portant prohibition des loteries, par la loi du 15 juin 1907 relative aux casinos et par la loi n° 83-628 du 12 juillet 1983 relative aux jeux de hasard ;
# infraction à la législation et à la réglementation des relations financières avec l'étranger ;
# fraude fiscale ;
# l'une des infractions prévues aux articles L. 115-16 et L. 115-18, L. 115-24, L. 115-30, L. 121-6, L. 121-28, L. 122-8 à L. 122-10, L. 213-1 à L. 213-5, L. 217-1 à L. 217-3, L. 217-6 à L. 217-10 du
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code de la consommation ;
# l'une des infractions prévues aux articles L. 8221-1 et L. 8221-3 du code du travail ;
4° N'avoir pas été l'auteur de faits ayant donné lieu, depuis moins de cinq ans, à une sanction disciplinaire ou administrative de retrait de l'agrément de l'activité de domiciliation ;
5° N'avoir pas été frappé de faillite personnelle ou de l'une des mesures d'interdiction ou de déchéance prévues au livre VI du présent code.
Article L123-11-4
L'agrément n'est délivré aux personnes morales que si les actionnaires ou associés détenant au moins 25 % des voix, des parts ou des droits de vote et les dirigeants satisfont aux conditions posées aux 3°, 4° et 5° de l'article L. 123-11-3.
Lorsqu'une personne exploite un ou plusieurs établissements secondaires, elle justifie que les conditions posées au 1° et 2° de l'article L. 123-11-3 sont réalisées pour chacun des établissements exploités.
Tout changement important dans l'activité, l'installation, l'organisation ou la direction de la personne soumise à agrément doit être porté à la connaissance de l'autorité administrative.
Article L123-11-5
Les personnes exerçant l'activité de domiciliation mettent en œuvre les obligations relatives à la lutte contre le blanchiment des capitaux et le financement du terrorisme définies au chapitre Ier du titre VI du livre V du code monétaire et financier.
Article L123-11-6
Sont qualifiés pour procéder, dans le cadre de leurs compétences respectives, à la recherche et à la constatation des infractions aux dispositions des articles de la présente sous-section et des règlements pris pour leur application :
1° Les agents mentionnés à l'article L. 243-7 du code de la sécurité sociale ;
2° Les inspecteurs du travail et les contrôleurs du travail et fonctionnaires de contrôle assimilés au sens de l'article L. 8113-7 du code du travail ;
3° Les agents des caisses de mutualité sociale agricole mentionnés à l'article L. 724-7 du code rural.
A cet effet, ils agissent, chacun pour ce qui le concerne, conformément aux règles de recherche et de constatation des infractions déterminées par les dispositions du code rural, du code de la sécurité sociale et du code du travail qui leur sont applicables.
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Les infractions sont constatées par des procès-verbaux faisant foi jusqu'à preuve du contraire et transmis directement au parquet.
Article L123-11-7
Les conditions d'application du présent paragraphe sont déterminées par décret en Conseil d'Etat.
Article L123-11-8
Est puni d'un emprisonnement de six mois et d'une amende de 7 500 € le fait, pour toute personne, d'exercer l'activité de domiciliation mentionnée à l'article L. 123-11-2 sans avoir préalablement obtenu l'agrément prévu à l'article L. 123-11-3 ou après le retrait ou la suspension de cet agrément.
Section 2 : De la comptabilité des commerçants
Sous-section 1 : Des obligations comptables applicables à tous les commerçants.
Article L123-12
Toute personne physique ou morale ayant la qualité de commerçant doit procéder à l'enregistrement comptable des mouvements affectant le patrimoine de son entreprise. Ces mouvements sont enregistrés chronologiquement.
Elle doit contrôler par inventaire, au moins une fois tous les douze mois, l'existence et la valeur des éléments actifs et passifs du patrimoine de l'entreprise.
Elle doit établir des comptes annuels à la clôture de l'exercice au vu des enregistrements comptables et de l'inventaire. Ces comptes annuels comprennent le bilan, le compte de résultat et une annexe, qui forment un tout indissociable.
Article L123-13
Le bilan décrit séparément les éléments actifs et passifs de l'entreprise, et fait apparaître, de façon distincte, les capitaux propres.
Le compte de résultat récapitule les produits et les charges de l'exercice, sans qu'il soit tenu compte de leur date d'encaissement ou de paiement. Il fait apparaître, par différence après déduction des amortissements et des provisions, le bénéfice ou la perte de l'exercice. Les produits et les charges, classés par catégorie, doivent être présentés soit sous forme de tableaux, soit sous forme de liste.
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Le montant des engagements de l'entreprise en matière de pension, de compléments de retraite, d'indemnités et d'allocations en raison du départ à la retraite ou avantages similaires des membres ou associés de son personnel et de ses mandataires sociaux est indiqué dans l'annexe. Par ailleurs, les entreprises peuvent décider d'inscrire au bilan, sous forme de provision, le montant correspondant à tout ou partie de ces engagements.
L'annexe complète et commente l'information donnée par le bilan et le compte de résultat.
Article L123-14
Les comptes annuels doivent être réguliers, sincères et donner une image fidèle du patrimoine, de la situation financière et du résultat de l'entreprise.
Lorsque l'application d'une prescription comptable ne suffit pas pour donner l'image fidèle mentionnée au présent article, des informations complémentaires doivent être fournies dans l'annexe.
Si, dans un cas exceptionnel, l'application d'une prescription comptable se révèle impropre à donner une image fidèle du patrimoine, de la situation financière ou du résultat, il doit y être dérogé. Cette dérogation est mentionnée à l'annexe et dûment motivée, avec l'indication de son influence sur le patrimoine, la situation financière et le résultat de l'entreprise.
Article L123-15
Le bilan, le compte de résultat et l'annexe doivent comprendre autant de rubriques et de postes qu'il est nécessaire pour donner une image fidèle du patrimoine, de la situation financière et du résultat de l'entreprise. Chacun des postes du bilan et du compte de résultat comporte l'indication du chiffre relatif au poste correspondant de l'exercice précédent.
Les éléments composant les capitaux propres sont fixés par décret. Le classement des éléments du bilan et du compte de résultat ainsi que les mentions à inclure dans l'annexe sont fixés par un règlement de l'Autorité des normes comptables.
Article L123-16
Les commerçants, personnes physiques ou morales, peuvent, dans des conditions fixées par un règlement de l'Autorité des normes comptables, adopter une présentation simplifiée de leurs comptes annuels lorsqu'ils ne dépassent pas à la clôture de l'exercice des chiffres fixés par décret pour deux des critères suivants : le total de leur bilan, le montant net de leur chiffre d'affaires ou le nombre moyen de salariés permanents employés au cours de l'exercice. Ils perdent cette faculté lorsque cette condition n'est pas remplie pendant deux exercices successifs.
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Article L123-17
A moins qu'un changement exceptionnel n'intervienne dans la situation du commerçant, personne physique ou morale, la présentation des comptes annuels comme des méthodes d'évaluation retenues ne peuvent être modifiées d'un exercice à l'autre. Si des modifications interviennent, elles sont décrites et justifiées dans l'annexe.
Article L123-18
A leur date d'entrée dans le patrimoine de l'entreprise, les biens acquis à titre onéreux sont enregistrés à leur coût d'acquisition, les biens acquis à titre gratuit à leur valeur vénale et les biens produits à leur coût de production.
Pour les éléments d'actif immobilisés, les valeurs retenues dans l'inventaire doivent, s'il y a lieu, tenir compte des plans d'amortissement. Si la valeur d'un élément de l'actif devient inférieure à sa valeur nette comptable, cette dernière est ramenée à la valeur d'inventaire à la clôture de l'exercice, que la dépréciation soit définitive ou non.
Les biens fongibles sont évalués soit à leur coût moyen pondéré d'acquisition ou de production, soit en considérant que le premier bien sorti est le premier bien entré.
La plus-value constatée entre la valeur d'inventaire d'un bien et sa valeur d'entrée n'est pas comptabilisée. S'il est procédé à une réévaluation de l'ensemble des immobilisations corporelles et financières, l'écart de réévaluation entre la valeur actuelle et la valeur nette comptable ne peut être utilisé à compenser les pertes ; il est inscrit distinctement au passif du bilan.
Article L123-19
Les éléments d'actif et de passif doivent être évalués séparément.
Aucune compensation ne peut être opérée entre les postes d'actif et de passif du bilan ou entre les postes de charges et de produits du compte de résultat.
Le bilan d'ouverture d'un exercice doit correspondre au bilan de clôture de l'exercice précédent.
Article L123-20
Les comptes annuels doivent respecter le principe de prudence. Pour leur établissement, le commerçant, personne physique ou morale, est présumé poursuivre ses activités.
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Même en cas d'absence ou d'insuffisance du bénéfice, il doit être procédé aux amortissements et provisions nécessaires.
Il doit être tenu compte des risques et des pertes intervenus au cours de l'exercice ou d'un exercice antérieur, même s'ils sont connus entre la date de la clôture de l'exercice et celle de l'établissement des comptes.
Article L123-21
Seuls les bénéfices réalisés à la date de clôture d'un exercice peuvent être inscrits dans les comptes annuels. Peut être inscrit, après inventaire, le bénéfice réalisé sur une opération partiellement exécutée et acceptée par le cocontractant lorsque sa réalisation est certaine et qu'il est possible, au moyen de documents comptables prévisionnels, d'évaluer avec une sécurité suffisante le bénéfice global de l'opération.
Article L123-22
Les documents comptables sont établis en euros et en langue française.
Les documents comptables et les pièces justificatives sont conservés pendant dix ans.
Les documents comptables relatifs à l'enregistrement des opérations et à l'inventaire sont établis et tenus sans blanc ni altération d'aucune sorte, dans des conditions fixées par décret en Conseil d'Etat.
Article L123-23
La comptabilité régulièrement tenue peut être admise en justice pour faire preuve entre commerçants pour faits de commerce.
Si elle a été irrégulièrement tenue, elle ne peut être invoquée par son auteur à son profit.
La communication des documents comptables ne peut être ordonnée en justice que dans les affaires de succession, communauté, partage de société et en cas de redressement ou de liquidation judiciaires.
Article L123-24
Tout commerçant est tenu de se faire ouvrir un compte dans un établissement de crédit ou dans un bureau de chèques postaux.
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Sous-section 2 : Des obligations comptables applicables à certains commerçants, personnes physiques.
Article L123-25
Par dérogation aux dispositions des premier et troisième alinéas de l'article L. 123-12, les personnes physiques placées sur option ou de plein droit sous le régime réel simplifié d'imposition peuvent n'enregistrer les créances et les dettes qu'à la clôture de l'exercice et ne pas établir d'annexe.
Article L123-26
Par dérogation aux dispositions du deuxième alinéa de l'article L. 123-13, les personnes physiques placées sur option ou de plein droit sous le régime réel simplifié d'imposition peuvent inscrire au compte de résultat, en fonction de leur date de paiement, les charges dont la périodicité n'excède pas un an, à l'exclusion des achats.
Article L123-27
Par dérogation aux dispositions du troisième alinéa de l'article L. 123-18, les personnes physiques placées sur option ou de plein droit sous le régime réel simplifié d'imposition peuvent procéder à une évaluation simplifiée des stocks et des productions en cours, selon une méthode fixée par règlement de l'Autorité des normes comptables.
Article L123-28
Par dérogation aux dispositions des articles L. 123-12 à L. 123-23, les personnes physiques bénéficiant du régime défini à l'article 50-0 du code général des impôts peuvent ne pas établir de comptes annuels. Elles tiennent un livre mentionnant chronologiquement le montant et l'origine des recettes qu'elles perçoivent au titre de leur activité professionnelle. Elles tiennent également, lorsque leur commerce principal est de vendre des marchandises, objets, fournitures et denrées à emporter ou à consommer sur place, ou de fournir le logement, un registre récapitulé par année, présentant le détail de leurs achats. Un décret fixe les conditions dans lesquelles ce livre et ce registre sont tenus.
Section 3 : Des activités commerciales et artisanales ambulantes
Article L123-29
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Toute personne physique ou morale doit, pour exercer ou faire exercer par son conjoint ou ses préposés une activité commerciale ou artisanale ambulante hors du territoire de la commune où est situé son habitation ou son principal établissement, en faire la déclaration préalable auprès de l'autorité compétente pour délivrer la carte mentionnée au quatrième alinéa.
Il en va de même pour toute personne n'ayant ni domicile ni résidence fixes de plus de six mois, au sens de l'article 2 de la loi n° 69-3 du 3 janvier 1969 relative à l'exercice des activités ambulantes et au régime applicable aux personnes circulant en France sans domicile ni résidence fixe, entendant exercer ou faire exercer par son conjoint ou ses préposés une activité commerciale ou artisanale ambulante.
La déclaration mentionnée au premier alinéa est renouvelable périodiquement.
Cette déclaration donne lieu à délivrance d'une carte permettant l'exercice d'une activité ambulante.
Article L123-30
Outre les officiers et agents de police judiciaire, ont compétence pour constater par procès-verbal les contraventions prévues par le décret mentionné à l'article L. 123-31 :
1° Les agents de police judiciaire adjoints mentionnés au 2° de l'article 21 du code de procédure pénale ;
2° Les fonctionnaires chargés du contrôle des marchés et des halles situés sur le territoire de la commune sur laquelle le commerçant ou l'artisan ambulant exerce son activité commerciale ou artisanale, habilités à cette fin.
Article L123-31
Les modalités d'application de la présente section sont fixées par décret en Conseil d'Etat, notamment les conditions d'habilitation des agents mentionnés au 2° de l'article L. 123-30 et les modalités d'exercice de leur compétence.
Chapitre IV : Des sociétés coopératives de commerçants détaillants.
Article L124-1
Les sociétés coopératives de commerçants détaillants ont pour objet d'améliorer par l'effort commun de leurs associés les conditions dans lesquelles ceux-ci exercent leur activité commerciale. A cet effet, elles peuvent notamment exercer directement ou indirectement pour le compte de leurs associés les activités suivantes :
1° Fournir en totalité ou en partie à leurs associés les marchandises, denrées ou services, l'équipement et le matériel nécessaires à l'exercice de leur commerce, notamment par la constitution et l'entretien de tout stock de marchandises, la construction, l'acquisition ou la location ainsi que la gestion de magasins et entrepôts particuliers, l'accomplissement dans leurs établissements ou dans
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ceux de leurs associés de toutes opérations, transformations et modernisation utiles ;
2° Regrouper dans une même enceinte les commerces appartenant à leurs associés, créer et gérer tous services communs à l'exploitation de ces commerces, construire, acquérir ou louer les immeubles nécessaires à leur activité ou à celle des associés, et en assurer la gestion, le tout dans les conditions prévues par le chapitre V du présent titre ;
3° Dans le cadre des dispositions législatives concernant les activités financières, faciliter l'accès des associés et de leur clientèle aux divers moyens de financement et de crédit ;
4° Exercer les activités complémentaires à celles énoncées ci-dessus, et notamment fournir à leurs associés une assistance en matière de gestion technique, financière et comptable ;
5° Acheter des fonds de commerce dont, par dérogation aux dispositions de l'article L. 144-3, la location-gérance est concédée dans un délai de deux mois à un associé et qui, sous les sanctions prévues aux deuxième et troisième alinéas de l'article L. 124-15, doivent être rétrocédés dans un délai maximum de sept ans ;
6° Définir et mettre en oeuvre par tous moyens une politique commerciale commune propre à assurer le développement et l'activité de ses associés, notamment :
-par la mise en place d'une organisation juridique appropriée ;
-par la mise à disposition d'enseignes ou de marques dont elles ont la propriété ou la jouissance ;
-par la réalisation d'opérations commerciales publicitaires ou non pouvant comporter des prix communs ;
-par l'élaboration de méthodes et de modèles communs d'achat, d'assortiment et de présentation de produits, d'architecture et d'organisation des commerces ;
7° Prendre des participations même majoritaires dans des sociétés directement ou indirectement associées exploitant des fonds de commerce.
Article L124-2
Les sociétés coopératives de commerçants de détail ne peuvent admettre de tiers non associés à bénéficier de leurs services.
Toutefois, les sociétés coopératives de pharmaciens d'officine ne peuvent refuser leurs services en cas d'urgence, aux pharmaciens d'officine non associés et à tous les établissements publics ou privés où sont traités les malades, lorsque ces établissements sont régulièrement propriétaires d'une officine.
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Article L124-3
Les sociétés coopératives de commerçants de détail sont des sociétés anonymes à capital variable constituées et fonctionnant conformément aux dispositions du livre II, titre III, chapitre Ier. Elles sont régies par les dispositions du présent chapitre et par celles non contraires du livre II, titres Ier à IV et de la loi n° 47-1775 du 10 septembre 1947 portant statut de la coopération. Les dispositions du livre II, titres Ier à IV concernant la constitution des réserves légales leur sont applicables.
Peuvent être seules considérées comme sociétés coopératives de commerçants de détail ou unions de ces sociétés, et sont seules autorisées à prendre ce titre et à l'adjoindre à leur dénomination, les sociétés et unions constituées dans le but d'effectuer les opérations visées à l'article L. 124-1 et qui se conforment, pour leur constitution et leur fonctionnement, aux prescriptions du présent chapitre.
Article L124-4
Sans préjudice de l'application des dispositions de l'article 3 bis de la loi n° 47-1775 du 10 septembre 1947 portant statut de la coopération, tout commerçant, exerçant le commerce de détail, régulièrement établi sur le territoire d'un Etat étranger, peut être membre de coopératives de commerçants. Il en est de même des sociétés coopératives régies par le présent chapitre, ainsi que des entreprises immatriculées à la fois au répertoire des métiers et au registre du commerce et des sociétés. Les coopératives régies par le présent chapitre peuvent admettre en qualité d'associés des personnes physiques ou morales intéressées par leur activité et compétentes pour en connaître.
Les sociétés coopératives de commerçants de détail qui exercent les activités visées au 2° de l'article L. 124-1 peuvent, en outre, admettre en qualité d'associé toute personne visée à l'article L. 125-1.
Les commerçants de détail dont la coopérative est affiliée à une autre coopérative de commerçants de détail peuvent bénéficier directement des services de cette dernière.
Article L124-5
Les sociétés régies par le présent chapitre peuvent constituer entre elles des unions ayant les mêmes objets que ceux définis à l'article L. 124-1.
Ces unions doivent se conformer, pour leur constitution et leur fonctionnement, aux mêmes règles que lesdites sociétés. Le deuxième alinéa de l'article 9 de la loi du 10 septembre 1947 portant statut de la coopération leur est applicable.
Les unions de sociétés coopératives de commerçants de détail ne peuvent comprendre que des sociétés coopératives de détail ou leurs associés. Les commerçants détaillants dont la coopérative est affiliée à une union peuvent bénéficier directement des services de cette union.
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Les sociétés coopératives de commerçants de détail et leurs unions peuvent constituer des unions mixtes avec d'autres sociétés coopératives et leurs unions.
Par dérogation à l'article L. 225-1, le nombre des associés d'une union régie par le présent article peut être inférieur à sept.
Article L124-6
Les administrateurs ou les membres du directoire et du conseil de surveillance sont des personnes physiques ayant soit la qualité d'associé, à titre personnel, soit la qualité de président du conseil d'administration, de directeur général, de membre du directoire ou de gérant d'une société ayant elle-même la qualité d'associé.
Les fonctions des membres du conseil d'administration ou des membres du conseil de surveillance sont gratuites et n'ouvrent droit qu'au remboursement, sur justification, des frais, ainsi que, le cas échéant, au paiement d'une indemnité compensatrice du temps et du travail consacrés à l'administration de la coopérative.
Le président du conseil d'administration ou les membres du directoire ainsi que le président du conseil de surveillance peuvent recevoir une rémunération. Toutefois, ils ne peuvent être rémunérés au prorata des opérations faites ou des excédents réalisés que si ce mode de rémunération est prévu par les statuts. Ceux-ci précisent l'instance habilitée à fixer pour une durée n'excédant pas cinq années le maximum de rétributions annuelles.
Les décisions prises pour l'exécution de l'alinéa précédent sont ratifiées par l'assemblée générale annuelle qui suit la date à laquelle elles sont intervenues.
Article L124-7
Les statuts peuvent prévoir que des sociétés coopératives de commerçants détaillants sont associées dans les conditions prévues à l'article 3 bis de la loi du 10 septembre 1947 portant statut de la coopération. Dans ce cas, elles ne peuvent recourir aux services de la société coopérative dont elles sont associées.
Article L124-8
L'assemblée générale délibère valablement lorsque le tiers des associés existants à la date de la convention sont présents ou représentés.
Toutefois, les assemblées convoquées en vue de modifier les statuts ne délibèrent valablement que si la moitié au moins des associés existants à la date de la convocation sont présents ou représentés.
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Les associés qui ont exprimé leur suffrage par correspondance, quand les statuts les y autorisent, comptent pour la détermination du quorum.
Lorsque le quorum n'est pas atteint, une nouvelle assemblée est convoquée. Elle délibère valablement quel que soit le nombre des associés présents ou représentés.
Article L124-9
Les délibérations de l'assemblée générale sont prises à la majorité des voix dont disposent les associés présents ou représentés. Toutefois, une majorité des deux tiers des voix des associés présents ou représentés est requise pour toute modification des statuts.
Si la coopérative exerce les activités prévues au 2° de l'article L. 124-1, il est dérogé à cette disposition dans les conditions prévues par l'article L. 125-10.
Article L124-10
L'exclusion d'un associé peut être prononcée, selon le cas, par le conseil d'administration ou par le conseil de surveillance, l'intéressé étant dûment entendu.
Tout associé frappé d'une mesure d'exclusion a la possibilité de faire appel de cette décision devant l'assemblée générale qui statue sur son recours lors de la première réunion ordinaire qui suit la notification de l'exclusion. Celle-ci prend effet au jour de la notification de son acceptation par l'assemblée générale.
Toutefois, le conseil d'administration ou le conseil de surveillance, selon le cas, peut, lorsque l'intérêt de la société l'exige, suspendre l'exercice des droits que l'associé exclu tient de sa qualité de coopérateur jusqu'à notification à ce dernier de la décision de l'assemblée générale, sans que la durée de cette suspension puisse excéder une année.
Si la décision tendant à exclure un associé n'est pas justifiée par un motif sérieux et légitime, le tribunal, saisi dans le délai d'un mois à compter de la notification du rejet du recours de l'associé par l'assemblée générale, peut, soit réintégrer l'associé indûment exclu, soit lui allouer des dommages et intérêts, soit prononcer l'une et l'autre de ces mesures.
Lorsque la coopérative exerce les activités prévues au 2° de l'article L. 124-1, les dispositions du présent article ne sont pas applicables. Il est fait application des articles L. 125-15 et L. 125-16.
Article L124-11
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S'il s'agit d'une coopérative exerçant les activités prévues au 2° de l'article L. 124-1, le remboursement des parts sociales de l'associé qui se retire ou qui est exclu s'effectue, par dérogation à l'article 18 de la loi du 10 septembre 1947 portant statut de la coopération, dans les conditions prévues par les articles L. 125-17 et L. 125-18.
Il reste cependant tenu pendant cinq années à compter du jour où il a définitivement perdu la qualité d'associé, tant envers la coopérative qu'à l'égard des tiers, de toutes les obligations existant à la clôture de l'exercice au cours duquel il a quitté la coopérative. Le conseil d'administration ou le conseil de surveillance, selon le cas, peut, pendant cinq ans au plus, conserver tout ou partie des sommes dues à l'ancien associé, en application de l'alinéa précédent, dans la limite du montant nécessaire à la garantie des obligations dont il est tenu en application du présent alinéa, et à moins que l'intéressé ne fournisse des sûretés suffisantes.
Article L124-12
L'assemblée générale ordinaire peut, en statuant aux conditions de quorum et de majorité de l'assemblée générale extraordinaire, transformer en parts sociales tout ou partie des ristournes bloquées en comptes individualisés ainsi que tout ou partie des ristournes distribuables aux coopérateurs au titre de l'exercice écoulé.
Dans ce dernier cas, les droits de chaque coopérateur dans l'attribution des parts résultant de cette augmentation de capital sont identiques à ceux qu'il aurait eus dans la distribution des ristournes.
Article L124-13
La caisse centrale de crédit coopératif est autorisée à effectuer toutes opérations financières en faveur des sociétés constituées conformément aux dispositions du présent chapitre, notamment à mettre à leur disposition les fonds qui lui sont spécialement attribués ou qu'elle peut se procurer sous forme d'emprunts ou par le réescompte des effets souscrits, à donner son aval ou à se porter caution pour garantir leurs emprunts, à recevoir et à gérer leurs dépôts de fonds.
Article L124-14
En cas de dissolution d'une société coopérative ou d'une union régie par les dispositions du présent chapitre et sous réserve des dispositions des alinéas suivants du présent article, l'excédent net de l'actif sur le capital est dévolu soit à d'autres sociétés coopératives ou unions de coopératives, soit à des oeuvres d'intérêt général ou professionnel.
Toutefois, une société coopérative ou une union peut être autorisée par arrêté du ministre chargé de l'économie et des finances, pris après avis du Conseil supérieur de la coopération, à répartir l'excédent net de l'actif à ses associés. Cette répartition ne peut comprendre la part de l'excédent net d'actif qui résulte de l'aide accordée directement ou indirectement à la société ou à l'union par l'Etat ou par une collectivité publique. Cette part doit être reversée dans les conditions prévues par l'arrêté
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d'autorisation.
La répartition entre les associés de l'excédent net d'actif est de plein droit lorsque la société coopérative exerce les activités visées au 2° de l'article L. 124-1.
Article L124-15
Tout groupement de commerçants détaillants établi en vu de l'exercice d'une ou plusieurs activités visées aux 1°,3° et 4° de l'article L. 124-1 doit, s'il n'a pas adopté la forme de société coopérative de commerçants détaillants régie par les dispositions du présent chapitre, être constitué sous la forme de société anonyme, de société à responsabilité limitée, de groupement d'intérêt économique ou de groupement européen d'intérêt économique.
Est puni d'une amende de 9000 euros le fait de constituer un groupement de commerçants détaillants en infraction aux dispositions de l'alinéa précédent.
Le tribunal peut en outre ordonner la cessation des opérations de l'organisme en cause et, s'il y a lieu, la confiscation des marchandises achetées et la fermeture des locaux utilisés.
Article L124-16
Les sociétés coopératives d'achat en commun de commerçants détaillants et leurs unions constituées sous l'empire de la loi n° 49-1070 du 2 août 1949 sont considérées comme satisfaisant aux dispositions du présent chapitre sans qu'il soit nécessaire qu'elles modifient leurs statuts.
Toutefois, les sociétés bénéficiaires des dispositions de l'alinéa précédent doivent procéder à la mise en conformité de leurs statuts à l'occasion de toute modification ultérieure desdits statuts.
Chapitre V : Des magasins collectifs de commerçants indépendants
Section 1 : De la constitution du magasin collectif
Article L125-1
Les dispositions du présent chapitre s'appliquent aux personnes physiques ou morales réunies dans une même enceinte, sous une même dénomination, pour exploiter, selon des règles communes, leur fond de commerce ou leur entreprise immatriculée au répertoire des métiers sans en aliéner la propriété, créant ainsi un magasin collectif de commerçants indépendants.
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Article L125-2
Les personnes visées à l'article L. 125-1 constituent, sous forme de groupement d'intérêt économique ou de société anonyme à capital variable ou de société coopérative de commerçants détaillants, une personne morale qui a la propriété et la jouissance ou seulement la jouissance des bâtiments et aires annexes du magasin collectif, définit et met en oeuvre la politique commune, organise et gère les services communs.
Le groupement d'intérêt économique ou la société, propriétaire de tout ou partie des sols, bâtiments et aires annexes du magasin collectif, ne peut rétrocéder tout ou partie de ces biens immobiliers à ses membres pendant l'existence dudit magasin.
Peuvent seuls être considérés comme magasins collectifs de commerçants indépendants, et sont seuls autorisés à prendre ce titre et à l'adjoindre à leur dénomination, les groupements d'intérêt économique, les sociétés anonymes à capital variable et les sociétés coopératives de commerçants détaillants qui se conforment, pour leur constitution et leur fonctionnement, aux prescriptions du présent chapitre.
Article L125-3
Le groupement d'intérêt économique ou la société qui a recours au crédit-bail est considéré comme utilisateur au sens de l'article 5 b de l'ordonnance n° 67-837 du 28 septembre 1967.
Article L125-4
Chaque membre du groupement d'intérêt économique ou de la société est titulaire de parts ou d'actions non dissociables de l'utilisation d'un emplacement déterminé par le contrat constitutif ou les statuts, et bénéficie de services communs.
Le contrat constitutif ou les statuts peuvent attribuer à tout titulaire un autre emplacement en fonction d'activités saisonnières.
L'assemblée des membres ou l'assemblée générale, selon le cas, est seule compétente pour modifier, avec l'accord des intéressés, les emplacements ainsi attribués.
Les dispositions du présent chapitre relatives aux parts sociales sont applicables aux actions visées au premier alinéa ci-dessus.
Article L125-5
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Lorsqu'un fonds de commerce ou une entreprise immatriculée au répertoire des métiers sont transférés ou créés dans le magasin collectif, il n'en est pas fait apport au groupement ou à la société en représentation des parts attribuées à leur propriétaire. Les parts du groupement ou de la société ne représentent pas la valeur du fonds ou de l'entreprise. Sont également prohibés tous apports autres qu'en espèces.
Article L125-6
En cas de location-gérance du fonds de commerce ou de l'entreprise immatriculée au répertoire des métiers, le bailleur est seul membre du groupement ou de la société.
Le transfert dans le magasin collectif d'un fonds ou d'une entreprise préexistante ne peut être effectué qu'avec l'accord du locataire gérant.
Article L125-7
Le propriétaire d'un fonds de commerce grevé du privilège ou d'un nantissement prévu par les chapitres Ier à III du titre IV du présent livre doit, préalablement à son adhésion à un magasin collectif et au transfert de ce fonds dans ledit magasin, accomplir les formalités de publicité prévues aux articles L. 141-21 et L. 141-22.
Si le créancier titulaire du privilège ou du nantissement n'a pas notifié d'opposition par voie d'inscription au greffe dans les dix jours de la dernière en date des publications prévues aux articles L. 141-12 et L. 141-13, il est réputé avoir donné son accord à l'adhésion du propriétaire du fonds.
En cas d'opposition, la mainlevée de celle-ci est ordonnée en justice, si le propriétaire du fonds justifie que les sûretés dont dispose le créancier ne sont pas diminuées par le fait de l'adhésion au magasin collectif ou que des garanties au moins équivalentes lui sont offertes. A défaut de mainlevée de l'opposition, le commerçant ne peut adhérer au magasin collectif tant qu'il demeure propriétaire du fonds.
Article L125-8
Le contrat constitutif ou les statuts, selon le cas, doivent, à peine de nullité, et sous la responsabilité solidaire des signataires, contenir la mention expresse, soit qu'aucun fonds n'est grevé du privilège ou d'un nantissement prévu aux chapitres Ier à III du titre IV du présent livre, soit, dans le cas contraire, qu'il n'a pas été formé d'opposition préalablement à l'adhésion d'un des membres ou que mainlevée en a été ordonnée par justice.
Article L125-9
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Les magasins collectifs de commerçants indépendants déjà créés par l'intermédiaire d'une personne morale peuvent, par voie d'adaptation ou de transformation, se placer sous le régime prévu par le présent chapitre.
Tout membre peut, par voie de référé, demander la désignation d'un mandataire spécialement chargé de convoquer l'assemblée aux fins de statuer sur ces adaptations ou transformations.
Nonobstant toute disposition contraire, ces décisions sont prises à la majorité en nombre des membres composant la personne morale. Ceux qui n'y ont pas concouru peuvent, toutefois, se retirer en demandant le remboursement de leurs titres, actions ou parts, dans les conditions prévues aux articles L. 125-17 et L. 125-18.
Section 2 : De l'administration du magasin collectif
Article L125-10
Un règlement intérieur est annexé au contrat constitutif ou aux statuts, selon le cas.
Le contrat constitutif ou les statuts, ainsi que le règlement intérieur, ne peuvent être modifiés que par l'assemblée, ou l'assemblée générale, selon le cas, statuant à la majorité absolue en nombre des membres du groupement ou de la société, ou, si le contrat constitutif ou les statuts le prévoient, à une majorité plus importante. Il en est de même des décisions portant agrément ou exclusion.
Les autres décisions sont prises dans les conditions propres à chacune des formes prévues à l'article L. 125-2. Toutefois, nonobstant les dispositions du livre II, les statuts d'une société anonyme à capital variable constituée en application du présent chapitre peuvent stipuler que chacun des actionnaires dispose d'une voix en assemblée générale, quel que soit le nombre d'actions qu'il détient.
Article L125-11
Le règlement intérieur détermine les règles propres à assurer une politique commerciale commune. Il fixe les conditions générales d'exploitation, et, notamment :
1° Les jours et heures d'ouverture ainsi que, le cas échéant, les périodes de fermeture saisonnières ou pour congés annuels ;
2° L'organisation et la gestion des services communs et la répartition des charges correspondant à ces services ;
3° Sous réserve de la législation en vigueur en la matière, l'aménagement des activités concurrentes,
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ainsi que la détermination des activités annexes qui peuvent être exercées par chaque membre en concurrence avec celles d'autres membres du magasin ;
4° Le choix des inscriptions publicitaires et décors propres à chaque emplacement et éventuellement leur harmonisation ;
5° Les actions collectives ou individuelles d'animation du magasin, notamment celles à caractère saisonnier.
Section 3 : De l'agrément et de l'exclusion.
Article L125-12
Le contrat constitutif ou les statuts, selon le cas, peuvent subordonner toute cession de parts à l'agrément du cessionnaire par l'assemblée du groupement ou par l'assemblée générale de la société, selon le cas. L'assemblée ou l'assemblée générale se prononce dans le délai d'un mois à compter de la date de la demande d'agrément.
Le contrat constitutif ou les statuts, selon le cas, peuvent également soumettre à cet agrément les ayants droit d'un titulaire de parts décédé qui ne participaient pas à son activité dans le magasin collectif.
Le refus d'agrément donne droit à indemnité dans les conditions prévues aux articles L. 125-17 et L. 125-18.
Article L125-13
La clause d'agrément n'est pas opposable en cas de vente forcée des parts, que celles-ci aient ou non fait l'objet d'un nantissement.
Article L125-14
Le contrat constitutif ou les statuts, selon le cas, peuvent subordonner la mise en location-gérance d'un fonds de commerce ou d'une entreprise artisanale du magasin collectif à l'agrément du locataire gérant par l'assemblée.
En cas de redressement ou de liquidation judiciaires du propriétaire, cette clause ne peut être invoquée si la conclusion d'un contrat de location-gérance est autorisée par le tribunal conformément aux dispositions du titre II du livre VI.
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Article L125-15
L'organe d'administration du magasin collectif peut adresser un avertissement à tout membre qui, par son fait ou celui des personnes à qui il a confié l'exploitation de son fonds ou de son entreprise, commet une infraction au règlement intérieur.
En cas de location-gérance, cet avertissement est également notifié au locataire-gérant.
Si dans les trois mois qui suivent, cet avertissement est demeuré sans effet et si les intérêts légitimes du magasin collectif ou de certains de ses membres sont compromis, l'assemblée des membres, ou l'assemblée générale, selon le cas, a la faculté de prononcer, à la majorité prévue à l'article L. 125-10, l'exclusion de l'intéressé.
Jusqu'à ce que la décision d'exclusion soit devenue définitive, l'exclu a la faculté de présenter un ou plusieurs cessionnaires dans les conditions déterminées par le contrat constitutif ou les statuts.
Article L125-16
Sous réserve de la procédure d'évaluation des parts prévue au second alinéa de l'article L. 125-17, tout membre d'un magasin collectif peut déférer au tribunal de grande instance, dans le délai d'un mois de sa notification par lettre recommandée avec demande d'avis de réception, toute décision prise en application des articles L. 125-12, L. 125-14 et du troisième alinéa de l'article L. 125-15.
Le tribunal peut annuler ou réformer la décision qui lui est déférée ou y substituer sa propre décision.
Nonobstant toute clause contraire, le recours en justice est suspensif de l'exécution de la décision déférée, sauf dans le cas d'une décision d'exclusion motivée par la non-utilisation des emplacements ou par le non-paiement des charges.
Article L125-17
En cas d'exclusion, de départ ou de décès accompagnés du refus d'agrément du cessionnaire ou des successeurs, le titulaire des parts, ou, en cas de décès, ses ayants droit, ont la faculté de transférer ou d'aliéner leur fonds de commerce ou leur entreprise immatriculée au répertoire des métiers. Le nouvel attributaire de l'emplacement ou, à défaut, le groupement ou la société, selon le cas, leur rembourse la valeur de leurs parts, augmentée, s'il y a lieu, de la plus-value que leurs aménagements ont pu conférer à l'emplacement dont ils étaient titulaires.
Cette valeur est fixée par l'assemblée ou l'assemblée générale, selon le cas, en même temps qu'est prise la décision d'exclusion ou celle refusant l'agrément du cessionnaire ou des successeurs. En cas de désaccord, elle est déterminée à la date de ces décisions par un expert désigné par ordonnance du
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président du tribunal de grande instance statuant en la forme des référés. Cette ordonnance n'est susceptible d'aucune voie de recours nonobstant toute clause contraire. Le rapport d'expertise est soumis à l'homologation du président du tribunal de grande instance statuant en la forme des référés.
Article L125-18
Dans les cas prévus au premier alinéa de l'article L. 125-17, le groupement ou la société ne peuvent procéder à l'installation d'un nouvel attributaire que si ont été versées à l'ancien titulaire des parts ou, en cas de décès, à ses ayants droit, les sommes prévues audit article L. 125-17, ou à défaut, une provision fixée par le président du tribunal de grande instance statuant en la forme des référés.
Toutefois, ce versement préalable n'est pas exigé lorsqu'une caution a été donnée pour le montant de ces sommes ou de cette provision par un établissement de crédit ou un établissement financier spécialement habilité à cet effet, ou lorsque ce montant a été consigné entre les mains d'un mandataire désigné au besoin par ordonnance rendue en la forme des référés.
En outre, s'il s'agit d'une coopérative, le conseil d'administration ou le directoire, selon le cas, peut invoquer les dispositions du second alinéa de l'article L. 124-11.
Section 4 : De la dissolution.
Article L125-19
Sauf clause contraire du contrat constitutif ou des statuts, le redressement ou la liquidation judiciaires de l'un des membres n'entraîne pas de plein droit la dissolution du groupement d'intérêt économique.
Chapitre VI : Des sociétés de caution mutuelle.
Article L126-1
Les règles de création de sociétés de caution mutuelle entre commerçants, industriels, fabricants, artisans, sociétés commerciales, membres des professions libérales, propriétaires d'immeubles ou de droits immobiliers, ainsi qu'entre les opérateurs mentionnés à l'article L. 524-1, sont fixées par la loi du 13 mars 1917.
Chapitre VII : Du contrat d'appui au projet d'entreprise pour la
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création ou la reprise d'une activité économique.
Article L127-1
L'appui au projet d'entreprise pour la création ou la reprise d'une activité économique est défini par un contrat par lequel une personne morale s'oblige à fournir, par les moyens dont elle dispose, une aide particulière et continue à une personne physique, non salariée à temps complet, qui s'engage à suivre un programme de préparation à la création ou à la reprise et à la gestion d'une activité économique. Ce contrat peut aussi être conclu entre une personne morale et le dirigeant associé unique d'une personne morale.
Article L127-2
Le contrat d'appui au projet d'entreprise est conclu pour une durée qui ne peut excéder douze mois, renouvelable deux fois. Les modalités du programme d'appui et de préparation et de l'engagement respectif des parties contractantes sont précisées par le contrat. Sont ainsi déterminées les conditions dans lesquelles la personne bénéficiaire peut prendre à l'égard des tiers des engagements en relation avec l'activité économique projetée.
Le contrat est, sous peine de nullité, conclu par écrit.
Article L127-3
Le fait pour la personne morale responsable de l'appui de mettre à disposition du bénéficiaire les moyens nécessaires à sa préparation à la création ou la reprise et à la gestion de l'activité économique projetée n'emporte pas, par lui-même, présomption d'un lien de subordination.
La mise à disposition de ces moyens et la contrepartie éventuelle des frais engagés par la personne morale responsable de l'appui en exécution du contrat figurent à son bilan.
Article L127-4
Lorsqu'en cours de contrat débute une activité économique, le bénéficiaire doit procéder à l'immatriculation de l'entreprise, si cette immatriculation est requise par la nature de cette activité.
Avant toute immatriculation, les engagements pris par le bénéficiaire à l'égard des tiers à l'occasion du programme d'appui et de préparation sont, au regard de ces tiers, assumés par l'accompagnateur. La personne morale responsable de l'appui et le bénéficiaire sont, après l'immatriculation, tenus solidairement des engagements pris par ce dernier conformément aux stipulations du contrat
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d'appui, jusqu'à la fin de celui-ci.
Article L127-5
Le contrat d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique ne peut avoir pour objet ou pour effet d'enfreindre les dispositions des articles L. 125-1, L. 125-3, L. 324-9 ou L. 324-10 du code du travail.
L'acte de création ou de reprise d'entreprise doit être clairement distingué de la fonction d'accompagnement.
Article L127-6
La situation professionnelle et sociale du bénéficiaire du contrat d'appui au projet d'entreprise est déterminée par les articles L. 783-1 et L. 783-2 du code du travail.
La personne morale responsable de l'appui est responsable à l'égard des tiers des dommages causés par le bénéficiaire à l'occasion du programme d'appui et de préparation mentionné aux articles L. 127-1 et L. 127-2 avant l'immatriculation visée à l'article L. 127-4. Après l'immatriculation, la personne morale responsable de l'appui garantit la responsabilité à l'occasion du contrat d'appui, si le bénéficiaire a bien respecté les clauses du contrat jusqu'à la fin de ce dernier.
Article L127-7
Les modalités de publicité des contrats d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique et les autres mesures d'application du présent chapitre sont fixées par décret en Conseil d'Etat.
Chapitre IX : Du tutorat rémunéré en entreprise.
Article L129-1
Le cédant d'une entreprise commerciale, artisanale, libérale ou de services peut, après cette cession, conclure avec le cessionnaire de cette entreprise une convention aux termes de laquelle il s'engage, contre rémunération, à réaliser une prestation temporaire de tutotat. Cette prestation vise à assurer la transmission au cessionnaire de l'expérience professionnelle acquise par le cédant en tant que chef de l'entreprise cédée. Le tuteur reste affilié aux régimes de sécurité sociale dont il relevait antérieurement à la cession.
Les conditions d'application des dispositions du présent article sont fixées par décret en Conseil
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d'Etat.
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Partie législative
LIVRE Ier : Du commerce en général.
TITRE III : Des courtiers, des commissionnaires, des transporteurs , des agents commerciaux et des vendeurs à domicile indépendants.
Chapitre Ier : Des courtiers.
Article L131-1
Il y a des courtiers de marchandises, des courtiers interprètes et conducteurs de navires, des courtiers de transport par terre et par eau.
Article L131-3
Les courtiers de transport par terre et par eau constitués selon la loi ont seuls, dans les lieux où ils sont établis, le droit de faire le courtage des transports par terre et par eau. Ils ne peuvent cumuler leurs fonctions avec celles de courtiers de marchandises ou de courtiers conducteurs de navires, désignés à l'article L. 131-1.
Article L131-5
Les prestataires de services d'investissement peuvent faire, concurremment avec les courtiers de marchandises, les négociations et le courtage des ventes ou achats des matières métalliques. Ils ont seuls le droit d'en constater le cours.
Article L131-11
Le fait pour un courtier d'être chargé d'une opération de courtage pour une affaire où il avait un intérêt personnel, sans en prévenir les parties auxquelles il aura servi d'intermédiaire, est puni d'une amende de 3 750 euros sans préjudice de l'action des parties en dommages-intérêts. S'il est inscrit sur la liste des courtiers, dressée conformément aux dispositions réglementaires, il en est rayé et ne peut plus y être inscrit de nouveau.
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Chapitre II : Des commissionnaires.
Section 1 : Des commissionnaires en général.
Article L132-1
Le commissionnaire est celui qui agit en son propre nom ou sous un nom social pour le compte d'un commettant.
Les devoirs et les droits du commissionnaire qui agit au nom d'un commettant sont déterminés par le titre XIII du livre III du code civil.
Article L132-2
Le commissionnaire a privilège sur la valeur des marchandises faisant l'objet de son obligation et sur les documents qui s'y rapportent pour toutes ses créances de commission sur son commettant, même nées à l'occasion d'opérations antérieures.
Dans la créance privilégiée du commissionnaire sont compris, avec le principal, les intérêts, commissions et frais accessoires.
Section 2 : Des commissionnaires pour les transports.
Article L132-3
Le commissionnaire qui se charge d'un transport par terre ou par eau est tenu d'inscrire sur son livre-journal la déclaration de la nature et de la quantité des marchandises, et, s'il en est requis, de leur valeur.
Article L132-4
Il est garant de l'arrivée des marchandises et effets dans le délai déterminé par la lettre de voiture, hors les cas de la force majeure légalement constatée.
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Article L132-5
Il est garant des avaries ou pertes de marchandises et effets, s'il n'y a stipulation contraire dans la lettre de voiture, ou force majeure.
Article L132-6
Il est garant des faits du commissionnaire intermédiaire auquel il adresse les marchandises.
Article L132-7
La marchandise sortie du magasin du vendeur ou de l'expéditeur voyage, s'il n'y a convention contraire, aux risques et périls de celui à qui elle appartient, sauf son recours contre le commissionnaire et le voiturier chargés du transport.
Article L132-8
La lettre de voiture forme un contrat entre l'expéditeur, le voiturier et le destinataire ou entre l'expéditeur, le destinataire, le commissionnaire et le voiturier. Le voiturier a ainsi une action directe en paiement de ses prestations à l'encontre de l'expéditeur et du destinataire, lesquels sont garants du paiement du prix du transport. Toute clause contraire est réputée non écrite.
Article L132-9
I. - La lettre de voiture doit être datée.
II. - Elle doit exprimer :
1° La nature et le poids ou la contenance des objets à transporter ;
2° Le délai dans lequel le transport doit être effectué.
III. - Elle indique :
1° Le nom et le domicile du commissionnaire par l'entremise duquel le transport s'opère, s'il y en a
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un ;
2° Le nom de celui à qui la marchandise est adressée ;
3° Le nom et le domicile du transporteur.
IV. - Elle énonce :
1° Le prix de la voiture ;
2° L'indemnité due pour cause de retard.
V. - Elle est signée par l'expéditeur ou le commissionnaire.
VI. - Elle présente en marge les marques et numéros des objets à transporter.
VII. - La lettre de voiture est copiée par le commissionnaire sur un registre coté et paraphé, sans intervalle et de suite.
Chapitre III : Des transporteurs.
Article L133-1
Le voiturier est garant de la perte des objets à transporter, hors les cas de la force majeure.
Il est garant des avaries autres que celles qui proviennent du vice propre de la chose ou de la force majeure.
Toute clause contraire insérée dans toute lettre de voiture, tarif ou autre pièce quelconque, est nulle.
Article L133-2
Si, par l'effet de la force majeure, le transport n'est pas effectué dans le délai convenu, il n'y a pas lieu à indemnité contre le voiturier pour cause de retard.
Article L133-3
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La réception des objets transportés éteint toute action contre le voiturier pour avarie ou perte partielle si dans les trois jours, non compris les jours fériés, qui suivent celui de cette réception, le destinataire n'a pas notifié au voiturier, par acte extrajudiciaire ou par lettre recommandée, sa protestation motivée.
Si dans le délai ci-dessus prévu il est formé une demande d'expertise en application de l'article L. 133-4, cette demande vaut protestation sans qu'il soit nécessaire de procéder comme il est dit au premier alinéa.
Toutes stipulations contraires sont nulles et de nul effet. Cette dernière disposition n'est pas applicable aux transports internationaux.
Article L133-4
En cas de refus des objets transportés ou présentés pour être transportés, ou de contestation de quelque nature qu'elle soit, sur la formation ou l'exécution du contrat de transport, ou à raison d'un incident survenu au cours même et à l'occasion du transport, l'état des objets transportés ou présentés pour être transportés et, en tant que de besoin, leur conditionnement, leur poids, leur nature, etc., sont vérifiés et constatés par un ou plusieurs experts nommés par le président du tribunal de commerce ou, à défaut, par le président du tribunal d'instance et par ordonnance rendue sur requête.
Le requérant est tenu, sous sa responsabilité, d'appeler à cette expertise, même par simple lettre recommandée ou par télégramme, toutes parties susceptibles d'être mises en cause, notamment l'expéditeur, le destinataire, le voiturier et le commissionnaire, et les experts doivent prêter serment, sans formalité d'audience, devant le juge qui les a commis ou devant le juge du tribunal d'instance où ils procèdent. Toutefois, en cas d'urgence, le juge saisi de la requête peut dispenser de l'accomplissement de tout ou partie des formalités prévues au présent alinéa. Mention est faite de cette dispense dans l'ordonnance.
Le dépôt ou séquestre des objets en litige, et ensuite leur transport dans un dépôt public, peut être ordonné.
La vente peut en être ordonnée jusqu'à concurrence des frais de voiture ou autres déjà faits. Le juge attribue le produit de la vente à celle des parties qui a fait l'avance desdits frais.
Article L133-5
Les dispositions contenues dans le présent chapitre sont communes aux transporteurs routiers et aux transporteurs fluviaux.
Article L133-6
Les actions pour avaries, pertes ou retards, auxquelles peut donner lieu contre le voiturier le contrat
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de transport, sont prescrites dans le délai d'un an, sans préjudice des cas de fraude ou d'infidélité.
Toutes les autres actions auxquelles ce contrat peut donner lieu, tant contre le voiturier ou le commissionnaire que contre l'expéditeur ou le destinataire, aussi bien que celles qui naissent des dispositions de l'article 1269 du code de procédure civile, sont prescrites dans le délai d'un an.
Le délai de ces prescriptions est compté, dans le cas de perte totale, du jour où la remise de la marchandise aurait dû être effectuée, et, dans tous les autres cas, du jour où la marchandise aura été remise ou offerte au destinataire.
Le délai pour intenter chaque action récursoire est d'un mois. Cette prescription ne court que du jour de l'exercice de l'action contre le garanti.
Dans le cas de transports faits pour le compte de l'Etat, la prescription ne commence à courir que du jour de la notification de la décision ministérielle emportant liquidation ou ordonnancement définitif.
Article L133-7
Le voiturier a privilège sur la valeur des marchandises faisant l'objet de son obligation et sur les documents qui s'y rapportent pour toutes créances de transport, même nées à l'occasion d'opérations antérieures, dont son donneur d'ordre, l'expéditeur ou le destinataire restent débiteurs envers lui, dans la mesure où le propriétaire des marchandises sur lesquelles s'exerce le privilège est impliqué dans lesdites opérations.
Les créances de transport couvertes par le privilège sont les prix de transport proprement dits, les compléments de rémunération dus au titre de prestations annexes et d'immobilisation du véhicule au chargement ou au déchargement, les frais engagés dans l'intérêt de la marchandise, les droits, taxes, frais et amendes de douane liés à une opération de transport et les intérêts.
Article L133-8
Seule est équipollente au dol la faute inexcusable du voiturier ou du commissionnaire de transport. Est inexcusable la faute délibérée qui implique la conscience de la probabilité du dommage et son acceptation téméraire sans raison valable. Toute clause contraire est réputée non écrite.
Article L133-9
Sans préjudice des articles L. 121-95 et L. 121-96 du code de la consommation, les dispositions des articles L. 133-1 à L. 133-8 relatives au voiturier s'appliquent aux entreprises de transport de déménagement dès lors que la prestation objet du contrat de déménagement comprend pour partie une prestation de transport.
Chapitre IV : Des agents commerciaux.
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Article L134-1
L'agent commercial est un mandataire qui, à titre de profession indépendante, sans être lié par un contrat de louage de services, est chargé, de façon permanente, de négocier et, éventuellement, de conclure des contrats de vente, d'achat, de location ou de prestation de services, au nom et pour le compte de producteurs, d'industriels, de commerçants ou d'autres agents commerciaux. Il peut être une personne physique ou une personne morale.
Ne relèvent pas des dispositions du présent chapitre les agents dont la mission de représentation s'exerce dans le cadre d'activités économiques qui font l'objet, en ce qui concerne cette mission, de dispositions législatives particulières.
Article L134-2
Chaque partie a le droit, sur sa demande, d'obtenir de l'autre partie un écrit signé mentionnant le contenu du contrat d'agence, y compris celui de ses avenants.
Article L134-3
L'agent commercial peut accepter sans autorisation la représentation de nouveaux mandants. Toutefois, il ne peut accepter la représentation d'une entreprise concurrente de celle de l'un de ses mandants sans accord de ce dernier.
Article L134-4
Les contrats intervenus entre les agents commerciaux et leurs mandants sont conclus dans l'intérêt commun des parties.
Les rapports entre l'agent commercial et le mandant sont régis par une obligation de loyauté et un devoir réciproque d'information.
L'agent commercial doit exécuter son mandat en bon professionnel ; le mandant doit mettre l'agent commercial en mesure d'exécuter son mandat.
Article L134-5
Tout élément de la rémunération variant avec le nombre ou la valeur des affaires constitue une commission au sens du présent chapitre.
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Les articles L. 134-6 à L. 134-9 s'appliquent lorsque l'agent est rémunéré en tout ou partie à la commission ainsi définie.
Dans le silence du contrat, l'agent commercial a droit à une rémunération conforme aux usages pratiqués, dans le secteur d'activité couvert par son mandat, là où il exerce son activité. En l'absence d'usages, l'agent commercial a droit à une rémunération raisonnable qui tient compte de tous les éléments qui ont trait à l'opération.
Article L134-6
Pour toute opération commerciale conclue pendant la durée du contrat d'agence, l'agent commercial a droit à la commission définie à l'article L. 134-5 lorsqu'elle a été conclue grâce à son intervention ou lorsque l'opération a été conclue avec un tiers dont il a obtenu antérieurement la clientèle pour des opérations du même genre.
Lorsqu'il est chargé d'un secteur géographique ou d'un groupe de personnes déterminé, l'agent commercial a également droit à la commission pour toute opération conclue pendant la durée du contrat d'agence avec une personne appartenant à ce secteur ou à ce groupe.
Article L134-7
Pour toute opération commerciale conclue après la cessation du contrat d'agence, l'agent commercial a droit à la commission, soit lorsque l'opération est principalement due à son activité au cours du contrat d'agence et a été conclue dans un délai raisonnable à compter de la cessation du contrat, soit lorsque, dans les conditions prévues à l'article L. 134-6, l'ordre du tiers a été reçu par le mandant ou par l'agent commercial avant la cessation du contrat d'agence.
Article L134-8
L'agent commercial n'a pas droit à la commission prévue à l'article L. 134-6 si celle-ci est due, en vertu de l'article L. 134-7, à l'agent commercial précédent, à moins que les circonstances rendent équitable de partager la commission entre les agents commerciaux.
Article L134-9
La commission est acquise dès que le mandant a exécuté l'opération ou devrait l'avoir exécutée en vertu de l'accord conclu avec le tiers ou bien encore dès que le tiers a exécuté l'opération.
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La commission est acquise au plus tard lorsque le tiers a exécuté sa part de l'opération ou devrait l'avoir exécutée si le mandant avait exécuté sa propre part. Elle est payée au plus tard le dernier jour du mois qui suit le trimestre au cours duquel elle était acquise.
Article L134-10
Le droit à la commission ne peut s'éteindre que s'il est établi que le contrat entre le tiers et le mandant ne sera pas exécuté et si l'inexécution n'est pas due à des circonstances imputables au mandant.
Les commissions que l'agent commercial a déjà perçues sont remboursées si le droit y afférent est éteint.
Article L134-11
Un contrat à durée déterminée qui continue à être exécuté par les deux parties après son terme est réputé transformé en un contrat à durée indéterminée.
Lorsque le contrat d'agence est à durée indéterminée, chacune des parties peut y mettre fin moyennant un préavis. Les dispositions du présent article sont applicables au contrat à durée déterminée transformé en contrat à durée indéterminée. Dans ce cas, le calcul de la durée du préavis tient compte de la période à durée déterminée qui précède.
La durée du préavis est d'un mois pour la première année du contrat, de deux mois pour la deuxième année commencée, de trois mois pour la troisième année commencée et les années suivantes. En l'absence de convention contraire, la fin du délai de préavis coïncide avec la fin d'un mois civil.
Les parties ne peuvent convenir de délais de préavis plus courts. Si elles conviennent de délais plus longs, le délai de préavis prévu pour le mandant ne doit pas être plus court que celui qui est prévu pour l'agent.
Ces dispositions ne s'appliquent pas lorsque le contrat prend fin en raison d'une faute grave de l'une des parties ou de la survenance d'un cas de force majeure.
Article L134-12
En cas de cessation de ses relations avec le mandant, l'agent commercial a droit à une indemnité compensatrice en réparation du préjudice subi.
L'agent commercial perd le droit à réparation s'il n'a pas notifié au mandant, dans un délai d'un an à compter de la cessation du contrat, qu'il entend faire valoir ses droits.
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Les ayants droit de l'agent commercial bénéficient également du droit à réparation lorsque la cessation du contrat est due au décès de l'agent.
Article L134-13
La réparation prévue à l'article L. 134-12 n'est pas due dans les cas suivants :
1° La cessation du contrat est provoquée par la faute grave de l'agent commercial ;
2° La cessation du contrat résulte de l'initiative de l'agent à moins que cette cessation ne soit justifiée par des circonstances imputables au mandant ou dues à l'âge, l'infirmité ou la maladie de l'agent commercial, par suite desquels la poursuite de son activité ne peut plus être raisonnablement exigée ;
3° Selon un accord avec le mandant, l'agent commercial cède à un tiers les droits et obligations qu'il détient en vertu du contrat d'agence.
Article L134-14
Le contrat peut contenir une clause de non-concurrence après la cessation du contrat.
Cette clause doit être établie par écrit et concerner le secteur géographique et, le cas échéant, le groupe de personnes confiés à l'agent commercial ainsi que le type de biens ou de services pour lesquels il exerce la représentation aux termes du contrat.
La clause de non-concurrence n'est valable que pour une période maximale de deux ans après la cessation d'un contrat.
Article L134-15
Lorsque l'activité d'agent commercial est exercée en exécution d'un contrat écrit passé entre les parties à titre principal pour un autre objet, celles-ci peuvent décider par écrit que les dispositions du présent chapitre ne sont pas applicables à la partie correspondant à l'activité d'agence commerciale.
Cette renonciation est nulle si l'exécution du contrat fait apparaître que l'activité d'agence commerciale est exercée, en réalité, à titre principal ou déterminant.
Article L134-16
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Est réputée non écrite toute clause ou convention contraire aux dispositions des articles L. 134-2 et L. 134-4, des troisième et quatrième alinéas de l'article L. 134-11, et de l'article L. 134-15 ou dérogeant, au détriment de l'agent commercial, aux dispositions du deuxième alinéa de l'article L. 134-9, du premier alinéa de l'article L. 134-10, des articles L. 134-12 et L. 134-13 et du troisième alinéa de l'article L. 134-14.
Article L134-17
Un décret en Conseil d'Etat fixe les conditions d'application du présent chapitre.
Chapitre V : Des vendeurs à domicile indépendants.
Article L135-1
Le vendeur à domicile indépendant est celui qui effectue la vente de produits ou de services dans les conditions prévues par la section 3 du chapitre Ier du titre II du livre Ier du code de la consommation, à l'exclusion du démarchage par téléphone ou par tout moyen technique assimilable, dans le cadre d'une convention écrite de mandataire, de commissionnaire, de revendeur ou de courtier, le liant à l'entreprise qui lui confie la vente de ses produits ou services.
Article L135-2
Le contrat peut prévoir que le vendeur assure des prestations de service visant au développement et à l'animation du réseau de vendeurs à domicile indépendants, si celles-ci sont de nature à favoriser la vente de produits ou de services de l'entreprise, réalisée dans les conditions mentionnées à l'article L. 135-1. Le contrat précise la nature de ces prestations, en définit les conditions d'exercice et les modalités de rémunération.
Pour l'exercice de ces prestations, le vendeur ne peut en aucun cas exercer une activité d'employeur, ni être en relation contractuelle avec les vendeurs à domicile indépendants qu'il anime.
Aucune rémunération, à quelque titre que ce soit, ne peut être versée par un vendeur à domicile indépendant à un autre vendeur à domicile indépendant, et aucun achat ne peut être effectué par un vendeur à domicile indépendant auprès d'un autre vendeur à domicile indépendant.
Article L135-3
Les vendeurs à domicile indépendants dont les revenus d'activité ont atteint un montant fixé par arrêté au cours d'une période définie par le même arrêté sont tenus de s'inscrire au registre du commerce et des sociétés ou au registre spécial des agents commerciaux à compter du 1er janvier qui suit cette période.
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Partie législative
LIVRE Ier : Du commerce en général.
TITRE IV : Du fonds de commerce.
Chapitre Ier : De la vente du fonds de commerce.
Section 1 : De l'acte de vente.
Article L141-1
I. - Dans tout acte constatant une cession amiable de fonds de commerce, consentie même sous condition et sous la forme d'un autre contrat ou l'apport en société d'un fonds de commerce, le vendeur est tenu d'énoncer :
1° Le nom du précédent vendeur, la date et la nature de son acte d'acquisition et le prix de cette acquisition pour les éléments incorporels, les marchandises et le matériel ;
2° L'état des privilèges et nantissements grevant le fonds ;
3° Le chiffre d'affaires qu'il a réalisé durant les trois exercices comptables précédant celui de la vente, ce nombre étant réduit à la durée de la possession du fonds si elle a été inférieure à trois ans ;
4° Les bénéfices commerciaux réalisés pendant le même temps ;
5° Le bail, sa date, sa durée, le nom et l'adresse du bailleur et du cédant, s'il y a lieu.
II. - L'omission des énonciations ci-dessus prescrites peut, sur la demande de l'acquéreur formée dans l'année, entraîner la nullité de l'acte de vente.
Article L141-2
Au jour de la cession, le vendeur et l'acheteur visent tous les livres de comptabilité qui ont été tenus par le vendeur durant les trois exercices comptables précédant celui de la vente, ce nombre étant réduit à la durée de possession du fonds si elle a été inférieure à trois ans, ainsi qu'un document
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présentant les chiffres d'affaires mensuels réalisés entre la clôture du dernier exercice et le mois précédant celui de la vente.
Ces livres font l'objet d'un inventaire signé par les parties et dont un exemplaire est remis à chacune d'elles. Le cédant doit mettre ces livres à la disposition de l'acquéreur pendant trois ans, à partir de son entrée en jouissance du fonds.
Toute clause contraire est réputée non écrite.
Article L141-3
Le vendeur est, nonobstant toute stipulation contraire, tenu de la garantie à raison de l'inexactitude de ses énonciations dans les conditions édictées par les articles 1644 et 1645 du code civil.
Les intermédiaires, rédacteurs des actes et leurs préposés, sont tenus solidairement avec lui s'ils connaissent l'inexactitude des énonciations faites.
Article L141-4
L'action résultant de l'article L. 141-3 doit être intentée par l'acquéreur dans le délai d'une année, à compter de la date de sa prise de possession.
Section 2 : Du privilège du vendeur.
Article L141-5
Le privilège du vendeur d'un fonds de commerce n'a lieu que si la vente a été constatée par un acte authentique ou sous seing privé, dûment enregistré, et que s'il a été inscrit sur un registre public tenu au greffe du tribunal de commerce dans le ressort duquel le fonds est exploité.
Il ne porte que sur les éléments du fonds énumérés dans la vente et dans l'inscription, et à défaut de désignation précise, que sur l'enseigne et le nom commercial, le droit au bail, la clientèle et l'achalandage.
Des prix distincts sont établis pour les éléments incorporels du fonds, le matériel et les marchandises.
Le privilège du vendeur qui garantit chacun de ces prix, ou ce qui en reste dû, s'exerce distinctement sur les prix respectifs de la revente afférents aux marchandises, au matériel et aux éléments
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incorporels du fonds.
Nonobstant toute convention contraire, les paiements partiels autres que les paiements comptants s'imputent d'abord sur le prix des marchandises, ensuite sur le prix du matériel.
Il y a lieu à ventilation du prix de revente mis en distribution, s'il s'applique à un ou plusieurs éléments non compris dans la première vente.
Article L141-6
L'inscription doit être prise, à peine de nullité, dans la quinzaine de la date de l'acte de vente. Elle prime toute inscription prise dans le même délai du chef de l'acquéreur ; elle est opposable aux créanciers de l'acquéreur en redressement ou en liquidation judiciaire, ainsi qu'à sa succession bénéficiaire.
L'action résolutoire, établie par l'article 1654 du code civil, doit, pour produire effet, être mentionnée et réservée expressément dans l'inscription. Elle ne peut être exercée au préjudice des tiers après l'extinction du privilège. Elle est limitée, comme le privilège, aux seuls éléments qui ont fait partie de la vente.
Article L141-7
En cas de résolution judiciaire ou amiable de la vente, le vendeur est tenu de reprendre tous les éléments du fonds qui ont fait partie de la vente, même ceux pour lesquels son privilège et l'action résolutoire sont éteints. Il est comptable du prix des marchandises et du matériel existant au moment de sa reprise de possession d'après l'estimation qui en est faite par expertise contradictoire, amiable ou judiciaire, sous la déduction de ce qui peut lui rester dû par privilège sur les prix respectifs des marchandises et du matériel, le surplus, s'il y en a, devant rester le gage des créanciers inscrits et, à défaut, des créanciers chirographaires.
Article L141-8
Le vendeur qui exerce l'action résolutoire doit la notifier aux créanciers inscrits sur le fonds au domicile par eux élu dans leurs inscriptions. Le jugement ne peut intervenir qu'après un mois écoulé depuis la notification.
Article L141-9
Le vendeur qui a stipulé lors de la vente que, faute de paiement dans le terme convenu, la vente serait résolue de plein droit, ou qui en a obtenu de l'acquéreur la résolution à l'amiable, doit notifier
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aux créanciers inscrits, aux domiciles élus, la résolution encourue ou consentie, qui ne deviendra définitive qu'un mois après la notification ainsi faite.
Article L141-10
Lorsque la vente d'un fonds est poursuivie aux enchères publiques, soit à la requête d'un administrateur judiciaire ou d'un mandataire judiciaire, soit judiciairement à la requête de tout autre ayant droit, le poursuivant doit la notifier aux précédents vendeurs, au domicile élu dans leurs inscriptions, avec déclaration que, faute par eux d'intenter l'action résolutoire dans le mois de la notification, ils sont déchus, à l'égard de l'adjudicataire, du droit de l'exercer.
Article L141-11
Les articles L. 624-11 à L. 624-18 ne sont applicables ni au privilège ni à l'action résolutoire du vendeur d'un fonds de commerce.
Article L141-12
Sous réserve des dispositions relatives à l'apport en société des fonds de commerce prévues aux articles L. 141-21 et L. 141-22, toute vente ou cession de fonds de commerce, consentie même sous condition ou sous la forme d'un autre contrat, ainsi que toute attribution de fonds de commerce par partage ou licitation, est, sauf si elle intervient en application de l'article L. 642-5, dans la quinzaine de sa date, publiée à la diligence de l'acquéreur sous forme d'extrait ou d'avis dans un journal habilité à recevoir les annonces légales dans l'arrondissement ou le département dans lequel le fonds est exploité et, dans la quinzaine de cette publication, au Bulletin officiel des annonces civiles et commerciales. En ce qui concerne les fonds forains, le lieu d'exploitation est celui où le vendeur est inscrit au registre du commerce et des sociétés.
Article L141-13
La publication de l'extrait ou de l'avis faite en exécution de l'article précédent doit être, à peine de nullité, précédée soit de l'enregistrement de l'acte contenant mutation, soit, à défaut d'acte, de la déclaration prescrite par les articles 638 et 653 du code général des impôts. Cet extrait doit, sous la même sanction, rapporter les date, volume et numéro de la perception, ou, en cas de simple déclaration, la date et le numéro du récépissé de cette déclaration et, dans les deux cas, l'indication du bureau où ont eu lieu ces opérations. Il énonce, en outre, la date de l'acte, les noms, prénoms et domiciles de l'ancien et du nouveau propriétaire, la nature et le siège du fonds, le prix stipulé, y compris les charges ou l'évaluation ayant servi de base à la perception des droits d'enregistrement, l'indication du délai ci-après fixé pour les oppositions et une élection de domicile dans le ressort du tribunal.
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Article L141-14
Dans les dix jours suivant la dernière en date des publications visées à l'article L. 141-12, tout créancier du précédent propriétaire, que sa créance soit ou non exigible, peut former au domicile élu, par simple acte extrajudiciaire, opposition au paiement du prix. L'opposition, à peine de nullité, énonce le chiffre et les causes de la créance et contient une élection de domicile dans le ressort de la situation du fonds. Le bailleur ne peut former opposition pour loyers en cours ou à échoir, et ce, nonobstant toutes stipulations contraires. Aucun transport amiable ou judiciaire du prix ou de partie du prix n'est opposable aux créanciers qui se sont ainsi fait connaître dans ce délai.
Article L141-15
Au cas d'opposition au paiement du prix, le vendeur peut, en tout état de cause, après l'expiration du délai de dix jours, se pourvoir en référé devant le président du tribunal de grande instance afin d'obtenir l'autorisation de toucher son prix malgré l'opposition, à la condition de verser à la Caisse des dépôts et consignations, ou aux mains d'un tiers commis à cet effet, une somme suffisante, fixée par le juge des référés, pour répondre éventuellement des causes de l'opposition dans le cas où il se reconnaîtrait ou serait jugé débiteur. Le dépôt ainsi ordonné est affecté spécialement, aux mains du tiers détenteur, à la garantie des créances pour sûreté desquelles l'opposition aura été faite et privilège exclusif de tout autre leur est attribué sur ledit dépôt, sans que, toutefois, il puisse en résulter transport judiciaire au profit de l'opposant ou des opposants en cause à l'égard des autres créanciers opposants du vendeur, s'il en existe. A partir de l'exécution de l'ordonnance de référé, l'acquéreur est déchargé et les effets de l'opposition sont transportés sur le tiers détenteur.
Le juge des référés n'accorde l'autorisation demandée que s'il lui est justifié par une déclaration formelle de l'acquéreur mis en cause, faite sous sa responsabilité personnelle et dont il est pris acte, qu'il n'existe pas d'autres créanciers opposants que ceux contre lesquels il est procédé. L'acquéreur, en exécutant l'ordonnance, n'est pas libéré de son prix à l'égard des autres créanciers opposants antérieurs à ladite ordonnance s'il en existe.
Article L141-16
Si l'opposition a été faite sans titre et sans cause ou est nulle en la forme et s'il n'y a pas instance engagée au principal, le vendeur peut se pourvoir en référé devant le président du tribunal de grande instance, à l'effet d'obtenir l'autorisation de toucher son prix, malgré l'opposition.
Article L141-17
L'acquéreur qui paie son vendeur sans avoir fait les publications dans les formes prescrites, ou avant l'expiration du délai de dix jours, n'est pas libéré à l'égard des tiers.
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Article L141-18
Si la vente ou cession d'un fonds de commerce comprend des succursales ou établissements situés sur le territoire français, l'inscription et la publication prescrites aux articles L. 141-6 à L. 141-17 doivent être faites également dans un journal habilité pour recevoir les annonces légales au lieu du siège de ces succursales ou établissements.
Article L141-19
Pendant les vingt jours qui suivent la publication au Bulletin officiel des annonces civiles et commerciales prévue à l'article L. 141-12, une copie authentique ou l'un des originaux de l'acte de vente est tenu, au domicile élu, à la disposition de tout créancier opposant ou inscrit pour être consulté sans déplacement.
Pendant le même délai, tout créancier inscrit ou qui a formé opposition dans le délai de dix jours fixé par l'article L. 141-14 peut prendre, au domicile élu, communication de l'acte de vente et des oppositions et, si le prix ne suffit pas à désintéresser les créanciers inscrits et ceux qui se sont révélés par des oppositions, au plus tard dans les dix jours qui suivent la publication au Bulletin officiel des annonces civiles et commerciales prévue à l'article L. 141-12, former, en se conformant aux prescriptions des articles L. 141-14 à L. 141-16 une surenchère du sixième du prix principal du fonds de commerce, non compris le matériel et les marchandises.
La surenchère du sixième n'est pas admise après la vente judiciaire d'un fonds de commerce ou la vente poursuivie à la requête d'un administrateur judiciaire ou d'un mandataire judiciaire, ou de copropriétaires indivis du fonds, faite aux enchères publiques et conformément aux articles L. 143-6 et L. 143-7, ou selon les dispositions de l'article L. 642-5.
L'officier public commis pour procéder à la vente doit n'admettre à enchérir que des personnes dont la solvabilité lui est connue, ou qui ont déposé soit entre ses mains, soit à la Caisse des dépôts et consignations, avec affectation spéciale au paiement du prix, une somme qui ne peut être inférieure à la moitié du prix total de la première vente, ni à la portion du prix de ladite vente stipulée payable comptant, augmentée de la surenchère.
L'adjudication sur surenchère du sixième a lieu aux mêmes conditions et délais que la vente sur laquelle la surenchère est intervenue.
Si l'acquéreur surenchéri est dépossédé par suite de la surenchère, il doit, sous sa responsabilité, remettre les oppositions formées entre ses mains à l'adjudicataire, sur récépissé, dans la huitaine de l'adjudication, s'il ne les a pas fait connaître antérieurement par mention insérée au cahier des charges. L'effet de ces oppositions est reporté sur le prix de l'adjudication.
Article L141-20
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Lorsque le prix de la vente est définitivement fixé, qu'il y ait eu ou non surenchère, l'acquéreur, à défaut d'entente entre les créanciers pour la distribution amiable de son prix, est tenu, sur la sommation de tout créancier, et dans la quinzaine suivante, de consigner la portion exigible du prix, et le surplus au fur et à mesure de l'exigibilité, à la charge de toutes les oppositions faites entre ses mains ainsi que des inscriptions grevant le fonds et des cessions qui lui ont été notifiées.
Article L141-21
Sauf s'il résulte d'une opération de fusion ou de scission soumise aux dispositions du quatrième alinéa de l'article L. 236-2 et des articles L. 236-7 à L. 236-22, tout apport de fonds de commerce fait à une société en constitution ou déjà existante doit être porté à la connaissance des tiers dans les conditions prévues par les articles L. 141-12 à L. 141-18 par voie d'insertion dans les journaux d'annonces légales et au Bulletin officiel des annonces civiles et commerciales.
Toutefois, si par suite de l'application des dispositions législatives et réglementaires en vigueur relatives à la publication des actes de société, les indications prévues par ces articles figurent déjà dans le numéro du journal d'annonces légales où les insertions doivent être effectuées, il peut être procédé par simple référence à cette publication.
Dans ces insertions, l'élection de domicile est remplacée par l'indication du greffe du tribunal de commerce où les créanciers de l'apporteur doivent faire la déclaration de leurs créances.
Article L141-22
Dans les dix jours de la dernière en date des publications prévues aux articles L. 141-12 et L. 141-13, tout créancier non inscrit de l'associé apporteur fait connaître au greffe du tribunal de commerce de la situation du fonds, sa qualité de créancier et la somme qui lui est due. Le greffier lui délivre un récépissé de sa déclaration.
A défaut par les associés ou l'un d'eux de former dans la quinzaine suivante une demande en annulation de la société ou de l'apport, ou si l'annulation n'est pas prononcée, la société est tenue, solidairement avec le débiteur principal, au paiement du passif déclaré dans le délai ci-dessus et justifié.
En cas d'apport d'un fonds de commerce par une société à une autre société, notamment par suite d'une fusion ou d'une scission, les dispositions de l'alinéa précédent ne sont pas applicables lorsqu'il y a lieu à application des articles L. 236-14, L. 236-20 et L. 236-21 ou lorsque est exercée la faculté prévue à l'article L. 236-22.
Chapitre II : Du nantissement du fonds de commerce.
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Article L142-1
Les fonds de commerce peuvent faire l'objet de nantissements, sans autres conditions et formalités que celles prescrites par le présent chapitre et le chapitre III ci-après.
Le nantissement d'un fonds de commerce ne donne pas au créancier gagiste le droit de se faire attribuer le fonds en paiement et jusqu'à due concurrence.
Article L142-2
Sont seuls susceptibles d'être compris dans le nantissement soumis aux dispositions du présent chapitre comme faisant partie d'un fonds de commerce : l'enseigne et le nom commercial, le droit au bail, la clientèle et l'achalandage, le mobilier commercial, le matériel ou l'outillage servant à l'exploitation du fonds, les brevets d'invention, les licences, les marques, les dessins et modèles industriels, et généralement les droits de propriété intellectuelle qui y sont attachés.
Le certificat d'addition postérieur au nantissement qui comprend le brevet auquel il s'applique suit le sort de ce brevet et fait partie, comme lui, du gage constitué.
A défaut de désignation expresse et précise dans l'acte qui le constitue, le nantissement ne comprend que l'enseigne et le nom commercial, le droit au bail, la clientèle et l'achalandage.
Si le nantissement porte sur un fonds de commerce et ses succursales, celles-ci doivent être désignées par l'indication précise de leur siège.
Article L142-3
Le contrat de nantissement est constaté par un acte authentique ou par un acte sous seing privé, dûment enregistré.
Le privilège résultant du contrat de nantissement s'établit par le seul fait de l'inscription sur un registre public tenu au greffe du tribunal de commerce dans le ressort duquel le fonds est exploité.
La même formalité doit être remplie au greffe du tribunal de commerce dans le ressort duquel est située chacune des succursales du fonds comprise dans le nantissement.
Article L142-4
L'inscription doit être prise, à peine de nullité du nantissement, dans la quinzaine de la date de l'acte constitutif.
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En cas de redressement ou de liquidation judiciaires, les articles L. 632-1 à L. 632-4 sont applicables aux nantissements de fonds de commerce.
Article L142-5
Le rang des créanciers gagistes entre eux est déterminé par la date de leurs inscriptions. Les créanciers inscrits le même jour viennent en concurrence.
Chapitre III : Dispositions communes à la vente et au nantissement du fonds de commerce.
Section 1 : De la réalisation du gage et de la purge des créances inscrites.
Article L143-1
En cas de déplacement du fonds de commerce, les créances inscrites deviennent de plein droit exigibles si le propriétaire du fonds n'a pas fait connaître aux créanciers inscrits, quinze jours au moins d'avance, son intention de déplacer le fonds et le nouveau siège qu'il entend lui donner.
Dans la quinzaine de l'avis à eux notifié ou dans la quinzaine du jour où ils ont eu connaissance du déplacement, le vendeur ou le créancier gagiste doivent faire mentionner, en marge de l'inscription existante, le nouveau siège du fonds, et si le fonds a été transféré dans un autre ressort, faire reporter à sa date l'inscription primitive avec l'indication du nouveau siège, sur le registre du tribunal de ce ressort.
Le déplacement du fonds de commerce, sans le consentement du vendeur ou des créanciers gagistes, peut, s'il en résulte une dépréciation du fonds, rendre leurs créances exigibles.
L'inscription d'un nantissement peut également rendre exigibles les créances antérieures ayant pour cause l'exploitation du fonds.
Les demandes en déchéance du terme formées en vertu des deux alinéas précédents devant le tribunal de commerce sont soumises aux règles de procédure édictées par le quatrième alinéa de l'article L. 143-4.
Article L143-2
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Le propriétaire qui poursuit la résiliation du bail de l'immeuble dans lequel s'exploite un fonds de commerce grevé d'inscriptions doit notifier sa demande aux créanciers antérieurement inscrits, au domicile élu par eux dans leurs inscriptions. Le jugement ne peut intervenir qu'après un mois écoulé depuis la notification.
La résiliation amiable du bail ne devient définitive qu'un mois après la notification qui en a été faite aux créanciers inscrits, aux domiciles élus.
Article L143-3
Tout créancier qui exerce des poursuites de saisie-exécution et le débiteur contre lequel elles sont exercées peuvent demander, devant le tribunal de commerce dans le ressort duquel s'exploite le fonds, la vente du fonds de commerce du saisi avec le matériel et les marchandises qui en dépendent.
Sur la demande du créancier poursuivant, le tribunal de commerce ordonne qu'à défaut de paiement dans le délai imparti au débiteur, la vente du fonds a lieu à la requête dudit créancier, après l'accomplissement des formalités prescrites par l'article L. 143-6.
Il en est de même si, sur l'instance introduite par le débiteur, le créancier demande à poursuivre la vente du fonds.
S'il ne le demande pas, le tribunal de commerce fixe le délai dans lequel la vente du fonds doit avoir lieu à la requête du débiteur, suivant les formalités édictées par l'article L. 143-6, et il ordonne que, faute par le débiteur d'avoir fait procéder à la vente dans ledit délai, les poursuites de saisie-exécution sont reprises et continuées sur les derniers errements.
Article L143-4
Le tribunal nomme, s'il y a lieu, un administrateur provisoire du fonds, fixe les mises à prix, détermine les conditions principales de la vente, commet pour y procéder l'officier public qui dresse le cahier des charges.
La publicité extraordinaire, lorsqu'elle est utile, est réglée par le jugement ou, à défaut, par ordonnance du président du tribunal de commerce rendue sur requête.
Ce dernier peut, par la décision rendue, autoriser le poursuivant, s'il n'y a pas d'autre créancier inscrit ou opposant, et sauf prélèvement des frais privilégiés au profit de qui de droit, à toucher le prix directement et sur sa simple quittance, soit de l'adjudicataire, soit de l'officier public vendeur, selon les cas, en déduction ou jusqu'à concurrence de sa créance en principal, intérêts et frais.
Le tribunal de commerce statue, dans la quinzaine de la première audience, par jugement non susceptible d'opposition, exécutoire sur minute. L'appel du jugement est suspensif. Il est formé dans
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la quinzaine de sa signification à partie et jugé par la cour dans le mois. L'arrêt est exécutoire sur minute.
Article L143-5
Le vendeur et le créancier gagiste inscrits sur un fonds de commerce peuvent également, même en vertu de titres sous seing privé, faire ordonner la vente du fonds qui constitue leur gage, huit jours après sommation de payer faite au débiteur et au tiers détenteur, s'il y a lieu, demeurée infructueuse.
La demande est portée devant le tribunal de commerce dans le ressort duquel s'exploite ledit fonds, lequel statue comme il est dit à l'article L. 143-4.
Article L143-6
Le poursuivant fait sommation au propriétaire du fonds et aux créanciers inscrits antérieurement à la décision qui a ordonné la vente, au domicile élu par eux dans leurs inscriptions, quinze jours au moins avant la vente, de prendre communication du cahier des charges, de fournir leurs dires et observations et d'assister à l'adjudication, si bon leur semble.
La vente a lieu dix jours au moins après l'apposition d'affiches indiquant : les noms, professions, domiciles du poursuivant et du propriétaire du fonds, la décision en vertu de laquelle on agit, une élection de domicile dans le lieu où siège le tribunal de commerce dans le ressort duquel s'exploite le fonds, les divers éléments constitutifs dudit fonds, la nature de ses opérations, sa situation, les mises à prix, les lieu, jour et heure de l'adjudication, les nom et domicile de l'officier public commis et dépositaire du cahier des charges.
Ces affiches sont obligatoirement apposées, à la diligence de l'officier public, à la porte principale de l'immeuble et de la mairie de la commune où le fonds est situé, du tribunal de commerce dans le ressort duquel se trouve le fonds, et à la porte de l'étude de l'officier public commis.
L'affiche est insérée dix jours avant la vente dans un journal habilité à recevoir les annonces légales dans l'arrondissement ou le département dans lequel le fonds est situé.
La publicité est constatée par une mention faite dans le procès-verbal de vente.
Article L143-7
Il est statué, s'il y a lieu, sur les moyens de nullité de la procédure de vente antérieure à l'adjudication, et sur les dépens, par le président du tribunal de grande instance de l'arrondissement où s'exploite le fonds. Ces moyens doivent être opposés, à peine de déchéance, huit jours au moins avant l'adjudication. Le quatrième alinéa de l'article L. 143-4 est applicable à l'ordonnance rendue par le président.
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Article L143-8
Le tribunal de commerce, saisi de la demande en paiement d'une créance se rattachant à l'exploitation d'un fonds de commerce, peut, s'il prononce une condamnation et si le créancier le requiert, ordonner par le même jugement la vente du fonds. Il statue dans les termes des premier et deuxième alinéas de l'article L. 143-4 et fixe le délai après lequel, à défaut de paiement, la vente pourra être poursuivie.
Les dispositions du quatrième alinéa de l'article L. 143-4 et des articles L. 143-6 et L. 143-7 sont applicables à la vente ainsi ordonnée par le tribunal de commerce.
Article L143-9
Faute par l'adjudicataire d'exécuter les clauses de l'adjudication, le fonds est vendu à la folle enchère, selon les formes prescrites par les articles L. 143-6 et L. 143-7.
Le fol enchérisseur est tenu, envers les créanciers du vendeur et le vendeur lui-même, de la différence entre son prix et celui de la revente sur folle enchère, sans pouvoir réclamer l'excédent s'il y en a.
Article L143-10
Il n'est procédé à la vente séparée d'un ou plusieurs éléments d'un fonds de commerce grevé d'inscriptions, poursuivie soit sur saisie-exécution, soit en vertu des dispositions du présent chapitre, que dix jours au plus tôt après la notification de la poursuite aux créanciers qui se sont inscrits quinze jours au moins avant ladite notification, au domicile élu par eux dans leurs inscriptions. Pendant ce délai de dix jours, tout créancier inscrit, que sa créance soit ou non échue, peut assigner les intéressés devant le tribunal de commerce dans le ressort duquel s'exploite le fonds, pour demander qu'il soit procédé à la vente de tous les éléments du fonds, à la requête du poursuivant ou à sa propre requête, dans les termes et conformément aux dispositions des articles L. 143-3 à L. 143-7.
Le matériel et les marchandises sont vendus en même temps que le fonds sur des mises à prix distinctes, ou moyennant des prix distincts si le cahier des charges oblige l'adjudicataire à les prendre à dire d'experts.
Il y a lieu à ventilation du prix pour les éléments du fonds non grevés des privilèges inscrits.
Article L143-11
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Aucune surenchère n'est admise lorsque la vente a eu lieu dans les formes prescrites par les articles L. 141-19, L. 143-3 à L. 143-8, L. 143-10 et L. 143-13 à L. 143-15.
Article L143-12
Les privilèges du vendeur et du créancier gagiste suivent le fonds en quelques mains qu'il passe.
Lorsque la vente du fonds n'a pas eu lieu aux enchères publiques conformément aux articles mentionnés à l'article L. 143-11 l'acquéreur qui veut se garantir des poursuites des créanciers inscrits est tenu, à peine de déchéance, avant la poursuite ou dans la quinzaine de la sommation de payer à lui faite, d'effectuer des notifications à tous les créanciers inscrits, dans des conditions définies par décret.
Article L143-13
Tout créancier inscrit sur un fonds de commerce peut, lorsque l'article L. 143-11 n'est pas applicable, requérir sa mise aux enchères publiques, en offrant de porter le prix principal, non compris le matériel et les marchandises, à un dixième en sus et de donner caution pour le paiement des prix et charges ou de justifier de solvabilité suffisante.
Cette réquisition, signée du créancier, doit être, à peine de déchéance, signifiée à l'acquéreur et au débiteur précédent propriétaire dans la quinzaine des notifications, avec assignation devant le tribunal de commerce de la situation du fonds, pour voir statuer, en cas de contestation, sur la validité de la surenchère, sur l'admissibilité de la caution ou la solvabilité du surenchérisseur, et voir ordonner qu'il sera procédé à la mise aux enchères publiques du fonds avec le matériel et les marchandises qui en dépendent, et que l'acquéreur surenchéri sera tenu de communiquer son titre et l'acte de bail ou de cession de bail à l'officier public commis. Le délai de quinzaine ci-dessus n'est pas susceptible d'augmentation à raison de la distance entre le domicile élu et le domicile réel des créanciers inscrits.
Article L143-14
A partir de la signification de la surenchère, l'acquéreur, s'il est rentré en possession du fonds, en est de droit administrateur séquestre et ne peut plus accomplir que des actes d'administration. Toutefois, il peut demander au tribunal de commerce ou au juge des référés, suivant les cas, à tout moment de la procédure, la nomination d'un autre administrateur. Cette demande peut également être formée par tout créancier.
Le surenchérisseur ne peut, même en payant le montant de la soumission, empêcher par un désistement l'adjudication publique, si ce n'est du consentement de tous les créanciers inscrits.
Les formalités de la procédure et de la vente sont accomplies à la diligence du surenchérisseur et, à
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son défaut, de tout créancier inscrit ou de l'acquéreur, aux frais, risques et périls du surenchérisseur et sa caution restant engagée, selon les règles prescrites par les articles L. 143-4, L. 143-5 à L. 143-7 et par le troisième alinéa de l'article L. 143-10.
A défaut d'enchère, le créancier surenchérisseur est déclaré adjudicataire.
Article L143-15
L'adjudicataire est tenu de prendre le matériel et les marchandises existant au moment de la prise de possession, aux prix fixés par une expertise amiable ou judiciaire, contradictoirement entre l'acquéreur surenchéri, son vendeur et l'adjudicataire.
Il est tenu, au-delà de son prix d'adjudication, de rembourser à l'acquéreur dépossédé les frais et loyaux coûts de son contrat, ceux des notifications, ceux d'inscription et de publicité prévus par les articles L. 141-6 à L. 141-18, et, à qui de droit, ceux faits pour parvenir à la revente.
L'article L. 143-9 est applicable à la vente et à l'adjudication sur surenchère.
L'acquéreur surenchéri, qui se rend adjudicataire par suite de la revente sur surenchère, a son recours tel que de droit contre le vendeur pour le remboursement de ce qui excède le prix stipulé par son titre et pour l'intérêt de cet excédent à compter du jour de chaque paiement.
Section 2 : Des formalités d'inscription et de radiation.
Article L143-16
L'inscription et la radiation du privilège du vendeur ou du créancier gagiste sont soumises à des formalités dont les modalités sont fixées par décret en Conseil d'Etat.
Article L143-17
Outre les formalités d'inscription mentionnées à l'article L. 143-16, les ventes ou cessions de fonds de commerce comprenant des marques de fabrique et de commerce, des dessins ou modèles industriels, ainsi que les nantissements de fonds qui comprennent des brevets d'invention ou licences, des marques ou des dessins et modèles, doivent être inscrits à l'Institut national de la propriété industrielle, sur la production du certificat d'inscription délivré par le greffier du tribunal de commerce, dans la quinzaine qui suivra cette inscription, à peine de nullité à l'égard des tiers, des ventes, cessions ou nantissements en ce qu'ils s'appliquent aux brevets d'invention et aux licences, aux marques de fabrique et de commerce, aux dessins et modèles industriels.
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Les brevets d'invention compris dans la cession d'un fonds de commerce restent soumis pour leur transmission aux règles édictées aux articles L. 613-8 et suivants du code de la propriété intellectuelle.
Article L143-18
Si le titre d'où résulte le privilège inscrit est à ordre, la négociation par voie d'endossement emporte la translation du privilège.
Article L143-19
L'inscription conserve le privilège pendant dix années à compter du jour de sa date. Son effet cesse si elle n'a pas été renouvelée avant l'expiration de ce délai.
Elle garantit au même rang que le principal deux années d'intérêt.
Article L143-20
Les inscriptions sont rayées, soit du consentement des parties intéressées et ayant capacité à cet effet, soit en vertu d'un jugement passé en force de chose jugée.
A défaut de jugement, la radiation totale ou partielle ne peut être opérée par le greffier que sur le dépôt d'un acte authentique ou sous seing privé dûment enregistré de consentement à la radiation donné par le créancier ou son cessionnaire régulièrement subrogé et justifiant de ses droits.
La radiation totale ou partielle de l'inscription prise à l'Institut national de la propriété industrielle est opérée sur la production du certificat de radiation délivré par le greffier du tribunal de commerce.
Section 3 : Des intermédiaires et de la répartition du prix.
Article L143-21
Tout tiers détenteur du prix d'acquisition d'un fonds de commerce chez lequel domicile a été élu doit en faire la répartition dans les trois mois de la date de l'acte de vente.
A l'expiration de ce délai, la partie la plus diligente peut se pourvoir en référé devant la juridiction compétente du lieu de l'élection du domicile, qui ordonne soit le dépôt à la Caisse des dépôts et consignations, soit la nomination d'un séquestre répartiteur.
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Article L143-22
Lorsque la confiscation d'un fonds de commerce est prononcée par une juridiction répressive en application des articles 225-16, 225-19 et 225-22 du code pénal et 706-39 du code de procédure pénale, l'Etat doit procéder à la mise en vente du fonds confisqué selon les formes prévues par le présent titre dans un délai d'un an, sauf prorogation exceptionnelle de ce délai par ordonnance du président du tribunal de grande instance. Il n'est tenu à l'égard des créanciers qu'à concurrence du prix de vente de ce fonds.
Cette mise en vente doit être réalisée sous forme d'une annonce légale faite quarante-cinq jours au moins avant la vente, que celle-ci ait lieu par adjudication ou sous forme amiable.
Les sûretés inscrites après la date de la mention de l'engagement des poursuites pour l'une des infractions visées au premier alinéa sont nulles de plein droit sauf décision contraire du tribunal.
L'autorité administrative peut, à tout moment, demander la fixation du loyer à un taux correspondant à la valeur locative des locaux.
Lorsque le propriétaire du fonds confisqué est en même temps propriétaire des locaux dans lesquels le fonds est exploité, il doit être établi un bail dont les conditions sont fixées, à défaut d'accord amiable, par le président du tribunal de grande instance, qui statue dans les formes prévues pour les baux d'immeubles ou de locaux à usage commercial, industriel ou artisanal.
Article L143-23
Un décret en Conseil d'Etat détermine les mesures d'exécution des chapitres Ier et II ci-dessus et du présent chapitre, notamment les émoluments à allouer aux greffiers des tribunaux de commerce, les conditions dans lesquelles sont effectuées, à l'Institut national de la propriété industrielle, les inscriptions, radiations et délivrances d'états ou certificats négatifs concernant les ventes, cessions ou nantissements des fonds de commerce qui comprennent des brevets d'invention ou licences, des marques de fabrique et de commerce, des dessins et modèles industriels.
Il détermine, en outre, les droits à percevoir par le Conservatoire des arts et métiers, pour le service de l'Institut national de la propriété industrielle, sur les inscriptions et mentions d'antériorité, de subrogation et de radiation, les états d'inscriptions ou certificats qu'il n'en existe aucune.
Chapitre IV : De la location-gérance.
Article L144-1
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Nonobstant toute clause contraire, tout contrat ou convention par lequel le propriétaire ou l'exploitant d'un fonds de commerce ou d'un établissement artisanal en concède totalement ou partiellement la location à un gérant qui l'exploite à ses risques et périls est régi par les dispositions du présent chapitre.
Article L144-2
Le locataire-gérant a la qualité de commerçant. Il est soumis à toutes les obligations qui en découlent.
Lorsque le fonds est un établissement artisanal, le locataire-gérant est immatriculé au répertoire des métiers et est soumis à toutes les obligations qui en découlent.
Article L144-3
Les personnes physiques ou morales qui concèdent une location-gérance doivent avoir exploité pendant deux années au moins le fonds ou l'établissement artisanal mis en gérance.
Article L144-4
Le délai prévu par l'article L. 144-3 peut être supprimé ou réduit par ordonnance du président du tribunal de grande instance rendue sur simple requête de l'intéressé, le ministère public entendu, notamment lorsque celui-ci justifie qu'il est dans l'impossibilité d'exploiter son fonds personnellement ou par l'intermédiaire de préposés.
Article L144-5
L'article L. 144-3 n'est pas applicable :
1° A l'Etat ;
2° Aux collectivités territoriales ;
3° Aux établissements de crédit ;
4° Aux majeurs faisant l'objet d'une mesure de protection légale ou aux personnes hospitalisées en raison de troubles mentaux dans les conditions fixées par les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique, en ce qui concerne le fonds dont ils étaient propriétaires
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avant la mesure de protection légale ou avant la survenance de l'hospitalisation ;
5° Aux héritiers ou légataires d'un commerçant ou d'un artisan décédé, ainsi qu'aux bénéficiaires d'un partage d'ascendant, en ce qui concerne le fonds recueilli ;
6° A l'établissement public créé par l'article L. 325-1 du code de l'urbanisme ;
7° Au conjoint attributaire du fonds de commerce ou du fonds artisanal à la suite de la dissolution du régime matrimonial, lorsque ce conjoint a participé à son exploitation pendant au moins deux ans avant la dissolution du régime matrimonial ou son partage. ;
8° Au loueur de fonds de commerce, lorsque la location-gérance a pour objet principal d'assurer, sous contrat d'exclusivité, l'écoulement au détail des produits fabriqués ou distribués par lui-même ;
9° Aux loueurs de fonds de commerce de cinéma, théâtres et music-halls.
Article L144-6
Au moment de la location-gérance, les dettes du loueur du fonds afférentes à l'exploitation du fonds peuvent être déclarées immédiatement exigibles par le tribunal de commerce de la situation du fonds, s'il estime que la location-gérance met en péril leur recouvrement.
L'action doit être introduite, à peine de forclusion, dans le délai de trois mois à dater de la publication du contrat de gérance dans un journal habilité à recevoir les annonces légales.
Article L144-7
Jusqu'à la publication du contrat de location-gérance et pendant un délai de six mois à compter de cette publication, le loueur du fonds est solidairement responsable avec le locataire-gérant des dettes contractées par celui-ci à l'occasion de l'exploitation du fonds.
Article L144-8
Les dispositions des articles L. 144-3, L. 144-4 et L. 144-7 ne s'appliquent pas aux contrats de location-gérance passés par des mandataires de justice, chargés, à quelque titre que ce soit, de l'administration d'un fonds de commerce, à condition qu'ils aient été autorisés aux fins desdits contrats par l'autorité de laquelle ils tiennent leur mandat et qu'ils aient satisfait aux mesures de publicité prévues.
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Article L144-9
La fin de la location-gérance rend immédiatement exigibles les dettes afférentes à l'exploitation du fonds ou de l'établissement artisanal, contractées par le locataire-gérant pendant la durée de la gérance.
Article L144-10
Tout contrat de location-gérance ou toute autre convention comportant des clauses analogues, consenti par le propriétaire ou l'exploitant d'un fonds de commerce ne remplissant pas les conditions prévues aux articles ci-dessus, est nul. Toutefois, les contractants ne peuvent invoquer cette nullité à l'encontre des tiers.
La nullité prévue à l'alinéa précédent entraîne à l'égard des contractants la déchéance des droits qu'ils pourraient éventuellement tenir des dispositions du chapitre V du présent titre réglant les rapports entre bailleurs et locataires en ce qui concerne le renouvellement des baux à loyer d'immeubles ou de locaux à usage commercial, industriel ou artisanal.
Article L144-11
Si le contrat de location-gérance est assorti d'une clause d'échelle mobile, la révision du loyer peut, nonobstant toute convention contraire, être demandée chaque fois que, par le jeu de cette clause, ce loyer se trouve augmenté ou diminué de plus du quart par rapport au prix précédemment fixé contractuellement ou par décision judiciaire.
Si l'un des éléments retenus pour le calcul de la clause d'échelle mobile vient à disparaître, la révision ne peut être demandée et poursuivie que si les conditions économiques se sont modifiées au point d'entraîner une variation de plus du quart de la valeur locative du fonds.
Article L144-12
La partie qui veut demander la révision doit en faire la notification à l'autre partie par lettre recommandée avec demande d'avis de réception ou par acte extrajudiciaire.
A défaut d'accord amiable, l'instance est introduite et jugée conformément aux dispositions prévues en matière de révision du prix des baux à loyer d'immeubles ou de locaux à usage commercial ou industriel.
Le juge doit, en tenant compte de tous les éléments d'appréciation, adapter le jeu de l'échelle mobile à la valeur locative équitable au jour de la notification. Le nouveau prix est applicable à partir de
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cette même date, à moins que les parties ne se soient mises d'accord avant ou pendant l'instance sur une date plus ancienne ou plus récente.
Article L144-13
Les dispositions des articles L. 144-11 et L. 144-12 ne sont pas applicables aux opérations de crédit-bail en matière de fonds de commerce ou d'établissement artisanal mentionnées au 3° de l'article 1er de la loi n° 66-455 du 2 juillet 1966 relative aux entreprises pratiquant le crédit-bail.
Les dispositions de l'article L. 144-9 ne sont pas applicables lorsque le locataire-gérant qui a pris en location par un contrat de crédit-bail un fonds de commerce ou un établissement artisanal lève l'option d'achat.
Chapitre V : Du bail commercial.
Section 1 : Du champ d'application.
Article L145-1
I. - Les dispositions du présent chapitre s'appliquent aux baux des immeubles ou locaux dans lesquels un fonds est exploité, que ce fonds appartienne, soit à un commerçant ou à un industriel immatriculé au registre du commerce et des sociétés, soit à un chef d'une entreprise immatriculée au répertoire des métiers, accomplissant ou non des actes de commerce, et en outre :
1° Aux baux de locaux ou d'immeubles accessoires à l'exploitation d'un fonds de commerce quand leur privation est de nature à compromettre l'exploitation du fonds et qu'ils appartiennent au propriétaire du local ou de l'immeuble où est situé l'établissement principal. En cas de pluralité de propriétaires, les locaux accessoires doivent avoir été loués au vu et au su du bailleur en vue de l'utilisation jointe ;
2° Aux baux des terrains nus sur lesquels ont été édifiées - soit avant, soit après le bail - des constructions à usage commercial, industriel ou artisanal, à condition que ces constructions aient été élevées ou exploitées avec le consentement exprès du propriétaire.
II. - Si le fonds est exploité sous forme de location-gérance en application du chapitre IV du présent titre, le propriétaire du fonds bénéficie néanmoins des présentes dispositions sans avoir à justifier de l'immatriculation au registre du commerce et des sociétés ou au répertoire des métiers.
III. - Si le bail est consenti à plusieurs preneurs ou indivisaires, l'exploitant du fonds de commerce ou du fonds artisanal bénéficie des dispositions du présent chapitre, même en l'absence d'immatriculation au registre du commerce et des sociétés ou au répertoire des métiers de ses copreneurs ou coindivisaires non exploitants du fonds. En cas de décès du titulaire du bail, ces
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mêmes dispositions s'appliquent à ses héritiers ou ayants droit qui, bien que n'exploitant pas de fonds de commerce ou de fonds artisanal, demandent le maintien de l'immatriculation de leur ayant cause pour les besoins de sa succession.
Article L145-2
I.-Les dispositions du présent chapitre s'appliquent également :
1° Aux baux des locaux ou immeubles abritant des établissements d'enseignement ;
2° Aux baux consentis aux communes pour des immeubles ou des locaux affectés, soit au moment de la location, soit ultérieurement et avec le consentement exprès ou tacite du propriétaire, à des services exploités en régie ;
3° Aux baux d'immeubles ou de locaux principaux ou accessoires, nécessaires à la poursuite de l'activité des entreprises publiques et établissements publics à caractère industriel ou commercial, dans les limites définies par les lois et règlements qui les régissent et à condition que ces baux ne comportent aucune emprise sur le domaine public ;
4° Sous réserve des dispositions de l'article L. 145-26 aux baux des locaux ou immeubles appartenant à l'Etat, aux collectivités territoriales et aux établissements publics, dans le cas où ces locaux ou immeubles satisfont aux dispositions de l'article L. 145-1 ou aux 1° et 2° ci-dessus ;
5° Aux baux d'immeubles abritant soit des sociétés coopératives ayant la forme commerciale ou un objet commercial, soit des sociétés coopératives de crédit, soit des caisses d'épargne et de prévoyance ;
6° Aux baux des locaux consentis à des artistes admis à cotiser à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 98 A de l'annexe III du code général des impôts ;
7° Par dérogation à l'article 57 A de la loi n° 86-1290 du 23 décembre 1986 tendant à favoriser l'investissement locatif, l'accession à la propriété de logements sociaux et le développement de l'offre foncière, aux baux d'un local affecté à un usage exclusivement professionnel si les parties ont conventionnellement adopté ce régime.
II.-Toutefois, les dispositions du présent chapitre ne sont pas applicables aux autorisations d'occupation précaire accordées par l'administration sur un immeuble acquis par elle à la suite d'une déclaration d'utilité publique. Elles ne sont également pas applicables, pendant la période d'un an mentionnée au premier alinéa de l'article L. 214-2 du code de l'urbanisme, aux fonds artisanaux, aux fonds de commerce ou aux baux commerciaux préemptés en application de l'article L. 214-1 du même code.
Article L145-3
Les dispositions du présent chapitre ne sont pas applicables aux baux emphytéotiques, sauf en ce qui concerne la révision du loyer. Toutefois, elles s'appliquent, dans les cas prévus aux articles L. 145-1 et L. 145-2, aux baux passés par les emphytéotes, sous réserve que la durée du renouvellement consenti à leurs sous-locataires n'ait pas pour effet de prolonger l'occupation des lieux au-delà de la date d'expiration du bail emphytéotique.
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Section 2 : De la durée.
Article L145-4
La durée du contrat de location ne peut être inférieure à neuf ans.
Toutefois, à défaut de convention contraire, le preneur a la faculté de donner congé à l'expiration d'une période triennale, dans les formes et délai de l'article L. 145-9.
Le bailleur a la même faculté s'il entend invoquer les dispositions des articles L. 145-18, L. 145-21, L. 145-23-1 et L. 145-24 afin de construire, de reconstruire ou de surélever l'immeuble existant, de réaffecter le local d'habitation accessoire à cet usage ou d'exécuter des travaux prescrits ou autorisés dans le cadre d'une opération de restauration immobilière et en cas de démolition de l'immeuble dans le cadre d'un projet de renouvellement urbain.
Le preneur ayant demandé à bénéficier de ses droits à la retraite du régime social auquel il est affilié ou ayant été admis au bénéfice d'une pension d'invalidité attribuée dans le cadre de ce régime social a la faculté de donner congé dans les formes et délais de l'article L. 145-9.
Les dispositions de l'alinéa précédent sont applicables à l'associé unique d'une entreprise unipersonnelle à responsabilité limitée, ou au gérant majoritaire depuis au moins deux ans d'une société à responsabilité limitée, lorsque celle-ci est titulaire du bail.
Article L145-5
Les parties peuvent, lors de l'entrée dans les lieux du preneur, déroger aux dispositions du présent chapitre à la condition que la durée totale du bail ou des baux successifs ne soit pas supérieure à deux ans.
Si, à l'expiration de cette durée, le preneur reste et est laissé en possession, il s'opère un nouveau bail dont l'effet est réglé par les dispositions du présent chapitre.
Il en est de même , à l'expiration de cette durée, en cas de renouvellement exprès du bail ou de conclusion, entre les mêmes parties, d'un nouveau bail pour le même local.
Les dispositions des deux alinéas précédents ne sont pas applicables s'il s'agit d'une location à caractère saisonnier.
Article L145-6
Le bailleur d'un local à usage commercial, industriel ou artisanal peut, au cours du bail originaire ou d'un bail renouvelé, reprendre les lieux en tout ou partie pour exécuter des travaux nécessitant
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l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme et autorisés ou prescrits dans les conditions prévues auxdits articles, s'il offre de reporter le bail sur un local équivalent dans le même immeuble ou dans un autre immeuble. Cette offre précise les caractéristiques du local offert, lequel doit permettre la continuation de l'exercice de l'activité antérieure du locataire. L'offre doit être notifiée un an à l'avance.
Le locataire doit, dans un délai de deux mois, soit faire connaître son acceptation, soit saisir des motifs de son refus la juridiction compétente, faute de quoi il est réputé avoir accepté l'offre.
Article L145-7
Le locataire dont le bail est reporté a droit à une indemnité de dépossession qui comprend l'indemnisation des conséquences dommageables de la privation temporaire de jouissance, compte tenu, s'il y a lieu, de l'installation provisoire réalisée aux frais du bailleur et du remboursement de ses frais normaux de déménagement et de réinstallation.
Lorsque l'offre a été acceptée ou reconnue valable par la juridiction compétente, et après l'expiration du délai d'un an à compter de la ratification de l'offre, le locataire doit quitter les lieux dès la mise à la disposition effective du local offert et le versement d'une indemnité provisionnelle dont le montant est fixé dans les formes prévues à l'article L. 145-19.
Les prix et les conditions accessoires du bail peuvent être modifiés à la demande de la partie la plus diligente.
Article L145-7-1
Les baux commerciaux signés entre les propriétaires et les exploitants de résidences de tourisme mentionnées à l'article L. 321-1 du code du tourisme sont d'une durée de neuf ans minimum, sans possibilité de résiliation à l'expiration d'une période triennale.
Section 3 : Du renouvellement.
Article L145-8
Le droit au renouvellement du bail ne peut être invoqué que par le propriétaire du fonds qui est exploité dans les lieux.
Le fonds transformé, le cas échéant, dans les conditions prévues à la section 8 du présent chapitre, doit, sauf motifs légitimes, avoir fait l'objet d'une exploitation effective au cours des trois années qui ont précédé la date d'expiration du bail ou de sa reconduction telle qu'elle est prévue à l'article L. 145-9, cette dernière date étant soit la date pour laquelle le congé a été donné, soit, si une demande de renouvellement a été faite, le premier jour du trimestre civil qui suit cette demande.
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Article L145-9
Par dérogation aux articles 1736 et 1737 du code civil, les baux de locaux soumis aux dispositions du présent chapitre ne cessent que par l'effet d'un congé donné pour le dernier jour du trimestre civil et au moins six mois à l'avance.
A défaut de congé ou de demande de renouvellement, le bail fait par écrit se poursuit par tacite reconduction au-delà du terme fixé par le contrat, conformément à l'article 1738 du code civil et sous les réserves prévues à l'alinéa précédent.
Le bail dont la durée est subordonnée à un événement dont la réalisation autorise le bailleur à demander la résiliation ne cesse, au-delà de la durée de neuf ans, que par l'effet d'une notification faite six mois à l'avance et pour le dernier jour du trimestre civil. Cette notification doit mentionner la réalisation de l'événement prévu au contrat.
S'agissant d'un bail comportant plusieurs périodes, si le bailleur dénonce le bail à la fin des neuf premières années ou à l'expiration de l'une des périodes suivantes, le congé doit être donné dans les délais prévus à l'alinéa premier ci-dessus.
Le congé doit être donné par acte extrajudiciaire. Il doit, à peine de nullité, préciser les motifs pour lesquels il est donné et indiquer que le locataire qui entend, soit contester le congé, soit demander le paiement d'une indemnité d'éviction, doit saisir le tribunal avant l'expiration d'un délai de deux ans à compter de la date pour laquelle le congé a été donné.
Article L145-10
A défaut de congé, le locataire qui veut obtenir le renouvellement de son bail doit en faire la demande soit dans les six mois qui précèdent l'expiration du bail, soit, le cas échéant, à tout moment au cours de sa reconduction.
La demande en renouvellement doit être signifiée au bailleur par acte extrajudiciaire. Sauf stipulations ou notifications contraires de la part de celui-ci, elle peut, aussi bien qu'à lui-même, lui être valablement adressée en la personne du gérant, lequel est réputé avoir qualité pour la recevoir. S'il y a plusieurs propriétaires, la demande adressée à l'un d'eux vaut, sauf stipulations ou notifications contraires, à l'égard de tous.
Elle doit, à peine de nullité, reproduire les termes de l'alinéa ci-dessous.
Dans les trois mois de la signification de la demande en renouvellement, le bailleur doit, dans les mêmes formes, faire connaître au demandeur s'il refuse le renouvellement en précisant les motifs de ce refus. A défaut d'avoir fait connaître ses intentions dans ce délai, le bailleur est réputé avoir accepté le principe du renouvellement du bail précédent.
L'acte extrajudiciaire notifiant le refus de renouvellement doit, à peine de nullité, indiquer que le locataire qui entend, soit contester le refus de renouvellement, soit demander le paiement d'une indemnité d'éviction, doit saisir le tribunal avant l'expiration d'un délai de deux ans à compter de la
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date à laquelle est signifié le refus de renouvellement.
Article L145-11
Le bailleur qui, sans être opposé au principe du renouvellement, désire obtenir une modification du prix du bail doit, dans le congé prévu à l'article L. 145-9 ou dans la réponse à la demande de renouvellement prévue à l'article L. 145-10, faire connaître le loyer qu'il propose, faute de quoi le nouveau prix n'est dû qu'à compter de la demande qui en est faite ultérieurement suivant des modalités définies par décret en Conseil d'Etat.
Article L145-12
La durée du bail renouvelé est de neuf ans sauf accord des parties pour une durée plus longue.
Les dispositions des deuxième et troisième alinéas de l'article L. 145-4 sont applicables au cours du bail renouvelé.
Le nouveau bail prend effet à compter de l'expiration du bail précédent, ou, le cas échéant, de sa reconduction, cette dernière date étant soit celle pour laquelle le congé a été donné, soit, si une demande de renouvellement a été faite, le premier jour du trimestre civil qui suit cette demande.
Toutefois, lorsque le bailleur a notifié, soit par un congé, soit par un refus de renouvellement, son intention de ne pas renouveler le bail, et si, par la suite, il décide de le renouveler, le nouveau bail prend effet à partir du jour où cette acceptation a été notifiée au locataire par acte extrajudiciaire.
Article L145-13
Sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme, les dispositions de la présente section ne peuvent être invoquées par des commerçants, industriels ou personnes immatriculées au répertoire des métiers de nationalité étrangère, agissant directement ou par personne interposée, à moins que, pendant les guerres de 1914 et de 1939, ils n'aient combattu dans les armées françaises ou alliées, ou qu'ils n'aient des enfants ayant la qualité de Français.
L'alinéa précédent n'est pas applicable aux ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen.
Section 4 : Du refus de renouvellement.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article L145-14
Le bailleur peut refuser le renouvellement du bail. Toutefois, le bailleur doit, sauf exceptions prévues aux articles L. 145-17 et suivants, payer au locataire évincé une indemnité dite d'éviction égale au préjudice causé par le défaut de renouvellement.
Cette indemnité comprend notamment la valeur marchande du fonds de commerce, déterminée suivant les usages de la profession, augmentée éventuellement des frais normaux de déménagement et de réinstallation, ainsi que des frais et droits de mutation à payer pour un fonds de même valeur, sauf dans le cas où le propriétaire fait la preuve que le préjudice est moindre.
Article L145-15
Sont nuls et de nul effet, quelle qu'en soit la forme, les clauses, stipulations et arrangements qui ont pour effet de faire échec au droit de renouvellement institué par le présent chapitre ou aux dispositions des articles L. 145-4, L. 145-37 à L. 145-41, du premier alinéa de l'article L. 145-42 et des articles L. 145-47 à L. 145-54.
Article L145-16
Sont également nulles, quelle qu'en soit la forme, les conventions tendant à interdire au locataire de céder son bail ou les droits qu'il tient du présent chapitre à l'acquéreur de son fonds de commerce ou de son entreprise.
En cas de fusion de sociétés ou d'apport d'une partie de l'actif d'une société réalisé dans les conditions prévues à l'article L. 236-22 la société issue de la fusion ou la société bénéficiaire de l'apport est, nonobstant toute stipulation contraire, substituée à celle au profit de laquelle le bail était consenti dans tous les droits et obligations découlant de ce bail.
En cas de cession, de fusion ou d'apport, si l'obligation de garantie ne peut plus être assurée dans les termes de la convention, le tribunal peut y substituer toutes garanties qu'il juge suffisantes.
Article L145-17
I. - Le bailleur peut refuser le renouvellement du bail sans être tenu au paiement d'aucune indemnité :
1° S'il justifie d'un motif grave et légitime à l'encontre du locataire sortant. Toutefois, s'il s'agit soit de l'inexécution d'une obligation, soit de la cessation sans raison sérieuse et légitime de l'exploitation du fonds, compte tenu des dispositions de l'article L. 145-8, l'infraction commise par
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le preneur ne peut être invoquée que si elle s'est poursuivie ou renouvelée plus d'un mois après mise en demeure du bailleur d'avoir à la faire cesser. Cette mise en demeure doit, à peine de nullité, être effectuée par acte extrajudiciaire, préciser le motif invoqué et reproduire les termes du présent alinéa ;
2° S'il est établi que l'immeuble doit être totalement ou partiellement démoli comme étant en état d'insalubrité reconnue par l'autorité administrative ou s'il est établi qu'il ne peut plus être occupé sans danger en raison de son état.
II. - En cas de reconstruction par le propriétaire ou son ayant droit d'un nouvel immeuble comprenant des locaux commerciaux, le locataire a droit de priorité pour louer dans l'immeuble reconstruit, sous les conditions prévues par les articles L. 145-19 et L. 145-20.
Article L145-18
Le bailleur a le droit de refuser le renouvellement du bail pour construire ou reconstruire l'immeuble existant, à charge de payer au locataire évincé l'indemnité d'éviction prévue à l'article L. 145-14.
Il en est de même pour effectuer des travaux nécessitant l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme et autorisés ou prescrits dans les conditions prévues audits articles.
Toutefois, le bailleur peut se soustraire au paiement de cette indemnité en offrant au locataire évincé un local correspondant à ses besoins et possibilités, situé à un emplacement équivalent.
Le cas échéant, le locataire perçoit une indemnité compensatrice de sa privation temporaire de jouissance et de la moins-value de son fonds. Il est en outre remboursé de ses frais normaux de déménagement et d'emménagement.
Lorsque le bailleur invoque le bénéfice du présent article, il doit, dans l'acte de refus de renouvellement ou dans le congé, viser les dispositions de l'alinéa 3 et préciser les nouvelles conditions de location. Le locataire doit, dans un délai de trois mois, soit faire connaître par acte extrajudiciaire son acceptation, soit saisir la juridiction compétente dans les conditions prévues à l'article L. 145-58.
Si les parties sont seulement en désaccord sur les conditions du nouveau bail, celles-ci sont fixées selon la procédure prévue à l'article L. 145-56.
Article L145-19
Pour bénéficier du droit de priorité prévu à l'article L. 145-17, le locataire doit, en quittant les lieux ou, au plus tard dans les trois mois qui suivent, notifier sa volonté d'en user au propriétaire, par acte extrajudiciaire, en lui faisant connaître son nouveau domicile ; il doit notifier de même, sous peine de déchéance, tout nouveau changement de domicile.
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Le propriétaire qui a reçu une telle notification doit, avant de louer ou d'occuper lui-même un nouveau local, aviser de la même manière le locataire qu'il est prêt à lui consentir un nouveau bail. A défaut d'accord entre les parties sur les conditions de ce bail, celles-ci sont déterminées selon la procédure prévue à l'article L. 145-56.
Le locataire a un délai de trois mois pour se prononcer ou saisir la juridiction compétente. Ce délai doit, à peine de nullité, être indiqué dans la notification visée à l'alinéa précédent. Passé ce délai, le propriétaire peut disposer du local.
Le propriétaire qui ne se conformerait pas aux dispositions des alinéas précédents est passible, sur demande de son locataire, du paiement à ce dernier de dommages-intérêts.
Article L145-20
Lorsque l'immeuble reconstruit, dans les conditions prévues à l'article L. 145-17, possède une superficie supérieure à celle de l'immeuble primitif, le droit de priorité est limité à des locaux possédant une superficie équivalente à celle des locaux précédemment occupés ou susceptibles de satisfaire aux mêmes besoins commerciaux que ces derniers.
Lorsque l'immeuble reconstruit ne permet pas la réinstallation de tous les occupants, la préférence est accordée aux locataires titulaires des baux les plus anciens qui ont fait connaître leur intention d'occuper les lieux.
Article L145-21
Le propriétaire peut également différer pendant une durée maximum de trois ans le renouvellement du bail, s'il se propose de surélever l'immeuble et si cette surélévation rend nécessaire l'éviction temporaire du locataire. Celui-ci a droit, dans ce cas, à une indemnité égale au préjudice subi sans pouvoir excéder trois ans de loyer.
Article L145-22
Le bailleur peut refuser le renouvellement du bail exclusivement sur la partie concernant les locaux d'habitation accessoires des locaux commerciaux pour habiter lui-même ceux-ci ou les faire habiter par son conjoint, ses ascendants, ses descendants ou ceux de son conjoint, à condition que le bénéficiaire de la reprise ne dispose pas d'une habitation correspondant à ses besoins normaux et à ceux des membres de sa famille vivant habituellement ou domiciliés avec lui.
Toutefois, la reprise dans les conditions ci-dessus indiquées ne peut être exercée sur des locaux affectés à usage d'hôtel ou de location en meublé, ni sur des locaux à usage hospitalier ou d'enseignement.
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De même, la reprise ne peut être exercée lorsque le locataire établit que la privation de jouissance des locaux d'habitation apporte un trouble grave à l'exploitation du fonds ou lorsque les locaux commerciaux et les locaux d'habitation forment un tout indivisible.
Lorsque l'immeuble a été acquis à titre onéreux, le bailleur ne peut bénéficier des dispositions du présent article que si son acte d'acquisition a date certaine plus de six ans avant le refus de renouvellement.
Le bénéficiaire du droit de reprise est tenu de mettre à la disposition du locataire dont il reprend le local, le logement qui, le cas échéant, pourrait être rendu vacant par l'exercice de ce droit.
Dans le cas de reprise partielle prévu au présent article, le loyer du bail renouvelé tient compte du préjudice causé au locataire ou à son ayant droit dans l'exercice de son activité.
Sauf motif légitime, le bénéficiaire de la reprise doit occuper personnellement les lieux dans un délai de six mois à dater du départ du locataire évincé et pendant une durée minimum de six ans, faute de quoi le locataire évincé a droit à une indemnité d'éviction en rapport avec l'importance des locaux repris.
Article L145-23
Les dispositions de l'article L. 145-22 ne sont pas applicables aux bailleurs de nationalité étrangère, agissant directement ou par personne interposée, à moins que, pendant les guerres de 1914 et de 1939, ils n'aient combattu dans les armées françaises ou alliées, ou qu'ils n'aient des enfants ayant la qualité de Français.
L'alinéa précédent n'est pas applicable aux ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen.
Article L145-23-1
Le bailleur peut, à l'expiration d'une période triennale, dans les formes prévues par l'article L. 145-9 et au moins six mois à l'avance, reprendre les locaux d'habitation loués accessoirement aux locaux commerciaux s'ils ne sont pas affectés à cet usage d'habitation. La reprise ne peut être exercée que si, après un délai de six mois suivant le congé délivré à cet effet, les locaux ne sont pas utilisés à usage d'habitation.
Toutefois, la reprise dans les conditions indiquées au premier alinéa ne peut être exercée sur des locaux affectés à usage d'hôtel ou de location en meublé, ni sur des locaux à usage hospitalier ou d'enseignement.
De même, la reprise ne peut être exercée lorsque le locataire établit que la privation de jouissance
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des locaux d'habitation apporte un trouble grave à l'exploitation du fonds ou lorsque les locaux commerciaux et les locaux d'habitation forment un tout indivisible.
Dans le cas de reprise partielle prévu au présent article, le loyer du bail est diminué pour tenir compte des surfaces retranchées sans que cette reprise puisse en elle-même constituer une modification notable des éléments de la valeur locative mentionnée à l'article L. 145-33.
Article L145-24
Le droit au renouvellement n'est pas opposable au propriétaire qui a obtenu un permis de construire un local d'habitation sur tout ou partie d'un des terrains visés au 2° de l'article L. 145-1.
Ce droit de reprise ne peut, en tout état de cause, être exercé que sur la partie du terrain indispensable à la construction. S'il a pour effet d'entraîner obligatoirement la cessation de l'exploitation commerciale, industrielle ou artisanale, les dispositions de l'article L. 145-18 sont applicables.
Article L145-25
Le propriétaire ou le principal locataire qui, en même temps qu'il est bailleur des lieux, est le vendeur du fonds de commerce qui y est exploité et qui a reçu le prix intégral ne peut refuser le renouvellement qu'à la charge de payer l'indemnité d'éviction prévue à l'article L. 145-14, sauf s'il justifie d'un motif reconnu grave et légitime à l'encontre du preneur.
Article L145-26
Le renouvellement des baux concernant des immeubles appartenant à l'Etat, aux collectivités territoriales et aux établissements publics ne peut être refusé sans que la collectivité propriétaire soit tenue au paiement de l'indemnité d'éviction prévue à l'article L. 145-14, même si son refus est justifié par une raison d'utilité publique.
Article L145-27
Au cas où il viendrait à être établi à la charge du bailleur qu'il n'a exercé les droits qui lui sont conférés aux articles L. 145-17 et suivants qu'en vue de faire échec frauduleusement aux droits du locataire, notamment par des opérations de location et de revente, que ces opérations aient un caractère civil ou commercial, le locataire a droit à une indemnité égale au montant du préjudice subi.
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Article L145-28
Aucun locataire pouvant prétendre à une indemnité d'éviction ne peut être obligé de quitter les lieux avant de l'avoir reçue. Jusqu'au paiement de cette indemnité, il a droit au maintien dans les lieux aux conditions et clauses du contrat de bail expiré. Toutefois, l'indemnité d'occupation est déterminée conformément aux dispositions des sections 6 et 7, compte tenu de tous éléments d'appréciation.
Par dérogation au précédent alinéa, dans le seul cas prévu au deuxième alinéa de l'article L. 145-18, le locataire doit quitter les lieux dès le versement d'une indemnité provisionnelle fixée par le président du tribunal de grande instance statuant au vu d'une expertise préalablement ordonnée dans les formes fixées par décret en Conseil d'Etat, en application de l'article L. 145-56.
Article L145-29
En cas d'éviction, les lieux doivent être remis au bailleur à l'expiration d'un délai de trois mois suivant la date du versement de l'indemnité d'éviction au locataire lui-même ou de la notification à celui-ci du versement de l'indemnité à un séquestre. A défaut d'accord entre les parties, le séquestre est nommé par le jugement prononçant condamnation au paiement de l'indemnité ou à défaut par simple ordonnance sur requête.
L'indemnité est versée par le séquestre au locataire sur sa seule quittance, s'il n'y a pas d'opposition des créanciers et contre remise des clés du local vide, sur justification du paiement des impôts, des loyers et sous réserve des réparations locatives.
Article L145-30
En cas de non-remise des clés à la date fixée et après mise en demeure, le séquestre retient 1 % par jour de retard sur le montant de l'indemnité et restitue cette retenue au bailleur sur sa seule quittance.
Lorsque le délai de quinzaine prévu à l'article L. 145-58 a pris fin sans que le bailleur ait usé de son droit de repentir, l'indemnité d'éviction doit être versée au locataire ou, éventuellement, à un séquestre, dans un délai de trois mois à compter de la date d'un commandement fait par acte extrajudiciaire qui doit, à peine de nullité, reproduire le présent alinéa.
Section 5 : De la sous-location.
Article L145-31
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Sauf stipulation contraire au bail ou accord du bailleur, toute sous-location totale ou partielle est interdite.
En cas de sous-location autorisée, le propriétaire est appelé à concourir à l'acte.
Lorsque le loyer de la sous-location est supérieur au prix de la location principale, le propriétaire a la faculté d'exiger une augmentation correspondante du loyer de la location principale, augmentation qui, à défaut d'accord entre les parties, est déterminée selon une procédure fixée par décret en Conseil d'Etat, en application des dispositions de l'article L. 145-56.
Le locataire doit faire connaître au propriétaire son intention de sous-louer par acte extrajudiciaire ou par lettre recommandée avec demande d'avis de réception. Dans les quinze jours de la réception de cet avis, le propriétaire doit faire connaître s'il entend concourir à l'acte. Si, malgré l'autorisation prévue au premier alinéa, le bailleur refuse ou s'il omet de répondre, il est passé outre.
Article L145-32
Le sous-locataire peut demander le renouvellement de son bail au locataire principal dans la mesure des droits que ce dernier tient lui-même du propriétaire. Le bailleur est appelé à concourir à l'acte, comme il est prévu à l'article L. 145-31.
A l'expiration du bail principal, le propriétaire n'est tenu au renouvellement que s'il a, expressément ou tacitement, autorisé ou agréé la sous-location et si, en cas de sous-location partielle, les lieux faisant l'objet du bail principal ne forment pas un tout indivisible matériellement ou dans la commune intention des parties.
Section 6 : Du loyer.
Article L145-33
Le montant des loyers des baux renouvelés ou révisés doit correspondre à la valeur locative.
A défaut d'accord, cette valeur est déterminée d'après :
1 Les caractéristiques du local considéré ;
2 La destination des lieux ;
3 Les obligations respectives des parties ;
4 Les facteurs locaux de commercialité ;
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5 Les prix couramment pratiqués dans le voisinage ;
Un décret en Conseil d'Etat précise la consistance de ces éléments.
Article L145-34
A moins d'une modification notable des éléments mentionnés aux 1° à 4° de l'article L. 145-33, le taux de variation du loyer applicable lors de la prise d'effet du bail à renouveler, si sa durée n'est pas supérieure à neuf ans, ne peut excéder la variation, intervenue depuis la fixation initiale du loyer du bail expiré, de l'indice national trimestriel mesurant le coût de la construction ou, s'il est applicable, de l'indice trimestriel des loyers commerciaux mentionné au premier alinéa de l'article L. 112-2 du code monétaire et financier, publiés par l'Institut national de la statistique et des études économiques.A défaut de clause contractuelle fixant le trimestre de référence de cet indice, il y a lieu de prendre en compte la variation de l'indice national trimestriel mesurant le coût de la construction ou, s'il est applicable, de l'indice trimestriel des loyers commerciaux, calculée sur la période de neuf ans antérieure au dernier indice publié.
En cas de renouvellement postérieur à la date initialement prévue d'expiration du bail, cette variation est calculée à partir du dernier indice publié, pour une période d'une durée égale à celle qui s'est écoulée entre la date initiale du bail et la date de son renouvellement effectif.
Les dispositions de l'alinéa ci-dessus ne sont plus applicables lorsque, par l'effet d'une tacite reconduction, la durée du bail excède douze ans.
Article L145-35
Les litiges nés de l'application de l'article L. 145-34 sont soumis à une commission départementale de conciliation composée de bailleurs et de locataires en nombre égal et de personnes qualifiées. La commission s'efforce de concilier les parties et rend un avis.
Si le juge est saisi parallèlement à la commission compétente par l'une ou l'autre des parties, il ne peut statuer tant que l'avis de la commission n'est pas rendu.
La commission est dessaisie si elle n'a pas statué dans un délai de trois mois.
La composition de la commission, le mode de désignation de ses membres et ses règles de fonctionnement sont fixés par décret.
Article L145-36
Les éléments permettant de déterminer le prix des baux des terrains, des locaux construits en vue d'une seule utilisation et des locaux à usage exclusif de bureaux sont fixés par décret en Conseil d'Etat.
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Article L145-37
Les loyers des baux d'immeubles ou de locaux régis par les dispositions du présent chapitre, renouvelés ou non, peuvent être révisés à la demande de l'une ou de l'autre des parties sous les réserves prévues aux articles L. 145-38 et L. 145-39 et dans des conditions fixées par décret en Conseil d'Etat.
Article L145-38
La demande en révision ne peut être formée que trois ans au moins après la date d'entrée en jouissance du locataire ou après le point de départ du bail renouvelé.
De nouvelles demandes peuvent être formées tous les trois ans à compter du jour où le nouveau prix sera applicable.
Par dérogation aux dispositions de l'article L. 145-33, et à moins que ne soit rapportée la preuve d'une modification matérielle des facteurs locaux de commercialité ayant entraîné par elle-même une variation de plus de 10 % de la valeur locative, la majoration ou la diminution de loyer consécutive à une révision triennale ne peut excéder la variation de l'indice trimestriel du coût de la construction ou, s'il est applicable, de l'indice trimestriel des loyers commerciaux mentionné au premier alinéa de l'article L. 112-2 du code monétaire et financier, intervenue depuis la dernière fixation amiable ou judiciaire du loyer.
En aucun cas il n'est tenu compte, pour le calcul de la valeur locative, des investissements du preneur ni des plus ou moins-values résultant de sa gestion pendant la durée du bail en cours.
Article L145-39
En outre, et par dérogation à l'article L. 145-38, si le bail est assorti d'une clause d'échelle mobile, la révision peut être demandée chaque fois que, par le jeu de cette clause, le loyer se trouve augmenté ou diminué de plus d'un quart par rapport au prix précédemment fixé contractuellement ou par décision judiciaire.
Article L145-40
Les loyers payés d'avance, sous quelque forme que ce soit, et même à titre de garantie, portent intérêt au profit du locataire, au taux pratiqué par la Banque de France pour les avances sur titres, pour les sommes excédant celle qui correspond au prix du loyer de plus de deux termes.
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Section 7 : De la résiliation
Article L145-41
Toute clause insérée dans le bail prévoyant la résiliation de plein droit ne produit effet qu'un mois après un commandement demeuré infructueux. Le commandement doit, à peine de nullité, mentionner ce délai.
Les juges saisis d'une demande présentée dans les formes et conditions prévues aux articles 1244-1 à 1244-3 du code civil peuvent, en accordant des délais, suspendre la réalisation et les effets des clauses de résiliation, lorsque la résiliation n'est pas constatée ou prononcée par une décision de justice ayant acquis l'autorité de la chose jugée. La clause résolutoire ne joue pas, si le locataire se libère dans les conditions fixées par le juge.
Article L145-42
Les clauses de résiliation de plein droit pour cessation d'activité cessent de produire effet pendant le temps nécessaire à la réalisation des transformations faites en application des dispositions de la section 8.
Ce délai ne saurait excéder six mois à dater de l'accord sur la déspécialisation ou de la décision judiciaire l'autorisant.
Article L145-43
Sont dispensés de l'obligation d'exploiter pendant la durée de leur stage les commerçants et personnes immatriculées au répertoire des métiers, locataires du local dans lequel est situé leur fonds, qui sont admis à suivre un stage de conversion ou un stage de promotion au sens de l'article L. 900-2 (3° et 5°) du code du travail, dont la durée minimum est fixée par arrêté et dont la durée maximum ne peut excéder un an sauf s'il s'agit d'un stage dit de promotion bénéficiant de l'agrément prévu à l'article L. 961-3 dudit code.
Article L145-44
Dans le cas où, à l'issue d'un des stages prévus à l'article L. 145-43, le commerçant ou l'artisan quitte le local dont il est locataire pour convertir son activité en la transférant dans un autre local ou pour prendre une activité salariée, la résiliation du bail intervient de plein droit et sans indemnité à l'expiration d'un délai de trois mois à partir du jour où elle est signifiée au bailleur.
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Article L145-45
Le redressement et la liquidation judiciaires n'entraînent pas, de plein droit, la résiliation du bail des immeubles affectés à l'industrie, au commerce ou à l'artisanat du débiteur, y compris les locaux dépendant de ces immeubles et servant à son habitation ou à celle de sa famille. Toute stipulation contraire est réputée non écrite.
Article L145-46
Lorsqu'il est à la fois propriétaire de l'immeuble loué et du fonds de commerce qui y est exploité et que le bail porte en même temps sur les deux, le bailleur doit verser au locataire, à son départ, une indemnité correspondant au profit qu'il peut retirer de la plus-value apportée soit au fonds, soit à la valeur locative de l'immeuble par les améliorations matérielles effectuées par le locataire avec l'accord exprès du propriétaire.
Section 8 : De la déspécialisation.
Article L145-47
Le locataire peut adjoindre à l'activité prévue au bail des activités connexes ou complémentaires.
A cette fin, il doit faire connaître son intention au propriétaire par acte extrajudiciaire, en indiquant les activités dont l'exercice est envisagé. Cette formalité vaut mise en demeure du propriétaire de faire connaître dans un délai de deux mois, à peine de déchéance, s'il conteste le caractère connexe ou complémentaire de ces activités. En cas de contestation, le tribunal de grande instance, saisi par la partie la plus diligente, se prononce en fonction notamment de l'évolution des usages commerciaux.
Lors de la première révision triennale suivant la notification visée à l'alinéa précédent, il peut, par dérogation aux dispositions de l'article L. 145-38, être tenu compte, pour la fixation du loyer, des activités commerciales adjointes, si celles-ci ont entraîné par elles-mêmes une modification de la valeur locative des lieux loués.
Article L145-48
Le locataire peut, sur sa demande, être autorisé à exercer dans les lieux loués une ou plusieurs activités différentes de celles prévues au bail, eu égard à la conjoncture économique et aux nécessités de l'organisation rationnelle de la distribution, lorsque ces activités sont compatibles avec la destination, les caractères et la situation de l'immeuble ou de l'ensemble immobilier.
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Toutefois, le premier locataire d'un local compris dans un ensemble constituant une unité commerciale définie par un programme de construction ne peut se prévaloir de cette faculté pendant un délai de neuf ans à compter de la date de son entrée en jouissance.
Article L145-49
La demande faite au bailleur doit, à peine de nullité, comporter l'indication des activités dont l'exercice est envisagé. Elle est formée par acte extrajudiciaire et dénoncée, en la même forme, aux créanciers inscrits sur le fonds de commerce. Ces derniers peuvent demander que le changement d'activité soit subordonné aux conditions de nature à sauvegarder leurs intérêts.
Le bailleur doit, dans le mois de cette demande, en aviser, dans la même forme, ceux de ses locataires envers lesquels il se serait obligé à ne pas louer en vue de l'exercice d'activités similaires à celles visées dans la demande. Ceux-ci doivent, à peine de forclusion, faire connaître leur attitude dans le mois de cette notification.
A défaut par le bailleur d'avoir, dans les trois mois de la demande, signifié son refus, son acceptation ou encore les conditions auxquelles il subordonne son accord, il est réputé avoir acquiescé à la demande. Cet acquiescement ne fait pas obstacle à l'exercice des droits prévus à l'article L. 145-50.
Article L145-50
Le changement d'activité peut motiver le paiement, à la charge du locataire, d'une indemnité égale au montant du préjudice dont le bailleur établirait l'existence.
Ce dernier peut en outre, en contrepartie de l'avantage procuré, demander au moment de la transformation, la modification du prix du bail sans qu'il y ait lieu d'appliquer les dispositions des articles L. 145-37 à L. 145-39.
Les droits des créanciers inscrits s'exercent avec leur rang antérieur, sur le fonds transformé.
Article L145-51
Lorsque le locataire ayant demandé à bénéficier de ses droits à la retraite ou ayant été admis au bénéfice d'une pension d'invalidité attribuée par le régime d'assurance invalidité-décès des professions artisanales ou des professions industrielles et commerciales, a signifié à son propriétaire et aux créanciers inscrits sur le fonds de commerce son intention de céder son bail en précisant la nature des activités dont l'exercice est envisagé ainsi que le prix proposé, le bailleur a, dans un délai de deux mois, une priorité de rachat aux conditions fixées dans la signification. A défaut d'usage de ce droit par le bailleur, son accord est réputé acquis si, dans le même délai de deux mois, il n'a pas saisi le tribunal de grande instance.
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La nature des activités dont l'exercice est envisagé doit être compatible avec la destination, les caractères et la situation de l'immeuble.
Les dispositions du présent article sont applicables à l'associé unique d'une entreprise unipersonnelle à responsabilité limitée, ou au gérant majoritaire depuis au moins deux ans d'une société à responsabilité limitée, lorsque celle-ci est titulaire du bail.
Article L145-52
Le tribunal de grande instance peut autoriser la transformation totale ou partielle malgré le refus du bailleur, si ce refus n'est point justifié par un motif grave et légitime.
Si le différend porte seulement sur le prix du bail, celui-ci est fixé conformément aux dispositions réglementaires prévues pour la fixation du prix des baux révisés. Dans les autres cas, l'affaire est portée devant le tribunal.
Article L145-53
Le refus de transformation est suffisamment motivé si le bailleur justifie qu'il entend reprendre les lieux à l'expiration de la période triennale en cours, soit en application des articles L. 145-18 à L. 145-24, soit en vue d'exécuter des travaux prescrits ou autorisés dans le cadre d'une opération de rénovation urbaine ou de restauration immobilière.
Le bailleur qui a faussement invoqué l'un des motifs prévus à l'alinéa qui précède ou qui n'a pas satisfait aux conditions ayant motivé le rejet de la demande du locataire ne peut s'opposer à une nouvelle demande de transformation d'activité, sauf pour motifs graves et légitimes, à moins que le défaut d'exécution ne lui soit pas imputable. Il peut, en outre, être condamné à verser au locataire une indemnité à raison du préjudice subi par ce dernier.
Article L145-54
Il n'est pas tenu compte de la plus-value conférée au fonds par la transformation prévue à l'article L. 145-48, lorsque l'immeuble dans lequel est exploité le fonds doit être démoli ou restauré, ou lorsque le fonds doit être exproprié dans le cadre d'une opération de rénovation ou de restauration immobilière décidée moins de trois ans après la demande prévue à l'alinéa 1er dudit article.
Article L145-55
A tout moment et jusqu'à l'expiration d'un délai de quinze jours à compter de la date à laquelle la
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décision est passée en force de chose jugée, le locataire qui a formé une demande conformément aux articles L. 145-47, L. 145-48 ou L. 145-49 peut y renoncer en le notifiant au bailleur par acte extrajudiciaire et, dans ce cas, il supporte tous les frais de l'instance.
Section 9 : De la procédure.
Article L145-56
Les règles de compétence et de procédure des contestations relatives au bail sont fixées par décret en Conseil d'Etat.
Article L145-57
Pendant la durée de l'instance relative à la fixation du prix du bail révisé ou renouvelé, le locataire est tenu de continuer à payer les loyers échus au prix ancien ou, le cas échéant, au prix qui peut, en tout état de cause, être fixé à titre provisionnel par la juridiction saisie, sauf compte à faire entre le bailleur et le preneur, après fixation définitive du prix du loyer.
Dans le délai d'un mois qui suit la signification de la décision définitive, les parties dressent un nouveau bail dans les conditions fixées judiciairement, à moins que le locataire renonce au renouvellement ou que le bailleur refuse celui-ci, à charge de celle des parties qui a manifesté son désaccord de supporter tous les frais. Faute par le bailleur d'avoir envoyé dans ce délai à la signature du preneur le projet de bail conforme à la décision susvisée ou, faute d'accord dans le mois de cet envoi, l'ordonnance ou l'arrêt fixant le prix ou les conditions du nouveau bail vaut bail.
Article L145-58
Le propriétaire peut, jusqu'à l'expiration d'un délai de quinze jours à compter de la date à laquelle la décision est passée en force de chose jugée, se soustraire au paiement de l'indemnité, à charge par lui de supporter les frais de l'instance et de consentir au renouvellement du bail dont les conditions, en cas de désaccord, sont fixées conformément aux dispositions réglementaires prises à cet effet. Ce droit ne peut être exercé qu'autant que le locataire est encore dans les lieux et n'a pas déjà loué ou acheté un autre immeuble destiné à sa réinstallation.
Article L145-59
La décision du propriétaire de refuser le renouvellement du bail, en application du dernier alinéa de l'article L. 145-57, ou de se soustraire au paiement de l'indemnité, dans les conditions prévues au dernier alinéa de l'article L. 145-58, est irrévocable.
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Article L145-60
Toutes les actions exercées en vertu du présent chapitre se prescrivent par deux ans.
Chapitre VI : Des gérants-mandataires.
Article L146-1
Les personnes physiques ou morales qui gèrent un fonds de commerce ou un fonds artisanal, moyennant le versement d'une commission proportionnelle au chiffre d'affaires, sont qualifiées de "gérants-mandataires" lorsque le contrat conclu avec le mandant, pour le compte duquel, le cas échéant dans le cadre d'un réseau, elles gèrent ce fonds, qui en reste propriétaire et supporte les risques liés à son exploitation, leur fixe une mission, en leur laissant toute latitude, dans le cadre ainsi tracé, de déterminer leurs conditions de travail, d'embaucher du personnel et de se substituer des remplaçants dans leur activité à leurs frais et sous leur entière responsabilité.
Le gérant-mandataire est immatriculé au registre du commerce et des sociétés et, le cas échéant, au répertoire des métiers. Le contrat est mentionné à ce registre ou à ce répertoire et fait l'objet d'une publication dans un journal habilité à recevoir des annonces légales.
Les dispositions du présent chapitre ne sont pas applicables aux professions régies par le chapitre II du titre VIII du livre VII du code du travail.
Article L146-2
Le mandant fournit au gérant-mandataire, avant la signature du contrat, toutes informations nécessaires à sa mission, telles que définies par décret, afin de lui permettre de s'engager en connaissance de cause.
Article L146-3
Un accord-cadre conclu entre le mandant et les gérants-mandataires auxquels il est lié par un contrat, ou leurs représentants, fixe notamment le montant de la commission minimale garantie dans tous les contrats de gérance-mandat conclus par ledit mandant. Cette commission minimale tient compte de l'importance de l'établissement et des modalités de son exploitation.
A défaut d'accord, le ministre chargé des petites et moyennes entreprises fixe cette commission
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minimale.
Article L146-4
Le contrat liant le mandant et le gérant-mandataire peut prendre fin à tout moment dans les conditions fixées par les parties. Toutefois, en cas de résiliation du contrat par le mandant, sauf faute grave de la part du gérant-mandataire, le mandant lui verse une indemnité égale, sauf conditions plus favorables fixées par les parties, au montant des commissions acquises, ou à la commission minimale garantie mentionnée à l'article L. 146-3, pendant les six mois précédant la résiliation du contrat, ou pendant la durée d'exécution du contrat si celle-ci a été inférieure à six mois.
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Partie législative
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE Ier : Dispositions préliminaires.
Article L210-1
Le caractère commercial d'une société est déterminé par sa forme ou par son objet.
Sont commerciales à raison de leur forme et quel que soit leur objet, les sociétés en nom collectif, les sociétés en commandite simple, les sociétés à responsabilité limitée et les sociétés par actions.
Article L210-2
La forme, la durée qui ne peut excéder quatre-vingt-dix-neuf ans, la dénomination sociale, le siège social, l'objet social et le montant du capital social sont déterminés par les statuts de la société.
Article L210-3
Les sociétés dont le siège social est situé en territoire français sont soumises à la loi française.
Les tiers peuvent se prévaloir du siège statutaire, mais celui-ci ne leur est pas opposable par la société si son siège réel est situé en un autre lieu.
Article L210-4
Les formalités de publicité exigées lors de la constitution de la société ou en cas d'actes et délibérations postérieurs sont déterminées par décret en Conseil d'Etat.
Article L210-5
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En ce qui concerne les opérations des sociétés à responsabilité limitée et des sociétés par actions intervenues avant le seizième jour de la publication au Bulletin officiel des annonces civiles et commerciales des actes et indications soumis à cette publicité, ceux-ci ne sont pas opposables aux tiers qui prouvent qu'ils ont été dans l'impossibilité d'en avoir connaissance.
Le délai prévu au premier alinéa court à compter de la date de l'inscription des actes et indications au registre du commerce et des sociétés pour les sociétés à responsabilité limitée et les sociétés par actions simplifiées dont l'associé unique, personne physique, assume personnellement la gérance ou la présidence de la société. (1)
Si, dans la publicité des actes et indications concernant les sociétés à responsabilité limitée et les sociétés par actions, il y a discordance entre le texte déposé au registre du commerce et des sociétés et le texte publié au Bulletin officiel des annonces civiles et commerciales, ce dernier ne peut être opposé aux tiers ; ceux-ci peuvent toutefois s'en prévaloir, à moins que la société ne prouve qu'ils ont eu connaissance du texte déposé au registre du commerce et des sociétés.
Article L210-6
Les sociétés commerciales jouissent de la personnalité morale à dater de leur immatriculation au registre du commerce et des sociétés. La transformation régulière d'une société n'entraîne pas la création d'une personne morale nouvelle. Il en est de même de la prorogation.
Les personnes qui ont agi au nom d'une société en formation avant qu'elle ait acquis la jouissance de la personnalité morale sont tenues solidairement et indéfiniment responsables des actes ainsi accomplis, à moins que la société, après avoir été régulièrement constituée et immatriculée, ne reprenne les engagements souscrits. Ces engagements sont alors réputés avoir été souscrits dès l'origine par la société.
Article L210-7
Il est procédé à l'immatriculation de la société après vérification par le greffier du tribunal compétent de la régularité de sa constitution dans les conditions prévues par les dispositions législatives et réglementaires relatives au registre du commerce et des sociétés.
Si les statuts ne contiennent pas toutes les énonciations exigées par la loi et les règlements ou si une formalité prescrite par ceux-ci pour la constitution de la société a été omise ou irrégulièrement accomplie, tout intéressé est recevable à demander en justice que soit ordonnée, sous astreinte, la régularisation de la constitution. Le ministère public est habile à agir aux mêmes fins.
Les dispositions des alinéas qui précèdent sont applicables en cas de modification des statuts.
L'action prévue au deuxième alinéa se prescrit par trois ans à compter, soit de l'immatriculation de la société au registre du commerce et des sociétés, soit de l'inscription modificative audit registre et du dépôt, en annexe dudit registre, des actes modifiant les statuts.
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Article L210-8
Les fondateurs de la société, ainsi que les premiers membres des organes de gestion, d'administration, de direction et de surveillance sont solidairement responsables du préjudice causé par le défaut d'une mention obligatoire dans les statuts ainsi que par l'omission ou l'accomplissement irrégulier d'une formalité prescrite par la loi et les règlements pour la constitution de la société.
Les dispositions de l'alinéa précédent sont applicables en cas de modification des statuts, aux membres des organes de gestion, d'administration, de direction, de surveillance et de contrôle, en fonction lors de ladite modification.
L'action se prescrit par dix ans à compter de l'accomplissement de l'une ou l'autre, selon le cas, des formalités visées au quatrième alinéa de l'article L. 210-7.
Article L210-9
Ni la société ni les tiers ne peuvent, pour se soustraire à leurs engagements, se prévaloir d'une irrégularité dans la nomination des personnes chargées de gérer, d'administrer ou de diriger la société, lorsque cette nomination a été régulièrement publiée.
La société ne peut se prévaloir, à l'égard des tiers, des nominations et cessations de fonction des personnes visées ci-dessus, tant qu'elles n'ont pas été régulièrement publiées.
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Partie législative
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE II : Dispositions particulières aux diverses sociétés commerciales.
Chapitre Ier : Des sociétés en nom collectif.
Article L221-1
Les associés en nom collectif ont tous la qualité de commerçant et répondent indéfiniment et solidairement des dettes sociales.
Les créanciers de la société ne peuvent poursuivre le paiement des dettes sociales contre un associé, qu'après avoir vainement mis en demeure la société par acte extrajudiciaire.
Article L221-2
La société en nom collectif est désignée par une dénomination sociale, à laquelle peut être incorporé le nom d'un ou plusieurs associés et qui doit être précédée ou suivie immédiatement des mots " société en nom collectif ".
Article L221-3
Tous les associés sont gérants, sauf stipulation contraire des statuts qui peuvent désigner un ou plusieurs gérants, associés ou non, ou en prévoir la désignation par un acte ultérieur.
Si une personne morale est gérant, ses dirigeants sont soumis aux mêmes conditions et obligations et encourent les mêmes responsabilités civile et pénale que s'ils étaient gérants en leur nom propre, sans préjudice de la responsabilité solidaire de la personne morale qu'ils dirigent.
Article L221-4
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Dans les rapports entre associés, et en l'absence de la détermination de ses pouvoirs par les statuts, le gérant peut faire tous actes de gestion dans l'intérêt de la société.
En cas de pluralité de gérants, ceux-ci détiennent séparément les pouvoirs prévus à l'alinéa précédent, sauf le droit pour chacun de s'opposer à toute opération avant qu'elle soit conclue.
Article L221-5
Dans les rapports avec les tiers, le gérant engage la société par les actes entrant dans l'objet social.
En cas de pluralité de gérants, ceux-ci détiennent séparément les pouvoirs prévus à l'alinéa précédent. L'opposition formée par un gérant aux actes d'un autre gérant est sans effet à l'égard des tiers, à moins qu'il ne soit établi qu'ils en ont eu connaissance.
Les clauses statutaires limitant les pouvoirs des gérants qui résultent du présent article sont inopposables aux tiers.
Article L221-6
Les décisions qui excèdent les pouvoirs reconnus aux gérants sont prises à l'unanimité des associés. Toutefois les statuts peuvent prévoir que certaines décisions sont prises à une majorité qu'ils fixent.
Les statuts peuvent également prévoir que les décisions sont prises par voie de consultation écrite, si la réunion d'une assemblée n'est pas demandée par l'un des associés.
Article L221-7
Le rapport de gestion, l'inventaire et les comptes annuels établis par les gérants sont soumis à l'approbation de l'assemblée des associés, dans le délai de six mois à compter de la clôture dudit exercice.
A cette fin, les documents visés à l'alinéa précédent, le texte des résolutions proposées ainsi que, le cas échéant, le rapport des commissaires aux comptes, les comptes consolidés et le rapport sur la gestion du groupe sont communiqués aux associés dans les conditions et délais déterminés par décret en Conseil d'Etat. Toute délibération, prise en violation des dispositions du présent alinéa et du décret pris pour son application, peut être annulée.
Toute clause contraire aux dispositions du présent article et du décret pris pour son application est réputée non écrite.
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Les troisième à sixième alinéas de l'article L. 225-100 et l'article L. 225-100-1 s'appliquent au rapport de gestion lorsque l'ensemble des parts sont détenues par des personnes ayant l'une des formes suivantes : société anonyme, société en commandite par actions ou société à responsabilité limitée.
Article L221-8
Les associés non gérants ont le droit, deux fois par an, d'obtenir communication des livres et documents sociaux et de poser par écrit des questions sur la gestion sociale, auxquelles il doit être répondu également par écrit.
Article L221-9
Les associés peuvent nommer un ou plusieurs commissaires aux comptes dans les formes prévues à l'article L. 221-6.
Sont tenues de désigner un commissaire aux comptes au moins les sociétés qui dépassent, à la clôture de l'exercice social, des chiffres fixés par décret en Conseil d'Etat pour deux des critères suivants : le total de leur bilan, le montant hors taxes de leur chiffre d'affaires ou le nombre moyen de leurs salariés au cours d'un exercice.
Même si ces seuils ne sont pas atteints, la nomination d'un commissaire aux comptes peut être demandée en justice par un associé.
Article L221-11
Les documents visés au premier alinéa de l'article L. 221-7 sont mis à la disposition du commissaire aux comptes dans les conditions et délais fixés par décret en Conseil d'Etat.
Article L221-12
Si tous les associés sont gérants ou si un ou plusieurs gérants choisis parmi les associés sont désignés dans les statuts, la révocation de l'un d'eux de ses fonctions ne peut être décidée qu'à l'unanimité des autres associés. Elle entraîne la dissolution de la société, à moins que sa continuation ne soit prévue par les statuts ou que les autres associés ne la décident à l'unanimité. Le gérant révoqué peut alors décider de se retirer de la société en demandant le remboursement de ses droits sociaux, dont la valeur est déterminée conformément à l'article 1843-4 du code civil. Toute clause contraire à l'article 1843-4 dudit code est réputée non écrite.
Si un ou plusieurs associés sont gérants et ne sont pas désignés par les statuts, chacun d'eux peut
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être révoqué de ses fonctions, dans les conditions prévues par les statuts ou, à défaut, par une décision des autres associés, gérants ou non, prise à l'unanimité.
Le gérant non associé peut être révoqué dans les conditions prévues par les statuts ou, à défaut, par une décision des associés prise à la majorité.
Si la révocation est décidée sans juste motif, elle peut donner lieu à dommages-intérêts.
Article L221-13
Les parts sociales ne peuvent être représentées par des titres négociables. Elles ne peuvent être cédées qu'avec le consentement de tous les associés.
Toute clause contraire est réputée non écrite.
Article L221-14
La cession des parts sociales doit être constatée par écrit. Elle est rendue opposable à la société, dans les formes prévues à l'article 1690 du code civil. Toutefois, la signification peut être remplacée par le dépôt d'un original de l'acte de cession au siège social contre remise par le gérant d'une attestation de ce dépôt.
Elle n'est opposable aux tiers qu'après accomplissement de ces formalités et, en outre, après publicité au registre du commerce et des sociétés.
Article L221-15
La société prend fin par le décès de l'un des associés, sous réserve des dispositions du présent article.
S'il a été stipulé qu'en cas de mort de l'un des associés, la société continuerait avec son héritier ou seulement avec les associés survivants, ces dispositions sont suivies, sauf à prévoir que pour devenir associé, l'héritier devra être agréé par la société.
Il en est de même s'il a été stipulé que la société continuerait, soit avec le conjoint survivant, soit avec un ou plusieurs des héritiers, soit avec toute autre personne désignée par les statuts ou, si ceux-ci l'autorisent, par dispositions testamentaires.
Lorsque la société continue avec les associés survivants, l'héritier est seulement créancier de la société et n'a droit qu'à la valeur des droits sociaux de son auteur. L'héritier a pareillement droit à cette valeur s'il a été stipulé que, pour devenir associé il devrait être agréé par la société et si cet
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agrément lui a été refusé.
Lorsque la société continue dans les conditions prévues au troisième alinéa ci-dessus, les bénéficiaires de la stipulation sont redevables à la succession de la valeur des droits sociaux qui leur sont attribués.
Dans tous les cas prévus au présent article, la valeur des droits sociaux est déterminée au jour du décès conformément à l'article 1843-4 du code civil.
En cas de continuation et si l'un ou plusieurs des héritiers de l'associé sont mineurs non émancipés, ceux-ci ne répondent des dettes sociales qu'à concurrence des forces de la succession de leur auteur. En outre, la société doit être transformée, dans le délai d'un an, à compter du décès, en société en commandite dont le mineur devient commanditaire. A défaut, elle est dissoute.
Article L221-16
Lorsqu'un jugement de liquidation judiciaire ou arrêtant un plan de cession totale, une mesure d'interdiction d'exercer une profession commerciale ou une mesure d'incapacité est devenu définitif à l'égard de l'un des associés, la société est dissoute, à moins que sa continuation ne soit prévue par les statuts ou que les autres associés ne la décident à l'unanimité.
Dans le cas de continuation, la valeur des droits sociaux à rembourser à l'associé qui perd cette qualité est déterminée conformément aux dispositions de l'article 1843-4 du code civil. Toute clause contraire à l'article 1843-4 dudit code est réputée non écrite.
Article L221-17
Les sociétés en nom collectif qui, à la date du 1er avril 1967, utilisaient dans leur raison sociale le nom d'un ou plusieurs associés fondateurs décédés peuvent, par dérogation aux dispositions des articles L. 221-2 et L. 222-3, être autorisées à conserver ce nom dans leur dénomination sociale.
Un décret en Conseil d'Etat détermine les conditions auxquelles est subordonnée cette autorisation.
Ce décret fixe en outre les conditions dans lesquelles une opposition peut être formée par les tiers devant les juridictions de l'ordre judiciaire.
Chapitre II : Des sociétés en commandite simple.
Article L222-1
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Les associés commandités ont le statut des associés en nom collectif.
Les associés commanditaires répondent des dettes sociales seulement à concurrence du montant de leur apport. Celui-ci ne peut être un apport en industrie.
Article L222-2
Les dispositions relatives aux sociétés en nom collectif sont applicables aux sociétés en commandite simple, sous réserve des règles prévues au présent chapitre.
Article L222-3
La société en commandite simple est désignée par une dénomination sociale à laquelle peut être incorporé le nom d'un ou plusieurs associés et qui doit être précédée ou suivie immédiatement des mots : " société en commandite simple ".
Article L222-4
Les statuts de la société doivent contenir les indications suivantes :
1° Le montant ou la valeur des apports de tous les associés ;
2° La part dans ce montant ou cette valeur de chaque associé commandité ou commanditaire ;
3° La part globale des associés commandités et la part de chaque associé commanditaire dans la répartition des bénéfices et dans le boni de liquidation.
Article L222-5
Les décisions sont prises dans les conditions fixées par les statuts. Toutefois, la réunion d'une assemblée de tous les associés est de droit, si elle est demandée soit par un commandité, soit par le quart en nombre et en capital des commanditaires.
Article L222-6
L'associé commanditaire ne peut faire aucun acte de gestion externe, même en vertu d'une
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procuration.
En cas de contravention à la prohibition prévue par l'alinéa précédent, l'associé commanditaire est tenu solidairement avec les associés commandités, des dettes et engagements de la société qui résultent des actes prohibés. Suivant le nombre ou l'importance de ceux-ci, il peut être déclaré solidairement obligé pour tous les engagements de la société ou pour quelques-uns seulement.
Article L222-7
Les associés commanditaires ont le droit, deux fois par an, d'obtenir communication des livres et documents sociaux et de poser par écrit des questions sur la gestion sociale, auxquelles il doit être répondu également par écrit.
Article L222-8
I. - Les parts sociales ne peuvent être cédées qu'avec le consentement de tous les associés.
II. - Toutefois, les statuts peuvent stipuler :
1° Que les parts des associés commanditaires sont librement cessibles entre associés ;
2° Que les parts des associés commanditaires peuvent être cédées à des tiers étrangers à la société avec le consentement de tous les commandités et de la majorité en nombre et en capital des commanditaires ;
3° Qu'un associé commandité peut céder une partie de ses parts à un commanditaire ou à un tiers étranger à la société dans les conditions prévues au 2° ci-dessus.
Article L222-9
Les associés ne peuvent, si ce n'est à l'unanimité, changer la nationalité de la société.
Toutes autres modifications des statuts peuvent être décidées avec le consentement de tous les commandités et de la majorité en nombre et en capital des commanditaires.
Les clauses édictant des conditions plus strictes de majorité sont réputées non écrites.
Article L222-10
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La société continue malgré le décès d'un commanditaire.
S'il est stipulé que malgré le décès de l'un des commandités, la société continue avec ses héritiers, ceux-ci deviennent commanditaires lorsqu'ils sont mineurs non émancipés. Si l'associé décédé était le seul commandité et si ses héritiers sont tous mineurs non émancipés, il doit être procédé à son remplacement par un nouvel associé commandité ou à la transformation de la société, dans le délai d'un an à compter du décès. A défaut, la société est dissoute de plein droit à l'expiration de ce délai.
Article L222-11
En cas de redressement ou de liquidation judiciaires d'un des associés commandités, d'interdiction d'exercer une profession commerciale ou d'incapacité frappant l'un des associés commandités, la société est dissoute, à moins que, s'il existe un ou plusieurs autres associés commandités, la continuation de la société ne soit prévue par les statuts ou que les associés ne la décident à l'unanimité. Dans ce cas, les dispositions du deuxième alinéa de l'article L. 221-16 sont applicables.
Article L222-12
Les dispositions de l'article L. 221-17 sont applicables aux sociétés en commandite simple.
Chapitre III : Des sociétés à responsabilité limitée.
Article L223-1
La société à responsabilité limitée est instituée par une ou plusieurs personnes qui ne supportent les pertes qu'à concurrence de leurs apports.
Lorsque la société ne comporte qu'une seule personne, celle-ci est dénommée "associé unique". L'associé unique exerce les pouvoirs dévolus à l'assemblée des associés par les dispositions du présent chapitre. Un décret fixe un modèle de statuts types de société à responsabilité limitée dont l'associé unique, personne physique, assume personnellement la gérance et les conditions dans lesquelles ces statuts sont portés à la connaissance de l'intéressé. Ces statuts types s'appliquent à moins que l'intéressé ne produise des statuts différents lors de sa demande d'immatriculation de la société.
La société à responsabilité limitée dont l'associé unique, personne physique, assume personnellement la gérance est soumise à des formalités de publicité allégées déterminées par décret en Conseil d'Etat. Ce décret prévoit les conditions de dispense d'insertion au Bulletin officiel des annonces civiles et commerciales. (1)
La société est désignée par une dénomination sociale, à laquelle peut être incorporé le nom d'un ou
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plusieurs associés, et qui doit être précédée ou suivie immédiatement des mots "société à responsabilité limitée" ou des initiales "SARL" et de l'énonciation du capital social.
Les sociétés d'assurance, de capitalisation et d'épargne ne peuvent adopter la forme de société à responsabilité limitée.
Article L223-2
Le montant du capital de la société est fixé par les statuts. Il est divisé en parts sociales égales.
Article L223-3
Le nombre des associés d'une société à responsabilité limitée ne peut être supérieur à cent. Si la société vient à comprendre plus de cent associés, elle est dissoute au terme d'un délai d'un an à moins que, pendant ce délai, le nombre des associés soit devenu égal ou inférieur à cent ou que la société ait fait l'objet d'une transformation.
Article L223-4
En cas de réunion en une seule main de toutes les parts d'une société à responsabilité limitée, les dispositions de l'article 1844-5 du code civil relatives à la dissolution judiciaire ne sont pas applicables.
Article L223-5
Une société à responsabilité limitée ne peut avoir pour associé unique une autre société à responsabilité limitée composée d'une seule personne.
En cas de violation des dispositions de l'alinéa précédent, tout intéressé peut demander la dissolution des sociétés irrégulièrement constituées. Lorsque l'irrégularité résulte de la réunion en une seule main de toutes les parts d'une société ayant plus d'un associé, la demande de dissolution ne peut être faite moins d'un an après la réunion des parts. Dans tous les cas, le tribunal peut accorder un délai maximal de six mois pour régulariser la situation et ne peut prononcer la dissolution si, au jour où il statue sur le fond, la régularisation a eu lieu.
Article L223-6
Tous les associés doivent intervenir à l'acte constitutif de la société, en personne ou par mandataire justifiant d'un pouvoir spécial.
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Article L223-7
Les parts sociales doivent être souscrites en totalité par les associés. Elles doivent être intégralement libérées lorsqu'elles représentent des apports en nature. Les parts représentant des apports en numéraire doivent être libérées d'au moins un cinquième de leur montant. La libération du surplus intervient en une ou plusieurs fois sur décision du gérant, dans un délai qui ne peut excéder cinq ans à compter de l'immatriculation de la société au registre du commerce et des sociétés. Toutefois, le capital social doit être intégralement libéré avant toute souscription de nouvelles parts sociales à libérer en numéraire, à peine de nullité de l'opération.
Le cas échéant, les statuts déterminent les modalités selon lesquelles peuvent être souscrites des parts sociales en industrie.
La répartition des parts sociales est mentionnée dans les statuts.
Les fonds provenant de la libération des parts sociales sont déposés dans les conditions et délais déterminés par décret en Conseil d'Etat.
Article L223-8
Le retrait des fonds provenant de la libération des parts sociales ne peut être effectué par le mandataire de la société, avant l'immatriculation de celle-ci au registre du commerce et des sociétés.
Si la société n'est pas constituée dans le délai de six mois à compter du premier dépôt de fonds, ou si elle n'est pas immatriculée au registre du commerce et des sociétés dans le même délai, les apporteurs peuvent individuellement demander en justice l'autorisation de retirer le montant de leurs apports. Dans les mêmes cas, un mandataire, dès lors qu'il représente tous les apporteurs, peut demander directement au dépositaire le retrait des fonds.
Si les apporteurs décident ultérieurement de constituer la société, il doit être procédé à nouveau au dépôt des fonds.
Article L223-9
Les statuts doivent contenir l'évaluation de chaque apport en nature. Il y est procédé au vu d'un rapport annexé aux statuts et établi sous sa responsabilité par un commissaire aux apports désigné à l'unanimité des futurs associés ou à défaut par une décision de justice à la demande du futur associé le plus diligent.
Toutefois, les futurs associés peuvent décider à l'unanimité que le recours à un commissaire aux apports ne sera pas obligatoire, lorsque la valeur d'aucun apport en nature n'excède 7 500 euros et si
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la valeur totale de l'ensemble des apports en nature non soumis à l'évaluation d'un commissaire aux apports n'excède pas la moitié du capital.
Lorsque la société est constituée par une seule personne, le commissaire aux apports est désigné par l'associé unique. Toutefois le recours à un commissaire aux apports n'est pas obligatoire si les conditions prévues à l'alinéa précédent sont réunies.
Lorsqu'il n'y a pas eu de commissaire aux apports ou lorsque la valeur retenue est différente de celle proposée par le commissaire aux apports, les associés sont solidairement responsables pendant cinq ans, à l'égard des tiers, de la valeur attribuée aux apports en nature lors de la constitution de la société.
Article L223-10
Les premiers gérants et les associés auxquels la nullité de la société est imputable sont solidairement responsables, envers les autres associés et les tiers, du dommage résultant de l'annulation. L'action se prescrit par le délai prévu au premier alinéa de l'article L. 235-13.
Article L223-11
Une société à responsabilité limitée, tenue en vertu de l'article L. 223-35 de désigner un commissaire aux comptes et dont les comptes des trois derniers exercices de douze mois ont été régulièrement approuvés par les associés, peut émettre des obligations nominatives à condition qu'elle ne procède pas à une offre au public de ces obligations.
L'émission d'obligations est décidée par l'assemblée des associés conformément aux dispositions applicables aux assemblées générales d'actionnaires. Ces titres sont soumis aux dispositions applicables aux obligations émises par les sociétés par actions, à l'exclusion de celles prévues par les articles L. 228-39 à L. 228-43 et L. 228-51.
Lors de chaque émission d'obligations par une société remplissant les conditions de l'alinéa 1er, la société doit mettre à la disposition des souscripteurs une notice relative aux conditions de l'émission et un document d'information selon les modalités fixées par décret en Conseil d'Etat.
A peine de nullité de la garantie, il est interdit à une société à responsabilité limitée de garantir une émission de valeurs mobilières, sauf si l'émission est faite par une société de développement régional ou s'il s'agit d'une émission d'obligations bénéficiant de la garantie subsidiaire de l'Etat.
Article L223-12
Les parts sociales ne peuvent être représentées par des titres négociables.
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Article L223-13
Les parts sociales sont librement transmissibles par voie de succession ou en cas de liquidation de communauté de biens entre époux et librement cessibles entre conjoints et entre ascendants et descendants.
Toutefois, les statuts peuvent stipuler que le conjoint, un héritier, un ascendant ou un descendant ne peut devenir associé qu'après avoir été agréé dans les conditions prévues à l'article L. 223-14. A peine de nullité de la clause, les délais accordés à la société pour statuer sur l'agrément ne peuvent être plus longs que ceux prévus à l'article L. 223-14, et la majorité exigée ne peut être plus forte que celle prévue audit article. En cas de refus d'agrément, il est fait application des dispositions des troisième et quatrième alinéas de l'article L. 223-14. Si aucune des solutions prévues à ces alinéas n'intervient dans les délais impartis, l'agrément est réputé acquis.
Les statuts peuvent stipuler qu'en cas de décès de l'un des associés la société continuera avec son héritier ou seulement avec les associés survivants. Lorsque la société continue avec les seuls associés survivants, ou lorsque l'agrément a été refusé à l'héritier, celui-ci a droit à la valeur des droits sociaux de son auteur.
Il peut aussi être stipulé que la société continuera, soit avec le conjoint survivant, soit avec un ou plusieurs des héritiers, soit avec toute autre personne désignée par les statuts ou, si ceux-ci l'autorisent, par dispositions testamentaires.
Dans les cas prévus au présent article, la valeur des droits sociaux est déterminée au jour du décès conformément à l'article 1843-4 du code civil.
Article L223-14
Les parts sociales ne peuvent être cédées à des tiers étrangers à la société qu'avec le consentement de la majorité des associés représentant au moins la moitié des parts sociales, à moins que les statuts prévoient une majorité plus forte.
Lorsque la société comporte plus d'un associé, le projet de cession est notifié à la société et à chacun des associés. Si la société n'a pas fait connaître sa décision dans le délai de trois mois à compter de la dernière des notifications prévues au présent alinéa, le consentement à la cession est réputé acquis.
Si la société a refusé de consentir à la cession, les associés sont tenus, dans le délai de trois mois à compter de ce refus, d'acquérir ou de faire acquérir les parts à un prix fixé dans les conditions prévues à l'article 1843-4 du code civil, sauf si le cédant renonce à la cession de ses parts. Les frais d'expertise sont à la charge de la société. A la demande du gérant, ce délai peut être prolongé par décision de justice, sans que cette prolongation puisse excéder six mois.
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La société peut également, avec le consentement de l'associé cédant, décider, dans le même délai, de réduire son capital du montant de la valeur nominale des parts de cet associé et de racheter ces parts au prix déterminé dans les conditions prévues ci-dessus. Un délai de paiement qui ne saurait excéder deux ans peut, sur justification, être accordé à la société par décision de justice. Les sommes dues portent intérêt au taux légal en matière commerciale.
Si, à l'expiration du délai imparti, aucune des solutions prévues aux troisième et quatrième alinéas ci-dessus n'est intervenue, l'associé peut réaliser la cession initialement prévue.
Sauf en cas de succession, de liquidation de communauté de biens entre époux, ou de donation au profit d'un conjoint, ascendant ou descendant, l'associé cédant ne peut se prévaloir des dispositions des troisième et cinquième alinéas ci-dessus s'il ne détient ses parts depuis au moins deux ans.
Toute clause contraire aux dispositions du présent article est réputée non écrite.
Article L223-15
Si la société a donné son consentement à un projet de nantissement de parts sociales dans les conditions prévues aux premier et deuxième alinéas de l'article L. 223-14, ce consentement emportera agrément du cessionnaire en cas de réalisation forcée des parts sociales nanties selon les dispositions du premier alinéa de l'article 2078 du code civil, à moins que la société ne préfère, après la cession, racheter sans délai les parts, en vue de réduire son capital.
Article L223-16
Les parts sont librement cessibles entre les associés.
Si les statuts contiennent une clause limitant la cessibilité, les dispositions de l'article L. 223-14 sont applicables. Toutefois, les statuts peuvent, dans ce cas, réduire la majorité ou abréger les délais prévus audit article.
Article L223-17
La cession des parts sociales est soumise aux dispositions de l'article L. 221-14.
Article L223-18
La société à responsabilité limitée est gérée par une ou plusieurs personnes physiques.
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Les gérants peuvent être choisis en dehors des associés. Ils sont nommés par les associés, dans les statuts ou par un acte postérieur, dans les conditions prévues à l'article L. 223-29. Dans les mêmes conditions, la mention du nom d'un gérant dans les statuts peut, en cas de cessation des fonctions de ce gérant pour quelque cause que ce soit, être supprimée par décision des associés.
En l'absence de dispositions statutaires, ils sont nommés pour la durée de la société.
Dans les rapports entre associés, les pouvoirs des gérants sont déterminés par les statuts, et dans le silence de ceux-ci, par l'article L. 221-4.
Dans les rapports avec les tiers, le gérant est investi des pouvoirs les plus étendus pour agir en toute circonstance au nom de la société, sous réserve des pouvoirs que la loi attribue expressément aux associés. La société est engagée même par les actes du gérant qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Les clauses statutaires limitant les pouvoirs des gérants qui résultent du présent article sont inopposables aux tiers.
En cas de pluralité de gérants, ceux-ci détiennent séparément les pouvoirs prévus au présent article. L'opposition formée par un gérant aux actes d'un autre gérant est sans effet à l'égard des tiers, à moins qu'il ne soit établi qu'ils en ont eu connaissance.
Le déplacement du siège social dans le même département ou dans un département limitrophe peut être décidé par le ou les gérants, sous réserve de ratification de cette décision par les associés dans les conditions prévues au deuxième alinéa de l'article L. 223-30.
Dans les mêmes conditions, le gérant peut mettre les statuts en harmonie avec les dispositions impératives de la loi et des règlements.
Lorsque des parts sociales ont fait l'objet d'un contrat de bail en application de l'article L. 239-1, le gérant peut inscrire dans les statuts la mention du bail et du nom du locataire à côté du nom de l'associé concerné, sous réserve de la ratification de cette décision par les associés dans les conditions prévues à l'article L. 223-29. Il peut, dans les mêmes conditions, supprimer cette mention en cas de non-renouvellement ou de résiliation du bail.
Article L223-19
Le gérant ou, s'il en existe un, le commissaire aux comptes, présente à l'assemblée ou joint aux documents communiqués aux associés en cas de consultation écrite, un rapport sur les conventions intervenues directement ou par personnes interposées entre la société et l'un de ses gérants ou associés. L'assemblée statue sur ce rapport. Le gérant ou l'associé intéressé ne peut prendre part au vote et ses parts ne sont pas prises en compte pour le calcul du quorum et de la majorité.
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Toutefois, s'il n'existe pas de commissaire aux comptes, les conventions conclues par un gérant non associé sont soumises à l'approbation préalable de l'assemblée.
Par dérogation aux dispositions du premier alinéa, lorsque la société ne comprend qu'un seul associé et que la convention est conclue avec celui-ci, il en est seulement fait mention au registre des décisions.
Les conventions non approuvées produisent néanmoins leurs effets, à charge pour le gérant, et, s'il y a lieu, pour l'associé contractant, de supporter individuellement ou solidairement, selon les cas, les conséquences du contrat préjudiciables à la société.
Les dispositions du présent article s'étendent aux conventions passées avec une société dont un associé indéfiniment responsable, gérant, administrateur, directeur général, membre du directoire ou membre du conseil de surveillance, est simultanément gérant ou associé de la société à responsabilité limitée.
Article L223-20
Les dispositions de l'article L. 223-19 ne sont pas applicables aux conventions portant sur des opérations courantes et conclues à des conditions normales.
Article L223-21
A peine de nullité du contrat, il est interdit aux gérants ou associés autres que les personnes morales de contracter, sous quelque forme que ce soit, des emprunts auprès de la société, de se faire consentir par elle un découvert, en compte courant ou autrement, ainsi que de faire cautionner ou avaliser par elle leurs engagements envers les tiers. Cette interdiction s'applique aux représentants légaux des personnes morales associées.
L'interdiction s'applique également aux conjoint, ascendants et descendants des personnes visées à l'alinéa précédent ainsi qu'à toute personne interposée.
Toutefois, si la société exploite un établissement financier, cette interdiction ne s'applique pas aux opérations courantes de ce commerce conclues à des conditions normales.
Article L223-22
Les gérants sont responsables, individuellement ou solidairement, selon le cas, envers la société ou envers les tiers, soit des infractions aux dispositions législatives ou réglementaires applicables aux sociétés à responsabilité limitée, soit des violations des statuts, soit des fautes commises dans leur
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gestion.
Si plusieurs gérants ont coopéré aux mêmes faits, le tribunal détermine la part contributive de chacun dans la réparation du dommage.
Outre l'action en réparation du préjudice subi personnellement, les associés peuvent, soit individuellement, soit en se groupant dans les conditions fixées par décret en Conseil d'Etat, intenter l'action sociale en responsabilité contre les gérants. Les demandeurs sont habilités à poursuivre la réparation de l'entier préjudice subi par la société à laquelle, le cas échéant, les dommages-intérêts sont alloués.
Est réputée non écrite toute clause des statuts ayant pour effet de subordonner l'exercice de l'action sociale à l'avis préalable ou à l'autorisation de l'assemblée, ou qui comporterait par avance renonciation à l'exercice de cette action.
Aucune décision de l'assemblée ne peut avoir pour effet d'éteindre une action en responsabilité contre les gérants pour faute commise dans l'accomplissement de leur mandat.
Article L223-23
Les actions en responsabilité prévues aux articles L. 223-19 et L. 223-22 se prescrivent par trois ans à compter du fait dommageable ou, s'il a été dissimulé, de sa révélation. Toutefois, lorsque le fait est qualifié crime, l'action se prescrit par dix ans.
Article L223-24
En cas d'ouverture d'une procédure de redressement ou de liquidation judiciaire en application des dispositions du livre VI, titre II, les personnes visées par ces dispositions peuvent être rendues responsables du passif social et sont soumises aux interdictions et déchéances, dans les conditions prévues par lesdites dispositions.
Article L223-25
Le gérant peut être révoqué par décision des associés dans les conditions de l'article L. 223-29, à moins que les statuts prévoient une majorité plus forte. Si la révocation est décidée sans juste motif, elle peut donner lieu à des dommages et intérêts.
En outre, le gérant est révocable par les tribunaux pour cause légitime, à la demande de tout associé.
Par dérogation au premier alinéa, le gérant d'une société à responsabilité limitée exploitant une
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entreprise de presse au sens de l'article 2 de la loi n° 86-897 du 1er août 1986 portant réforme du régime juridique de la presse n'est révocable que par une décision des associés représentant au moins les trois quarts du capital social.
Article L223-26
Le rapport de gestion, l'inventaire et les comptes annuels établis par les gérants, sont soumis à l'approbation des associés réunis en assemblée, dans le délai de six mois à compter de la clôture de l'exercice.
A cette fin, les documents visés à l'alinéa précédent, le texte des résolutions proposées ainsi que le cas échéant, le rapport des commissaires aux comptes, les comptes consolidés et le rapport sur la gestion du groupe sont communiqués aux associés dans les conditions et délais déterminés par décret en Conseil d'Etat. Toute délibération, prise en violation des dispositions du présent alinéa et du décret pris pour son application, peut être annulée.
A compter de la communication prévue à l'alinéa précédent, tout associé a la faculté de poser par écrit des questions auxquelles le gérant est tenu de répondre au cours de l'assemblée.
L'associé peut, en outre, et à toute époque, obtenir communication, dans les conditions fixées par décret en Conseil d'Etat, des documents sociaux déterminés par ledit décret et concernant les trois derniers exercices.
Toute clause contraire aux dispositions du présent article et du décret pris pour son application, est réputée non écrite.
Les troisième à sixième alinéas de l'article L. 225-100 et l'article L. 225-100-1 s'appliquent au rapport de gestion. Le cas échéant, l'article L. 225-100-2 s'applique au rapport consolidé de gestion.
Article L223-27
Les décisions sont prises en assemblée. Toutefois, les statuts peuvent stipuler qu'à l'exception de celles prévues au premier alinéa de l'article L. 223-26 toutes les décisions ou certaines d'entre elles peuvent être prises par consultation écrite des associés ou pourront résulter du consentement de tous les associés exprimé dans un acte.
Les associés sont convoqués aux assemblées dans les formes et délais prévus par décret en Conseil d'Etat. La convocation est faite par le gérant ou, à défaut, par le commissaire aux comptes, s'il en existe un.L'assemblée ne peut se tenir avant l'expiration du délai de communication des documents mentionnés à l'article L. 223-26.
Hors les cas où l'assemblée délibère sur les opérations mentionnées aux articles L. 232-1 et L. 233-16 et lorsque les statuts le prévoient, sont réputés présents pour le calcul du quorum et de la majorité les associés qui participent à l'assemblée par visioconférence ou par des moyens de
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télécommunication permettant leur identification et dont la nature et les conditions d'application sont déterminées par décret en Conseil d'Etat. Les statuts peuvent prévoir un droit d'opposition à l'utilisation de ces moyens au profit d'un nombre déterminé d'associés et pour une délibération déterminée.
Un ou plusieurs associés détenant la moitié des parts sociales ou détenant, s'ils représentent au moins le quart des associés, le quart des parts sociales, peuvent demander la réunion d'une assemblée. Toute clause contraire est réputée non écrite.
Tout associé peut demander en justice la désignation d'un mandataire chargé de convoquer l'assemblée et de fixer son ordre du jour.
En cas de décès du gérant unique, le commissaire aux comptes ou tout associé convoque l'assemblée des associés à seule fin de procéder au remplacement du gérant. Cette convocation a lieu dans les formes et délais prévus par décret en Conseil d'Etat.
Toute assemblée irrégulièrement convoquée peut être annulée. Toutefois, l'action en nullité n'est pas recevable lorsque tous les associés étaient présents ou représentés.
Article L223-28
Chaque associé a droit de participer aux décisions et dispose d'un nombre de voix égal à celui des parts sociales qu'il possède.
Un associé peut se faire représenter par son conjoint à moins que la société ne comprenne que les deux époux. Sauf si les associés sont au nombre de deux, un associé peut se faire représenter par un autre associé.
Il ne peut se faire représenter par une autre personne que si les statuts le permettent.
Un associé ne peut constituer un mandataire pour voter du chef d'une partie de ses parts et voter en personne du chef de l'autre partie.
Toute clause contraire aux dispositions des premier, deuxième et quatrième alinéas ci-dessus est réputée non écrite.
Article L223-29
Dans les assemblées ou lors des consultations écrites, les décisions sont adoptées par un ou plusieurs associés représentant plus de la moitié des parts sociales.
Si cette majorité n'est pas obtenue et sauf stipulation contraire des statuts, les associés sont, selon les cas, convoqués ou consultés une seconde fois, et les décisions sont prises à la majorité des votes
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émis, quel que soit le nombre des votants.
Article L223-30
Les associés ne peuvent, si ce n'est à l'unanimité, changer la nationalité de la société.
Toutes autres modifications des statuts sont décidées par les associés représentant au moins les trois quarts des parts sociales. Toute clause exigeant une majorité plus élevée est réputée non écrite.
Toutefois, pour les modifications statutaires des sociétés à responsabilité limitée constituées après la publication de la loi n° 2005-882 du 2 août 2005 en faveur des petites et moyennes entreprises, l'assemblée ne délibère valablement que si les associés présents ou représentés possèdent au moins, sur première convocation, le quart des parts et, sur deuxième convocation, le cinquième de celles-ci. A défaut de ce quorum, la deuxième assemblée peut être prorogée à une date postérieure de deux mois au plus à celle à laquelle elle avait été convoquée. Dans l'un ou l'autre de ces deux cas, les modifications sont décidées à la majorité des deux tiers des parts détenues par les associés présents ou représentés. Les statuts peuvent prévoir des quorums ou une majorité plus élevés, sans pouvoir, pour cette dernière, exiger l'unanimité des associés.
Les sociétés constituées antérieurement à la publication de la loi n° 2005-882 du 2 août 2005 précitée peuvent, sur décision prise à l'unanimité des associés, être régies par les dispositions du troisième alinéa.
La majorité ne peut en aucun cas obliger un associé à augmenter son engagement social.
Par dérogation aux dispositions des deuxième et troisième alinéas, la décision d'augmenter le capital par incorporation de bénéfices ou de réserves est prise par les associés représentant au moins la moitié des parts sociales.
Article L223-31
Les trois premiers alinéas de l'article L. 223-26 et les articles L. 223-27 à L. 223-30 ne sont pas applicables aux sociétés ne comprenant qu'un seul associé.
Dans ce cas, le rapport de gestion, l'inventaire et les comptes annuels sont établis par le gérant.L'associé unique approuve les comptes, le cas échéant après rapport des commissaires aux comptes, dans le délai de six mois à compter de la clôture de l'exercice. Lorsque l'associé unique est seul gérant de la société, le dépôt au registre du commerce et des sociétés, dans le même délai, de l'inventaire et des comptes annuels, dûment signés, vaut approbation des comptes sans que l'associé unique ait à porter au registre prévu à l'alinéa suivant le récépissé délivré par le greffe du tribunal de commerce.
L'associé unique ne peut déléguer ses pouvoirs. Ses décisions, prises au lieu et place de l'assemblée, sont répertoriées dans un registre.
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Les décisions prises en violation des dispositions du présent article peuvent être annulées à la demande de tout intéressé.
Article L223-32
En cas d'augmentation de capital par souscription de parts sociales en numéraire, les dispositions du dernier alinéa de l'article L. 223-7 sont applicables.
Le retrait des fonds provenant de souscriptions peut être effectué par un mandataire de la société après l'établissement du certificat du dépositaire.
Si l'augmentation du capital n'est pas réalisée dans le délai de six mois à compter du premier dépôt de fonds, il peut être fait application des dispositions du deuxième alinéa de l'article L. 223-8.
Article L223-33
Si l'augmentation du capital est réalisée, soit en totalité, soit en partie par des apports en nature, les dispositions du premier alinéa de l'article L. 223-9 sont applicables. Toutefois, le commissaire aux apports est nommé par décision de justice à la demande d'un gérant.
Lorsqu'il n'y a pas eu de commissaire aux apports ou lorsque la valeur retenue est différente de celle proposée par le commissaire aux apports, les gérants de la société et les personnes ayant souscrit à l'augmentation du capital sont solidairement responsables pendant cinq ans, à l'égard des tiers, de la valeur attribuée auxdits apports.
Article L223-34
La réduction du capital est autorisée par l'assemblée des associés statuant dans les conditions exigées pour la modification des statuts. En aucun cas, elle ne peut porter atteinte à l'égalité des associés.
S'il existe des commissaires aux comptes, le projet de réduction du capital leur est communiqué dans le délai fixé par décret en Conseil d'Etat. Ils font connaître à l'assemblée leur appréciation sur les causes et conditions de la réduction.
Lorsque l'assemblée approuve un projet de réduction du capital non motivée par des pertes, les créanciers dont la créance est antérieure à la date de dépôt au greffe du procès-verbal de délibération peuvent former opposition à la réduction dans le délai fixé par décret en Conseil d'Etat. Une décision de justice rejette l'opposition ou ordonne, soit le remboursement des créances, soit la constitution de garanties, si la société en offre et si elles sont jugées suffisantes. Les opérations de réduction du capital ne peuvent commencer pendant le délai d'opposition.
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L'achat de ses propres parts par une société est interdit. Toutefois, l'assemblée qui a décidé une réduction du capital non motivée par des pertes peut autoriser le gérant à acheter un nombre déterminé de parts sociales pour les annuler.
Article L223-35
Les associés peuvent nommer un ou plusieurs commissaires aux comptes dans les conditions prévues à l'article L. 223-29.
Sont tenues de désigner un commissaire aux comptes au moins les sociétés à responsabilité limitée qui dépassent à la clôture d'un exercice social des chiffres fixés par décret en Conseil d'Etat pour deux des critères suivants : le total de leur bilan, le montant hors taxes de leur chiffre d'affaires ou le nombre moyen de leurs salariés au cours d'un exercice.
Même si ces seuils ne sont pas atteints, la nomination d'un commissaire aux comptes peut être demandée en justice par un ou plusieurs associés représentant au moins le dixième du capital.
Article L223-36
Tout associé non gérant peut, deux fois par exercice, poser par écrit des questions au gérant sur tout fait de nature à compromettre la continuité de l'exploitation. La réponse du gérant est communiquée au commissaire aux comptes.
Article L223-37
Un ou plusieurs associés représentant au moins le dixième du capital social peuvent, soit individuellement, soit en se groupant sous quelque forme que ce soit, demander en justice la désignation d'un ou plusieurs experts chargés de présenter un rapport sur une ou plusieurs opérations de gestion.
Le ministère public et le comité d'entreprise sont habilités à agir aux mêmes fins.
S'il est fait droit à la demande, la décision de justice détermine l'étendue de la mission et des pouvoirs des experts. Elle peut mettre les honoraires à la charge de la société.
Le rapport est adressé au demandeur, au ministère public, au comité d'entreprise, au commissaire aux comptes ainsi qu'au gérant. Ce rapport doit, en outre, être annexé à celui établi par le commissaire aux comptes en vue de la prochaine assemblée générale et recevoir la même publicité.
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Article L223-39
Les commissaires aux comptes sont avisés, au plus tard en même temps que les associés, des assemblées ou consultations. Ils ont accès aux assemblées.
Les documents visés au premier alinéa de l'article L. 223-26 sont mis à la disposition des commissaires aux comptes dans les conditions déterminées par décret en Conseil d'Etat.
Article L223-40
La répétition des dividendes ne correspondant pas à des bénéfices réellement acquis peut être exigée des associés qui les ont reçus.
L'action en répétition se prescrit par le délai de trois ans à compter de la mise en distribution des dividendes.
Article L223-41
La société à responsabilité limitée n'est pas dissoute lorsqu'un jugement de liquidation judiciaire, la faillite personnelle, l'interdiction de gérer prévue par l'article L. 625-8 ou une mesure d'incapacité est prononcé à l'égard de l'un des associés.
Elle n'est pas non plus dissoute par le décès d'un associé, sauf stipulation contraire des statuts.
Article L223-42
Si, du fait de pertes constatées dans les documents comptables, les capitaux propres de la société deviennent inférieurs à la moitié du capital social, les associés décident, dans les quatre mois qui suivent l'approbation des comptes ayant fait apparaître cette perte s'il y a lieu à dissolution anticipée de la société.
Si la dissolution n'est pas prononcée à la majorité exigée pour la modification des statuts, la société est tenue, au plus tard à la clôture du deuxième exercice suivant celui au cours duquel la constatation des pertes est intervenue, de réduire son capital d'un montant au moins égal à celui des pertes qui n'ont pu être imputées sur les réserves, si, dans ce délai, les capitaux propres n'ont pas été reconstitués à concurrence d'une valeur au moins égale à la moitié du capital social.
Dans les deux cas, la résolution adoptée par les associés est publiée selon les modalités fixées par décret en Conseil d'Etat.
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A défaut par le gérant ou le commissaire aux comptes de provoquer une décision ou si les associés n'ont pu délibérer valablement, tout intéressé peut demander en justice la dissolution de la société. Il en est de même si les dispositions du deuxième alinéa ci-dessus n'ont pas été appliquées. Dans tous les cas, le tribunal peut accorder à la société un délai maximal de six mois pour régulariser sa situation. Il ne peut prononcer la dissolution, si, au jour où il statue sur le fond, cette régularisation a eu lieu.
Les dispositions du présent article ne sont pas applicables aux sociétés en procédure de sauvegarde ou de redressement judiciaire ou qui bénéficient d'un plan de sauvegarde ou de redressement judiciaire.
Article L223-43
La transformation d'une société à responsabilité limitée en société en nom collectif, en commandite simple ou en commandite par actions, exige l'accord unanime des associés.
La transformation en société anonyme est décidée à la majorité requise pour la modification des statuts. Toutefois, elle peut être décidée par des associés représentant la majorité des parts sociales si les capitaux propres figurant au dernier bilan excèdent 750 000 euros.
La décision est précédée du rapport d'un commissaire aux comptes inscrit, sur la situation de la société.
Toute transformation, effectuée en violation des règles du présent article, est nulle.
Chapitre IV : Dispositions générales applicables aux sociétés par actions.
Article L224-1
La société par actions est désignée par une dénomination sociale, qui doit être précédée ou suivie de la mention de la forme de la société et du montant du capital social.
Le nom d'un ou plusieurs associés peut être inclus dans la dénomination sociale. Toutefois, dans la société en commandite par actions, le nom des associés commanditaires ne peut y figurer.
Article L224-2
Le capital social doit être de 37 000 € au moins.
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La réduction du capital social à un montant inférieur ne peut être décidée que sous la condition suspensive d'une augmentation de capital destinée à amener celui-ci à un montant au moins égal au montant prévu à l'alinéa précédent, à moins que la société ne se transforme en société d'une autre forme. En cas d'inobservation des dispositions du présent alinéa, tout intéressé peut demander en justice la dissolution de la société. Cette dissolution ne peut être prononcée si, au jour où le tribunal statue sur le fond, la régularisation a eu lieu.
Par dérogation au premier alinéa, le capital des sociétés de rédacteurs de presse est de 300 euros au moins lorsqu'elles sont constituées sous la forme de société anonyme.
Article L224-3
Lorsqu'une société de quelque forme que ce soit qui n'a pas de commissaire aux comptes se transforme en société par actions, un ou plusieurs commissaires à la transformation, chargés d'apprécier sous leur responsabilité la valeur des biens composant l'actif social et les avantages particuliers, sont désignés, sauf accord unanime des associés par décision de justice à la demande des dirigeants sociaux ou de l'un d'eux. Les commissaires à la transformation peuvent être chargés de l'établissement du rapport sur la situation de la société mentionné au troisième alinéa de l'article L. 223-43. Dans ce cas, il n'est rédigé qu'un seul rapport. Ces commissaires sont soumis aux incompatibilités prévues à l'article L. 225-224. Le commissaire aux comptes de la société peut être nommé commissaire à la transformation. Le rapport est tenu à la disposition des associés.
Les associés statuent sur l'évaluation des biens et l'octroi des avantages particuliers. Ils ne peuvent les réduire qu'à l'unanimité.
A défaut d'approbation expresse des associés, mentionnée au procès-verbal, la transformation est nulle.
Chapitre V : Des sociétés anonymes.
Article L225-1
La société anonyme est la société dont le capital est divisé en actions et qui est constituée entre des associés qui ne supportent les pertes qu'à concurrence de leurs apports. Le nombre des associés ne peut être inférieur à sept.
Section 1 : De la constitution des sociétés anonymes.
Sous-section 1 : De la constitution avec offre au public.
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Article L225-2
Le projet de statuts est établi et signé par un ou plusieurs fondateurs, qui déposent un exemplaire au greffe du tribunal de commerce du lieu du siège social.
Les fondateurs publient une notice dans les conditions déterminées par décret en Conseil d'Etat.
Aucune souscription ne peut être reçue si les formalités prévues aux premier et deuxième alinéas ci-dessus n'ont pas été observées.
Les personnes déchues du droit d'administrer ou de gérer une société ou auxquelles l'exercice de ces fonctions est interdit ne peuvent être fondateurs.
Article L225-3
Le capital doit être intégralement souscrit.
Les actions de numéraire sont libérées, lors de la souscription, de la moitié au moins de leur valeur nominale. La libération du surplus intervient en une ou plusieurs fois sur décision du conseil d'administration ou du directoire selon le cas, dans un délai qui ne peut excéder cinq ans à compter de l'immatriculation de la société au registre du commerce et des sociétés.
Les actions d'apport sont intégralement libérées dès leur émission.
Les actions ne peuvent représenter des apports en industrie.
Article L225-4
La souscription des actions de numéraire est constatée par un bulletin établi dans les conditions déterminées par décret en Conseil d'Etat.
Article L225-5
Les fonds provenant des souscriptions en numéraire et la liste des souscripteurs avec l'indication des sommes versées par chacun d'eux font l'objet d'un dépôt dans les conditions déterminées par décret en Conseil d'Etat, celui-ci fixe également les conditions dans lesquelles est ouvert le droit à communication de cette liste.
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A l'exception des dépositaires visés par le décret prévu à l'alinéa précédent, nul ne peut détenir plus de huit jours les sommes recueillies pour le compte d'une société en formation.
Article L225-6
Les souscriptions et les versements sont constatés par un certificat du dépositaire établi, au moment du dépôt des fonds, sur présentation des bulletins de souscription.
Article L225-7
Après la délivrance du certificat du dépositaire, les fondateurs convoquent les souscripteurs en assemblée générale constitutive dans les formes et délais prévus par décret en Conseil d'Etat.
Cette assemblée constate que le capital est entièrement souscrit et que les actions sont libérées du montant exigible. Elle se prononce sur l'adoption des statuts qui ne peuvent être modifiés qu'à l'unanimité de tous les souscripteurs, nomme les premiers administrateurs ou membres du conseil de surveillance, désigne un ou plusieurs commissaires aux comptes. Le procès-verbal de la séance de l'assemblée constate, s'il y a lieu, l'acceptation de leurs fonctions par les administrateurs ou membres du conseil de surveillance et par les commissaires aux comptes.
Article L225-8
En cas d'apports en nature comme au cas de stipulation d'avantages particuliers au profit de personnes associées ou non, un ou plusieurs commissaires aux apports sont désignés par décision de justice, à la demande des fondateurs ou de l'un d'entre eux. Ils sont soumis aux incompatibilités prévues à l'article L. 822-11.
Les commissaires apprécient, sous leur responsabilité, la valeur des apports en nature et les avantages particuliers. Le rapport déposé au greffe, avec le projet de statuts, est tenu à la disposition des souscripteurs, dans les conditions déterminées par décret en Conseil d'Etat.
L'assemblée générale constitutive statue sur l'évaluation des apports en nature et l'octroi d'avantages particuliers. Elle ne peut les réduire qu'à l'unanimité de tous les souscripteurs.
A défaut d'approbation expresse des apporteurs et des bénéficiaires d'avantages particuliers, mentionnée au procès-verbal, la société n'est pas constituée.
Article L225-9
Les souscripteurs d'actions prennent part au vote ou se font représenter dans les conditions prévues aux articles L. 225-106, L. 225-110 et L. 225-113.
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L'assemblée constitutive délibère aux conditions de quorum et de majorité prévues pour les assemblées extraordinaires.
Article L225-10
Lorsque l'assemblée délibère sur l'approbation d'un apport en nature ou l'octroi d'un avantage particulier, les actions de l'apporteur ou du bénéficiaire ne sont pas prises en compte pour le calcul de la majorité.
L'apporteur ou le bénéficiaire n'a voix délibérative ni pour lui-même ni comme mandataire.
Article L225-11
Le retrait des fonds provenant des souscriptions en numéraire ne peut être effectué par le mandataire de la société avant l'immatriculation de celle-ci au registre du commerce et des sociétés.
Si la société n'est pas constituée dans le délai de six mois à compter du dépôt du projet de statuts au greffe, tout souscripteur peut demander en justice la nomination d'un mandataire chargé de retirer les fonds pour les restituer aux souscripteurs, sous déduction des frais de répartition.
Si le ou les fondateurs décident ultérieurement de constituer la société, il doit être procédé à nouveau au dépôt des fonds et à la déclaration prévus aux articles L. 225-5 et L. 225-6.
Sous-section 2 : De la constitution sans offre au public.
Article L225-12
Lorsqu'il n'est pas procédé à une offre au public, les dispositions de la sous-section 1 sont applicables, à l'exception des articles L. 225-2, L. 225-4, L. 225-7, des deuxième, troisième et quatrième alinéas de l'article L. 225-8 et des articles L. 225-9 et L. 225-10.
Article L225-13
Les versements sont constatés par un certificat du dépositaire établi, au moment du dépôt des fonds, sur présentation de la liste des actionnaires mentionnant les sommes versées par chacun d'eux.
Article L225-14
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Les statuts contiennent l'évaluation des apports en nature. Il y est procédé au vu d'un rapport annexé aux statuts et établi, sous sa responsabilité, par un commissaire aux apports.
Si des avantages particuliers sont stipulés, la même procédure est suivie.
Article L225-15
Les statuts sont signés par les actionnaires, soit en personne, soit par mandataire justifiant d'un pouvoir spécial, après l'établissement du certificat du dépositaire et après mise à disposition des actionnaires, dans les conditions et délais déterminés par décret en Conseil d'Etat, du rapport prévu à l'article L. 225-14.
Article L225-16
Les premiers administrateurs ou les premiers membres du conseil de surveillance et les premiers commissaires aux comptes sont désignés dans les statuts.
Section 2 : De la direction et de l'administration des sociétés anonymes.
Sous-section 1 : Du conseil d'administration de la direction générale.
Article L225-17
La société anonyme est administrée par un conseil d'administration composé de trois membres au moins. Les statuts fixent le nombre maximum des membres du conseil, qui ne peut dépasser dix-huit.
Toutefois, en cas de décès, de démission ou de révocation du président du conseil d'administration et si le conseil n'a pu le remplacer par un de ses membres, il peut nommer, sous réserve des dispositions de l'article L. 225-24, un administrateur supplémentaire qui est appelé aux fonctions de président.
Article L225-18
Les administrateurs sont nommés par l'assemblée générale constitutive ou par l'assemblée générale
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ordinaire. Dans le cas prévu à l'article L. 225-16, ils sont désignés dans les statuts. La durée de leurs fonctions est déterminée par les statuts sans pouvoir excéder six ans en cas de nomination par les assemblées générales et trois ans en cas de nomination dans les statuts. Toutefois, en cas de fusion ou de scission, la nomination peut être faite par l'assemblée générale extraordinaire.
Les administrateurs sont rééligibles, sauf stipulation contraire des statuts. Ils peuvent être révoqués à tout moment par l'assemblée générale ordinaire.
Toute nomination intervenue en violation des dispositions précédentes est nulle, à l'exception de celles auxquelles il peut être procédé dans les conditions prévues à l'article L. 225-24.
Article L225-19
Les statuts doivent prévoir, pour l'exercice des fonctions d'administrateur, une limite d'âge s'appliquant soit à l'ensemble des administrateurs, soit à un pourcentage déterminé d'entre eux.
A défaut de disposition expresse dans les statuts, le nombre des administrateurs ayant dépassé l'âge de soixante-dix ans ne peut être supérieur au tiers des administrateurs en fonctions.
Toute nomination intervenue en violation des dispositions de l'alinéa précédent est nulle.
A défaut de disposition expresse dans les statuts prévoyant une autre procédure, lorsque la limitation statutaire ou légale fixée pour l'âge des administrateurs est dépassée, l'administrateur le plus âgé est réputé démissionnaire d'office.
Article L225-20
Une personne morale peut être nommée administrateur. Lors de sa nomination, elle est tenue de désigner un représentant permanent qui est soumis aux mêmes conditions et obligations et qui encourt les mêmes responsabilités civile et pénale que s'il était administrateur en son nom propre, sans préjudice de la responsabilité solidaire de la personne morale qu'il représente.
Lorsque la personne morale révoque son représentant, elle est tenue de pourvoir en même temps à son remplacement.
Article L225-21
Une personne physique ne peut exercer simultanément plus de cinq mandats d'administrateur de sociétés anonymes ayant leur siège sur le territoire français.
Par dérogation aux dispositions du premier alinéa, ne sont pas pris en compte les mandats
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d'administrateur ou de membre du conseil de surveillance exercés par cette personne dans les sociétés contrôlées au sens de l'article L. 233-16 par la société dont elle est administrateur.
Pour l'application des dispositions du présent article, les mandats d'administrateur des sociétés dont les titres ne sont pas admis aux négociations sur un marché réglementé et contrôlées au sens de l'article L. 233-16 par une même société ne comptent que pour un seul mandat, sous réserve que le nombre de mandats détenus à ce titre n'excède pas cinq.
Toute personne physique qui se trouve en infraction avec les dispositions du présent article doit se démettre de l'un de ses mandats dans les trois mois de sa nomination, ou du mandat en cause dans les trois mois de l'événement ayant entraîné la disparition de l'une des conditions fixées à l'alinéa précédent. A l'expiration de ce délai, elle est réputée s'être démise, selon le cas, soit de son nouveau mandat, soit du mandat ne répondant plus aux conditions fixées à l'alinéa précédent, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
Article L225-22
Un salarié de la société ne peut être nommé administrateur que si son contrat de travail correspond à un emploi effectif. Il ne perd pas le bénéfice de ce contrat de travail. Toute nomination intervenue en violation des dispositions du présent alinéa est nulle. Cette nullité n'entraîne pas celle des délibérations auxquelles a pris part l'administrateur irrégulièrement nommé.
Le nombre des administrateurs liés à la société par un contrat de travail ne peut dépasser le tiers des administrateurs en fonction.
Toutefois, les administrateurs élus par les salariés, les administrateurs représentant les salariés actionnaires ou le fonds commun de placement d'entreprise en application de l'article L. 225-23 et, dans les sociétés anonymes à participation ouvrière, les représentants de la société coopérative de main-d'oeuvre ne sont pas comptés pour la détermination du nombre des administrateurs liés à la société par un contrat de travail mentionné à l'alinéa précédent.
En cas de fusion ou de scission, le contrat de travail peut avoir été conclu avec l'une des sociétés fusionnées ou avec la société scindée.
Article L225-22-1
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, en cas de nomination aux fonctions de président, de directeur général ou de directeur général délégué d'une personne liée par un contrat de travail à la société ou à toute société contrôlée ou qui la contrôle au sens des II et III de l'article L. 233-16, les dispositions dudit contrat correspondant, le cas échéant, à des éléments de rémunération, des indemnités ou des avantages dus ou susceptibles d'être dus à raison de la cessation ou du changement de ces fonctions, ou postérieurement à celles-ci, sont soumises au régime prévu par l'article L. 225-42-1.
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Article L225-23
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, lorsque le rapport présenté par le conseil d'administration lors de l'assemblée générale en application de l'article L. 225-102 établit que les actions détenues par le personnel de la société ainsi que par le personnel de sociétés qui lui sont liées au sens de l'article L. 225-180 représentent plus de 3 % du capital social de la société, un ou plusieurs administrateurs sont élus par l'assemblée générale des actionnaires sur proposition des actionnaires visés à l'article L. 225-102. Ceux-ci se prononcent par un vote dans des conditions fixées par les statuts. Ces administrateurs sont élus parmi les salariés actionnaires ou, le cas échéant, parmi les salariés membres du conseil de surveillance d'un fonds commun de placement d'entreprise détenant des actions de la société. Ces administrateurs ne sont pas pris en compte pour la détermination du nombre minimal et du nombre maximal d'administrateurs prévus à l'article L. 225-17. La durée de leur mandat est déterminée par application de l'article L. 225-18. Toutefois, leur mandat prend fin par l'arrivée du terme ou la rupture, pour quelque cause que ce soit, de leur contrat de travail.
Si l'assemblée générale extraordinaire ne s'est pas réunie dans un délai de dix-huit mois à compter de la présentation du rapport, tout salarié actionnaire peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au conseil d'administration de convoquer une assemblée générale extraordinaire et de soumettre à celle-ci les projets de résolutions tendant à modifier les statuts dans le sens prévu à l'alinéa précédent et au dernier alinéa du présent article.
Lorsqu'il est fait droit à la demande, l'astreinte et les frais de procédure sont à la charge des administrateurs.
Les sociétés dont le conseil d'administration comprend un ou plusieurs administrateurs nommés parmi les membres du conseil de surveillance des fonds communs de placement d'entreprise représentant les salariés, ou un ou plusieurs salariés élus en application des dispositions de l'article L. 225-27, ne sont pas tenues aux obligations prévues au premier alinéa.
Lorsque l'assemblée générale extraordinaire est convoquée en application du premier alinéa, elle se prononce également sur un projet de résolution prévoyant l'élection d'un ou plusieurs administrateurs par le personnel de la société et des filiales directes ou indirectes dont le siège social est fixé en France. Le cas échéant, ces représentants sont désignés dans les conditions prévues à l'article L. 225-27.
Article L225-24
En cas de vacance par décès ou par démission d'un ou plusieurs sièges d'administrateur, le conseil d'administration peut, entre deux assemblées générales, procéder à des nominations à titre provisoire.
Lorsque le nombre des administrateurs est devenu inférieur au minimum légal, les administrateurs restants doivent convoquer immédiatement l'assemblée générale ordinaire en vue de compléter
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l'effectif du conseil.
Lorsque le nombre des administrateurs est devenu inférieur au minimum statutaire, sans toutefois être inférieur au minimum légal, le conseil d'administration doit procéder à des nominations à titre provisoire en vue de compléter son effectif dans le délai de trois mois à compter du jour où se produit la vacance.
Les nominations effectuées par le conseil en vertu des premier et troisième alinéas ci-dessus sont soumises à ratification de la plus prochaine assemblée générale ordinaire. A défaut de ratification, les délibérations prises et les actes accomplis antérieurement par le conseil n'en demeurent pas moins valables.
Lorsque le conseil néglige de procéder aux nominations requises ou de convoquer l'assemblée, tout intéressé peut demander en justice, la désignation d'un mandataire chargé de convoquer l'assemblée générale, à l'effet de procéder aux nominations ou de ratifier les nominations prévues au troisième alinéa.
Article L225-25
Les statuts peuvent imposer que chaque administrateur soit propriétaire d'un nombre d'actions de la société, qu'ils déterminent.
Si, au jour de sa nomination, un administrateur n'est pas propriétaire du nombre d'actions requis ou si, en cours de mandat, il cesse d'en être propriétaire, il est réputé démissionnaire d'office, s'il n'a pas régularisé sa situation dans le délai de six mois.
Les dispositions du premier alinéa ne s'appliquent pas aux actionnaires salariés nommés administrateurs en application de l'article L. 225-23.
Article L225-26
Les commissaires aux comptes veillent, sous leur responsabilité, à l'observation des dispositions prévues à l'article L. 225-25 et en dénoncent toute violation dans leur rapport à l'assemblée générale annuelle.
Article L225-27
Il peut être stipulé dans les statuts que le conseil d'administration comprend, outre les administrateurs dont le nombre et le mode de désignation sont prévus aux articles L. 225-17 et L. 225-18, des administrateurs élus soit par le personnel de la société, soit par le personnel de la société et celui de ses filiales directes ou indirectes dont le siège social est fixé sur le territoire français. Le nombre de ces administrateurs ne peut être supérieur à quatre ou, dans les sociétés dont
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les actions sont admises aux négociations sur un marché réglementé, cinq, ni excéder le tiers du nombre des autres administrateurs. Lorsque le nombre des administrateurs élus par les salariés est égal ou supérieur à deux, les ingénieurs, cadres et assimilés ont un siège au moins.
Les administrateurs élus par les salariés ne sont pas pris en compte pour la détermination du nombre minimal et du nombre maximal d'administrateurs prévus à l'article L. 225-17.
Article L225-28
Les administrateurs élus par les salariés doivent être titulaires d'un contrat de travail avec la société ou l'une de ses filiales directes ou indirectes dont le siège social est fixé sur le territoire français antérieur de deux années au moins à leur nomination et correspondant à un emploi effectif. Toutefois, la condition d'ancienneté n'est pas requise lorsque au jour de la nomination la société est constituée depuis moins de deux ans.
Tous les salariés de la société et le cas échéant de ses filiales directes ou indirectes, dont le siège social est fixé sur le territoire français dont le contrat de travail est antérieur de trois mois à la date de l'élection sont électeurs. Le vote est secret.
Lorsqu'un siège au moins est réservé aux ingénieurs, cadres et assimilés, les salariés sont divisés en deux collèges votant séparément. Le premier collège comprend les ingénieurs, cadres et assimilés, le second les autres salariés. Les statuts fixent la répartition des sièges par collège en fonction de la structure du personnel.
Les candidats ou listes de candidats peuvent être présentés soit par une ou plusieurs organisations syndicales représentatives au sens de l'article L. 423-2 du code du travail, soit par le vingtième des électeurs ou, si le nombre de ceux-ci est supérieur à deux mille, par cent d'entre eux.
Lorsqu'il y a un seul siège à pourvoir pour l'ensemble du corps électoral, l'élection a lieu au scrutin majoritaire à deux tours. Lorsqu'il y a un seul siège à pourvoir dans un collège électoral, l'élection a lieu au scrutin majoritaire à deux tours dans ce collège. Chaque candidature doit comporter, outre le nom du candidat, celui de son remplaçant éventuel. Est déclaré élu le candidat ayant obtenu au premier tour la majorité absolue des suffrages exprimés, au second tour la majorité relative.
Dans les autres cas, l'élection a lieu au scrutin de liste à la représentation proportionnelle au plus fort reste et sans panachage. Chaque liste doit comporter un nombre de candidats double de celui des sièges à pourvoir.
En cas d'égalité des voix, les candidats dont le contrat de travail est le plus ancien sont déclarés élus.
Les autres modalités du scrutin sont fixées par les statuts.
Les contestations relatives à l'électorat, à l'éligibilité et à la régularité des opérations électorales sont portées devant le juge d'instance qui statue en dernier ressort dans les conditions prévues par le
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premier alinéa de l'article L. 433-11 du code du travail.
Article L225-29
La durée du mandat d'administrateur élu par les salariés est déterminée par les statuts, sans pouvoir excéder six ans. Le mandat est renouvelable, sauf stipulation contraire des statuts.
Toute nomination intervenue en violation des articles L. 225-27, L. 225-28 et du présent article est nulle. Cette nullité n'entraîne pas celle des délibérations auxquelles a pris part l'administrateur irrégulièrement nommé.
Article L225-30
Le mandat d'administrateur élu par les salariés est incompatible avec tout mandat de délégué syndical, de membre du comité d'entreprise, de délégué du personnel ou de membre du comité d'hygiène, de sécurité et des conditions de travail de la société. L'administrateur qui, lors de son élection, est titulaire d'un ou de plusieurs de ces mandats doit s'en démettre dans les huit jours. A défaut, il est réputé démissionnaire de son mandat d'administrateur.
Article L225-31
Les administrateurs élus par les salariés ne perdent pas le bénéfice de leur contrat de travail. Leur rémunération en tant que salariés ne peut être réduite du fait de l'exercice de leur mandat.
Article L225-32
La rupture du contrat de travail met fin au mandat de l'administrateur élu par les salariés.
Les administrateurs élus par les salariés ne peuvent être révoqués que pour faute dans l'exercice de leur mandat, par décision du président du tribunal de grande instance, rendue en la forme des référés, à la demande de la majorité des membres du conseil d'administration. La décision est exécutoire par provision.
Article L225-33
Sauf en cas de résiliation à l'initiative du salarié, la rupture du contrat de travail d'un administrateur élu par les salariés ne peut être prononcée que par le bureau de jugement du conseil des prud'hommes statuant en la forme des référés. La décision est exécutoire par provision.
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Article L225-34
I. - En cas de vacance, par décès, démission, révocation, rupture du contrat de travail ou pour toute autre cause que ce soit, d'un siège d'administrateur élu par les salariés, le siège vacant est pourvu de la manière suivante :
1° Lorsque l'élection a eu lieu au scrutin majoritaire à deux tours, par le remplaçant ;
2° Lorsque l'élection a eu lieu au scrutin de liste, par le candidat figurant sur la même liste immédiatement après le dernier candidat élu.
II. - Le mandat de l'administrateur ainsi désigné prend fin à l'arrivée du terme normal du mandat des autres administrateurs élus par les salariés.
Article L225-35
Le conseil d'administration détermine les orientations de l'activité de la société et veille à leur mise en oeuvre. Sous réserve des pouvoirs expressément attribués aux assemblées d'actionnaires et dans la limite de l'objet social, il se saisit de toute question intéressant la bonne marche de la société et règle par ses délibérations les affaires qui la concernent.
Dans les rapports avec les tiers, la société est engagée même par les actes du conseil d'administration qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Le conseil d'administration procède aux contrôles et vérifications qu'il juge opportuns. Le président ou le directeur général de la société est tenu de communiquer à chaque administrateur tous les documents et informations nécessaires à l'accomplissement de sa mission.
Les cautions, avals et garanties donnés par des sociétés autres que celles exploitant des établissements bancaires ou financiers font l'objet d'une autorisation du conseil dans les conditions déterminées par décret en Conseil d'Etat. Ce décret détermine également les conditions dans lesquelles le dépassement de cette autorisation peut être opposé aux tiers.
Article L225-36
Le déplacement du siège social dans le même département ou dans un département limitrophe peut être décidé par le conseil d'administration, sous réserve de ratification de cette décision par la prochaine assemblée générale ordinaire.
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Article L225-36-1
Les statuts de la société déterminent les règles relatives à la convocation et aux délibérations du conseil d'administration.
Lorsqu'il ne s'est pas réuni depuis plus de deux mois, le tiers au moins des membres du conseil d'administration peut demander au président de convoquer celui-ci sur un ordre du jour déterminé.
Le directeur général peut également demander au président de convoquer le conseil d'administration sur un ordre du jour déterminé.
Le président est lié par les demandes qui lui sont adressées en vertu des deux alinéas précédents.
Article L225-37
Le conseil d'administration ne délibère valablement que si la moitié au moins de ses membres sont présents. Toute clause contraire est réputée non écrite.
A moins que les statuts ne prévoient une majorité plus forte, les décisions sont prises à la majorité des membres présents ou représentés.
Sauf lorsque le conseil est réuni pour procéder aux opérations visées aux articles L. 232-1 et L. 233-16 et sauf disposition contraire des statuts, le règlement intérieur peut prévoir que sont réputés présents, pour le calcul du quorum et de la majorité, les administrateurs qui participent à la réunion par des moyens de visioconférence ou de télécommunication permettant leur identification et garantissant leur participation effective, dont la nature et les conditions d'application sont déterminées par décret en Conseil d'Etat. Les statuts peuvent limiter la nature des décisions pouvant être prises lors d'une réunion tenue dans ces conditions et prévoir un droit d'opposition au profit d'un nombre déterminé d'administrateurs.
Sauf disposition contraire des statuts, la voix du président de séance est prépondérante en cas de partage.
Les administrateurs, ainsi que toute personne appelée à assister aux réunions du conseil d'administration, sont tenus à la discrétion à l'égard des informations présentant un caractère confidentiel et données comme telles par le président du conseil d'administration.
Dans les sociétés dont les titres financiers sont admis aux négociations sur un marché réglementé , le président du conseil d'administration rend compte, dans un rapport joint au rapport mentionné
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aux articles L. 225-100, L. 225-102, L. 225-102-1 et L. 233-26, de la composition, des conditions de préparation et d'organisation des travaux du conseil, ainsi que des procédures de contrôle interne et de gestion des risques mises en place par la société, en détaillant notamment celles de ces procédures qui sont relatives à l'élaboration et au traitement de l'information comptable et financière pour les comptes sociaux et, le cas échéant, pour les comptes consolidés. Sans préjudice des dispositions de l'article L. 225-56, ce rapport indique en outre les éventuelles limitations que le conseil d'administration apporte aux pouvoirs du directeur général.
Lorsqu'une société se réfère volontairement à un code de gouvernement d'entreprise élaboré par les organisations représentatives des entreprises, le rapport prévu au présent article précise également les dispositions qui ont été écartées et les raisons pour lesquelles elles l'ont été. Se trouve de surcroît précisé le lieu où ce code peut être consulté. Si une société ne se réfère pas à un tel code de gouvernement d'entreprise, ce rapport indique les règles retenues en complément des exigences requises par la loi et explique les raisons pour lesquelles la société a décidé de n'appliquer aucune disposition de ce code de gouvernement d'entreprise.
Le rapport prévu au présent article précise aussi les modalités particulières relatives à la participation des actionnaires à l'assemblée générale ou renvoie aux dispositions des statuts qui prévoient ces modalités.
Ce rapport présente en outre les principes et les règles arrêtés par le conseil d'administration pour déterminer les rémunérations et avantages de toute nature accordés aux mandataires sociaux et il mentionne la publication des informations prévues par l'article L. 225-100-3.
Le rapport prévu au présent article est approuvé par le conseil d'administration et est rendu public.
Article L225-38
Toute convention intervenant directement ou par personne interposée entre la société et son directeur général, l'un de ses directeurs généraux délégués, l'un de ses administrateurs, l'un de ses actionnaires disposant d'une fraction des droits de vote supérieure à 10 % ou, s'il s'agit d'une société actionnaire, la société la contrôlant au sens de l'article L. 233-3, doit être soumise à l'autorisation préalable du conseil d'administration.
Il en est de même des conventions auxquelles une des personnes visées à l'alinéa précédent est indirectement intéressée.
Sont également soumises à autorisation préalable les conventions intervenant entre la société et une entreprise, si le directeur général, l'un des directeurs généraux délégués ou l'un des administrateurs de la société est propriétaire, associé indéfiniment responsable, gérant, administrateur, membre du conseil de surveillance ou, de façon générale, dirigeant de cette entreprise.
Article L225-39
Les dispositions de l'article L. 225-38 ne sont pas applicables aux conventions portant sur des opérations courantes et conclues à des conditions normales.
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Cependant, ces conventions, sauf lorsqu'en raison de leur objet ou de leurs implications financières, elles ne sont significatives pour aucune des parties, sont communiquées par l'intéressé au président du conseil d'administration. La liste et l'objet desdites conventions sont communiqués par le président aux membres du conseil d'administration et aux commissaires aux comptes.
Article L225-40
L'intéressé est tenu d'informer le conseil, dès qu'il a connaissance d'une convention à laquelle l'article L. 225-38 est applicable. Il ne peut prendre part au vote sur l'autorisation sollicitée.
Le président du conseil d'administration donne avis aux commissaires aux comptes de toutes les conventions autorisées et soumet celles-ci à l'approbation de l'assemblée générale.
Les commissaires aux comptes présentent, sur ces conventions, un rapport spécial à l'assemblée, qui statue sur ce rapport.
L'intéressé ne peut pas prendre part au vote et ses actions ne sont pas prises en compte pour le calcul du quorum et de la majorité.
Article L225-41
Les conventions approuvées par l'assemblée, comme celles qu'elle désapprouve, produisent leurs effets à l'égard des tiers, sauf lorsqu'elles sont annulées dans le cas de fraude.
Même en l'absence de fraude, les conséquences, préjudiciables à la société, des conventions désapprouvées peuvent être mises à la charge de l'intéressé et, éventuellement, des autres membres du conseil d'administration.
Article L225-42
Sans préjudice de la responsabilité de l'intéressé, les conventions visées à l'article L. 225-38 et conclues sans autorisation préalable du conseil d'administration peuvent être annulées si elles ont eu des conséquences dommageables pour la société.
L'action en nullité se prescrit par trois ans, à compter de la date de la convention. Toutefois, si la convention a été dissimulée, le point de départ du délai de la prescription est reporté au jour où elle a été révélée.
La nullité peut être couverte par un vote de l'assemblée générale intervenant sur rapport spécial des commissaires aux comptes exposant les circonstances en raison desquelles la procédure d'autorisation n'a pas été suivie. Les dispositions du quatrième alinéa de l'article L. 225-40 sont applicables.
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Article L225-42-1
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, les engagements pris au bénéfice de leurs présidents, directeurs généraux ou directeurs généraux délégués, par la société elle-même ou par toute société contrôlée ou qui la contrôle au sens des II et III de l'article L. 233-16, et correspondant à des éléments de rémunération, des indemnités ou des avantages dus ou susceptibles d'être dus à raison de la cessation ou du changement de ces fonctions, ou postérieurement à celles-ci, sont soumis aux dispositions des articles L. 225-38 et L. 225-40 à L. 225-42.
Sont interdits les éléments de rémunération, indemnités et avantages dont le bénéfice n'est pas subordonné au respect de conditions liées aux performances du bénéficiaire, appréciées au regard de celles de la société dont il préside le conseil d'administration ou exerce la direction générale ou la direction générale déléguée.
L'autorisation donnée par le conseil d'administration en application de l'article L. 225-38 est rendue publique selon des modalités et dans des délais fixés par décret en Conseil d'Etat.
La soumission à l'approbation de l'assemblée générale en application de l'article L. 225-40 fait l'objet d'une résolution spécifique pour chaque bénéficiaire. Cette approbation est requise à chaque renouvellement du mandat exercé par les personnes mentionnées au premier alinéa.
Aucun versement, de quelque nature que ce soit, ne peut intervenir avant que le conseil d'administration ne constate, lors ou après la cessation ou le changement effectif des fonctions, le respect des conditions prévues. Cette décision est rendue publique selon des modalités et dans des délais fixés par décret en Conseil d'Etat. Tout versement effectué en méconnaissance des dispositions du présent alinéa est nul de plein droit.
Les engagements correspondant à des indemnités en contrepartie d'une clause interdisant au bénéficiaire, après la cessation de ses fonctions dans la société, l'exercice d'une activité professionnelle concurrente portant atteinte aux intérêts de la société ne sont soumis qu'aux dispositions du premier alinéa. Il en va de même des engagements de retraite à prestations définies répondant aux caractéristiques des régimes mentionnés à l'article L. 137-11 du code de la sécurité sociale, ainsi que des engagements répondant aux caractéristiques des régimes collectifs et obligatoires de retraite et de prévoyance visés à l'article L. 242-1 du même code.
Article L225-43
A peine de nullité du contrat, il est interdit aux administrateurs autres que les personnes morales de contracter, sous quelque forme que ce soit, des emprunts auprès de la société, de se faire consentir par elle un découvert, en compte courant ou autrement, ainsi que de faire cautionner ou avaliser par elle leurs engagements envers les tiers.
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Toutefois, si la société exploite un établissement bancaire ou financier, cette interdiction ne s'applique pas aux opérations courantes de ce commerce conclues à des conditions normales.
La même interdiction s'applique au directeur général, aux directeurs généraux délégués et aux représentants permanents des personnes morales administrateurs. Elle s'applique également aux conjoint, ascendants et descendants des personnes visées au présent article ainsi qu'à toute personne interposée.
Article L225-44
Sous réserve des dispositions de l'article L. 225-22 et de l'article L. 225-27, les administrateurs ne peuvent recevoir de la société aucune rémunération, permanente ou non, autre que celles prévues aux articles L. 225-45, L. 225-46, L. 225-47 et L. 225-53.
Toute clause statutaire contraire est réputée non écrite et toute décision contraire est nulle.
Article L225-45
L'assemblée générale peut allouer aux administrateurs en rémunération de leur activité, à titre de jetons de présence, une somme fixe annuelle que cette assemblée détermine sans être liée par des dispositions statutaires ou des décisions antérieures. Le montant de celle-ci est porté aux charges d'exploitation. Sa répartition entre les administrateurs est déterminée par le conseil d'administration.
Article L225-46
Il peut être alloué, par le conseil d'administration, des rémunérations exceptionnelles pour les missions ou mandats confiés à des administrateurs. Dans ce cas, ces rémunérations, portées aux charges d'exploitation sont soumises aux dispositions des articles L. 225-38 à L. 225-42.
Article L225-47
Le conseil d'administration élit parmi ses membres un président qui est, à peine de nullité de la nomination, une personne physique. Il détermine sa rémunération.
Le président est nommé pour une durée qui ne peut excéder celle de son mandat d'administrateur. Il est rééligible.
Le conseil d'administration peut le révoquer à tout moment. Toute disposition contraire est réputée non écrite.
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Article L225-48
Les statuts doivent prévoir pour l'exercice des fonctions de président du conseil d'administration une limite d'âge qui, à défaut d'une disposition expresse, est fixée à soixante-cinq ans.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
Lorsqu'un président de conseil d'administration atteint la limite d'âge, il est réputé démissionnaire d'office.
Article L225-50
En cas d'empêchement temporaire ou de décès du président, le conseil d'administration peut déléguer un administrateur dans les fonctions de président.
En cas d'empêchement temporaire, cette délégation est donnée pour une durée limitée. Elle est renouvelable. En cas de décès, elle vaut jusqu'à l'élection du nouveau président.
Article L225-51
Le président du conseil d'administration organise et dirige les travaux de celui-ci, dont il rend compte à l'assemblée générale. Il veille au bon fonctionnement des organes de la société et s'assure, en particulier, que les administrateurs sont en mesure de remplir leur mission.
Article L225-51-1
La direction générale de la société est assumée, sous sa responsabilité, soit par le président du conseil d'administration, soit par une autre personne physique nommée par le conseil d'administration et portant le titre de directeur général.
Dans les conditions définies par les statuts, le conseil d'administration choisit entre les deux modalités d'exercice de la direction générale visées au premier alinéa. Les actionnaires et les tiers sont informés de ce choix dans des conditions définies par décret en Conseil d'Etat.
Lorsque la direction générale de la société est assumée par le président du conseil d'administration, les dispositions de la présente sous-section relatives au directeur général lui sont applicables.
Article L225-52
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En cas d'ouverture d'une procédure de redressement ou de liquidation judiciaire en application du titre II du livre VI, les personnes visées par ces dispositions peuvent être rendues responsables du passif social et sont soumises aux interdictions et déchéances, dans les conditions prévues par lesdites dispositions.
Article L225-53
Sur proposition du directeur général, le conseil d'administration peut nommer une ou plusieurs personnes physiques chargées d'assister le directeur général, avec le titre de directeur général délégué.
Les statuts fixent le nombre maximum des directeurs généraux délégués, qui ne peut dépasser cinq.
Le conseil d'administration détermine la rémunération du directeur général et des directeurs généraux délégués.
Article L225-54
Les statuts doivent prévoir pour l'exercice des fonctions de directeur général ou de directeur général délégué une limite d'âge qui, à défaut d'une disposition expresse, est fixée à soixante-cinq ans.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
Lorsqu'un directeur général ou un directeur général délégué atteint la limite d'âge, il est réputé démissionnaire d'office.
Article L225-54-1
Une personne physique ne peut exercer simultanément plus d'un mandat de directeur général de sociétés anonymes ayant leur siège sur le territoire français.
Par dérogation aux dispositions du premier alinéa :
- un deuxième mandat de directeur général ou un mandat de membre du directoire ou de directeur général unique peut être exercé dans une société contrôlée au sens de l'article L. 233-16 par la société dont il est directeur général ;
- une personne physique exerçant un mandat de directeur général dans une société peut également exercer un mandat de directeur général, de membre du directoire ou de directeur général unique dans une société, dès lors que les titres de celles-ci ne sont pas admis aux négociations sur un
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marché réglementé.
Toute personne physique qui se trouve en infraction avec les dispositions du présent article doit se démettre de l'un de ses mandats dans les trois mois de sa nomination, ou du mandat en cause dans les trois mois de l'évènement ayant entraîné la disparition de l'une des conditions fixées à l'alinéa précédent. A l'expiration de ce délai, elle est réputée s'être démise, selon le cas, soit de son nouveau mandat, soit du mandat ne répondant plus aux conditions fixées à l'alinéa précédent, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
Article L225-55
Le directeur général est révocable à tout moment par le conseil d'administration. Il en est de même, sur proposition du directeur général, des directeurs généraux délégués. Si la révocation est décidée sans juste motif, elle peut donner lieu à dommages-intérêts, sauf lorsque le directeur général assume les fonctions de président du conseil d'administration.
Lorsque le directeur général cesse ou est empêché d'exercer ses fonctions, les directeurs généraux délégués conservent, sauf décision contraire du conseil, leurs fonctions et leurs attributions jusqu'à la nomination du nouveau directeur général.
Article L225-56
I. - Le directeur général est investi des pouvoirs les plus étendus pour agir en toute circonstance au nom de la société. Il exerce ces pouvoirs dans la limite de l'objet social et sous réserve de ceux que la loi attribue expressément aux assemblées d'actionnaires et au conseil d'administration.
Il représente la société dans ses rapports avec les tiers. La société est engagée même par les actes du directeur général qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Les dispositions des statuts ou les décisions du conseil d'administration limitant les pouvoirs du directeur général sont inopposables aux tiers.
II. - En accord avec le directeur général, le conseil d'administration détermine l'étendue et la durée des pouvoirs conférés aux directeurs généraux délégués.
Les directeurs généraux délégués disposent, à l'égard des tiers, des mêmes pouvoirs que le directeur général.
Sous-section 2 : Du directoire et du conseil de surveillance.
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Article L225-57
Il peut être stipulé par les statuts de toute société anonyme que celle-ci est régie par les dispositions de la présente sous-section. Dans ce cas, la société reste soumise à l'ensemble des règles applicables aux sociétés anonymes, à l'exclusion de celles prévues aux articles L. 225-17 à L. 225-56.
L'introduction dans les statuts de cette stipulation, ou sa suppression, peut être décidée au cours de l'existence de la société.
Article L225-58
La société anonyme est dirigée par un directoire composé de cinq membres au plus. Lorsque les actions de la société sont admises aux négociations sur un marché réglementé, ce nombre peut être porté par les statuts à sept.
Dans les sociétés anonymes dont le capital est inférieur à 150 000 euros, les fonctions dévolues au directoire peuvent être exercées par une seule personne.
Le directoire exerce ses fonctions sous le contrôle d'un conseil de surveillance.
Article L225-59
Les membres du directoire sont nommés par le conseil de surveillance qui confère à l'un d'eux la qualité de président.
Lorsqu'une seule personne exerce les fonctions dévolues au directoire, elle prend le titre de directeur général unique.
A peine de nullité de la nomination, les membres du directoire ou le directeur général unique sont des personnes physiques. Ils peuvent être choisis en dehors des actionnaires.
Article L225-60
Les statuts doivent prévoir pour l'exercice des fonctions de membre du directoire ou de directeur général unique une limite d'âge qui, à défaut d'une disposition expresse, est fixée à soixante-cinq ans.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
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Lorsqu'un membre du directoire ou le directeur général unique atteint la limite d'âge, il est réputé démissionnaire d'office.
Article L225-61
Les membres du directoire ou le directeur général unique peuvent être révoqués par l'assemblée générale, ainsi que, si les statuts le prévoient, par le conseil de surveillance. Si la révocation est décidée sans juste motif, elle peut donner lieu à dommages-intérêts.
Au cas où l'intéressé aurait conclu avec la société un contrat de travail, la révocation de ses fonctions de membre du directoire n'a pas pour effet de résilier ce contrat.
Article L225-62
Les statuts déterminent la durée du mandat du directoire dans des limites comprises entre deux et six ans. A défaut de disposition statutaire, la durée du mandat est de quatre ans. En cas de vacance, le remplaçant est nommé pour le temps qui reste à courir jusqu'au renouvellement du directoire.
Article L225-63
L'acte de nomination fixe le mode et le montant de la rémunération de chacun des membres du directoire.
Article L225-64
Le directoire est investi des pouvoirs les plus étendus pour agir en toute circonstance au nom de la société. Il les exerce dans la limite de l'objet social et sous réserve de ceux expressément attribués par la loi au conseil de surveillance et aux assemblées d'actionnaires.
Dans les rapports avec les tiers, la société est engagée même par les actes du directoire qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Les dispositions des statuts limitant les pouvoirs du directoire sont inopposables aux tiers.
Le directoire délibère et prend ses décisions dans les conditions fixées par les statuts.
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Article L225-65
Le déplacement du siège social dans le même département ou dans un département limitrophe peut être décidé par le conseil de surveillance, sous réserve de ratification de cette décision par la prochaine assemblée générale ordinaire.
Article L225-66
Le président du directoire ou, le cas échéant, le directeur général unique représente la société dans ses rapports avec les tiers.
Toutefois, les statuts peuvent habiliter le conseil de surveillance à attribuer le même pouvoir de représentation à un ou plusieurs autres membres du directoire, qui portent alors le titre de directeur général.
Les dispositions des statuts limitant le pouvoir de représentation de la société sont inopposables aux tiers.
Article L225-67
Une personne physique ne peut exercer plus d'un mandat de membre du directoire ou de directeur général unique de sociétés anonymes ayant leur siège social sur le territoire français.
Par dérogation aux dispositions du premier alinéa :
- un deuxième mandat de membre du directoire ou de directeur général unique ou un mandat de directeur général peut être exercé dans une société contrôlée au sens de l'article L. 233-16 par la société dont cette personne est membre du directoire ou directeur général unique ;
- une personne physique exerçant un mandat de membre du directoire ou de directeur général unique dans une société peut également exercer un mandat de directeur général, de membre du directoire ou de directeur général unique dans une société, dès lors que les titres de celles-ci ne sont pas admis aux négociations sur un marché réglementé.
Toute personne physique qui se trouve en infraction avec les dispositions du présent article doit se démettre de l'un de ses mandats dans les trois mois de sa nomination, ou du mandat en cause dans les trois mois de l'événement ayant entraîné la disparition de l'une des conditions fixées à l'alinéa précédent. A l'expiration de ce délai, elle est réputée s'être démise, selon le cas, soit de son nouveau mandat, soit du mandat ne répondant plus aux conditions fixées à l'alinéa précédent, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
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Article L225-68
Le conseil de surveillance exerce le contrôle permanent de la gestion de la société par le directoire.
Les statuts peuvent subordonner à l'autorisation préalable du conseil de surveillance la conclusion des opérations qu'ils énumèrent. Toutefois, la cession d'immeubles par nature, la cession totale ou partielle de participations, la constitution de sûretés, ainsi que les cautions, avals et garanties, sauf dans les sociétés exploitant un établissement bancaire ou financier, font l'objet d'une autorisation du conseil de surveillance dans des conditions déterminées par décret en Conseil d'Etat. Ce décret détermine également les conditions dans lesquelles le dépassement de cette autorisation peut être opposé aux tiers.
A toute époque de l'année, le conseil de surveillance opère les vérifications et les contrôles qu'il juge opportuns et peut se faire communiquer les documents qu'il estime nécessaires à l'accomplissement de sa mission.
Une fois par trimestre au moins le directoire présente un rapport au conseil de surveillance.
Après la clôture de chaque exercice et dans le délai fixé par décret en Conseil d'Etat, le directoire lui présente, aux fins de vérification et de contrôle, les documents visés au deuxième alinéa de l'article L. 225-100.
Le conseil de surveillance présente à l'assemblée générale prévue à l'article L. 225-100 ses observations sur le rapport du directoire ainsi que sur les comptes de l'exercice.
Dans les sociétés dont les titres financiers sont admis aux négociations sur un marché réglementé, le président du conseil de surveillance rend compte, dans un rapport joint au rapport mentionné à l'alinéa précédent et aux articles L. 225-102, L. 225-102-1 et L. 233-26, de la composition, des conditions de préparation et d'organisation des travaux du conseil, ainsi que des procédures de contrôle interne et de gestion des risques mises en place par la société, en détaillant notamment celles de ces procédures qui sont relatives à l'élaboration et au traitement de l'information comptable et financière pour les comptes sociaux et, le cas échéant, pour les comptes consolidés. Lorsqu'une société se réfère volontairement à un code de gouvernement d'entreprise élaboré par les organisations représentatives des entreprises, le rapport prévu au septième alinéa du présent article précise également les dispositions qui ont été écartées et les raisons pour lesquelles elles l'ont été. Se trouve de surcroît précisé le lieu où ce code peut être consulté. Si une société ne se réfère pas à un tel code de gouvernement d'entreprise, ce rapport indique les règles retenues en complément des exigences requises par la loi et explique les raisons pour lesquelles la société a décidé de n'appliquer aucune disposition de ce code de gouvernement d'entreprise. Le rapport prévu au septième alinéa précise aussi les modalités particulières relatives à la participation des actionnaires à l'assemblée générale ou renvoie aux dispositions des statuts qui prévoient ces modalités. Ce rapport présente en outre les principes et les règles arrêtés par le conseil de surveillance pour déterminer les rémunérations et avantages de toute nature accordés aux mandataires sociaux et il mentionne la publication des informations prévues par l'article L. 225-100-3. Le rapport prévu au septième alinéa du présent article est approuvé par le conseil de surveillance et est rendu public.
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Article L225-69
Le conseil de surveillance est composé de trois membres au moins. Les statuts fixent le nombre maximum des membres du conseil, qui est limité à dix-huit.
Article L225-70
Les statuts doivent prévoir pour l'exercice des fonctions de membre du conseil de surveillance une limite d'âge s'appliquant soit à l'ensemble des membres du conseil de surveillance, soit à un pourcentage déterminé d'entre eux.
A défaut de disposition expresse dans les statuts, le nombre des membres du conseil de surveillance ayant atteint l'âge de soixante-dix ans ne peut être supérieur au tiers des membres du conseil de surveillance en fonctions.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
A défaut de disposition expresse dans les statuts prévoyant une autre procédure, lorsque la limitation statutaire ou légale fixée pour l'âge des membres du conseil de surveillance est dépassée, le membre du conseil de surveillance le plus âgé est réputé démissionnaire d'office.
Article L225-71
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, lorsque le rapport présenté par le directoire lors de l'assemblée générale en application de l'article L. 225-102 établit que les actions détenues par le personnel de la société ainsi que par le personnel de sociétés qui lui sont liées au sens de l'article L. 225-180 représentent plus de 3 % du capital social de la société, un ou plusieurs membres du conseil de surveillance sont élus par l'assemblée générale des actionnaires sur proposition des actionnaires visés à l'article L. 225-102. Ceux-ci se prononcent par un vote dans des conditions fixées par les statuts. Ces membres sont élus parmi les salariés actionnaires ou, le cas échéant, parmi les salariés membres du conseil de surveillance d'un fonds commun de placement d'entreprise détenant des actions de la société. Ces membres ne sont pas pris en compte pour la détermination du nombre minimal et du nombre maximal de membres du conseil de surveillance prévus à l'article L. 225-69. La durée de leur mandat est déterminée par application de l'article L. 225-18. Toutefois, leur mandat prend fin par l'arrivée du terme ou la rupture, pour quelque cause que ce soit, de leur contrat de travail.
Si l'assemblée générale extraordinaire ne s'est pas réunie dans un délai de dix-huit mois à compter de la présentation du rapport, tout salarié actionnaire peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au directoire de convoquer une assemblée générale extraordinaire et de soumettre à celle-ci les projets de résolutions tendant à modifier les statuts dans le sens prévu à l'alinéa précédent et au dernier alinéa du présent article.
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Lorsqu'il est fait droit à la demande, l'astreinte et les frais de procédure sont à la charge des membres du directoire.
Les sociétés dont le conseil de surveillance comprend un ou plusieurs membres nommés parmi les membres des conseils de surveillance des fonds communs de placement d'entreprise représentant les salariés, ou un ou plusieurs salariés élus en application des dispositions de l'article L. 225-79, ne sont pas tenues aux obligations prévues au premier alinéa.
Lorsque l'assemblée générale extraordinaire est convoquée en application du premier alinéa, elle se prononce également sur un projet de résolution prévoyant l'élection d'un ou plusieurs membres du conseil de surveillance par le personnel de la société et des filiales directes ou indirectes dont le siège social est fixé en France. Le cas échéant, ces représentants sont désignés dans les conditions prévues à l'article L. 225-79.
Article L225-72
Les statuts peuvent imposer que chaque membre du conseil de surveillance soit propriétaire d'un nombre d'actions de la société, qu'ils déterminent.
Si, au jour de sa nomination, un membre du conseil de surveillance n'est pas propriétaire du nombre d'actions requis ou si, en cours de mandat, il cesse d'en être propriétaire, il est réputé démissionnaire d'office, s'il n'a pas régularisé sa situation dans le délai de six mois.
Les dispositions du premier alinéa ne s'appliquent pas aux actionnaires salariés nommés membres du conseil de surveillance en application de l'article L. 225-71.
Article L225-73
Les commissaires aux comptes veillent, sous leur responsabilité, à l'observation des dispositions prévues à l'article L. 225-72 et en dénoncent toute violation dans leur rapport à l'assemblée générale annuelle.
Article L225-74
Aucun membre du conseil de surveillance ne peut faire partie du directoire.
Article L225-75
Les membres du conseil de surveillance sont nommés par l'assemblée générale constitutive ou par
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l'assemblée générale ordinaire. Dans le cas prévu à l'article L. 225-16, ils sont désignés dans les statuts. La durée de leurs fonctions est déterminée par les statuts, sans pouvoir excéder six ans en cas de nomination par les assemblées générales et trois ans en cas de nomination dans les statuts. Toutefois, en cas de fusion ou de scission, la nomination peut être faite par l'assemblée générale extraordinaire.
Ils sont rééligibles, sauf stipulation contraire des statuts. Ils peuvent être révoqués à tout moment par l'assemblée générale ordinaire.
Toute nomination intervenue en violation des dispositions précédentes est nulle à l'exception de celles auxquelles il peut être procédé dans les conditions prévues à l'article L. 225-78.
Article L225-76
Une personne morale peut être nommée au conseil de surveillance. Lors de sa nomination, elle est tenue de désigner un représentant permanent qui est soumis aux mêmes conditions et obligations et qui encourt les mêmes responsabilités civile et pénale que s'il était membre du conseil en son nom propre, sans préjudice de la responsabilité solidaire de la personne morale qu'il représente.
Lorsque la personne morale révoque son représentant, elle est tenue de pourvoir en même temps à son remplacement.
Article L225-77
Une personne physique ne peut exercer simultanément plus de cinq mandats de membre de conseil de surveillance de sociétés anonymes ayant leur siège social sur le territoire français.
Par dérogation aux dispositions du premier alinéa, ne sont pas pris en compte les mandats de membre du conseil de surveillance ou d'administrateur exercés par cette personne dans les sociétés contrôlées au sens de l'article L. 233-16 par la société dont elle est déjà membre du conseil de surveillance.
Pour l'application des dispositions du présent article, les mandats de membre du conseil de surveillance des sociétés dont les titres ne sont pas admis aux négociations sur un marché réglementé et contrôlées au sens de l'article L. 233-16 par une même société ne comptent que pour un seul mandat, sous réserve que le nombre de mandats détenus à ce titre n'excède pas cinq.
Toute personne physique qui se trouve en infraction avec les dispositions du présent article doit se démettre de l'un de ses mandats dans les trois mois de sa nomination, ou du mandat en cause dans les trois mois de l'événement ayant entraîné la disparition de l'une des conditions fixées à l'alinéa précédent. A l'expiration de ce délai, elle est réputée s'être démise, selon le cas, soit de son nouveau mandat, soit du mandat ne répondant plus aux conditions fixées à l'alinéa précédent, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
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Article L225-78
En cas de vacance par décès ou par démission d'un ou plusieurs sièges de membre du conseil de surveillance, ce conseil peut, entre deux assemblées générales, procéder à des nominations à titre provisoire.
Lorsque le nombre des membres du conseil de surveillance est devenu inférieur au minimum légal, le directoire doit convoquer immédiatement l'assemblée générale ordinaire en vue de compléter l'effectif du conseil de surveillance.
Lorsque le nombre des membres du conseil de surveillance est devenu inférieur au minimum statutaire sans toutefois être inférieur au minimum légal, le conseil de surveillance doit procéder à des nominations à titre provisoire en vue de compléter son effectif dans le délai de trois mois à compter du jour où se produit la vacance.
Les nominations effectuées par le conseil, en vertu des premier et troisième alinéas ci-dessus, sont soumises à ratification de la prochaine assemblée générale ordinaire. A défaut de ratification, les délibérations prises et les actes accomplis antérieurement par le conseil n'en demeurent pas moins valables.
Lorsque le conseil néglige de procéder aux nominations requises ou si l'assemblée n'est pas convoquée, tout intéressé peut demander en justice la désignation d'un mandataire chargé de convoquer l'assemblée générale, à l'effet de procéder aux nominations ou de ratifier les nominations prévues au troisième alinéa.
Article L225-79
Il peut être stipulé dans les statuts que le conseil de surveillance comprend, outre les membres dont le nombre et le mode de désignation sont prévus aux articles L. 225-69 et L. 225-75, des membres élus soit par le personnel de la société, soit par le personnel de la société et celui de ses filiales directes ou indirectes dont le siège social est fixé sur le territoire français.
Le nombre des membres du conseil de surveillance élus par les salariés ne peut être supérieur à quatre ni excéder le tiers du nombre des autres membres. Lorsque le nombre des membres élus par les salariés est égal ou supérieur à deux, les ingénieurs, cadres et assimilés ont un siège au moins.
Les membres du conseil de surveillance élus par les salariés ne sont pas pris en compte pour la détermination du nombre minimal et du nombre maximal de membres prévus à l'article L. 225-69.
Article L225-79-1
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Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, en cas de nomination aux fonctions de membre du directoire d'une personne liée par un contrat de travail à la société ou à toute société contrôlée ou qui la contrôle au sens des II et III de l'article L. 233-16, les dispositions dudit contrat correspondant, le cas échéant, à des éléments de rémunération, des indemnités ou des avantages dus ou susceptibles d'être dus à raison de la cessation ou du changement de ces fonctions, ou postérieurement à celles-ci, sont soumises au régime prévu par l'article L. 225-90-1.
Article L225-80
Les conditions relatives à l'éligibilité, à l'électorat, à la composition des collèges, aux modalités du scrutin, aux contestations, à la durée et aux conditions d'exercice du mandat, à la révocation, à la protection du contrat de travail et au remplacement des membres du conseil de surveillance élus par les salariés sont fixées selon les règles définies aux articles L. 225-28 à L. 225-34.
Article L225-81
Le conseil de surveillance élit en son sein un président et un vice-président qui sont chargés de convoquer le conseil et d'en diriger les débats. Il détermine, s'il l'entend, leur rémunération.
A peine de nullité de leur nomination, le président et le vice-président du conseil de surveillance sont des personnes physiques. Ils exercent leurs fonctions pendant la durée du mandat du conseil de surveillance.
Article L225-82
Le conseil de surveillance ne délibère valablement que si la moitié au moins de ses membres sont présents.
A moins que les statuts ne prévoient une majorité plus forte, les décisions sont prises à la majorité des membres présents ou représentés.
Sauf lorsque le conseil est réuni pour procéder aux opérations visées au cinquième alinéa de l'article L. 225-68 et sauf disposition contraire des statuts, le règlement intérieur peut prévoir que sont réputés présents, pour le calcul du quorum et de la majorité, des membres du conseil de surveillance qui participent à la réunion par des moyens de visioconférence ou de télécommunication permettant leur identification et garantissant leur participation effective, dont la nature et les conditions d'application sont déterminées par décret en Conseil d'Etat. Les statuts peuvent limiter la nature des décisions pouvant être prises lors d'une réunion tenue dans ces conditions et prévoir un droit d'opposition au profit d'un nombre déterminé de membres du conseil de surveillance.
Sauf disposition contraire des statuts, la voix du président de séance est prépondérante en cas de
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partage.
Article L225-83
L'assemblée générale peut allouer aux membres du conseil de surveillance, en rémunération de leur activité, à titre de jetons de présence, une somme fixe annuelle que cette assemblée détermine sans être liée par des dispositions statutaires ou des décisions antérieures. Le montant de celle-ci est porté aux charges d'exploitation. Sa répartition entre les membres du conseil de surveillance est déterminée par ce dernier.
Article L225-84
Il peut être alloué, par le conseil de surveillance, des rémunérations exceptionnelles pour les missions ou mandats confiés à des membres de ce conseil. Dans ce cas, ces rémunérations, portées aux charges d'exploitation, sont soumises aux dispositions des articles L. 225-86 à L. 225-90.
Article L225-85
Les membres du conseil de surveillance ne peuvent recevoir de la société aucune rémunération, permanente ou non, autre que celles qui sont prévues aux articles L. 225-81, L. 225-83 et L. 225-84 et, le cas échéant, celles dues au titre d'un contrat de travail correspondant à un emploi effectif.
Le nombre des membres du conseil de surveillance liés à la société par un contrat de travail ne peut dépasser le tiers des membres en fonctions. Toutefois, les membres du conseil de surveillance élus conformément aux articles L. 225-79 et L. 225-80 et ceux nommés conformément aux dispositions de l'article L. 225-71 ne sont pas comptés pour la détermination de ce nombre.
Toute clause statutaire contraire est réputée non écrite et toute décision contraire est nulle.
Article L225-86
Toute convention intervenant directement ou par personne interposée entre la société et l'un des membres du directoire ou du conseil de surveillance, un actionnaire disposant d'une fraction des droits de vote supérieure à 10 % ou, s'il s'agit d'une société actionnaire, la société la contrôlant au sens de l'article L. 233-3 doit être soumise à l'autorisation préalable du conseil de surveillance.
Il en est de même des conventions auxquelles une des personnes visées à l'alinéa précédent est indirectement intéressée.
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Sont également soumises à autorisation préalable les conventions intervenant entre la société et une entreprise, si l'un des membres du directoire ou du conseil de surveillance de la société est propriétaire, associé indéfiniment responsable, gérant, administrateur, membre du conseil de surveillance ou, de façon générale, dirigeant de cette entreprise.
Article L225-87
Les dispositions de l'article L. 225-86 ne sont pas applicables aux conventions portant sur des opérations courantes et conclues à des conditions normales.
Toutefois, ces conventions, sauf lorsqu'en raison de leur objet ou de leurs implications financières, elles ne sont significatives pour aucune des parties, sont communiquées par l'intéressé au président du conseil de surveillance. La liste et l'objet en sont communiqués par le président aux membres du conseil de surveillance et aux commissaires aux comptes.
Article L225-88
L'intéressé est tenu d'informer le conseil de surveillance dès qu'il a connaissance d'une convention à laquelle l'article L. 225-86 est applicable. S'il siège au conseil de surveillance, il ne peut prendre part au vote sur l'autorisation sollicitée.
Le président du conseil de surveillance donne avis aux commissaires aux comptes de toutes les conventions autorisées et soumet celles-ci à l'approbation de l'assemblée générale.
Les commissaires aux comptes présentent, sur ces conventions, un rapport spécial à l'assemblée, qui statue sur ce rapport.
L'intéressé ne peut pas prendre part au vote et ses actions ne sont pas prises en compte pour le calcul du quorum et de la majorité.
Article L225-89
Les conventions approuvées par l'assemblée, comme celles qu'elle désapprouve, produisent leurs effets à l'égard des tiers, sauf lorsqu'elles sont annulées dans le cas de fraude.
Même en l'absence de fraude, les conséquences, préjudiciables à la société, des conventions désapprouvées peuvent être mises à la charge de l'interessé et, éventuellement, des autres membres du directoire.
Article L225-90
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Sans préjudice de la responsabilité de l'intéressé, les conventions visées à l'article L. 225-86 et conclues sans autorisation préalable du conseil de surveillance peuvent être annulées si elles ont eu des conséquences dommageables pour la société.
L'action en nullité se prescrit par trois ans à compter de la date de la convention. Toutefois, si la convention a été dissimulée, le point de départ du délai de prescription est reporté au jour où elle a été révélée.
La nullité peut être couverte par un vote de l'assemblée générale intervenant sur rapport spécial des commissaires aux comptes exposant les circonstances en raison desquelles la procédure d'autorisation n'a pas été suivie. Le quatrième alinéa de l'article L. 225-88 est applicable.
Article L225-90-1
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, les engagements pris au bénéfice d'un membre du directoire, par la société elle-même ou par toute société contrôlée ou qui la contrôle au sens des II et III de l'article L. 233-16, et correspondant à des éléments de rémunération, des indemnités ou des avantages dus ou susceptibles d'être dus à raison de la cessation ou du changement de ces fonctions, ou postérieurement à celles-ci, sont soumis aux dispositions des articles L. 225-86 et L. 225-88 à L. 225-90.
Sont interdits les éléments de rémunération, indemnités et avantages dont le bénéfice n'est pas subordonné au respect de conditions liées aux performances du bénéficiaire, appréciées au regard de celles de la société dont il est membre du directoire.
L'autorisation donnée par le conseil de surveillance en application de l'article L. 225-86 est rendue publique selon des modalités et dans des délais fixés par décret en Conseil d'Etat.
La soumission à l'approbation de l'assemblée générale en application de l'article L. 225-88 fait l'objet d'une résolution spécifique pour chaque bénéficiaire. Cette approbation est requise à chaque renouvellement du mandat exercé par les personnes mentionnées au premier alinéa.
Aucun versement, de quelque nature que ce soit, ne peut intervenir avant que le conseil de surveillance ne constate, lors ou après la cessation ou le changement effectif des fonctions, le respect des conditions prévues. Cette décision est rendue publique selon des modalités et dans des délais fixés par décret en Conseil d'Etat. Tout versement effectué en méconnaissance des dispositions du présent alinéa est nul de plein droit.
Les engagements correspondant à des indemnités en contrepartie d'une clause interdisant au bénéficiaire, après la cessation de ses fonctions dans la société, l'exercice d'une activité professionnelle concurrente portant atteinte aux intérêts de la société ne sont soumis qu'aux dispositions du premier alinéa. Il en va de même des engagements de retraite à prestations définies répondant aux caractéristiques des régimes mentionnés à l'article L. 137-11 du code de la sécurité sociale, ainsi que des engagements répondant aux caractéristiques des régimes collectifs et obligatoires de retraite et de prévoyance visés à l'article L. 242-1 du même code.
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Article L225-91
A peine de nullité du contrat, il est interdit aux membres du directoire et aux membres du conseil de surveillance autres que les personnes morales, de contracter, sous quelque forme que ce soit, des emprunts auprès de la société, de se faire consentir par elle un découvert, en compte courant ou autrement, ainsi que de faire cautionner ou avaliser par elle leurs engagements envers les tiers.
L'interdiction s'applique aux représentants permanents des personnes morales membres du conseil de surveillance. Elle s'applique également aux conjoint, ascendants et descendants des personnes visées au présent article, ainsi qu'à toute personne interposée.
Toutefois, si la société exploite un établissement bancaire ou financier, l'interdiction ne s'applique pas aux opérations courantes de ce commerce conclues à des conditions normales.
Article L225-92
Les membres du directoire et du conseil de surveillance, ainsi que toute personne appelée à assister aux réunions de ces organes, sont tenus à la discrétion à l'égard des informations présentant un caractère confidentiel et données comme telles par le président.
Article L225-93
En cas d'ouverture d'une procédure de redressement ou de liquidation judiciaire, en application du titre II du livre VI, les personnes visées par ces dispositions peuvent être rendues responsables du passif social et sont soumises aux interdictions et déchéances, dans les conditions prévues par lesdites dispositions.
Sous-section 3 : Dispositions communes aux mandataires sociaux des sociétés anonymes.
Article L225-94
La limitation du nombre de sièges d'administrateur ou de membre du conseil de surveillance qui peuvent être occupés simultanément par une même personne physique, en vertu des articles L. 225-21 et L. 225-77, est applicable au cumul de sièges d'administrateur et de membre du conseil de surveillance.
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Pour l'application des articles L. 225-54-1 et L. 225-67, est autorisé l'exercice simultané de la direction générale par une personne physique dans une société et dans une autre société qu'elle contrôle au sens de l'article L. 233-16.
Article L225-94-1
Sans préjudice des dispositions des articles L. 225-21, L. 225-54-1, L. 225-67, L. 225-77 et L. 225-94, une personne physique ne peut exercer simultanément plus de cinq mandats de directeur général, de membre du directoire, de directeur général unique, d'administrateur ou de membre du conseil de surveillance de sociétés anonymes ayant leur siège sur le territoire français. Pour l'application de ces dispositions, l'exercice de la direction générale par un administrateur est décompté pour un seul mandat.
Par dérogation aux dispositions ci-dessus, ne sont pas pris en compte les mandats d'administrateur ou de membre de conseil de surveillance dans les sociétés qui sont contrôlées, au sens de l'article L. 233-16, par la société dans laquelle est exercé un mandat au titre du premier alinéa. (1)
Toute personne physique qui se trouve en infraction avec les dispositions du présent article doit se démettre de l'un de ses mandats dans les trois mois de sa nomination, ou du mandat en cause dans les trois mois de l'événement ayant entraîné la disparition de l'une des conditions fixées à l'alinéa précédent. A l'expiration de ce délai, elle est réputée s'être démise, selon le cas, soit de son nouveau mandat, soit du mandat ne répondant plus aux conditions fixées à l'alinéa précédent, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
Article L225-95
En cas de fusion de sociétés anonymes, le nombre de membres du conseil d'administration ou du conseil de surveillance, selon le cas, peut dépasser le nombre de dix-huit, prévu aux articles L. 225-17 et L. 225-69, pendant un délai de trois ans à compter de la date de la fusion fixée à l'article L. 236-4, sans pouvoir être supérieur à vingt-quatre.
Article L225-95-1
Par dérogation aux dispositions des articles L. 225-21, L. 225-77 et L. 225-94-1, ne sont pas pris en compte les mandats de représentant permanent d'une société de capital-risque mentionnée à l'article 1er de la loi n° 85-695 du 11 juillet 1985 portant diverses dispositions d'ordre économique et financier, d'une société financière d'innovation mentionnée au III (B) de l'article 4 de la loi n° 72-650 du 11 juillet 1972 portant diverses dispositions d'ordre économique et financier ou d'une société de gestion habilitée à gérer les fonds communs de placement régis par les articles L. 214-36 et L. 214-41 du code monétaire et financier.
Dès lors que les conditions prévues au présent article ne sont plus remplies, toute personne
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physique doit se démettre des mandats ne répondant pas aux dispositions des articles L. 225-21, L. 225-77 et L. 225-94-1 dans un délai de trois mois. A l'expiration de ce délai, elle est réputée ne plus représenter la personne morale, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
Par dérogation aux articles L. 225-21, L. 225-54-1, L. 225-67 et L. 225-94-1, les mandats de président, de directeur général, de directeur général unique, de membre du directoire ou d'administrateur d'une société d'économie mixte locale, exercés par un représentant d'une collectivité territoriale ou d'un groupement de collectivités territoriales ne sont pas pris en compte pour l'application des règles relatives au cumul des mandats sociaux.
Section 3 : Des assemblées d'actionnaires.
Article L225-96
L'assemblée générale extraordinaire est seule habilitée à modifier les statuts dans toutes leurs dispositions. Toute clause contraire est réputée non écrite. Elle ne peut, toutefois, augmenter les engagements des actionnaires, sous réserve des opérations résultant d'un regroupement d'actions régulièrement effectué.
Elle ne délibère valablement que si les actionnaires présents ou représentés possèdent au moins, sur première convocation, le quart et, sur deuxième convocation, le cinquième des actions ayant le droit de vote. A défaut, la deuxième assemblée peut être prorogée à une date postérieure de deux mois au plus à celle à laquelle elle avait été convoquée. Dans les sociétés dont les actions ne sont pas admises aux négociations sur un marché réglementé, les statuts peuvent prévoir des quorums plus élevés.
Elle statue à la majorité des deux tiers des voix dont disposent les actionnaires présents ou représentés.
Article L225-97
L'assemblée générale extraordinaire peut changer la nationalité de la société, à condition que le pays d'accueil ait conclu avec la France une convention spéciale permettant d'acquérir sa nationalité et de transférer le siège social sur son territoire, et conservant à la société sa personnalité juridique.
Article L225-98
L'assemblée générale ordinaire prend toutes les décisions autres que celles visées aux articles L. 225-96 et L. 225-97.
Elle ne délibère valablement sur première convocation que si les actionnaires présents ou représentés possèdent au moins le cinquième des actions ayant le droit de vote. Dans les sociétés
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dont les actions ne sont pas admises aux négociations sur un marché réglementé, les statuts peuvent prévoir un quorum plus élevé. Sur deuxième convocation, aucun quorum n'est requis.
Elle statue à la majorité des voix dont disposent les actionnaires présents ou représentés.
Article L225-99
Les assemblées spéciales réunissent les titulaires d'actions d'une catégorie déterminée.
La décision d'une assemblée générale de modifier les droits relatifs à une catégorie d'actions n'est définitive qu'après approbation par l'assemblée spéciale des actionnaires de cette catégorie.
Les assemblées spéciales ne délibèrent valablement que si les actionnaires présents ou représentés possèdent au moins, sur première convocation, le tiers et, sur deuxième convocation, le cinquième des actions ayant le droit de vote et dont il est envisagé de modifier les droits.A défaut, la deuxième assemblée peut être prorogée à une date postérieure de deux mois au plus à celle à laquelle elle avait été convoquée. Dans les sociétés dont les actions ne sont pas admises aux négociations sur un marché réglementé, les statuts peuvent prévoir des quorums plus élevés.
Elles statuent dans les conditions prévues au troisième alinéa de l'article L. 225-96.
Article L225-100
L'assemblée générale ordinaire est réunie au moins une fois par an, dans les six mois de la clôture de l'exercice, sous réserve de prolongation de ce délai par décision de justice.
Le conseil d'administration ou le directoire présente à l'assemblée son rapport ainsi que les comptes annuels et, le cas échéant, les comptes consolidés accompagnés du rapport de gestion y afférent.
Ce rapport comprend une analyse objective et exhaustive de l'évolution des affaires, des résultats et de la situation financière de la société, notamment de sa situation d'endettement, au regard du volume et de la complexité des affaires. Dans la mesure nécessaire à la compréhension de l'évolution des affaires, des résultats ou de la situation de la société et indépendamment des indicateurs clés de performance de nature financière devant être insérés dans le rapport en vertu d'autres dispositions du présent code, l'analyse comporte le cas échéant des indicateurs clés de performance de nature non financière ayant trait à l'activité spécifique de la société, notamment des informations relatives aux questions d'environnement et de personnel.
Le rapport comporte également une description des principaux risques et incertitudes auxquels la société est confrontée.
L'analyse mentionnée au troisième alinéa contient, le cas échéant, des renvois aux montants indiqués dans les comptes annuels et des explications supplémentaires y afférentes.
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Le rapport comporte en outre des indications sur l'utilisation des instruments financiers par l'entreprise, lorsque cela est pertinent pour l'évaluation de son actif, de son passif, de sa situation financière et de ses pertes ou profits. Ces indications portent sur les objectifs et la politique de la société en matière de gestion des risques financiers, y compris sa politique concernant la couverture de chaque catégorie principale de transactions prévues pour lesquelles il est fait usage de la comptabilité de couverture. Elles portent également sur l'exposition de la société aux risques de prix, de crédit, de liquidité et de trésorerie.
Est joint à ce rapport un tableau récapitulatif des délégations en cours de validité accordées par l'assemblée générale des actionnaires au conseil d'administration ou au directoire dans le domaine des augmentations de capital, par application des articles L. 225-129-1 et L. 225-129-2. Le tableau fait apparaître l'utilisation faite de ces délégations au cours de l'exercice.
Les commissaires aux comptes relatent, dans leur rapport, l'accomplissement de la mission qui leur est dévolue par les articles L. 823-9, L. 823-10 et L. 823-11.
L'assemblée délibère et statue sur toutes les questions relatives aux comptes annuels et, le cas échéant, aux comptes consolidés de l'exercice écoulé.
Elle exerce les pouvoirs qui lui sont attribués notamment par l'article L. 225-18, le quatrième alinéa de l'article L. 225-24, le troisième alinéa de l'article L. 225-40, le troisième alinéa de l'article L. 225-42 et par l'article L. 225-45 ou, le cas échéant, par l'article L. 225-75, le quatrième alinéa de l'article L. 225-78, l'article L. 225-83, le troisième alinéa de l'article L. 225-88 et le troisième alinéa de l'article L. 225-90.
Article L225-100-1
Les troisième à sixième alinéas de l'article L. 225-100 ne s'appliquent pas aux sociétés qui ne dépassent pas à la clôture de l'exercice des chiffres fixés par décret pour deux des critères suivants : le total de leur bilan, le montant net de leur chiffre d'affaires ou le nombre moyen de salariés permanents employés au cours de l'exercice. Le présent alinéa ne s'applique pas aux sociétés dont des instruments financiers mentionnés au 1 ou au 2 du II de l'article L. 211-1 du code monétaire et financier sont admis à la négociation sur un marché réglementé.
Ne sont pas tenues de fournir les informations de nature non financière mentionnées à la dernière phrase du troisième alinéa de l'article L. 225-100 les sociétés qui ne dépassent pas à la clôture de l'exercice des chiffres fixés par décret pour deux des critères suivants : le total de leur bilan, le montant net de leur chiffre d'affaires ou le nombre moyen de salariés permanents employés au cours de l'exercice. Le présent alinéa ne s'applique pas aux sociétés dont des instruments financiers mentionnés au 1 ou au 2 du II de l'article L. 211-1 du code monétaire et financier sont admis à la négociation sur un marché réglementé.
Article L225-100-2
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Lorsque la société établit des comptes consolidés en application de l'article L. 233-16, le rapport consolidé de gestion comprend une analyse objective et exhaustive de l'évolution des affaires, des résultats et de la situation financière de l'ensemble des entreprises comprises dans la consolidation, notamment de leur situation d'endettement, au regard du volume et de la complexité des affaires. Dans la mesure nécessaire à la compréhension de l'évolution des affaires, des résultats ou de la situation des entreprises, l'analyse comporte des indicateurs clés de performance de nature tant financière que, le cas échéant, non financière ayant trait à l'activité spécifique des entreprises, notamment des informations relatives aux questions d'environnement et de personnel.
Le rapport comporte également une description des principaux risques et incertitudes auxquels l'ensemble des entreprises comprises dans la consolidation est confronté.
L'analyse mentionnée au premier alinéa contient, le cas échéant, des renvois aux montants indiqués dans les comptes consolidés et des explications supplémentaires y afférentes.
Le rapport comporte en outre des indications sur l'utilisation des instruments financiers par l'entreprise, lorsque cela est pertinent pour l'évaluation de son actif, de son passif, de sa situation financière et de ses pertes ou profits. Ces indications portent sur les objectifs et la politique de la société en matière de gestion des risques financiers, y compris sa politique concernant la couverture de chaque catégorie principale de transactions prévues pour lesquelles il est fait usage de la comptabilité de couverture. Elles portent également sur l'exposition de la société aux risques de prix, de crédit, de liquidité et de trésorerie.
Article L225-100-3
Pour les sociétés dont des titres sont admis aux négociations sur un marché réglementé, le rapport visé à l'article L. 225-100 expose et, le cas échéant, explique les éléments suivants lorsqu'ils sont susceptibles d'avoir une incidence en cas d'offre publique :
1° La structure du capital de la société ;
2° Les restrictions statutaires à l'exercice des droits de vote et aux transferts d'actions ou les clauses des conventions portées à la connaissance de la société en application de l'article L. 233-11 ;
3° Les participations directes ou indirectes dans le capital de la société dont elle a connaissance en vertu des articles L. 233-7 et L. 233-12 ;
4° La liste des détenteurs de tout titre comportant des droits de contrôle spéciaux et la description de ceux-ci ;
5° Les mécanismes de contrôle prévus dans un éventuel système d'actionnariat du personnel, quand les droits de contrôle ne sont pas exercés par ce dernier ;
6° Les accords entre actionnaires dont la société a connaissance et qui peuvent entraîner des
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restrictions au transfert d'actions et à l'exercice des droits de vote ;
7° Les règles applicables à la nomination et au remplacement des membres du conseil d'administration ou du directoire ainsi qu'à la modification des statuts de la société ;
8° Les pouvoirs du conseil d'administration ou du directoire, en particulier l'émission ou le rachat d'actions ;
9° Les accords conclus par la société qui sont modifiés ou prennent fin en cas de changement de contrôle de la société, sauf si cette divulgation, hors les cas d'obligation légale de divulgation, porterait gravement atteinte à ses intérêts ;
10° Les accords prévoyant des indemnités pour les membres du conseil d'administration ou du directoire ou les salariés, s'ils démissionnent ou sont licenciés sans cause réelle et sérieuse ou si leur emploi prend fin en raison d'une offre publique.
Article L225-101
Lorsque la société, dans les deux ans suivant son immatriculation, acquiert un bien appartenant à un actionnaire et dont la valeur est au moins égale à un dixième du capital social, un commissaire, chargé d'apprécier, sous sa responsabilité, la valeur de ce bien, est désigné par décision de justice, à la demande du président du conseil d'administration ou du directoire, selon le cas. Ce commissaire est soumis aux incompatibilités prévues à l'article L. 225-224.
Le rapport du commissaire est mis à la disposition des actionnaires. L'assemblée générale ordinaire statue sur l'évaluation du bien, à peine de nullité de l'acquisition. Le vendeur n'a voix délibérative ni pour lui-même ni comme mandataire.
Les dispositions du présent article ne sont pas applicables lorsque l'acquisition est faite en bourse, sous le contrôle d'une autorité judiciaire ou dans le cadre des opérations courantes de la société et conclues à des conditions normales.
Article L225-102
Le rapport présenté par le conseil d'administration ou le directoire, selon le cas, à l'assemblée générale rend compte annuellement de l'état de la participation des salariés au capital social au dernier jour de l'exercice et établit la proportion du capital que représentent les actions détenues par le personnel de la société et par le personnel des sociétés qui lui sont liées au sens de l'article L. 225-180 dans le cadre du plan d'épargne d'entreprise prévu par les articles L. 443-1 à L. 443-9 du code du travail et par les salariés et anciens salariés dans le cadre des fonds communs de placement d'entreprise régis par le chapitre III de la loi n° 88-1201 du 23 décembre 1988 relative aux organismes de placement collectif en valeurs mobilières et portant création des fonds communs de créances. Sont également prises en compte les actions détenues directement par les salariés durant les périodes d'incessibilité prévues aux articles L. 225-194 et L. 225-197, à l'article 11 de la loi n°
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86-912 du 6 août 1986 relative aux modalités des privatisations et à l'article L. 442-7 du code du travail.
Les titres acquis par les salariés dans le cadre d'une opération de rachat d'une entreprise par ses salariés prévue par la loi n° 84-578 du 9 juillet 1984 sur le développement de l'initiative économique ainsi que par les salariés d'une société coopérative ouvrière de production au sens de la loi n° 78-763 du 19 juillet 1978 portant statut de sociétés coopératives ouvrières de production ne sont pas pris en compte pour l'évaluation de la proportion du capital prévue à l'alinéa précédent.
Lorsque le rapport annuel ne comprend pas les mentions prévues au premier alinéa, toute personne intéressée peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au conseil d'administration ou au directoire, selon le cas, de communiquer ces informations.
Lorsqu'il est fait droit à la demande, l'astreinte et les frais de procédure sont à la charge des administrateurs ou des membres du directoire, selon le cas.
Article L225-102-1
Le rapport visé à l'article L. 225-102 rend compte de la rémunération totale et des avantages de toute nature versés, durant l'exercice, à chaque mandataire social, y compris sous forme d'attribution de titres de capital, de titres de créances ou de titres donnant accès au capital ou donnant droit à l'attribution de titres de créances de la société ou des sociétés mentionnées aux articles L. 228-13 et L. 228-93.
Il indique également le montant des rémunérations et des avantages de toute nature que chacun de ces mandataires a reçu durant l'exercice de la part des sociétés contrôlées au sens de l'article L. 233-16 ou de la société qui contrôle, au sens du même article, la société dans laquelle le mandat est exercé.
Ce rapport décrit en les distinguant les éléments fixes, variables et exceptionnels composant ces rémunérations et avantages ainsi que les critères en application desquels ils ont été calculés ou les circonstances en vertu desquelles ils ont été établis. Il indique également les engagements de toutes natures, pris par la société au bénéfice de ses mandataires sociaux, correspondant à des éléments de rémunération, des indemnités ou des avantages dus ou susceptibles d'être dus à raison de la prise, de la cessation ou du changement de ces fonctions ou postérieurement à celles-ci. L'information donnée à ce titre doit préciser les modalités de détermination de ces engagements. Hormis les cas de bonne foi, les versements effectués et les engagements pris en méconnaissance des dispositions du présent alinéa peuvent être annulés.
Il comprend également la liste de l'ensemble des mandats et fonctions exercés dans toute société par chacun de ces mandataires durant l'exercice.
Il comprend également des informations, dont la liste est fixée par décret en Conseil d'Etat, sur la manière dont la société prend en compte les conséquences sociales et environnementales de son activité. Le présent alinéa ne s'applique pas aux sociétés dont les titres ne sont pas admis aux négociations sur un marché réglementé.
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Les dispositions des deux derniers alinéas de l'article L. 225-102 sont applicables aux informations visées au présent article.
Les dispositions des premier à troisième alinéas ne sont pas applicables aux sociétés dont les titres ne sont pas admis aux négociations sur un marché réglementé et qui ne sont pas contrôlées au sens de l'article L. 233-16 par une société dont les titres sont admis aux négociations sur un marché réglementé. Ces dispositions ne sont, en outre, pas applicables aux mandataires sociaux ne détenant aucun mandat dans une société dont les titres sont admis aux négociations sur un marché réglementé.
Article L225-102-2
Pour les sociétés exploitant au moins une installation figurant sur la liste prévue au IV de l'article L. 515-8 du code de l'environnement, le rapport mentionné à l'article L. 225-102 du présent code :
- informe de la politique de prévention du risque d'accident technologique menée par la société ;
- rend compte de la capacité de la société à couvrir sa responsabilité civile vis-à-vis des biens et des personnes du fait de l'exploitation de telles installations ;
- précise les moyens prévus par la société pour assurer la gestion de l'indemnisation des victimes en cas d'accident technologique engageant sa responsabilité.
Article L225-103
I. - L'assemblée générale est convoquée par le conseil d'administration ou le directoire, selon le cas.
II. - A défaut, l'assemblée générale peut être également convoquée :
1° Par les commissaires aux comptes ;
2° Par un mandataire, désigné en justice, à la demande, soit de tout intéressé en cas d'urgence, soit d'un ou plusieurs actionnaires réunissant au moins 5 % du capital social, soit d'une association d'actionnaires répondant aux conditions fixées à l'article L. 225-120 ;
3° Par les liquidateurs ;
4° Par les actionnaires majoritaires en capital ou en droits de vote après une offre publique d'achat ou d'échange ou après une cession d'un bloc de contrôle.
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III. - Dans les sociétés soumises aux articles L. 225-57 à L. 225-93, l'assemblée générale peut être convoquée par le conseil de surveillance.
IV. - Les dispositions qui précédent sont applicables aux assemblées spéciales. Les actionnaires agissant en désignation d'un mandataire de justice doivent réunir au moins le dixième des actions de la catégorie intéressée.
V. - Sauf clause contraire des statuts, les assemblées d'actionnaires sont réunies au siège social ou en tout autre lieu du même département.
Article L225-104
La convocation des assemblées d'actionnaires est faite dans les formes et délais fixés par décret en Conseil d'Etat.
Toute assemblée irrégulièrement convoquée peut être annulée. Toutefois, l'action en nullité n'est pas recevable lorsque tous les actionnaires étaient présents ou représentés.
Article L225-105
L'ordre du jour des assemblées est arrêté par l'auteur de la convocation.
Toutefois, un ou plusieurs actionnaires représentant au moins 5 % du capital ou une association d'actionnaires répondant aux conditions fixées à l'article L. 225-120 ont la faculté de requérir l'inscription à l'ordre du jour de projets de résolution. Ces projets de résolution sont inscrits à l'ordre du jour de l'assemblée et portés à la connaissance des actionnaires dans les conditions déterminées par décret en Conseil d'Etat. Celui-ci peut réduire le pourcentage exigé par le présent alinéa, lorsque le capital social excède un montant fixé par ledit décret.
L'assemblée ne peut délibérer sur une question qui n'est pas inscrite à l'ordre du jour. Néanmoins, elle peut, en toutes circonstances, révoquer un ou plusieurs administrateurs ou membres du conseil de surveillance et procéder à leur remplacement.
L'ordre du jour de l'assemblée ne peut être modifié sur deuxième convocation.
Lorsque l'assemblée est appelée à délibérer sur des modifications de l'organisation économique ou juridique de l'entreprise sur lesquelles le comité d'entreprise a été consulté en application de l'article L. 432-1 du code du travail, l'avis de celui-ci lui est communiqué.
Article L225-106
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Un actionnaire peut se faire représenter par un autre actionnaire ou par son conjoint.
Tout actionnaire peut recevoir les pouvoirs émis par d'autres actionnaires en vue d'être représentés à une assemblée, sans autres limites que celles résultant des dispositions légales ou statutaires fixant le nombre maximal des voix dont peut disposer une même personne, tant en son nom personnel que comme mandataire.
Avant chaque réunion de l'assemblée générale des actionnaires, le président du conseil d'administration ou le directoire, selon le cas, peut organiser la consultation des actionnaires mentionnés à l'article L. 225-102 afin de leur permettre de désigner un ou plusieurs mandataires pour les représenter à l'assemblée générale conformément aux dispositions du présent article.
Cette consultation est obligatoire lorsque, les statuts ayant été modifiés en application de l'article L. 225-23 ou de l'article L. 225-71, l'assemblée générale ordinaire doit nommer au conseil d'administration ou au conseil de surveillance, selon le cas, un ou des salariés actionnaires ou membres des conseils de surveillance des fonds communs de placement d'entreprise détenant des actions de la société.
Cette consultation est également obligatoire lorsque l'assemblée générale extraordinaire doit se prononcer sur une modification des statuts en application de l'article L. 225-23 ou de l'article L. 225-71.
Les clauses contraires aux dispositions des alinéas précédents sont réputées non écrites.
Pour toute procuration d'un actionnaire sans indication de mandataire, le président de l'assemblée générale émet un vote favorable à l'adoption des projets de résolution présentés ou agréés par le conseil d'administration ou le directoire, selon le cas, et un vote défavorable à l'adoption de tous les autres projets de résolution. Pour émettre tout autre vote, l'actionnaire doit faire choix d'un mandataire qui accepte de voter dans le sens indiqué par le mandant.
Article L225-107
I. Tout actionnaire peut voter par correspondance, au moyen d'un formulaire dont les mentions sont fixées par décret en Conseil d'Etat. Les dispositions contraires des statuts sont réputées non écrites.
Pour le calcul du quorum, il n'est tenu compte que des formulaires qui ont été reçus par la société avant la réunion de l'assemblée, dans les conditions de délais fixées par décret en Conseil d'Etat. Les formulaires ne donnant aucun sens de vote ou exprimant une abstention sont considérés comme des votes négatifs.
II. Si les statuts le prévoient, sont réputés présents pour le calcul du quorum et de la majorité les actionnaires qui participent à l'assemblée par visioconférence ou par des moyens de télécommunication permettant leur identification et dont la nature et les conditions d'application sont déterminées par décret en Conseil d'Etat.
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Article L225-107-1
Les propriétaires de titres mentionnés au septième alinéa de l'article L. 228-1 peuvent se faire représenter dans les conditions prévues audit article par un intermédiaire inscrit.
Article L225-108
Le conseil d'administration ou le directoire, selon le cas, doit adresser ou mettre à la disposition des actionnaires les documents nécessaires pour permettre à ceux-ci de se prononcer en connaissance de cause et de porter un jugement informé sur la gestion et la marche des affaires de la société.
La nature de ces documents et les conditions de leur envoi ou de leur mise à la disposition des actionnaires sont déterminées par décret en Conseil d'Etat.
A compter de la communication prévue au premier alinéa, tout actionnaire a la faculté de poser par écrit des questions auxquelles le conseil d'administration ou le directoire, selon le cas, est tenu de répondre au cours de l'assemblée.
Article L225-109
Le président, les directeurs généraux, les membres du directoire d'une société, les personnes physiques ou morales exerçant dans cette société les fonctions d'administrateur ou de membre du conseil de surveillance ainsi que les représentants permanents des personnes morales qui exercent ces fonctions sont tenus, dans les conditions déterminées par décret en Conseil d'Etat, de faire mettre sous la forme nominative ou de déposer les actions qui appartiennent à eux-mêmes ou à leurs enfants mineurs non émancipés et qui sont émises par la société elle-même, par ses filiales, par la société dont elle est la filiale ou par les autres filiales de cette dernière société, lorsque ces actions sont admises aux négociations sur un marché réglementé.
La même obligation incombe aux conjoints non séparés de corps des personnes mentionnées à l'alinéa précédent.
Article L225-110
Le droit de vote attaché à l'action appartient à l'usufruitier dans les assemblées générales ordinaires et au nu-propriétaire dans les assemblées générales extraordinaires.
Les copropriétaires d'actions indivises sont représentés aux assemblées générales par l'un d'eux ou par un mandataire unique. En cas de désaccord, le mandataire est désigné en justice à la demande du copropriétaire le plus diligent.
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Le droit de vote est exercé par le propriétaire des titres remis en gage. A cet effet, le créancier gagiste dépose, à la demande de son débiteur, les actions qu'il détient en gage, dans les conditions et délais fixés par décret en Conseil d'Etat.
Les statuts peuvent déroger aux dispositions du premier alinéa.
Article L225-111
La société ne peut valablement voter avec des actions par elle souscrites, acquises ou prises en gage. Il n'est pas tenu compte de ces actions pour le calcul du quorum.
Article L225-113
Tout actionnaire peut participer aux assemblées générales extraordinaires et tout actionnaire possédant des actions visées à l'article L. 225-99 peut participer aux assemblées spéciales. Toute clause contraire est réputée non écrite.
Article L225-114
A chaque assemblée, est tenue une feuille de présence dont les mentions sont déterminées par décret en Conseil d'Etat.
Article L225-115
Tout actionnaire a droit, dans les conditions et délais déterminés par décret en Conseil d'Etat, d'obtenir communication :
1° De l'inventaire, des comptes annuels et de la liste des administrateurs ou des membres du directoire et du conseil de surveillance, et, le cas échéant, des comptes consolidés ;
2° Des rapports du conseil d'administration ou du directoire et du conseil de surveillance, selon le cas, et des commissaires aux comptes, qui seront soumis à l'assemblée ;
3° Le cas échéant, du texte et de l'exposé des motifs des résolutions proposées, ainsi que des renseignements concernant les candidats au conseil d'administration ou au conseil de surveillance, selon le cas ;
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4° Du montant global, certifié exact par les commissaires aux comptes, des rémunérations versées aux personnes les mieux rémunérées, le nombre de ces personnes étant de dix ou de cinq selon que l'effectif du personnel excède ou non deux cents salariés ;
5° Du montant global, certifié par les commissaires aux comptes des versements effectués en application des 1 et 4 de l'article 238 bis du code général des impôts ainsi que de la liste des actions nominatives de parrainage, de mécénat ;
6° De la liste et de l'objet des conventions portant sur des opérations courantes conclues à des conditions normales, établis conformément aux articles L. 225-39 et L. 225-87.
Article L225-116
Avant la réunion de toute assemblée générale, tout actionnaire a le droit d'obtenir, dans les conditions et les délais déterminés par décret en Conseil d'Etat, communication de la liste des actionnaires.
Article L225-117
Tout actionnaire a le droit, à toute époque, d'obtenir communication des documents visés à l'article L. 225-115 et concernant les trois derniers exercices, ainsi que des procès-verbaux et feuilles de présence des assemblées tenues au cours de ces trois derniers exercices.
Article L225-118
Le droit à communication des documents, prévu aux articles L. 225-115, L. 225-116 et L. 225-117, appartient également à chacun des copropriétaires d'actions indivises, au nu-propriétaire et à l'usufruitier d'actions.
Article L225-120
I. - Dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, les actionnaires justifiant d'une inscription nominative depuis au moins deux ans et détenant ensemble au moins 5 % des droits de vote peuvent se regrouper en associations destinées à représenter leurs intérêts au sein de la société. Pour exercer les droits qui leur sont reconnus aux articles L. 225-103, L. 225-105, L. 823-6, L. 225-231, L. 225-232, L. 823-7 et L. 225-252, ces associations doivent avoir communiqué leur statut à la société et à l'Autorité des marchés financiers.
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II. - Toutefois, lorsque le capital de la société est supérieur à 750 000 euros, la part des droits de vote à représenter en application de l'alinéa précédent, est, selon l'importance des droits de vote afférent au capital, réduite ainsi qu'il suit :
1° 4 % entre 750 000 euros et jusqu'à 4 500 000 euros ;
2° 3 % entre 4 500 000 euros et 7 500 000 euros ;
3° 2 % entre 7 500 000 euros et 15 000 000 euros ;
4° 1 % au-delà de 15 000 000 euros.
Article L225-121
Les délibérations prises par les assemblées en violation des articles L. 225-96, L. 225-97, L. 225-98, des troisième et quatrième alinéas de l'article L. 225-99, du deuxième alinéa de l'article L. 225-100 et des articles L. 225-105 et L. 225-114 sont nulles.
En cas de violation des dispositions des articles L. 225-115 et L. 225-116 ou du décret pris pour leur application, l'assemblée peut être annulée.
Article L225-122
I. - Sous réserve des dispositions des articles L. 225-10, L. 225-123, L. 225-124, L. 225-125 et L. 225-126, le droit de vote attaché aux actions de capital ou de jouissance est proportionnel à la quotité de capital qu'elles représentent et chaque action donne droit à une voix au moins. Toute clause contraire est réputée non écrite.
II. - Dans les sociétés par actions dont le capital est, pour un motif d'intérêt général, en partie propriété de l'Etat, de départements, de communes ou d'établissements publics, et dans celles ayant pour objet des exploitations concédées par les autorités administratives compétentes, hors de la France métropolitaine, le droit de vote est réglé par les statuts en vigueur le 1er avril 1967.
Article L225-123
Un droit de vote double de celui conféré aux autres actions, eu égard à la quotité de capital social qu'elles représentent, peut être attribué, par les statuts ou une assemblée générale extraordinaire ultérieure, à toutes les actions entièrement libérées pour lesquelles il sera justifié d'une inscription nominative, depuis deux ans au moins, au nom du même actionnaire.
En outre, en cas d'augmentation du capital par incorporation de réserves, bénéfices ou primes
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d'émission, le droit de vote double peut être conféré, dès leur émission, aux actions nominatives attribuées gratuitement à un actionnaire à raison d'actions anciennes pour lesquelles il bénéficie de ce droit.
Le droit de vote prévu aux premier et deuxième alinéas ci-dessus peut être réservé aux actionnaires de nationalité française et à ceux ressortissant d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen.
Article L225-124
Toute action convertie au porteur ou transférée en propriété perd le droit de vote double attribué en application de l'article L. 225-123. Néanmoins, le transfert par suite de succession, de liquidation de communauté de biens entre époux ou de donation entre vifs au profit d'un conjoint ou d'un parent au degré successible ne fait pas perdre le droit acquis et n'interrompt pas le délai mentionné au premier alinéa de l'article L. 225-123. Il en est de même, sauf stipulation contraire des statuts de la société ayant attribué le droit de vote double, en cas de transfert par suite d'une fusion ou d'une scission d'une société actionnaire.
La fusion ou la scission de la société est sans effet sur le droit de vote double qui peut être exercé au sein de la ou des sociétés bénéficiaires, si les statuts de celles-ci l'ont institué.
Article L225-125
Les statuts peuvent limiter le nombre de voix dont chaque actionnaire dispose dans les assemblées, sous la condition que cette limitation soit imposée à toutes les actions sans distinction de catégorie, autres que les actions à dividende prioritaire sans droit de vote.
Les effets de la limitation mentionnée à l'alinéa précédent, prévue dans les statuts d'une société qui fait l'objet d'une offre publique et dont des actions sont admises à la négociation sur un marché réglementé, sont suspendus lors de la première assemblée générale qui suit la clôture de l'offre lorsque l'auteur de l'offre, agissant seul ou de concert, vient à détenir une fraction du capital ou des droits de vote de la société visée par l'offre supérieure à une quotité fixée par le règlement général de l'Autorité des marchés financiers, au moins égale à celle requise pour modifier les statuts, et dans la limite des trois quarts.
Section 4 : Des modifications du capital social et de l'actionnariat des salariés.
Sous-section 1 : De l'augmentation du capital.
Article L225-127
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Le capital social est augmenté soit par émission d'actions ordinaires ou d'actions de préférence, soit par majoration du montant nominal des titres de capital existants.
Il peut également être augmenté par l'exercice de droits attachés à des valeurs mobilières donnant accès au capital, dans les conditions prévues aux articles L. 225-149 et L. 225-177.
Article L225-128
Les titres de capital nouveaux sont émis soit à leur montant nominal, soit à ce montant majoré d'une prime d'émission.
Ils sont libérés soit par apport en numéraire y compris par compensation avec des créances liquides et exigibles sur la société, soit par apport en nature, soit par incorporation de réserves, bénéfices ou primes d'émission, soit en conséquence d'une fusion ou d'une scission.
Ils peuvent aussi être libérés consécutivement à l'exercice d'un droit attaché à des valeurs mobilières donnant accès au capital comprenant, le cas échéant, le versement des sommes correspondantes.
Article L225-129
L'assemblée générale extraordinaire est seule compétente pour décider, sur le rapport du conseil d'administration ou du directoire, une augmentation de capital immédiate ou à terme. Elle peut déléguer cette compétence au conseil d'administration ou au directoire dans les conditions fixées à l'article L. 225-129-2.
L'augmentation de capital doit, sous réserve des dispositions prévues aux articles L. 225-129-2 et L. 225-138, être réalisée dans le délai de cinq ans à compter de cette décision ou de cette délégation. Ce délai ne s'applique pas aux augmentations de capital à réaliser à la suite de l'exercice d'un droit attaché à une valeur mobilière donnant accès au capital ou à la suite des levées d'options prévues à l'article L. 225-177 ou du fait de l'attribution définitive d'actions gratuites prévue à l'article L. 225-197-1.
Article L225-129-1
Lorsque l'assemblée générale extraordinaire décide l'augmentation de capital, elle peut déléguer au conseil d'administration ou au directoire le pouvoir de fixer les modalités de l'émission des titres.
Article L225-129-2
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Lorsque l'assemblée générale extraordinaire délègue au conseil d'administration ou au directoire sa compétence pour décider de l'augmentation de capital, elle fixe la durée, qui ne peut excéder vingt-six mois, durant laquelle cette délégation peut être utilisée et le plafond global de cette augmentation.
Cette délégation prive d'effet toute délégation antérieure ayant le même objet.
Les émissions mentionnées aux articles L. 225-135 à L. 225-138-1 et L. 225-177 à L. 225-186, L. 225-197-1 à L. 225-197-3 ainsi que les émissions d'actions de préférence mentionnées aux articles L. 228-11 à L. 228-20 doivent faire l'objet de résolutions particulières.
Dans la limite de la délégation donnée par l'assemblée générale, le conseil d'administration ou le directoire dispose des pouvoirs nécessaires pour fixer les conditions d'émission, constater la réalisation des augmentations de capital qui en résultent et procéder à la modification corrélative des statuts.
Article L225-129-4
Dans les sociétés anonymes dont les titres de capital sont admis aux négociations sur un marché réglementé ou sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations :
a) Le conseil d'administration peut, dans les limites qu'il aura préalablement fixées, déléguer au directeur général ou, en accord avec ce dernier, à un ou plusieurs directeurs généraux délégués le pouvoir de décider la réalisation de l'émission, ainsi que celui d'y surseoir ;
b) Le directoire peut déléguer à son président ou, en accord avec celui-ci, à l'un de ses membres le pouvoir de décider la réalisation de l'émission, ainsi que celui d'y surseoir.
Les personnes désignées rendent compte au conseil d'administration ou au directoire de l'utilisation faite de ce pouvoir dans les conditions prévues par ces derniers.
Article L225-129-5
Lorsqu'il est fait usage des délégations prévues aux articles L. 225-129-1 et L. 225-129-2, le conseil d'administration ou le directoire établit un rapport complémentaire à l'assemblée générale ordinaire suivante dans les conditions fixées par décret en Conseil d'Etat.
Article L225-129-6
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Lors de toute décision d'augmentation du capital par apport en numéraire, sauf si elle résulte d'une émission au préalable de valeurs mobilières donnant accès au capital, l'assemblée générale extraordinaire doit se prononcer sur un projet de résolution tendant à la réalisation d'une augmentation de capital dans les conditions prévues aux articles L. 3332-18 à L. 3332-24 du code du travail. Toutefois, l'assemblée générale extraordinaire se prononce sur un tel projet de résolution lorsqu'elle délègue sa compétence pour réaliser l'augmentation de capital conformément à l'article L. 225-129-2.
Tous les trois ans, une assemblée générale extraordinaire est convoquée pour se prononcer sur un projet de résolution tendant à réaliser une augmentation de capital dans les conditions prévues à l'article L. 443-5 du code du travail si, au vu du rapport présenté à l'assemblée générale par le conseil d'administration ou le directoire en application de l'article L. 225-102, les actions détenues par le personnel de la société et des sociétés qui lui sont liées au sens de l'article L. 225-180 représentent moins de 3 % du capital.
Article L225-130
Lorsque l'augmentation du capital, que ce soit par émission de titres de capital nouveaux ou par majoration du montant nominal des titres de capital existants, est réalisée par incorporation de réserves, bénéfices ou primes d'émission, l'assemblée générale, par dérogation aux dispositions de l'article L. 225-96, statue dans les conditions de quorum et de majorité prévues à l'article L. 225-98. Dans ce cas, elle peut décider que les droits formant rompus ne sont ni négociables, ni cessibles et que les titres de capital correspondants sont vendus. Les sommes provenant de la vente sont allouées aux titulaires des droits dans un délai fixé par décret en Conseil d'Etat.
L'augmentation de capital par majoration du montant nominal des titres de capital, en dehors des cas prévus à l'alinéa précédent, n'est décidée qu'avec le consentement unanime des actionnaires.
Article L225-131
Le capital doit être intégralement libéré avant toute émission d'actions nouvelles à libérer en numéraire.
En outre, l'augmentation du capital par offre au public, réalisée moins de deux ans après la constitution d'une société selon les articles L. 225-12 à L. 225-16, doit être précédée, dans les conditions visées aux articles L. 225-8 à L. 225-10, d'une vérification de l'actif et du passif ainsi que, le cas échéant, des avantages particuliers consentis.
Article L225-132
Les actions comportent un droit préférentiel de souscription aux augmentations de capital.
Les actionnaires ont, proportionnellement au montant de leurs actions, un droit de préférence à la
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souscription des actions de numéraire émises pour réaliser une augmentation de capital.
Pendant la durée de la souscription, ce droit est négociable lorsqu'il est détaché d'actions elles-mêmes négociables. Dans le cas contraire, il est cessible dans les mêmes conditions que l'action elle-même.
Les actionnaires peuvent renoncer à titre individuel à leur droit préférentiel.
La décision relative à la conversion des actions de préférence emporte renonciation des actionnaires au droit préférentiel de souscription aux actions issues de la conversion.
La décision d'émission de valeurs mobilières donnant accès au capital emporte également renonciation des actionnaires à leur droit préférentiel de souscription aux titres de capital auxquels les valeurs mobilières émises donnent droit.
Article L225-133
Si l'assemblée générale ou, en cas de délégation prévue à l'article L. 225-129, le conseil d'administration ou le directoire le décide expressément, les titres de capital non souscrits à titre irréductible sont attribués aux actionnaires qui auront souscrit un nombre de titres supérieur à celui auquel ils pouvaient souscrire à titre préférentiel, proportionnellement aux droits de souscription dont ils disposent et, en tout état de cause, dans la limite de leurs demandes.
Article L225-134
I. - Si les souscriptions à titre irréductible et, le cas échéant, à titre réductible n'ont pas absorbé la totalité de l'augmentation de capital :
1° Le montant de l'augmentation de capital peut être limité au montant des souscriptions sauf décision contraire de l'assemblée générale. En aucun cas, le montant de l'augmentation de capital ne peut être inférieur aux trois quarts de l'augmentation décidée ;
2° Les actions non souscrites peuvent être librement réparties totalement ou partiellement, à moins que l'assemblée en ait décidé autrement ;
3° Les actions non souscrites peuvent être offertes au public totalement ou partiellement lorsque l'assemblée a expressément admis cette possibilité.
II. - Le conseil d'administration ou le directoire peut utiliser dans l'ordre qu'il détermine les facultés prévues ci-dessus ou certaines d'entre elles seulement. L'augmentation de capital n'est pas réalisée lorsque après l'exercice de ces facultés, le montant des souscriptions reçues n'atteint pas la totalité de l'augmentation de capital ou les trois quarts de cette augmentation dans le cas prévu au 1° du I.
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III. - Toutefois, le conseil d'administration ou le directoire peut, d'office et dans tous les cas, limiter l'augmentation de capital au montant atteint lorsque les actions non souscrites représentent moins de 3 % de l'augmentation de capital. Toute délibération contraire est réputée non écrite.
Article L225-135
L'assemblée qui décide ou autorise une augmentation de capital peut supprimer le droit préférentiel de souscription pour la totalité de l'augmentation de capital ou pour une ou plusieurs tranches de cette augmentation. Elle statue sur le rapport du conseil d'administration ou du directoire. Lorsqu'elle décide l'augmentation de capital, elle statue également sur rapport des commissaires aux comptes. Lors des émissions auxquelles il est procédé par le conseil d'administration ou le directoire en application d'une autorisation donnée par l'assemblée générale, le commissaire aux comptes établit un rapport au conseil d'administration ou au directoire.
Dans les sociétés dont les titres de capital sont admis aux négociations sur un marché réglementé, l'assemblée peut prévoir que l'augmentation de capital qu'elle décide ou autorise comporte un délai de priorité de souscription en faveur des actionnaires, dont la durée minimale est fixée par décret en Conseil d'Etat. Elle peut également déléguer au conseil d'administration ou au directoire la faculté d'apprécier s'il y a lieu de prévoir un tel délai et éventuellement de fixer ce délai dans les mêmes conditions.
Un décret en Conseil d'Etat fixe les conditions dans lesquelles sont établis les rapports des commissaires aux comptes prévus au présent article.
Article L225-135-1
En cas d'augmentation de capital avec ou sans droit préférentiel de souscription, l'assemblée peut prévoir que le nombre de titres pourra être augmenté pendant un délai fixé par décret en Conseil d'Etat, dans la limite d'une fraction de l'émission initiale déterminée par ce même décret et au même prix que celui retenu pour l'émission initiale. La limite prévue au 1° du I de l'article L. 225-134 est alors augmentée dans les mêmes proportions.
Article L225-136
L'émission de titres de capital sans droit préférentiel de souscription par une offre au public ou par une offre visée au II de l'article L. 411-2 du code monétaire et financier est soumise aux conditions suivantes :
1° Pour les sociétés dont les titres de capital sont admis aux négociations sur un marché réglementé et dans la mesure où les titres de capital à émettre de manière immédiate ou différée leur sont assimilables, le prix d'émission desdits titres doit être fixé selon des modalités prévues par décret en Conseil d'Etat pris après consultation de l'Autorité des marchés financiers ;
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Toutefois, dans la limite de 10 % du capital social par an, l'assemblée générale extraordinaire peut autoriser le conseil d'administration ou le directoire à fixer le prix d'émission selon des modalités qu'elle détermine au vu d'un rapport du conseil d'administration ou du directoire, et d'un rapport spécial du commissaire aux comptes. Lorsqu'il est fait usage de cette autorisation, le conseil d'administration ou le directoire établit un rapport complémentaire, certifié par le commissaire aux comptes, décrivant les conditions définitives de l'opération et donnant des éléments d'appréciation de l'incidence effective sur la situation de l'actionnaire.
2° Dans les autres cas, le prix d'émission ou les conditions de fixation de ce prix sont déterminés par l'assemblée générale extraordinaire sur rapport du conseil d'administration ou du directoire et sur rapport spécial du commissaire aux comptes ;
3° L'émission de titres de capital réalisée par une offre visée au II de l'article L. 411-2 du code monétaire et financier est limitée à 20 % du capital social par an.
Article L225-138
I. - L'assemblée générale qui décide l'augmentation du capital peut la réserver à une ou plusieurs personnes nommément désignées ou catégories de personnes répondant à des caractéristiques déterminées. A cette fin, elle peut supprimer le droit préférentiel de souscription. Les personnes nommément désignées bénéficiaires de cette disposition ne peuvent prendre part au vote. Le quorum et la majorité requis sont calculés après déduction des actions qu'elles possèdent. La procédure prévue à l'article L. 225-147 n'est pas applicable.
Lorsque l'assemblée générale extraordinaire supprime le droit préférentiel de souscription en faveur d'une ou plusieurs catégories de personnes répondant à des caractéristiques qu'elle fixe, elle peut déléguer au conseil d'administration ou au directoire le soin d'arrêter la liste des bénéficiaires au sein de cette ou de ces catégories et le nombre de titres à attribuer à chacun d'eux, dans les limites des plafonds prévus au premier alinéa de l'article L. 225-129-2. Lorsqu'il fait usage de cette délégation, le conseil d'administration ou le directoire établit un rapport complémentaire à la prochaine assemblée générale ordinaire, certifié par le commissaire aux comptes, décrivant les conditions définitives de l'opération.
II. - Le prix d'émission ou les conditions de fixation de ce prix sont déterminés par l'assemblée générale extraordinaire sur rapport du conseil d'administration ou du directoire et sur rapport spécial du commissaire aux comptes.
III. - L'émission doit être réalisée dans un délai de dix-huit mois à compter de l'assemblée générale qui l'a décidée ou qui a voté la délégation prévue à l'article L. 225-129.
Article L225-138-1
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Pour l'application du premier alinéa de l'article L. 443-5 du code du travail relatif aux augmentations de capital réservées aux adhérents d'un plan d'épargne d'entreprise, lorsque l'assemblée générale a supprimé le droit préférentiel de souscription en faveur des salariés de la société ou des sociétés qui lui sont liées au sens de l'article L. 225-180, les dispositions des I et II de l'article L. 225-138 s'appliquent et :
1° Le prix de souscription demeure déterminé dans les conditions définies à l'article L. 443-5 du code du travail ;
2° L'augmentation de capital n'est réalisée qu'à concurrence du montant des titres de capital souscrits par les salariés individuellement ou par l'intermédiaire d'un fonds commun de placement ou des titres émis par des sociétés d'investissement à capital variable régies par l'article L. 214-40-1 du code monétaire et financier. Elle ne donne pas lieu aux formalités prévues aux articles L. 225-142, L. 225-144 et L. 225-146 ;
3° (supprimé)
4° Le délai susceptible d'être accordé aux souscripteurs pour la libération de leurs titres ne peut être supérieur à trois ans ;
5° Les titres de capital ou valeurs mobilières donnant accès au capital peuvent être libérés, à la demande de la société ou du souscripteur, soit par versements périodiques, soit par prélèvements égaux et réguliers sur le salaire du souscripteur ;
6° Les titres de capital ou valeurs mobilières donnant accès au capital ainsi souscrits délivrés avant l'expiration du délai de cinq ans prévu à l'article L. 443-6 du code du travail ne sont négociables qu'après avoir été intégralement libérés ;
7° Les titres de capital ou valeurs mobilières donnant accès au capital réservés aux adhérents aux plans d'épargne mentionnés à l'article L. 443-1 du code du travail peuvent, par dérogation aux dispositions du premier alinéa de l'article L. 225-131 du présent code, être émis alors même que le capital social n'aurait pas été intégralement libéré.
Le fait que les titres mentionnés à l'alinéa précédent n'aient pas été entièrement libérés ne fait pas obstacle à l'émission de titres de capital à libérer en numéraire.
Les participants au plan d'épargne d'entreprise prévu à l'article L. 443-1 du code du travail peuvent obtenir la résiliation ou la réduction de leur engagement de souscription ou de détention de titres de capital ou de valeurs mobilières donnant accès au capital émis par l'entreprise dans les cas et conditions fixés par les décrets en Conseil d'Etat prévus à l'article L. 442-7 du même code.
Article L225-139
Un décret en Conseil d'Etat détermine les mentions qui doivent figurer dans les rapports prévus aux articles L. 225-129, L. 225-135, L. 225-136 et L. 225-138, de même que dans les rapports prévus en
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cas d'émission d'actions de préférence ou de valeurs mobilières donnant accès au capital.
Article L225-140
Lorsque les titres de capital sont grevés d'un usufruit, le droit préférentiel de souscription qui leur est attaché appartient au nu-propriétaire. Si celui-ci vend les droits de souscription, les sommes provenant de la cession ou les biens acquis par lui au moyen de ces sommes sont soumis à l'usufruit. Si le nu-propriétaire néglige d'exercer son droit, l'usufruitier peut se substituer à lui pour souscrire aux titres nouveaux ou pour vendre les droits. Dans ce dernier cas, le nu-propriétaire peut exiger le remploi des sommes provenant de la cession. Les biens ainsi acquis sont soumis à l'usufruit.
Les titres nouveaux appartiennent au nu-propriétaire pour la nue-propriété et à l'usufruitier pour l'usufruit. Toutefois, en cas de versement de fonds effectué par le nu-propriétaire ou l'usufruitier pour réaliser ou parfaire une souscription, les titres nouveaux n'appartiennent au nu-propriétaire et à l'usufruitier qu'à concurrence de la valeur des droits de souscription. Le surplus des titres nouveaux appartient en pleine propriété à celui qui a versé les fonds.
Un décret en Conseil d'Etat fixe les conditions d'application du présent article dont les dispositions sont également suivies en cas d'attribution de titres gratuits.
Les dispositions du présent article s'appliquent dans le silence de la convention des parties.
Article L225-141
Le délai accordé aux actionnaires pour l'exercice du droit de souscription ne peut être inférieur à cinq jours de bourse à dater de l'ouverture de la souscription.
Ce délai se trouve clos par anticipation dès que tous les droits de souscription à titre irréductible ont été exercés ou que l'augmentation de capital a été intégralement souscrite après renonciation individuelle à leurs droits de souscription des actionnaires qui n'ont pas souscrit.
Article L225-142
La société accomplit, avant l'ouverture de la souscription, des formalités de publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Article L225-143
Le contrat de souscription à des titres de capital ou à des valeurs mobilières donnant accès au
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capital est constaté par un bulletin de souscription, établi dans les conditions déterminées par décret en Conseil d'Etat.
Toutefois, le bulletin de souscription n'est pas exigé des établissements de crédit et des prestataires de services d'investissement qui reçoivent mandat d'effectuer une souscription à charge pour ces mandataires de justifier de leur mandat.
Article L225-144
Les actions souscrites en numéraire sont obligatoirement libérées, lors de la souscription, d'un quart au moins de leur valeur nominale et, le cas échéant, de la totalité de la prime d'émission. La libération du surplus doit intervenir, en une ou plusieurs fois, dans le délai de cinq ans à compter du jour où l'augmentation du capital est devenue définitive.
Les dispositions du premier alinéa de l'article L. 225-5, à l'exception de celles relatives à la liste des souscripteurs, sont applicables. Le retrait des fonds provenant des souscriptions en numéraire peut être effectué par un mandataire de la société après l'établissement du certificat du dépositaire.
Si l'augmentation de capital n'est pas réalisée dans le délai de six mois à compter de l'ouverture de la souscription, il peut être fait application des dispositions du deuxième alinéa de l'article L. 225-11.
Article L225-145
Dans les sociétés faisant, pour le placement de leurs actions, offre au public ou offre visée au II de l'article L. 411-2 du code monétaire et financier, l'augmentation de capital est réputée réalisée lorsqu'un ou plusieurs prestataires de services d'investissement agréés pour fournir le service d'investissement mentionné au 6° de l'article L. 321-1 du code monétaire et financier, ou personnes mentionnées à l'article L. 532-18 de ce code et autorisées à fournir le même service sur le territoire de leur Etat d'origine, ont garanti de manière irrévocable sa bonne fin. Le versement de la fraction libérée de la valeur nominale et de la totalité de la prime d'émission doit intervenir au plus tard le trente-cinquième jour qui suit la clôture du délai de souscription.
Article L225-146
Les souscriptions et les versements sont constatés par un certificat du dépositaire établi, au moment du dépôt des fonds, sur présentation des bulletins de souscription.
Les libérations d'actions par compensation de créances liquides et exigibles sur la société sont constatées par un certificat du notaire ou du commissaire aux comptes. Ce certificat tient lieu de certificat du dépositaire.
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Article L225-147
En cas d'apports en nature ou de stipulation d'avantages particuliers, un ou plusieurs commissaires aux apports sont désignés par décision de justice. Ils sont soumis aux incompatibilités prévues à l'article L. 822-11.
Ces commissaires apprécient, sous leur responsabilité, la valeur des apports en nature et les avantages particuliers. Un décret en Conseil d'Etat fixe les mentions principales de leur rapport, le délai dans lequel il doit être remis et les conditions dans lesquelles il est mis à la disposition des actionnaires. Les dispositions de l'article L. 225-10 sont applicables à l'assemblée générale extraordinaire.
Si l'assemblée approuve l'évaluation des apports et l'octroi d'avantages particuliers, elle constate la réalisation de l'augmentation du capital.
Si l'assemblée réduit l'évaluation des apports ainsi que la rémunération d'avantages particuliers, l'approbation expresse des modifications par les apporteurs, les bénéficiaires ou leurs mandataires dûment autorisés à cet effet, est requise.A défaut, l'augmentation du capital n'est pas réalisée.
Les titres de capital émis en rémunération d'un apport en nature sont intégralement libérés dès leur émission.
L'assemblée générale extraordinaire d'une société dont les titres sont admis aux négociations sur un marché réglementé peut déléguer, pour une durée maximale de vingt-six mois, au conseil d'administration ou au directoire les pouvoirs nécessaires à l'effet de procéder à une augmentation de capital, dans la limite de 10 % de son capital social, en vue de rémunérer des apports en nature consentis à la société et constitués de titres de capital ou de valeurs mobilières donnant accès au capital, lorsque les dispositions de l'article L. 225-148 ne sont pas applicables. Le conseil d'administration ou le directoire statue conformément au troisième ou quatrième alinéas ci-dessus, sur le rapport du ou des commissaires aux apports mentionnés aux premier et deuxième alinéas ci-dessus.
Article L225-148
Les dispositions de l'article L. 225-147 ne sont pas applicables dans le cas où une société dont les actions sont admises aux négociations sur un marché réglementé procède à une augmentation de capital à l'effet de rémunérer des titres apportés à une offre publique d'échange sur des titres d'une société dont les actions sont admises aux négociations sur un marché réglementé d'un Etat partie à l'accord sur l'Espace économique européen ou membre de l'Organisation de coopération et de développement économique.
L'augmentation de capital intervient dans les conditions prévues aux articles L. 225-129 à L. 225-129-6. Toutefois, les commissaires aux comptes doivent exprimer leur avis sur les conditions et les conséquences de l'émission, dans le prospectus diffusé à l'occasion de sa réalisation et dans leur
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rapport à la première assemblée générale ordinaire qui suit l'émission.
Article L225-149
L'augmentation de capital résultant de l'exercice de droits attachés aux valeurs mobilières donnant accès au capital n'est pas soumise aux formalités prévues à l'article L. 225-142, au deuxième alinéa de l'article L. 225-144 et à l'article L. 225-146. Lorsque le titulaire d'une valeur mobilière émise en application de l'article L. 225-149-2 n'a pas droit à un nombre entier, la fraction formant rompu fait l'objet d'un versement en espèces selon les modalités de calcul fixées par décret en Conseil d'Etat.
L'augmentation de capital est définitivement réalisée du seul fait de l'exercice des droits et, le cas échéant, des versements correspondants.
A tout moment de l'exercice en cours et au plus tard lors de la première réunion suivant la clôture de celui-ci, le conseil d'administration ou le directoire constate, s'il y a lieu, le nombre et le montant nominal des actions créées au profit des titulaires des droits au cours de l'exercice écoulé et apporte les modifications nécessaires aux clauses des statuts relatives au montant du capital social et au nombre des titres qui le composent.
Le président du directoire ou le directeur général peut, sur délégation du directoire ou du conseil d'administration, procéder à ces opérations à tout moment de l'exercice et au plus tard dans une limite fixée par décret en Conseil d'Etat.
Article L225-149-1
En cas d'émission de nouveaux titres de capital ou de nouvelles valeurs mobilières donnant accès au capital ainsi qu'en cas de fusion ou de scission de la société appelée à émettre de tels titres, le conseil d'administration ou le directoire peut suspendre, pendant un délai maximum fixé par décret en Conseil d'Etat, la possibilité d'obtenir l'attribution de titres de capital par l'exercice du droit mentionné à l'article L. 225-149 ou à l'article L. 225-178.
Sauf disposition contraire du contrat d'émission, les titres de capital obtenus, à l'issue de la période de suspension, par l'exercice des droits attachés aux valeurs mobilières donnent droit aux dividendes versés au titre de l'exercice au cours duquel ils ont été émis.
Article L225-149-2
Les droits attachés aux titres donnant accès au capital qui ont été utilisés ou qui ont été acquis par la société émettrice ou par la société appelée à émettre de nouveaux titres de capital sont annulés par la société émettrice.
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Article L225-149-3
Les décisions prises sur le fondement du second alinéa de l'article L. 225-129-6 ou relatives aux rapports complémentaires prévus à l'article L. 225-129-5, au second alinéa du 1° de l'article L. 225-136 et au second alinéa du I de l'article L. 225-138 peuvent donner lieu à une injonction de faire suivant les modalités définies aux articles L. 238-1 et L. 238-6.
Peuvent être annulées les décisions prises en violation des articles L. 233-32 et L. 225-142.
Sont nulles les décisions prises en violation des dispositions de la présente sous-section autres que celles mentionnées au présent article.
Sous-section 2 : De la souscription et de l'achat d'actions par les salariés.
Paragraphe 1 : Des options de souscription ou d'achat d'actions.
Article L225-177
L'assemblée générale extraordinaire, sur le rapport du conseil d'administration ou du directoire, selon le cas, et sur le rapport spécial des commissaires aux comptes, peut autoriser le conseil d'administration ou le directoire à consentir, au bénéfice des membres du personnel salarié de la société ou de certains d'entre eux, des options donnant droit à la souscription d'actions. L'assemblée générale extraordinaire fixe le délai pendant lequel cette autorisation peut être utilisée par le conseil d'administration ou par le directoire, ce délai ne pouvant être supérieur à trente-huit mois. Toutefois, les autorisations antérieures à la date de publication de la loi n° 2001-420 du 15 mai 2001 relative aux nouvelles régulations économiques sont valables jusqu'à leur terme.
Le conseil d'administration ou le directoire fixe les conditions dans lesquelles seront consenties les options. Ces conditions pourront comporter des clauses d'interdiction de revente immédiate de tout ou partie des actions sans que le délai imposé pour la conservation des titres puisse excéder trois ans à compter de la levée de l'option.
Les options peuvent être consenties ou levées alors même que le capital social n'aurait pas été intégralement libéré.
Le prix de souscription est fixé au jour où l'option est consentie, par le conseil d'administration ou le directoire selon les modalités déterminées par l'assemblée générale extraordinaire sur le rapport des commissaires aux comptes. Si les actions de la société ne sont pas admises aux négociations sur un marché réglementé, le prix de souscription est déterminé conformément aux méthodes objectives retenues en matière d'évaluation d'actions en tenant compte, selon une pondération appropriée à chaque cas, de la situation nette comptable, de la rentabilité et des perspectives d'activité de l'entreprise. Ces critères sont appréciés le cas échéant sur une base consolidée ou, à défaut, en tenant
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compte des éléments financiers issus des filiales significatives. A défaut, le prix de souscription est déterminé en divisant par le nombre de titres existants le montant de l'actif net réévalué, calculé d'après le bilan le plus récent. Si les actions de la société sont admises aux négociations sur un marché réglementé le prix de souscription ne peut pas être inférieur à 80 % de la moyenne des cours cotés aux vingt séances de bourse précédant ce jour, aucune option ne pouvant être consentie moins de vingt séances de bourse après le détachement des actions d'un coupon donnant droit à un dividende ou à une augmentation de capital.
Dans une société dont les titres sont admis aux négociations sur un marché réglementé, les options ne peuvent être consenties :
1° Dans le délai de dix séances de bourse précédant et suivant la date à laquelle les comptes consolidés, ou à défaut les comptes annuels, sont rendus publics ;
2° Dans le délai compris entre la date à laquelle les organes sociaux de la société ont connaissance d'une information qui, si elle était rendue publique, pourrait avoir une incidence significative sur le cours des titres de la société, et la date postérieure de dix séances de bourse à celle où cette information est rendue publique.
Des options donnant droit à la souscription de titres qui ne sont pas admis aux négociations sur un marché réglementé ne peuvent être consenties qu'aux salariés de la société qui attribue ces options ou à ceux des sociétés mentionnées au 1° de l'article L. 225-180.
Article L225-178
L'autorisation donnée par l'assemblée générale extraordinaire comporte, au profit des bénéficiaires des options, renonciation expresse des actionnaires à leur droit préférentiel de souscription aux actions qui seront émises au fur et à mesure des levées d'options.
L'augmentation de capital résultant de ces levées d'options ne donne pas lieu aux formalités prévues à l'article L. 225-142, au deuxième alinéa de l'article L. 225-144 et à l'article L. 225-146. Elle est définitivement réalisée du seul fait de la déclaration de levée d'option, accompagnée du bulletin de souscription et du paiement en numéraire ou par compensation avec des créances, de la somme correspondante.
Lors de sa première réunion suivant la clôture de chaque exercice, le conseil d'administration ou le directoire, selon le cas, constate, s'il y a lieu, le nombre et le montant des actions émises pendant la durée de l'exercice à la suite des levées d'options et apporte les modifications nécessaires aux clauses des statuts relatives au montant du capital social et au nombre des actions qui le représentent. Le conseil d'administration peut déléguer au directeur général ou, en accord avec ce dernier, à un ou plusieurs directeurs généraux délégués les pouvoirs pour procéder, dans le mois qui suit la clôture de l'exercice, aux opérations mentionnées à la phrase précédente. Le directoire peut, aux mêmes fins, déléguer les mêmes pouvoirs à son président ou, en accord avec ce dernier, à un ou plusieurs de ses membres. Le conseil d'administration ou le directoire, ou les personnes qui ont reçu délégation, peuvent également, à toute époque, procéder à ces opérations pour l'exercice en cours.
Article L225-179
L'assemblée générale extraordinaire peut aussi autoriser le conseil d'administration ou le directoire, selon le cas, à consentir au bénéfice des membres du personnel salarié de la société ou de certains
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d'entre eux, des options donnant droit à l'achat d'actions provenant d'un rachat effectué, préalablement à l'ouverture de l'option, par la société elle-même dans les conditions définies aux articles L. 225-208 ou L. 225-209. L'assemblée générale extraordinaire fixe le délai pendant lequel cette autorisation peut être utilisée par le conseil d'administration ou par le directoire, ce délai ne pouvant être supérieur à trente-huit mois. Toutefois, les autorisations antérieures à la date de publication de la loi n° 2001-420 du 15 mai 2001 relative aux nouvelles régulations économiques sont valables jusqu'à leur terme.
En ce cas, les dispositions des deuxième et quatrième à septième alinéas de l'article L. 225-177 sont applicables. En outre, le prix de l'action, au jour où l'option est consentie, ne peut pas être inférieur à 80 % du cours moyen d'achat des actions détenues par la société au titre des articles L. 225-208 et L. 225-209.
Des options donnant droit à l'achat de titres qui ne sont pas admis aux négociations sur un marché réglementé ne peuvent être consenties qu'aux salariés de la société qui attribue ces options ou à ceux des sociétés mentionnées au 1° de l'article L. 225-180.
Article L225-180
I. - Des options peuvent être consenties, dans les mêmes conditions qu'aux articles L. 225-177 à L. 225-179 ci-dessus :
1° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupements d'intérêt économique dont 10 % au moins du capital ou des droits de vote sont détenus, directement ou indirectement, par la société consentant les options ;
2° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupements d'intérêt économique détenant, directement ou indirectement, au moins 10 % du capital ou des droits de vote de la société consentant les options ;
3° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupements d'intérêt économique dont 50 % au moins du capital ou des droits de vote sont détenus, directement ou indirectement, par une société détenant elle-même, directement ou indirectement, au moins 50 % du capital de la société consentant les options.
II. - L'assemblée générale ordinaire de la société contrôlant majoritairement, directement ou indirectement, celle qui consent les options est informée dans les conditions prévues à l'article L. 225-184.
III. - Des options peuvent également être consenties dans les mêmes conditions qu'aux articles L. 225-177 à L. 225-179 par une entreprise contrôlée, directement ou indirectement, exclusivement ou conjointement, par un organe central, des organes centraux ou les établissements de crédit qui lui ou leur sont affiliés au sens des articles L. 511-30 à L. 511-32 du code monétaire et financier, aux salariés desdites sociétés ainsi qu'à ceux des entités dont le capital est détenu pour plus de 50 %, directement ou indirectement, exclusivement ou conjointement, par cet organe central, ces organes centraux ou des établissements affiliés.
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Article L225-181
Le prix fixé pour la souscription ou l'achat des actions ne peut pas être modifié pendant la durée de l'option.
Toutefois, lorsque la société réalise un amortissement ou une réduction du capital, une modification de la répartition des bénéfices, une attribution gratuite d'actions, une incorporation au capital de réserves, bénéfices ou primes d'émission, une distribution de réserves ou toute émission de titres de capital ou de titres donnant droit à l'attribution de titres de capital comportant un droit de souscription réservé aux actionnaires, elle doit prendre les mesures nécessaires à la protection des intérêts des bénéficiaires des options dans les conditions prévues à l'article L. 228-99.
Article L225-182
Le nombre total des options ouvertes et non encore levées ne peut donner droit à souscrire un nombre d'actions excédant une fraction du capital social déterminée par décret en Conseil d'Etat.
Il ne peut être consenti d'options aux salariés et aux mandataires sociaux possédant plus de 10 % du capital social.
Article L225-183
L'assemblée générale extraordinaire fixe le délai pendant lequel les options doivent être exercées.
Les droits résultant des options consenties sont incessibles jusqu'à ce que l'option ait été exercée.
En cas de décès du bénéficiaire, ses héritiers peuvent exercer l'option dans un délai de six mois à compter du décès.
Article L225-184
Un rapport spécial informe chaque année l'assemblée générale ordinaire des opérations réalisées en vertu des dispositions prévues aux articles L. 225-177 à L. 225-186.
Ce rapport rend également compte :
-du nombre, des dates d'échéance et du prix des options de souscription ou d'achat d'actions qui, durant l'année et à raison des mandats et fonctions exercés dans la société, ont été consenties à chacun de ces mandataires par la société et par celles qui lui sont liées dans les conditions prévues à
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l'article L. 225-180 ;
-du nombre, des dates d'échéance et du prix des options de souscription ou d'achat d'actions qui ont été consenties durant l'année à chacun de ces mandataires, à raison des mandats et fonctions qu'ils y exercent par les sociétés contrôlées au sens de l'article L. 233-16 ;
-du nombre et du prix des actions souscrites ou achetées durant l'exercice par les mandataires sociaux de la société en levant une ou plusieurs des options détenues sur les sociétés visées aux deux alinéas précédents.
Ce rapport indique également :
-le nombre, le prix et les dates d'échéance des options de souscription ou d'achat d'actions consenties, durant l'année, par la société et par les sociétés ou groupements qui lui sont liés dans les conditions prévues à l'article L. 225-180, à chacun des dix salariés de la société non mandataires sociaux dont le nombre d'options ainsi consenties est le plus élevé ;
-le nombre et le prix des actions qui, durant l'année, ont été souscrites ou achetées, en levant une ou plusieurs options détenues sur les sociétés visées à l'alinéa précédent, par chacun des dix salariés de la société non mandataires sociaux dont le nombre d'actions ainsi achetées ou souscrites est le plus élevé. Ce rapport indique également le nombre, le prix et les dates d'échéance des options de souscription ou d'achat d'actions consenties, durant l'année, par les sociétés visées à l'alinéa précédent, à l'ensemble des salariés bénéficiaires ainsi que le nombre de ceux-ci et la répartition des options consenties entre les catégories de ces bénéficiaires.
Article L225-185
Des options donnant droit à la souscription d'actions peuvent être consenties pendant une durée de deux ans à compter de l'immatriculation de la société, aux mandataires sociaux personnes physiques qui participent avec des salariés à la constitution d'une société.
De telles options peuvent également être consenties, pendant une durée de deux ans à compter du rachat, aux mandataires sociaux personnes physiques d'une société qui acquièrent avec des salariés la majorité des droits de vote en vue d'assurer la continuation de la société.
En cas d'attribution d'options, dans un délai de deux ans après la création d'une société ou le rachat de la majorité du capital d'une société par ses salariés ou ses mandataires sociaux, le maximum prévu au dernier alinéa de l'article L. 225-182 est porté au tiers du capital.
Le président du conseil d'administration, le directeur général, les directeurs généraux délégués, les membres du directoire ou le gérant d'une société par actions peuvent se voir attribuer par cette société des options donnant droit à la souscription ou à l'achat d'actions dans les conditions prévues aux articles L. 225-177 à L. 225-184 et L. 225-186-1. Toutefois, par dérogation à ces dispositions, le conseil d'administration ou, selon le cas, le conseil de surveillance soit décide que les options ne peuvent être levées par les intéressés avant la cessation de leurs fonctions, soit fixe la quantité des
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actions issues de levées d'options qu'ils sont tenus de conserver au nominatif jusqu'à la cessation de leurs fonctions.L'information correspondante est publiée dans le rapport mentionné à l'article L. 225-102-1.
Ils peuvent également se voir attribuer, dans les mêmes conditions, des options donnant droit à la souscription ou à l'achat d'actions d'une société qui est liée dans les conditions prévues à l'article L. 225-180, sous réserve que les actions de cette dernière soient admises aux négociations sur un marché réglementé.
Article L225-186
Les articles L. 225-177 à L. 225-185 sont applicables aux certificats d'investissement, aux certificats coopératifs d'investissement et aux certificats coopératifs d'associés.
Article L225-186-1
Dans une société dont les titres sont admis aux négociations sur un marché réglementé, des options ouvrant droit à la souscription ou à l'achat d'actions ne peuvent être attribuées aux personnes mentionnées au quatrième alinéa de l'article L. 225-185 que si la société remplit au moins une des conditions suivantes au titre de l'exercice au cours duquel sont attribuées ces options :
1° La société procède, dans les conditions prévues aux articles L. 225-177 à L. 225-186, à une attribution d'options au bénéfice de l'ensemble de ses salariés et d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 ;
2° La société procède, dans les conditions prévues aux articles L. 225-197-1 à L. 225-197-5, à une attribution gratuite d'actions au bénéfice de l'ensemble de ses salariés et d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 ;
3° Un accord d'intéressement au sens de l'article L. 3312-2 du code du travail, un accord de participation dérogatoire au sens de l'article L. 3324-2 du même code ou un accord de participation volontaire au sens de l'article L. 3323-6 du même code est en vigueur au sein de la société et au bénéfice d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 du présent code. Si, dans la société ou dans ses filiales précitées, des accords sont en vigueur ou étaient en vigueur au titre de l'exercice précédent, la première attribution autorisée par une assemblée générale postérieure à la date de publication de la loi n° 2008-1258 du 3 décembre 2008 en faveur des revenus du travail ne peut intervenir que si les sociétés concernées modifient les modalités de calcul de chacun de ces accords au moyen d'un accord ou d'un avenant ou versent un supplément d'intéressement collectif au sens de l'article L. 3314-10 du code du travail ou un supplément de réserve spéciale de participation au sens de l'article L. 3324-9 du même code.
Paragraphe 2 : De l'émission et de l'achat en bourse d'actions réservées aux salariés.
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Article L225-187-1
Les articles L. 225-192 à L. 225-194 et l'article L. 225-197 demeurent applicables dans leur rédaction antérieure à la publication de la loi n° 2001-152 du 19 février 2001 sur l'épargne salariale jusqu'à l'expiration d'un délai de cinq ans à compter de cette publication.
Paragraphe 3 : Des attributions d'actions gratuites.
Article L225-197-1
I.-L'assemblée générale extraordinaire, sur le rapport du conseil d'administration ou du directoire, selon le cas, et sur le rapport spécial des commissaires aux comptes, peut autoriser le conseil d'administration ou le directoire à procéder, au profit des membres du personnel salarié de la société ou de certaines catégories d'entre eux, à une attribution gratuite d'actions existantes ou à émettre.
L'assemblée générale extraordinaire fixe le pourcentage maximal du capital social pouvant être attribué dans les conditions définies au premier alinéa. Le nombre total des actions attribuées gratuitement ne peut excéder 10 % du capital social à la date de la décision de leur attribution par le conseil d'administration ou le directoire.
Elle fixe également le délai pendant lequel cette autorisation peut être utilisée par le conseil d'administration ou le directoire. Ce délai ne peut excéder trente-huit mois.
Lorsque l'attribution porte sur des actions à émettre, l'autorisation donnée par l'assemblée générale extraordinaire emporte de plein droit, au profit des bénéficiaires des actions attribuées gratuitement, renonciation des actionnaires à leur droit préférentiel de souscription. L'augmentation de capital correspondante est définitivement réalisée du seul fait de l'attribution définitive des actions aux bénéficiaires.
L'attribution des actions à leurs bénéficiaires est définitive au terme d'une période d'acquisition dont la durée minimale, qui ne peut être inférieure à deux ans, est déterminée par l'assemblée générale extraordinaire. Toutefois, l'assemblée peut prévoir l'attribution définitive des actions avant le terme de la période d'acquisition en cas d'invalidité du bénéficiaire correspondant au classement dans la deuxième ou la troisième des catégories prévues à l'article L. 341-4 du code de la sécurité sociale.
L'assemblée générale extraordinaire fixe également la durée minimale de l'obligation de conservation des actions par les bénéficiaires. Cette durée court à compter de l'attribution définitive des actions, mais ne peut être inférieure à deux ans. Toutefois, les actions sont librement cessibles en cas d'invalidité des bénéficiaires correspondant à leur classement dans les catégories précitées du code de la sécurité sociale.
Si l'assemblée générale extraordinaire a retenu pour la période d'acquisition mentionnée au cinquième alinéa une durée au moins égale à quatre ans pour tout ou partie des actions attribuées, elle peut réduire ou supprimer la durée de l'obligation de conservation, mentionnée au sixième alinéa, de ces actions.
Dans une société dont les titres sont admis aux négociations sur un marché réglementé, à l'issue de
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la période d'obligation de conservation, les actions ne peuvent pas être cédées :
1° Dans le délai de dix séances de bourse précédant et suivant la date à laquelle les comptes consolidés, ou à défaut les comptes annuels, sont rendus publics ;
2° Dans le délai compris entre la date à laquelle les organes sociaux de la société ont connaissance d'une information qui, si elle était rendue publique, pourrait avoir une incidence significative sur le cours des titres de la société, et la date postérieure de dix séances de bourse à celle où cette information est rendue publique.
Le conseil d'administration ou, le cas échéant, le directoire détermine l'identité des bénéficiaires des attributions d'actions mentionnées au premier alinéa. Il fixe les conditions et, le cas échéant, les critères d'attribution des actions.
II.-Le président du conseil d'administration, le directeur général, les directeurs généraux délégués, les membres du directoire ou le gérant d'une société par actions peuvent se voir attribuer des actions de la société dans les mêmes conditions que les membres du personnel salarié et dans le respect des conditions mentionnées à l'article L. 225-197-6.
Ils peuvent également se voir attribuer des actions d'une société liée dans les conditions prévues à l'article L. 225-197-2, sous réserve que les actions de cette dernière soient admises aux négociations sur un marché réglementé et dans le respect des conditions mentionnées à l'article L. 225-197-6.
Il ne peut pas être attribué d'actions aux salariés et aux mandataires sociaux détenant chacun plus de 10 % du capital social. Une attribution gratuite d'actions ne peut pas non plus avoir pour effet que les salariés et les mandataires sociaux détiennent chacun plus de 10 % du capital social.
Par dérogation aux dispositions précédentes, pour les actions ainsi attribuées au président du conseil d'administration, au directeur général, aux directeurs généraux délégués, aux membres du directoire ou au gérant d'une société par actions, le conseil d'administration ou, selon le cas, le conseil de surveillance soit décide que ces actions ne peuvent être cédées par les intéressés avant la cessation de leurs fonctions, soit fixe la quantité de ces actions qu'il sont tenus de conserver au nominatif jusqu'à la cessation de leurs fonctions.L'information correspondante est publiée dans le rapport mentionné à l'article L. 225-102-1.
III.-En cas d'échange sans soulte d'actions résultant d'une opération de fusion ou de scission réalisée conformément à la réglementation en vigueur pendant les périodes d'acquisition ou de conservation prévues au I, les dispositions du présent article et, notamment, les périodes précitées, pour leur durée restant à courir à la date de l'échange, restent applicables aux droits à attribution et aux actions reçus en échange. Il en est de même de l'échange résultant d'une opération d'offre publique, de division ou de regroupement réalisée conformément à la réglementation en vigueur qui intervient pendant la période de conservation.
En cas d'apport à une société ou à un fonds commun de placement dont l'actif est exclusivement composé de titres de capital ou donnant accès au capital émis par la société ou par une société qui lui est liée au sens de l'article L. 225-197-2, l'obligation de conservation prévue au I reste applicable, pour la durée restant à courir à la date de l'apport, aux actions ou parts reçues en contrepartie de l'apport.
Article L225-197-2
I. - Des actions peuvent être attribuées, dans les mêmes conditions que celles mentionnées à l'article L. 225-197-1 :
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1° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupements d'intérêt économique dont 10 % au moins du capital ou des droits de vote sont détenus, directement ou indirectement, par la société qui attribue les actions ;
2° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupes d'intérêt économique détenant, directement ou indirectement, au moins 10 % du capital ou des droits de vote de la société qui attribue les actions ;
3° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupements d'intérêt économique dont 50 % au moins du capital ou des droits de vote sont détenus, directement ou indirectement, par une société détenant elle-même, directement ou indirectement, au moins 50 % du capital de la société qui attribue les actions.
Les actions qui ne sont pas admises aux négociations sur un marché réglementé ne peuvent être attribuées dans les conditions ci-dessus qu'aux salariés de la société qui procède à cette attribution ou à ceux mentionnés au 1°.
II. - Des actions peuvent également être attribuées dans les mêmes conditions que celles prévues à l'article L. 225-197-1 par une entreprise contrôlée, directement ou indirectement, exclusivement ou conjointement, par un organe central, des organes centraux ou les établissements de crédit qui lui ou leur sont affiliés au sens et pour l'application des articles L. 511-30 à L. 511-32 du code monétaire et financier, aux salariés de ces sociétés ainsi qu'à ceux des entités dont le capital est détenu pour plus de 50 %, directement ou indirectement, exclusivement ou conjointement, par cet organe central, ces organes centraux ou ces établissements de crédit.
Article L225-197-3
Les droits résultant de l'attribution gratuite d'actions sont incessibles jusqu'au terme de la période d'acquisition.
En cas de décès du bénéficiaire, ses héritiers peuvent demander l'attribution des actions dans un délai de six mois à compter du décès. Ces actions sont librement cessibles.
Article L225-197-4
Un rapport spécial informe chaque année l'assemblée générale ordinaire des opérations réalisées en vertu des dispositions prévues aux articles L. 225-197-1 à L. 225-197-3.
Ce rapport rend également compte :
-du nombre et de la valeur des actions qui, durant l'année et à raison des mandats et fonctions exercés dans la société, ont été attribuées gratuitement à chacun de ces mandataires par la société et
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par celles qui lui sont liées dans les conditions prévues à l'article L. 225-197-2 ;
-du nombre et de la valeur des actions qui ont été attribuées gratuitement, durant l'année à chacun de ces mandataires, à raison des mandats et fonctions qu'ils y exercent, par les sociétés contrôlées au sens de l'article L. 233-16.
Ce rapport indique également le nombre et la valeur des actions qui, durant l'année, ont été attribuées gratuitement par la société et par les sociétés ou groupements qui lui sont liés dans les conditions prévues à l'article L. 225-197-2, à chacun des dix salariés de la société non mandataires sociaux dont le nombre d'actions attribuées gratuitement est le plus élevé. Ce rapport indique également le nombre et la valeur des actions qui, durant l'année, ont été attribuées gratuitement par les sociétés visées à l'alinéa précédent à l'ensemble des salariés bénéficiaires ainsi que le nombre de ceux-ci et la répartition des actions attribuées entre les catégories de ces bénéficiaires.
Article L225-197-5
L'assemblée générale ordinaire de la société contrôlant majoritairement, directement ou indirectement, celle qui attribue gratuitement les actions est informée dans les conditions prévues à l'article L. 225-197-4.
Article L225-197-6
Dans une société dont les titres sont admis aux négociations sur un marché réglementé, des actions ne peuvent être attribuées dans le cadre des premier et deuxième alinéas du II de l'article L. 225-197-1 que si la société remplit au moins une des conditions suivantes au titre de l'exercice au cours duquel sont attribuées ces actions :
1° La société procède, dans les conditions prévues aux articles L. 225-197-1 à L. 225-197-5, à une attribution gratuite d'actions au bénéfice de l'ensemble de ses salariés et d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 ;
2° La société procède, dans les conditions prévues aux articles L. 225-177 à L. 225-186, à une attribution d'options au bénéfice de l'ensemble de ses salariés et d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 ;
3° Un accord d'intéressement au sens de l'article L. 3312-2 du code du travail, un accord de participation dérogatoire au sens de l'article L. 3324-2 du même code ou un accord de participation volontaire au sens de l'article L. 3323-6 du même code est en vigueur au sein de la société et au bénéfice d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 du présent code. Si, dans la société ou dans ses filiales précitées, des accords sont en vigueur ou étaient en vigueur au titre de l'exercice précédent, la première attribution autorisée par une assemblée générale postérieure à la date de publication de la loi n° 2008-1258 du 3 décembre 2008 en faveur des revenus du travail ne peut intervenir que si les sociétés concernées modifient les modalités de calcul de chacun de ces accords au moyen d'un accord ou d'un avenant ou versent un supplément d'intéressement collectif au sens de l'article L. 3314-10 du code du travail
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ou un supplément de réserve spéciale de participation au sens de l'article L. 3324-9 du même code.
Sous-section 3 : De l'amortissement du capital.
Article L225-198
L'amortissement du capital est effectué en vertu d'une stipulation statutaire ou d'une décision de l'assemblée générale extraordinaire et au moyen des sommes distribuables au sens de l'article L. 232-11. Cet amortissement ne peut être réalisé que par voie de remboursement égal sur chaque action d'une même catégorie et n'entraîne pas de réduction du capital.
Les actions intégralement amorties sont dites actions de jouissance.
Article L225-199
Les actions intégralement ou partiellement amorties perdent, à due concurrence, le droit au premier dividende prévu à l'article L. 232-19 et au remboursement de la valeur nominale. Elles conservent tous leurs autres droits.
Article L225-200
Lorsque le capital est divisé, soit en actions de capital et en actions totalement ou partiellement amorties, soit en actions inégalement amorties, l'assemblée générale des actionnaires peut décider, dans les conditions requises pour la modification des statuts, la conversion des actions totalement ou partiellement amorties en actions de capital.
A cet effet, elle prévoit qu'un prélèvement obligatoire sera effectué, à concurrence du montant amorti des actions à convertir, sur la part des profits sociaux d'un ou plusieurs exercices revenant à ces actions, après paiement, pour les actions partiellement amorties, du premier dividende ou de l'intérêt statutaire auquel elles peuvent donner droit.
Article L225-201
Les actionnaires peuvent être autorisés, dans les mêmes conditions, à verser à la société le montant amorti de leurs actions, augmenté, le cas échéant, du premier dividende ou de l'intérêt statutaire pour la période écoulée de l'exercice en cours et, éventuellement, pour l'exercice précédent.
Article L225-202
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Les décisions prévues aux articles L. 225-200 et L. 225-201 sont soumises à la ratification des assemblées spéciales de chacune des catégories d'actionnaires ayant les mêmes droits.
Article L225-203
Le conseil d'administration ou le directoire, selon le cas, apporte les modifications nécessaires aux clauses des statuts, dans la mesure où ces modifications correspondent matériellement aux résultats effectifs des opérations prévues aux articles L. 225-200 et L. 225-201.
Sous-section 4 : De la réduction du capital.
Article L225-204
La réduction du capital est autorisée ou décidée par l'assemblée générale extraordinaire, qui peut déléguer au conseil d'administration ou au directoire, selon le cas, tous pouvoirs pour la réaliser. En aucun cas, elle ne peut porter atteinte à l'égalité des actionnaires.
Un rapport établi par les commissaires aux comptes sur l'opération envisagée est communiqué aux actionnaires de la société dans un délai fixé par décret en Conseil d'Etat. L'assemblée statue sur le rapport des commissaires qui font connaître leur appréciation sur les causes et conditions de la réduction.
Lorsque le conseil d'administration ou le directoire, selon le cas, réalise l'opération, sur délégation de l'assemblée générale, il en dresse procès-verbal soumis à publicité et procède à la modification corrélative des statuts.
Article L225-205
Lorsque l'assemblée approuve un projet de réduction du capital non motivée par des pertes, le représentant de la masse des obligataires et les créanciers dont la créance est antérieure à la date de dépôt au greffe du procès-verbal de délibération peuvent former opposition à la réduction, dans le délai fixé par décret en Conseil d'Etat.
Une décision de justice rejette l'opposition ou ordonne, soit le remboursement des créances, soit la constitution de garanties si la société en offre et si elles sont jugées suffisantes.
Les opérations de réduction du capital ne peuvent commencer pendant le délai d'opposition ni, le cas échéant, avant qu'il ait été statué en première instance sur cette opposition.
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Si le juge de première instance accueille l'opposition, la procédure de réduction du capital est immédiatement interrompue jusqu'à la constitution de garanties suffisantes ou jusqu'au remboursement des créances. S'il la rejette, les opérations de réduction peuvent commencer.
Sous-section 5 : De la souscription, de l'achat ou de la prise en gage par les sociétés de leurs propres actions.
Article L225-206
I. - Est interdite la souscription par la société de ses propres actions, soit directement, soit par une personne agissant en son propre nom, mais pour le compte de la société.
Les fondateurs, ou, dans le cas d'une augmentation de capital, les membres du conseil d'administration ou du directoire, selon le cas, sont tenus, dans les conditions prévues à l'article L. 225-251 et au premier alinéa de l'article L. 225-256, de libérer les actions souscrites par la société en violation du premier alinéa.
Lorsque les actions ont été souscrites par une personne agissant en son propre nom mais pour le compte de la société, cette personne est tenue de libérer les actions solidairement avec les fondateurs ou, selon le cas, les membres du conseil d'administration ou du directoire. Cette personne est en outre réputée avoir souscrit ces actions pour son propre compte.
II. - L'achat par une société de ses propres actions est autorisé dans les conditions et selon les modalités prévues aux articles L. 225-207 à L. 225-217.
Les achats d'actions par une personne agissant pour le compte de la société sont interdits sauf s'il s'agit d'un prestataire de services d'investissement ou d'un membre d'un marché réglementé intervenant dans les conditions du I de l'article 43 de la loi n° 96-597 du 2 juillet 1996 de modernisation des activités financières.
Article L225-207
L'assemblée générale qui a décidé une réduction de capital non motivée par des pertes peut autoriser le conseil d'administration ou le directoire, selon le cas, à acheter un nombre déterminé d'actions pour les annuler.
Article L225-208
Les sociétés qui font participer leurs salariés à leurs résultats par attribution de leurs actions, celles qui attribuent leurs actions dans les conditions prévues aux articles L. 225-197-1 à L. 225-197-3 et
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celles qui consentent des options d'achat de leurs actions dans les conditions prévues aux articles L. 225-177 et suivants peuvent, à cette fin, racheter leurs propres actions. Les actions doivent être attribuées ou les options doivent être consenties dans le délai d'un an à compter de l'acquisition.
Article L225-209
L'assemblée générale d'une société dont les actions sont admises aux négociations sur un marché réglementé peut autoriser le conseil d'administration ou le directoire, selon le cas, à acheter un nombre d'actions représentant jusqu'à 10 % du capital de la société. L'assemblée générale définit les finalités et les modalités de l'opération, ainsi que son plafond. Cette autorisation ne peut être donnée pour une durée supérieure à dix-huit mois. Le comité d'entreprise est informé de la résolution adoptée par l'assemblée générale.
Lorsque les actions sont rachetées pour favoriser la liquidité dans les conditions définies par le règlement général de l'Autorité des marchés financiers, le nombre d'actions pris en compte pour le calcul de la limite de 10 % prévue au premier alinéa correspond au nombre d'actions achetées, déduction faite du nombre d'actions revendues pendant la durée de l'autorisation.
Le conseil d'administration peut déléguer au directeur général ou, en accord avec ce dernier, à un ou plusieurs directeurs généraux délégués, les pouvoirs nécessaires pour réaliser l'opération mentionnée au premier alinéa. Le directoire peut déléguer à son président ou avec son accord à un ou plusieurs de ses membres les pouvoirs nécessaires pour la réaliser. Les personnes désignées rendent compte au conseil d'administration ou au directoire de l'utilisation faite de ce pouvoir dans les conditions prévues par ces derniers.
L'acquisition, la cession ou le transfert de ces actions peut être effectué par tous moyens. Ces actions peuvent être annulées dans la limite de 10 % du capital de la société par périodes de vingt-quatre mois.
Les sociétés qui font participer les salariés aux fruits de l'expansion de l'entreprise par l'attribution de leurs propres actions, celles qui attribuent leurs actions dans les conditions prévues aux articles L. 225-197-1 à L. 225-197-3 ainsi que celles qui entendent consentir des options d'achat d'actions à des salariés peuvent utiliser à cette fin tout ou partie des actions acquises dans les conditions prévues ci-dessus. Elles peuvent également leur proposer d'acquérir leurs propres actions dans les conditions prévues par les articles L. 3332-1 et suivants du code du travail.
Le nombre d'actions acquises par la société en vue de leur conservation et de leur remise ultérieure en paiement ou en échange dans le cadre d'une opération de fusion, de scission ou d'apport ne peut excéder 5 % de son capital. Ces dispositions sont applicables aux programmes de rachat soumis à l'approbation des assemblées générales se tenant à compter du 1er janvier 2006.
En cas d'annulation des actions achetées, la réduction de capital est autorisée ou décidée par l'assemblée générale extraordinaire qui peut déléguer au conseil d'administration ou au directoire, selon le cas, tous pouvoirs pour la réaliser. Un rapport spécial établi par les commissaires aux comptes sur l'opération envisagée est communiqué aux actionnaires de la société dans un délai fixé par décret en Conseil d'Etat.
Les dispositions du présent article sont applicables aux sociétés dont les titres ne sont pas admis aux négociations sur un marché réglementé aux fins mentionnées aux articles L. 3332-1 et suivants du code du travail. Dans ce cas, les dispositions de l'article L. 225-212 ne sont pas applicables.
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Article L225-209-1
L'assemblée générale d'une société dont les actions sont admises aux négociations sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations dans les conditions prévues par le règlement général de l'Autorité des marchés financiers, figurant sur une liste arrêtée par l'autorité dans des conditions fixées par son règlement général, peut autoriser le conseil d'administration ou le directoire, selon le cas, à acheter un nombre d'actions représentant jusqu'à 10 % du capital de la société aux fins de favoriser la liquidité des titres de la société.L'assemblée générale définit les modalités de l'opération ainsi que son plafond. Cette autorisation ne peut être donnée pour une durée supérieure à dix-huit mois. Le comité d'entreprise est informé de la résolution adoptée par l'assemblée générale.
Lorsque les actions sont rachetées pour favoriser la liquidité dans les conditions définies par le règlement général de l'Autorité des marchés financiers, le nombre d'actions pris en compte pour le calcul de la limite de 10 % prévue au premier alinéa correspond au nombre d'actions achetées, déduction faite du nombre d'actions revendues pendant la durée de l'autorisation.
Le conseil d'administration peut déléguer au directeur général ou, en accord avec ce dernier, à un ou plusieurs directeurs généraux délégués, les pouvoirs nécessaires pour réaliser l'opération mentionnée au premier alinéa . Le directoire peut déléguer à son président ou, avec son accord, à un ou plusieurs de ses membres, les pouvoirs nécessaires pour la réaliser. Les personnes désignées rendent compte au conseil d'administration ou au directoire de l'utilisation faite de ce pouvoir dans les conditions prévues par ces derniers.
L'acquisition, la cession ou le transfert de ces actions peut être effectué par tous moyens.
Article L225-210
La société ne peut posséder, directement ou par l'intermédiaire d'une personne agissant en son propre nom, mais pour le compte de la société, plus de 10 % du total de ses propres actions, ni plus de 10 % d'une catégorie déterminée. Ces actions doivent être mises sous la forme nominative, à l'exception des actions rachetées pour favoriser la liquidité des titres de la société, et entièrement libérées lors de l'acquisition.A défaut, les membres du conseil d'administration ou du directoire, selon le cas, sont tenus, dans les conditions prévues à l'article L. 225-251 et au premier alinéa de l'article L. 225-256 de libérer les actions.
L'acquisition d'actions de la société ne peut avoir pour effet d'abaisser les capitaux propres à un montant inférieur à celui du capital augmenté des réserves non distribuables.
La société doit disposer de réserves, autres que la réserve légale, d'un montant au moins égal à la valeur de l'ensemble des actions qu'elle possède.
Les actions possédées par la société ne donnent pas droit aux dividendes et sont privées de droits de vote.
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En cas d'augmentation du capital par souscription d'actions en numéraire, la société ne peut exercer par elle-même le droit préférentiel de souscription.L'assemblée générale peut décider de ne pas tenir compte de ces actions pour la détermination des droits préférentiels de souscription attachés aux autres actions.A défaut les droits attachés aux actions possédées par la société doivent être, avant la clôture du délai de souscription, soit vendus en bourse, soit répartis entre les actionnaires au prorata des droits de chacun.
Article L225-211
Des registres des achats et des ventes effectués en application des articles L. 225-208, L. 225-209 et L. 225-209-1 doivent être tenus, dans les conditions fixées par décret en Conseil d'Etat, par la société ou par la personne chargée du service de ses titres.
Le conseil d'administration ou le directoire, selon le cas, doit indiquer, dans le rapport prévu à l'article L. 225-100, le nombre des actions achetées et vendues au cours de l'exercice par application des articles L. 225-208, L. 225-209 et L. 225-209-1, les cours moyens des achats et des ventes, le montant des frais de négociation, le nombre des actions inscrites au nom de la société à la clôture de l'exercice et leur valeur évaluée au cours d'achat, ainsi que leur valeur nominale pour chacune des finalités, le nombre des actions utilisées, les éventuelles réallocations dont elles ont fait l'objet et la fraction du capital qu'elles représentent.
Article L225-212
Les sociétés doivent déclarer à l'Autorité des marchés financiers les opérations qu'elles envisagent d'effectuer en application des dispositions des articles L. 225-209 et L. 225-209-1. Elles rendent compte chaque mois à l'Autorité des marchés financiers des acquisitions, cessions, annulations et transferts qu'elles ont effectués.
L'Autorité des marchés financiers peut leur demander à ce sujet toutes les explications ou les justifications qu'elle juge nécessaires.
S'il n'est pas satisfait à ces demandes ou lorsqu'elle constate que ces transactions enfreignent les dispositions des articles L. 225-209 et L. 225-209-1, l'Autorité des marchés financiers peut prendre toutes mesures pour empêcher l'exécution des ordres que ces sociétés transmettent directement ou indirectement.
Article L225-213
Les dispositions des articles L. 225-206, L. 225-209 et L. 225-209-1 ne sont pas applicables aux actions entièrement libérées, acquises à la suite d'une transmission de patrimoine à titre universel ou encore à la suite d'une décision de justice.
Toutefois, les actions doivent être cédées dans un délai de deux ans à compter de la date d'acquisition lorsque la société possède plus de 10 % de son capital.A l'expiration de ce délai, elles doivent être annulées.
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Article L225-214
Les actions possédées en violation des articles L. 225-206 à L. 225-210 doivent être cédées dans un délai d'un an à compter de leur souscription ou de leur acquisition. A l'expiration de ce délai, elles doivent être annulées.
Article L225-215
Est interdite la prise en gage par la société de ses propres actions, directement ou par l'intermédiaire d'une personne agissant en son propre nom, mais pour le compte de la société.
Les actions prises en gage par la société doivent être restituées à leur propriétaire dans le délai d'un an. La restitution peut avoir lieu dans un délai de deux ans si le transfert du gage à la société résulte d'une transmission de patrimoine à titre universel ou d'une décision de justice. A défaut, le contrat de gage est nul de plein droit.
L'interdiction prévue au présent article n'est pas applicable aux opérations courantes des établissements de crédit.
Article L225-216
Une société ne peut avancer des fonds, accorder des prêts ou consentir une sûreté en vue de la souscription ou de l'achat de ses propres actions par un tiers.
Les dispositions du présent article ne s'appliquent ni aux opérations courantes des entreprises de crédit ni aux opérations effectuées en vue de l'acquisition par les salariés d'actions de la société, d'une de ses filiales ou d'une société comprise dans le champ d'un plan d'épargne de groupe prévu à l'article L. 444-3 du code du travail.
Article L225-217
Les articles L. 225-206 à L. 225-216 sont applicables aux certificats d'investissement.
Section 5 : Du contrôle des sociétés anonymes.
Article L225-218
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Le contrôle est exercé, dans chaque société, par un ou plusieurs commissaires aux comptes.
Article L225-228
Les commissaires aux comptes sont proposés à la désignation de l'assemblée générale par un projet de résolution émanant du conseil d'administration ou du conseil de surveillance ou, dans les conditions définies par la section 3 du présent chapitre, des actionnaires. Lorsque les actions de la société sont admises aux négociations sur un marché réglementé, le conseil d'administration choisit, sans que prennent part au vote le directeur général et le directeur général délégué, s'ils sont administrateurs, les commissaires aux comptes qu'il envisage de proposer.
Article L225-230
L'action mentionnée à l'article L. 823-6 peut être exercée par une association répondant aux conditions fixées par l'article L. 225-120.
Article L225-231
Une association répondant aux conditions fixées à l'article L. 225-120, ainsi que un ou plusieurs actionnaires représentant au moins 5 % du capital social, soit individuellement, soit en se groupant sous quelque forme que ce soit, peuvent poser par écrit au président du conseil d'administration ou au directoire des questions sur une ou plusieurs opérations de gestion de la société, ainsi que, le cas échéant, des sociétés qu'elle contrôle au sens de l'article L. 233-3. Dans ce dernier cas, la demande doit être appréciée au regard de l'intérêt du groupe. La réponse doit être communiquée aux commissaires aux comptes.
A défaut de réponse dans un délai d'un mois ou à défaut de communication d'éléments de réponse satisfaisants, ces actionnaires peuvent demander en référé la désignation d'un ou plusieurs experts chargés de présenter un rapport sur une ou plusieurs opérations de gestion.
Le ministère public, le comité d'entreprise et, dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, l'Autorité des marchés financiers peuvent également demander en référé la désignation d'un ou plusieurs experts chargés de présenter un rapport sur une ou plusieurs opérations de gestion.
S'il est fait droit à la demande, la décision de justice détermine l'étendue de la mission et des pouvoirs des experts. Elle peut mettre les honoraires à la charge de la société.
Le rapport est adressé au demandeur, au ministère public, au comité d'entreprise, au commissaire aux comptes et, selon le cas, au conseil d'administration ou au directoire et au conseil de
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surveillance ainsi que, dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, à l'Autorité des marchés financiers. Ce rapport doit, en outre, être annexé à celui établi par les commissaires aux comptes en vue de la prochaine assemblée générale et recevoir la même publicité.
Article L225-232
Un ou plusieurs actionnaires représentant au moins 5 % du capital social ou une association répondant aux conditions fixées à l'article L. 225-120 peuvent, deux fois par exercice, poser par écrit des questions au président du conseil d'administration ou au directoire sur tout fait de nature à compromettre la continuité de l'exploitation. La réponse est communiquée au commissaire aux comptes.
Article L225-233
L'action mentionnée à l'article L. 823-7 peut être exercée par une association répondant aux conditions fixées par l'article L. 225-120.
Article L225-235
Les commissaires aux comptes présentent, dans un rapport joint au rapport mentionné au deuxième alinéa de l'article L. 225-100, leurs observations sur le rapport mentionné, selon le cas, à l'article L. 225-37 ou à l'article L. 225-68, pour celles des procédures de contrôle interne et de gestion des risques qui sont relatives à l'élaboration et au traitement de l'information comptable et financière. Ils attestent l'établissement des autres informations requises aux articles L. 225-37 et L. 225-68.
Section 6 : De la transformation des sociétés anonymes.
Article L225-243
Toute société anonyme peut se transformer en société d'une autre forme si, au moment de la transformation, elle a au moins deux ans d'existence et si elle a établi et fait approuver par les actionnaires le bilan de ses deux premiers exercices.
Article L225-244
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La décision de transformation est prise sur le rapport des commissaires aux comptes de la société. Le rapport atteste que les capitaux propres sont au moins égaux au capital social.
La transformation est soumise, le cas échéant, à l'approbation des assemblées d'obligataires et de l'assemblée des porteurs de parts bénéficiaires ou de parts de fondateur.
La décision de transformation est soumise à publicité, dont les modalités sont fixées par décret en Conseil d'Etat.
Article L225-245
La transformation en société en nom collectif nécessite l'accord de tous les associés. En ce cas, les conditions prévues aux articles L. 225-243 et au premier alinéa de l'article L. 225-244 ne sont pas exigées.
La transformation en société en commandite simple ou par actions est décidée dans les conditions prévues pour la modification des statuts et avec l'accord de tous les associés qui acceptent d'être associés commandités.
La transformation en société à responsabilité limitée est décidée dans les conditions prévues pour la modification des statuts des sociétés de cette forme.
Article L225-245-1
En cas de transformation d'une société anonyme en société européenne, le premier alinéa de l'article L. 225-244 n'est pas applicable.
La société établit un projet de transformation de la société en société européenne. Ce projet est déposé au greffe du tribunal dans le ressort duquel la société est immatriculée et fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Un ou plusieurs commissaires à la transformation désignés par décision de justice établissent sous leur responsabilité un rapport destiné aux actionnaires de la société se transformant attestant que la société dispose d'actifs nets au moins équivalents au capital augmenté des réserves que la loi ou les statuts ne permettent pas de distribuer. Ils sont soumis aux incompatibilités prévues à l'article L. 822-11.
La transformation en société européenne est décidée selon les dispositions prévues aux articles L. 225-96 et L. 225-99.
Section 7 : De la dissolution des sociétés anonymes.
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Article L225-246
La dissolution anticipée de la société est prononcée par l'assemblée générale extraordinaire.
Article L225-247
Le tribunal de commerce peut, à la demande de tout intéressé, prononcer la dissolution de la société, si le nombre des actionnaires est réduit à moins de sept depuis plus d'un an.
Il peut accorder à la société un délai maximal de six mois pour régulariser la situation. Il ne peut prononcer la dissolution si, le jour où il statue sur le fond, cette régularisation a eu lieu.
Article L225-248
Si, du fait de pertes constatées dans les documents comptables, les capitaux propres de la société deviennent inférieurs à la moitié du capital social, le conseil d'administration ou le directoire, selon le cas, est tenu dans les quatre mois qui suivent l'approbation des comptes ayant fait apparaître cette perte, de convoquer l'assemblée générale extraordinaire à l'effet de décider s'il y a lieu à dissolution anticipée de la société.
Si la dissolution n'est pas prononcée, la société est tenue, au plus tard à la clôture du deuxième exercice suivant celui au cours duquel la constatation des pertes est intervenue et sous réserve des dispositions de l'article L. 224-2 de réduire son capital d'un montant au moins égal à celui des pertes qui n'ont pas pu être imputées sur les réserves, si, dans ce délai, les capitaux propres n'ont pas été reconstitués à concurrence d'une valeur au moins égale à la moitié du capital social.
Dans les deux cas, la résolution adoptée par l'assemblée générale est publiée selon les modalités fixées par décret en Conseil d'Etat.
A défaut de réunion de l'assemblée générale, comme dans le cas ou cette assemblée n'a pas pu délibérer valablement sur dernière convocation, tout intéressé peut demander en justice la dissolution de la société. Il en est de même si les dispositions du deuxième alinéa ci-dessus n'ont pas été appliquées. Dans tous les cas, le tribunal peut accorder à la société un délai maximal de six mois pour régulariser la situation. Il ne peut prononcer la dissolution, si, au jour où il statue sur le fond, cette régularisation a eu lieu.
Les dispositions du présent article ne sont pas applicables aux sociétés en procédure de sauvegarde ou de redressement judiciaire ou qui bénéficient d'un plan de sauvegarde ou de redressement judiciaire.
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Section 8 : De la responsabilité civile.
Article L225-249
Les fondateurs de la société auxquels la nullité est imputable et les administrateurs en fonction au moment où elle a été encourue peuvent être déclarés solidairement responsables du dommage résultant pour les actionnaires ou pour les tiers de l'annulation de la société.
La même responsabilité solidaire peut être prononcée contre ceux des actionnaires dont les apports ou les avantages n'ont pas été vérifiés et approuvés.
Article L225-250
L'action en responsabilité fondée sur l'annulation de la société se prescrit dans les conditions prévues au premier alinéa de l'article L. 235-13.
Article L225-251
Les administrateurs et le directeur général sont responsables individuellement ou solidairement selon le cas, envers la société ou envers les tiers, soit des infractions aux dispositions législatives ou réglementaires applicables aux sociétés anonymes, soit des violations des statuts, soit des fautes commises dans leur gestion.
Si plusieurs administrateurs ou plusieurs administrateurs et le directeur général ont coopéré aux mêmes faits, le tribunal détermine la part contributive de chacun dans la réparation du dommage.
Article L225-252
Outre l'action en réparation du préjudice subi personnellement, les actionnaires peuvent, soit individuellement, soit par une association répondant aux conditions fixées à l'article L. 225-120 soit en se groupant dans les conditions fixées par décret en Conseil d'Etat, intenter l'action sociale en responsabilité contre les administrateurs ou le directeur général. Les demandeurs sont habilités à poursuivre la réparation de l'entier préjudice subi par la société, à laquelle, le cas échéant, les dommages-intérêts sont alloués.
Article L225-253
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Est réputée non écrite toute clause des statuts ayant pour effet de subordonner l'exercice de l'action sociale à l'avis préalable ou à l'autorisation de l'assemblée générale, ou qui comporterait par avance renonciation à l'exercice de cette action.
Aucune décision de l'assemblée générale ne peut avoir pour effet d'éteindre une action en responsabilité contre les administrateurs ou contre le directeur général pour faute commise dans l'accomplissement de leur mandat.
Article L225-254
L'action en responsabilité contre les administrateurs ou le directeur général, tant sociale qu'individuelle, se prescrit par trois ans, à compter du fait dommageable ou s'il a été dissimulé, de sa révélation. Toutefois, lorsque le fait est qualifié crime, l'action se prescrit par dix ans.
Article L225-255
En cas d'ouverture d'une procédure de redressement ou de liquidation judiciaire en application des dispositions des titres III et IV du livre VI relatives au redressement et à la liquidation judiciaires des entreprises, les personnes visées par ces dispositions peuvent être rendues responsables du passif social et sont soumises aux interdictions et déchéances, dans les conditions prévues par celles-ci.
Article L225-256
Lorsque la société est soumise aux dispositions des articles L. 225-57 à L. 225-93, les membres du directoire sont soumis à la même responsabilité que les administrateurs dans les conditions prévues aux articles L. 225-249 à L. 225-255.
En cas d'ouverture d'une procédure de redressement ou de liquidation judiciaire en application des dispositions du titre II du livre VI relatives au redressement et à la liquidation judiciaires des entreprises, les personnes visées par ces dispositions peuvent être rendues responsables du passif social et sont soumises aux interdictions et déchéances, dans les conditions prévues par celles-ci.
Article L225-257
Les membres du conseil de surveillance sont responsables des fautes personnelles commises dans l'exécution de leur mandat. Ils n'encourent aucune responsabilité, en raison des actes de la gestion et de leur résultat. Ils peuvent être déclarés civilement responsables des délits commis par les membres du directoire si, en ayant eu connaissance, ils ne les ont pas révélés à l'assemblée générale.
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Les dispositions des articles L. 225-253 et L. 225-254 sont applicables.
Section 9 : Des sociétés anonymes à participation ouvrière.
Article L225-258
Il peut être stipulé dans les statuts de toute société anonyme que la société est " à participation ouvrière ".
Les sociétés dont les statuts ne contiennent pas cette stipulation peuvent se transformer en sociétés à participation ouvrière, en procédant conformément à l'article L. 225-96.
Les sociétés à participation ouvrière sont soumises, indépendamment des règles générales applicables aux sociétés anonymes, aux dispositions de la présente section.
Article L225-259
Si la société use de la faculté d'émettre des actions de travail, cette circonstance doit être mentionnée sur tous ses actes et documents destinés aux tiers par l'addition des mots " à participation ouvrière ".
Article L225-260
Les actions de la société se composent :
1° D'actions ou coupures d'actions de capital ;
2° D'actions dites " actions de travail ".
Article L225-261
Les actions de travail sont la propriété collective du personnel salarié (ouvriers et employés), constitué en société commerciale coopérative de main-d'oeuvre. Cette société de main-d'oeuvre comprend obligatoirement et exclusivement tous les salariés liés à l'entreprise depuis au moins un an et âgés de plus de dix-huit ans. La perte de l'emploi salarié prive le participant, sans indemnité, de tous ses droits dans la coopérative de main-d'oeuvre. La liquidation des droits qui ont été acquis dans l'entreprise par l'intéressé antérieurement à son départ, au cours du dernier exercice, est faite compte tenu du temps passé par lui au cours de cet exercice, et des dispositions de l'article L.
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225-269.
Lorsqu'une société se constitue, dès son début, sous la forme de société anonyme à participation ouvrière, les statuts de la société anonyme doivent prévoir la mise en réserve, jusqu'à la fin de l'année, des actions de travail attribuées à la collectivité des salariés. A la fin de ce délai, les actions sont remises à la coopérative de main-d'oeuvre légalement constituée.
Les dividendes attribués aux ouvriers et employés faisant partie de la coopérative ouvrière sont répartis entre eux conformément aux règles fixées par les statuts de la société ouvrière et aux décisions de ses assemblées générales. Toutefois, les statuts de la société anonyme doivent disposer que, préalablement à toute distribution de dividende, il est prélevé sur les bénéfices, au profit des porteurs d'actions de capital, une somme correspondant à celle que produirait, à l'intérêt qu'ils fixent, le capital versé.
En aucun cas les actions de travail ne peuvent être attribuées individuellement aux salariés de la société, membres de la coopérative de main-d'oeuvre.
Article L225-262
Les actions de travail sont nominatives, inscrites au nom de la société coopérative de main-d'oeuvre, inaliénables pendant toute la durée de la société à participation ouvrière.
Article L225-263
Les participants à la société coopérative de main-d'oeuvre sont représentés aux assemblées générales de la société anonyme par des mandataires élus par ces participants, réunis en assemblée générale de la coopérative.
Les mandataires élus doivent être choisis parmi les participants. Leur nombre est fixé par les statuts de la société anonyme.
Le nombre des voix dont disposent ces mandataires, à chaque assemblée générale de la société anonyme, est établi d'après le nombre de voix dont disposent les autres actionnaires présents ou représentés, en respectant la proportion entre les actions de travail et les actions de capital résultant de l'application des statuts de la société. Il est déterminé au début de chaque assemblée d'après les indications de la feuille de présence.
Les mandataires présents partagent également entre eux les voix qui leur sont ainsi attribuées, les plus âgés bénéficiant des voix restantes.
L'assemblée générale de la coopérative de main-d'oeuvre est réunie chaque année dans un délai fixé par les statuts et, à défaut de dispositions statutaires, dans un délai de quatre mois après la réunion de l'assemblée générale de la société anonyme.
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Article L225-264
Chaque participant dispose, à l'assemblée générale de la coopérative de main-d'oeuvre, d'une voix.
Les statuts peuvent toutefois attribuer plusieurs voix aux participants, en fonction du montant de leur salaire, dans la limite d'un chiffre maximum égal à autant de voix que le salaire annuel de l'intéressé, établi sur les comptes arrêtés à la clôture de l'exercice précédent, comprend de fois le chiffre du salaire le plus faible attribué par la société aux salariés âgés de plus de dix-huit ans.
Les statuts peuvent prévoir que les participants sont répartis par collèges regroupant chacun une catégorie de personnel, chaque collège élisant son ou ses mandataires et que l'accord de chaque collège, à des majorités que les statuts précisent, est nécessaire pour la modification des statuts de la coopérative et d'autres décisions énumérées par les statuts.
Article L225-265
L'assemblée générale de la coopérative de main-d'oeuvre ne délibère valablement que si, sur première convocation, les deux tiers au moins des participants de la coopérative sont présents ou représentés. Les statuts fixent le quorum requis pour l'assemblée réunie sur seconde convocation. A défaut de dispositions statutaires, ce quorum est de la moitié des participants de la coopérative, présents ou représentés.
L'assemblée générale statue à la majorité des voix exprimées. Dans le cas où il est procédé à un scrutin, il n'est pas tenu compte des bulletins blancs.
Toutefois, pour la modification des statuts de la coopérative et pour d'autres décisions énumérées par les statuts, le quorum ne peut être inférieur à la moitié des participants de la coopérative. De plus, ces mêmes décisions sont prises à la majorité des deux tiers des voix exprimées. Dans le cas où il est procédé à un scrutin, il n'est pas tenu compte des bulletins blancs.
Article L225-266
En cas d'action en justice, les mandataires élus à la dernière assemblée générale désignent un ou plusieurs d'entre eux pour représenter les participants. Si aucune élection n'a encore été faite, ou si aucun des mandataires élus ne fait partie de la coopérative de main-d'oeuvre, il est procédé à l'élection de mandataires spéciaux dans les formes et conditions prévues au premier alinéa de l'article L. 225-263 et aux articles L. 225-264 et L. 225-265.
Article L225-267
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Toutefois, les assemblées générales des sociétés anonymes à participation ouvrière délibérant sur des modifications à apporter aux statuts ou sur des propositions de continuation de la société au-delà du terme fixé pour sa durée ou de dissolution avant ce terme ne sont régulièrement constituées et ne peuvent valablement délibérer qu'autant qu'elles comprennent un nombre d'actionnaires représentant les trois quarts des actions de capital. Il peut en être décidé autrement par les statuts.
Dans le cas où une décision de l'assemblée générale comporte une modification dans les droits attachés aux actions de travail, cette décision n'est définitive qu'après avoir été ratifiée par une assemblée générale de la coopérative de main-d'oeuvre.
Article L225-268
Le conseil d'administration de la société anonyme à participation ouvrière comprend un ou plusieurs représentants de la société coopérative de main-d'oeuvre. Ces représentants sont élus par l'assemblée générale des actionnaires et choisis parmi les mandataires qui représentent la coopérative à cette assemblée générale. Le nombre en est fixé par le rapport qui existe entre les actions de travail et les actions de capital. Ils sont nommés pour le même temps que les autres administrateurs et sont comme eux rééligibles. Toutefois, leur mandat prend fin s'ils cessent d'être salariés de la société et, par suite, membres de la société. Si le conseil d'administration ne se compose que de trois membres, il doit comprendre tout au moins un représentant de ladite société coopérative.
Article L225-269
En cas de dissolution, l'actif social n'est réparti entre les actionnaires qu'après l'amortissement intégral des actions de capital.
La part représentative des actions de travail, conformément aux décisions prises par l'assemblée générale de la coopérative ouvrière convoquée à cet effet, est alors répartie entre les participants et anciens participants comptant au moins dix ans de services consécutifs dans les établissements de la société, ou tout au moins une durée de services sans interruption égale à la moitié de la durée de la société, et ayant quitté la société pour l'une des raisons suivantes : départ à la retraite volontaire ou d'office avec droit à pension, maladie ou invalidité entraînant l'inaptitude à l'emploi précédemment occupé, licenciement motivé par une suppression d'emploi ou une compression de personnel.
Toutefois, les anciens participants remplissant les conditions prévues à l'alinéa précédent ne figurent à la répartition que pour une part correspondant à la durée de leurs services réduite d'un dixième de son montant total par année écoulée depuis la cessation de leurs services.
La dissolution de la société anonyme amène la dissolution de la coopérative de main-d'oeuvre.
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Article L225-270
I. - Lorsqu'une société anonyme à participation ouvrière vient à se trouver dans la situation visée à l'article L. 225-248, et que sa dissolution n'est pas prononcée, l'assemblée générale extraordinaire peut décider, dans le délai fixé au deuxième alinéa du même article, une modification des statuts de la société entraînant la perte de la forme de société anonyme à participation ouvrière et, par la même, la dissolution de la société coopérative de main-d'oeuvre, nonobstant les dispositions du second alinéa de l'article L. 225-267 et toute disposition statutaire contraire.
Toutefois, la mise en oeuvre de cette décision est subordonnée à l'existence d'un accord collectif d'entreprise conclu avec une ou plusieurs organisations syndicales de salariés représentatives au sens de l'article L. 132-2 du code du travail et prévoyant la dissolution de la société coopérative de main-d'oeuvre. L'existence d'un accord collectif d'entreprise, incluant le même objet et conclu dans les mêmes conditions, antérieurement à l'entrée en vigueur de la loi n° 94-679 du 8 août 1994 portant diverses dispositions d'ordre économique et financier, répond aux dispositions du présent alinéa.
II. - Si la société coopérative de main-d'oeuvre est dissoute en application des dispositions du I ci-dessus, il est attribué aux participants et anciens participants mentionnés au deuxième alinéa de l'article L. 225-269 une indemnisation.
Le montant de cette indemnisation, déterminé en prenant en compte notamment la nature et la portée particulière des droits attachés aux actions de travail, est fixé par l'assemblée générale extraordinaire des actionnaires de la société anonyme, après consultation des mandataires de la société coopérative de main-d'oeuvre et au vu du rapport d'un expert indépendant désigné selon des modalités prévues par décret en Conseil d'Etat.
III. - Sur décision de l'assemblée générale extraordinaire des actionnaires de la société anonyme, l'indemnisation peut prendre la forme d'une attribution d'actions au bénéfice exclusif des participants et anciens participants mentionnés au deuxième alinéa de l'article L. 225-269.
Ces actions peuvent être créées par prélèvement sur les primes et réserves disponibles. Par dérogation aux dispositions de l'article L. 225-206, la société anonyme peut également acquérir ses propres actions afin de les attribuer, dans le délai d'un an à compter de leur acquisition, aux participants et anciens participants mentionnés au deuxième alinéa de l'article L. 225-269.
Les actions ainsi attribuées ne peuvent être cédées qu'à l'expiration d'un délai de trois ans à compter de la date de la dissolution de la société coopérative de main-d'oeuvre.
Nonobstant les dispositions de l'alinéa précédent, l'assemblée générale extraordinaire des actionnaires de la société anonyme peut décider de confier la gestion de ces actions à un fonds commun de placement d'entreprise, régi par les dispositions de l'article 21 de la loi n° 88-1201 du 23 décembre 1988 relative aux organismes de placement collectif en valeurs mobilières et portant création des fonds communs de créances, spécialement et exclusivement constitué à cet effet au plus tard le jour de l'attribution des actions. Dans ce cas, les parts du fonds et les actions qui en constituent l'actif ne peuvent être cédées qu'à l'expiration du délai mentionné à l'alinéa précédent.
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Le règlement de ce fonds est approuvé par la voie d'un accord collectif de travail.
IV. - Pour l'application des dispositions prévues par le présent article, les décisions prises par l'assemblée générale des actionnaires de la société anonyme s'imposent de plein droit à tout actionnaire et à tout porteur ou titulaire de titres obligataires ou donnant immédiatement ou à terme accès au capital.
V. - L'indemnisation visée au II est répartie entre les ayants droit, en tenant compte de la durée de leurs services dans la société, de l'ancienneté acquise dans la coopérative de main-d'oeuvre et de leur niveau de rémunération.
Après dissolution de la société coopérative de main-d'oeuvre, et dans un délai de six mois après délibération de l'assemblée générale extraordinaire des actionnaires de la société anonyme fixant le montant et la forme de l'indemnisation, cette répartition est effectuée conformément aux décisions prises par l'assemblée générale de la société coopérative sur proposition de ses mandataires. A défaut de répartition dans ce délai de six mois, celle-ci est effectuée par un mandataire liquidateur désigné par le président du tribunal de commerce du ressort du siège social de la société.
Les dispositions du troisième alinéa de l'article L. 225-269 sont applicables dans le cas visé au présent V.
VI. - L'indemnisation visée au II ou, le cas échéant, la valeur des actions attribuées à ce titre n'ont pas le caractère d'éléments de salaires pour l'application de la législation du travail et de la sécurité sociale. Elles ne sont pas retenues pour le calcul de l'assiette de tous impôts, taxes et prélèvements assis sur les salaires ou les revenus, sous réserve des dispositions de l'article 94A du code général des impôts.
Chapitre VI : Des sociétés en commandite par actions.
Article L226-1
La société en commandite par actions, dont le capital est divisé en actions, est constituée entre un ou plusieurs commandités, qui ont la qualité de commerçant et répondent indéfiniment et solidairement des dettes sociales, et des commanditaires, qui ont la qualité d'actionnaires et ne supportent les pertes qu'à concurrence de leurs apports. Le nombre des associés commanditaires ne peut être inférieur à trois.
Dans la mesure où elles sont compatibles avec les dispositions particulières prévues par le présent chapitre, les règles concernant les sociétés en commandite simple et les sociétés anonymes, à l'exception des articles L. 225-17 à L. 225-93, sont applicables aux sociétés en commandite par actions.
Article L226-2
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Le ou les premiers gérants sont désignés par les statuts. Ils accomplissent les formalités de constitution dont sont chargés les fondateurs de sociétés anonymes par les articles L. 225-2 à L. 225-16.
Au cours de l'existence de la société, sauf clause contraire des statuts, le ou les gérants sont désignés par l'assemblée générale ordinaire avec l'accord de tous les associés commandités.
Le gérant, associé ou non, est révoqué dans les conditions prévues par les statuts.
En outre, le gérant est révocable par le tribunal de commerce pour cause légitime, à la demande de tout associé ou de la société. Toute clause contraire est réputée non écrite.
Article L226-3
Les statuts doivent prévoir pour l'exercice des fonctions de gérant une limite d'âge qui, à défaut d'une disposition expresse, est fixée à soixante-cinq ans.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
Lorsqu'un gérant atteint la limite d'âge, il est réputé démissionnaire d'office.
Article L226-4
L'assemblée générale ordinaire nomme, dans les conditions fixées par les statuts, un conseil de surveillance, composé de trois actionnaires au moins.
A peine de nullité de sa nomination, un associé commandité ne peut être membre du conseil de surveillance. Les actionnaires ayant la qualité de commandité ne peuvent participer à la désignation des membres de ce conseil.
A défaut de disposition statutaire, les règles concernant la désignation et la durée du mandat des administrateurs de sociétés anonymes sont applicables.
Article L226-5
Les statuts doivent prévoir pour l'exercice des fonctions de membre du conseil de surveillance une limite d'âge s'appliquant soit à l'ensemble des membres du conseil de surveillance, soit à un pourcentage déterminé d'entre eux.
A défaut de disposition expresse dans les statuts, le nombre des membres du conseil de surveillance
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ayant atteint l'âge de soixante-dix ans ne peut être supérieur au tiers des membres du conseil de surveillance en fonctions.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
A défaut de disposition expresse dans les statuts prévoyant une autre procédure, lorsque la limitation statutaire ou légale fixée pour l'âge des membres du conseil de surveillance est dépassée, le membre du conseil de surveillance le plus âgé est réputé démissionnaire d'office.
Article L226-6
L'assemblée générale ordinaire désigne un ou plusieurs commissaires aux comptes.
Article L226-7
Le gérant est investi des pouvoirs les plus étendus pour agir en toute circonstance au nom de la société.
Dans les rapports avec les tiers, la société est engagée même par les actes du gérant qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Les clauses statutaires limitant les pouvoirs du gérant qui résultent du présent article sont inopposables aux tiers.
En cas de pluralité de gérants, ceux-ci détiennent séparément les pouvoirs prévus au présent article. L'opposition formée par un gérant aux actes d'un autre gérant est sans effet à l'égard des tiers, à moins qu'il ne soit établi qu'ils en ont eu connaissance.
Sous réserve des dispositions du présent chapitre, le gérant a les mêmes obligations que le conseil d'administration d'une société anonyme.
Article L226-8
Toute autre rémunération que celle prévue aux statuts ne peut être allouée au gérant que par l'assemblée générale ordinaire. Elle ne peut l'être qu'avec l'accord des commandités donné, sauf clause contraire, à l'unanimité.
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Article L226-9
Le conseil de surveillance assume le contrôle permanent de la gestion de la société. Il dispose, à cet effet, des mêmes pouvoirs que les commissaires aux comptes.
Il fait à l'assemblée générale ordinaire annuelle un rapport dans lequel il signale, notamment, les irrégularités et inexactitudes relevées dans les comptes annuels et, le cas échéant, les comptes consolidés de l'exercice.
Il est saisi en même temps que les commissaires aux comptes des documents mis à la disposition de ceux-ci.
Il peut convoquer l'assemblée générale des actionnaires.
Article L226-10
Les dispositions des articles L. 225-38 à L. 225-43 sont applicables aux conventions intervenant directement ou par personne interposée entre la société et l'un de ses gérants, l'un des membres de son conseil de surveillance, l'un de ses actionnaires disposant d'une fraction des droits de vote supérieure à 10 % ou, s'il s'agit d'une société actionnaire, la société la contrôlant au sens de l'article L. 233-3. De même, ces dispositions sont applicables aux conventions auxquelles une de ces personnes est indirectement intéressée.
Elles sont également applicables aux conventions intervenant entre une société et une entreprise si l'un des gérants ou l'un des membres du conseil de surveillance de la société est propriétaire, associé indéfiniment responsable, gérant, administrateur, directeur général, membre du directoire ou membre du conseil de surveillance de l'entreprise.
L'autorisation prévue au premier alinéa de l'article L. 225-38 est donnée par le conseil de surveillance.
Article L226-10-1
Lorsque les titres financiers de la société sont admis aux négociations sur un marché réglementé, le président du conseil de surveillance établit un rapport joint au rapport prévu aux articles L. 225-102, L. 225-102-1 et L. 233-26, qui comporte les informations mentionnées aux septième à neuvième alinéas de l'article L. 225-68.
Ce rapport est approuvé par le conseil de surveillance et est rendu public.
Les commissaires aux comptes présentent leurs observations sur ce rapport pour celles des procédures de contrôle interne et de gestion des risques qui sont relatives à l'élaboration et au traitement de l'information comptable et financière, dans les conditions prévues à l'article L.
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225-235. Ils attestent l'établissement des autres informations requises dans les mêmes conditions.
Article L226-11
La modification des statuts exige, sauf clause contraire, l'accord de tous les commandités.
La modification des statuts résultant d'une augmentation de capital est constatée par les gérants.
Article L226-12
Les dispositions des articles L. 225-109 et L. 225-249 sont applicables aux gérants et membres du conseil de surveillance.
Les dispositions des articles L. 225-52, L. 225-251 et L. 225-255 sont applicables aux gérants, même non associés.
Article L226-13
Les membres du conseil de surveillance n'encourent aucune responsabilité, en raison des actes de la gestion et de leur résultat.
Ils peuvent être déclarés civilement responsables des délits commis par les gérants si, en ayant eu connaissance, ils ne les ont pas révélés à l'assemblée générale. Ils sont responsables des fautes personnelles commises dans l'exécution de leur mandat.
Article L226-14
La transformation de la société en commandite par actions en société anonyme ou en société à responsabilité limitée est décidée par l'assemblée générale extraordinaire des actionnaires, avec l'accord de la majorité des associés commandités.
Chapitre VII : Des sociétés par actions simplifiées.
Article L227-1
Une société par actions simplifiée peut être instituée par une ou plusieurs personnes qui ne supportent les pertes qu'à concurrence de leur apport.
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Lorsque cette société ne comporte qu'une seule personne, celle-ci est dénommée "associé unique". L'associé unique exerce les pouvoirs dévolus aux associés lorsque le présent chapitre prévoit une prise de décision collective.
Dans la mesure où elles sont compatibles avec les dispositions particulières prévues par le présent chapitre, les règles concernant les sociétés anonymes, à l'exception des articles L. 224-2, L. 225-17 à L. 225-126, L. 225-243 et du I de l'article L. 233-8, sont applicables à la société par actions simplifiée. Pour l'application de ces règles, les attributions du conseil d'administration ou de son président sont exercées par le président de la société par actions simplifiée ou celui ou ceux de ses dirigeants que les statuts désignent à cet effet.
La société par actions simplifiée peut émettre des actions inaliénables résultant d'apports en industrie tels que définis à l'article 1843-2 du code civil. Les statuts déterminent les modalités de souscription et de répartition de ces actions. Ils fixent également le délai au terme duquel, après leur émission, ces actions font l'objet d'une évaluation dans les conditions prévues à l'article L. 225-8.
La société par actions simplifiée dont l'associé unique, personne physique, assume personnellement la présidence est soumise à des formalités de publicité allégées déterminées par décret en Conseil d'Etat. Ce décret prévoit les conditions de dispense d'insertion au Bulletin officiel des annonces civiles et commerciales.
Article L227-2
La société par actions simplifiée ne peut procéder à une offre au public de titres financiers ou à l'admission aux négociations sur un marché réglementé de ses actions. Elle peut néanmoins procéder aux offres définies aux 2 et 3 du I et au II de l'article L. 411-2 du code monétaire et financier .
Article L227-3
La décision de transformation en société par actions simplifiée est prise à l'unanimité des associés.
Article L227-4
En cas de réunion en une seule main de toutes les actions d'une société par actions simplifiée, les dispositions de l'article 1844-5 du code civil relatives à la dissolution judiciaire ne sont pas applicables.
Article L227-5
Les statuts fixent les conditions dans lesquelles la société est dirigée.
Article L227-6
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La société est représentée à l'égard des tiers par un président désigné dans les conditions prévues par les statuts. Le président est investi des pouvoirs les plus étendus pour agir en toute circonstance au nom de la société dans la limite de l'objet social.
Dans les rapports avec les tiers, la société est engagée même par les actes du président qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Les statuts peuvent prévoir les conditions dans lesquelles une ou plusieurs personnes autres que le président, portant le titre de directeur général ou de directeur général délégué, peuvent exercer les pouvoirs confiés à ce dernier par le présent article.
Les dispositions statutaires limitant les pouvoirs du président sont inopposables aux tiers.
Article L227-7
Lorsqu'une personne morale est nommée président ou dirigeant d'une société par actions simplifiée, les dirigeants de ladite personne morale sont soumis aux mêmes conditions et obligations et encourent les mêmes responsabilités civile et pénale que s'ils étaient président ou dirigeant en leur nom propre, sans préjudice de la responsabilité solidaire de la personne morale qu'ils dirigent.
Article L227-8
Les règles fixant la responsabilité des membres du conseil d'administration et du directoire des sociétés anonymes sont applicables au président et aux dirigeants de la société par actions simplifiée.
Article L227-9
Les statuts déterminent les décisions qui doivent être prises collectivement par les associés dans les formes et conditions qu'ils prévoient.
Toutefois, les attributions dévolues aux assemblées générales extraordinaires et ordinaires des sociétés anonymes, en matière d'augmentation, d'amortissement ou de réduction de capital, de fusion, de scission, de dissolution, de transformation en une société d'une autre forme, de nomination de commissaires aux comptes, de comptes annuels et de bénéfices sont, dans les conditions prévues par les statuts, exercées collectivement par les associés.
Dans les sociétés ne comprenant qu'un seul associé, le rapport de gestion, les comptes annuels et le cas échéant les comptes consolidés sont arrêtés par le président. L'associé unique approuve les comptes, après rapport du commissaire aux comptes s'il en existe un, dans le délai de six mois à
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compter de la clôture de l'exercice.L'associé unique ne peut déléguer ses pouvoirs. Ses décisions sont répertoriées dans un registre. Lorsque l'associé unique, personne physique, assume personnellement la présidence de la société, le dépôt, dans le même délai, au registre du commerce et des sociétés de l'inventaire et des comptes annuels dûment signés vaut approbation des comptes sans que l'associé unique ait à porter au registre prévu à la phrase précédente le récépissé délivré par le greffe du tribunal de commerce.
Les décisions prises en violation des dispositions du présent article peuvent être annulées à la demande de tout intéressé.
Article L227-9-1
Les associés peuvent nommer un ou plusieurs commissaires aux comptes dans les conditions prévues à l'article L. 227-9.
Sont tenues de désigner au moins un commissaire aux comptes les sociétés par actions simplifiées qui dépassent, à la clôture d'un exercice social, deux des seuils suivants, fixés par décret en Conseil d'État : le total de leur bilan, le montant de leur chiffre d'affaires hors taxe ou le nombre moyen de leurs salariés au cours de l'exercice.
Sont également tenues de désigner au moins un commissaire aux comptes les sociétés par actions simplifiées qui contrôlent, au sens des II et III de l'article L. 233-16, une ou plusieurs sociétés, ou qui sont contrôlées, au sens des mêmes II et III, par une ou plusieurs sociétés.
Même si les conditions prévues aux deux alinéas précédents ne sont pas atteintes, la nomination d'un commissaire aux comptes peut être demandée en justice par un ou plusieurs associés représentant au moins le dixième du capital.
Article L227-10
Le commissaire aux comptes ou, s'il n'en a pas été désigné, le président de la société présente aux associés un rapport sur les conventions intervenues directement ou par personne interposée entre la société et son président, l'un de ses dirigeants, l'un de ses actionnaires disposant d'une fraction des droits de vote supérieure à 10 % ou, s'il s'agit d'une société actionnaire, la société la contrôlant au sens de l'article L. 233-3.
Les associés statuent sur ce rapport.
Les conventions non approuvées, produisent néanmoins leurs effets, à charge pour la personne intéressée et éventuellement pour le président et les autres dirigeants d'en supporter les conséquences dommageables pour la société.
Par dérogation aux dispositions du premier alinéa, lorsque la société ne comprend qu'un seul associé, il est seulement fait mention au registre des décisions des conventions intervenues directement ou par personnes interposées entre la société et son dirigeant.
Article L227-11
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Sauf lorsqu'en raison de leur objet ou de leurs implications financières, elles ne sont significatives pour aucune des parties, les conventions portant sur les opérations courantes et conclues à des conditions normales sont communiquées au commissaire aux comptes. Tout associé a le droit d'en obtenir communication.
Article L227-12
Les interdictions prévues à l'article L. 225-43 s'appliquent, dans les conditions déterminées par cet article, au président et aux dirigeants de la société.
Article L227-13
Les statuts de la société peuvent prévoir l'inaliénabilité des actions pour une durée n'excédant pas dix ans.
Article L227-14
Les statuts peuvent soumettre toute cession d'actions à l'agrément préalable de la société.
Article L227-15
Toute cession effectuée en violation des clauses statutaires est nulle.
Article L227-16
Dans les conditions qu'ils déterminent, les statuts peuvent prévoir qu'un associé peut être tenu de céder ses actions.
Ils peuvent également prévoir la suspension des droits non pécuniaires de cet associé tant que celui-ci n'a pas procédé à cette cession.
Article L227-17
Les statuts peuvent prévoir que la société associée dont le contrôle est modifié au sens de l'article L.
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233-3 doit, dès cette modification, en informer la société par actions simplifiée. Celle-ci peut décider, dans les conditions fixées par les statuts, de suspendre l'exercice des droits non pécuniaires de cet associé et de l'exclure.
Les dispositions de l'alinéa précédent peuvent s'appliquer, dans les mêmes conditions, à l'associé qui a acquis cette qualité à la suite d'une opération de fusion, de scission ou de dissolution.
Article L227-18
Si les statuts ne précisent pas les modalités du prix de cession des actions lorsque la société met en oeuvre une clause introduite en application des articles L. 227-14, L. 227-16 et L. 227-17, ce prix est fixé par accord entre les parties ou, à défaut, déterminé dans les conditions prévues à l'article 1843-4 du code civil.
Lorsque les actions sont rachetées par la société, celle-ci est tenue de les céder dans un délai de six mois ou de les annuler.
Article L227-19
Les clauses statutaires visées aux articles L. 227-13, L. 227-14, L. 227-16 et L. 227-17 ne peuvent être adoptées ou modifiées qu'à l'unanimité des associés.
Article L227-20
Les articles L. 227-13 à L. 227-19 ne sont pas applicables aux sociétés ne comprenant qu'un seul associé.
Chapitre VIII : Des valeurs mobilières émises par les sociétés par actions.
Section 1 : Dispositions communes aux valeurs mobilières
Article L228-1
Les sociétés par actions émettent toutes valeurs mobilières dans les conditions du présent livre.
Les valeurs mobilières sont des titres financiers au sens de l'article L. 211-1 du code monétaire et
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financier, qui confèrent des droits identiques par catégorie.
Les valeurs mobilières émises par les sociétés par actions revêtent la forme de titres au porteur ou de titres nominatifs, sauf pour les sociétés pour lesquelles la loi ou les statuts imposent la seule forme nominative, pour tout ou partie du capital.
Nonobstant toute convention contraire, tout propriétaire dont les titres font partie d'une émission comprenant à la fois des titres au porteur et des titres nominatifs a la faculté de convertir ses titres dans l'autre forme.
Toutefois, la conversion des titres nominatifs n'est pas possible s'agissant des sociétés pour lesquelles la loi ou les statuts imposent la forme nominative pour tout ou partie du capital.
Ces valeurs mobilières, quelle que soit leur forme, doivent être inscrites en compte au nom de leur propriétaire, dans les conditions prévues aux articles L. 211-3 et L. 211-4 du code monétaire et financier.
Toutefois, lorsque des titres de capital de la société ont été admis aux négociations sur un marché réglementé et que leur propriétaire n'a pas son domicile sur le territoire français, au sens de l'article 102 du code civil, tout intermédiaire peut être inscrit pour le compte de ce propriétaire. Cette inscription peut être faite sous la forme d'un compte collectif ou en plusieurs comptes individuels correspondant chacun à un propriétaire.
L'intermédiaire inscrit est tenu, au moment de l'ouverture de son compte auprès soit de la société émettrice, soit de l'intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier qui tient le compte-titres, de déclarer, dans les conditions fixées par décret, sa qualité d'intermédiaire détenant des titres pour le compte d'autrui.
En cas de cession de valeurs mobilières admises aux opérations d'un dépositaire central ou livrées dans un système de règlement et de livraison mentionné à l'article L. 330-1 du code monétaire et financier, le transfert de propriété s'effectue dans les conditions prévues à l'article L. 211-17 de ce code. Dans les autres cas, le transfert de propriété résulte de l'inscription des valeurs mobilières au compte de l'acheteur, dans des conditions fixées par décret en Conseil d'Etat.
Article L228-2
I.-En vue de l'identification des détenteurs des titres au porteur, les statuts peuvent prévoir que la société émettrice est en droit de demander à tout moment, contre rémunération à sa charge, au dépositaire central qui assure la tenue du compte émission de ses titres, selon le cas, le nom ou la dénomination, la nationalité, l'année de naissance ou l'année de constitution et l'adresse des détenteurs de titres conférant immédiatement ou à terme le droit de vote dans ses propres assemblées d'actionnaires ainsi que la quantité de titres détenue par chacun d'eux et, le cas échéant, les restrictions dont les titres peuvent être frappés.
Les renseignements sont recueillis par le dépositaire central susmentionné auprès des établissements teneurs de comptes qui lui sont affiliés, lesquels les lui communiquent dans un délai fixé par décret en Conseil d'Etat. Dans les cinq jours ouvrables qui en suivent la réception, ces renseignements sont portés par le dépositaire central à la connaissance de la société.
Lorsque le délai fixé par décret n'est pas respecté, ou lorsque les renseignements fournis par l'établissement teneur de comptes sont incomplets ou erronés, le dépositaire central peut demander
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l'exécution de l'obligation de communication, sous astreinte, au président du tribunal de grande instance statuant en référé.
II.-La société émettrice, après avoir suivi la procédure prévue au I et au vu de la liste transmise par le dépositaire central susmentionné, a la faculté de demander, soit par l'entremise de ce dépositaire central soit directement, dans les mêmes conditions et sous peine des sanctions prévues à l'article L. 228-3-2, aux personnes figurant sur cette liste et dont la société estime qu'elles pourraient être inscrites pour compte de tiers les informations concernant les propriétaires des titres prévues au I.
Ces personnes sont tenues, lorsqu'elles ont la qualité d'intermédiaire, de révéler l'identité des propriétaires de ces titres.L'information est fournie directement à l'intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier qui tient le compte-titres, à charge pour ce dernier de la communiquer, selon le cas, à la société émettrice ou au dépositaire central susmentionné.
III.-Les renseignements obtenus par la société ne peuvent être cédés par celle-ci, même à titre gratuit. Toute violation de cette disposition est punie des peines prévues à l'article 226-13 du code pénal.
Article L228-3
S'il s'agit de titres de forme nominative, donnant immédiatement ou à terme accès au capital, l'intermédiaire inscrit dans les conditions prévues à l'article L. 228-1 est tenu, dans un délai fixé par décret en Conseil d'Etat, de révéler l'identité des propriétaires de ces titres, ainsi que la quantité de titres détenus par chacun d'eux sur simple demande de la société émettrice ou de son mandataire, laquelle peut être présentée à tout moment.
Les droits spéciaux attachés aux actions nominatives, notamment ceux prévus aux articles L. 225-123 et L. 232-14, ne peuvent être exercés par un intermédiaire inscrit dans les conditions prévues à l'article L. 228-1 que si les renseignements qu'il fournit permettent le contrôle des conditions requises pour l'exercice de ces droits.
Article L228-3-1
I. - Aussi longtemps que la société émettrice estime que certains détenteurs dont l'identité lui a été communiquée le sont pour le compte de tiers propriétaires des titres, elle est en droit de demander à ces détenteurs de révéler l'identité des propriétaires de ces titres, ainsi que la quantité de titres détenus par chacun d'eux, dans les conditions prévues respectivement au premier alinéa du II de l'article L. 228-2 pour les titres au porteur et au premier alinéa de l'article L. 228-3 pour les titres nominatifs.
II. - A l'issue de ces opérations, et sans préjudice des obligations de déclaration de participations significatives imposées par les articles L. 233-7, L. 233-12 et L. 233-13, la société émettrice peut demander à toute personne morale propriétaire de ses actions et possédant des participations dépassant le quarantième du capital ou des droits de vote de lui faire connaître l'identité des personnes détenant directement ou indirectement plus du tiers du capital social de cette personne
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morale ou des droits de vote qui sont exercés aux assemblées générales de celle-ci.
Article L228-3-2
L'intermédiaire qui a satisfait aux obligations prévues aux septième et huitième alinéas de l'article L. 228-1 peut, en vertu d'un mandat général de gestion des titres, transmettre pour une assemblée le vote ou le pouvoir d'un propriétaire d'actions tel qu'il a été défini au troisième alinéa du même article.
Avant de transmettre des pouvoirs ou des votes en assemblée générale, l'intermédiaire inscrit conformément à l'article L. 228-1 est tenu, à la demande de la société émettrice ou de son mandataire, de fournir la liste des propriétaires non résidents des actions auxquelles ces droits de vote sont attachés ainsi que la quantité d'actions détenues par chacun d'eux. Cette liste est fournie dans les conditions prévues, selon le cas, aux articles L. 228-2 ou L. 228-3.
Le vote ou le pouvoir émis par un intermédiaire qui soit ne s'est pas déclaré comme tel en vertu du huitième alinéa de l'article L. 228-1 ou du deuxième alinéa du présent article, soit n'a pas révélé l'identité des propriétaires des titres en vertu des articles L. 228-2 ou L. 228-3, ne peut être pris en compte.
Article L228-3-3
Lorsque la personne qui fait l'objet d'une demande en vertu des articles L. 228-2 à L. 228-3-1 n'a pas transmis les informations dans les délais prévus à ces articles ou a transmis des renseignements incomplets ou erronés relatifs soit à sa qualité, soit aux propriétaires des titres, soit à la quantité de titres détenus par chacun d'eux, les actions ou les titres donnant accès immédiatement ou à terme au capital et pour lesquels cette personne a été inscrite en compte sont privés des droits de vote pour toute assemblée d'actionnaires qui se tiendrait jusqu'à la date de régularisation de l'identification, et le paiement du dividende correspondant est différé jusqu'à cette date.
En outre, au cas où la personne inscrite méconnaîtrait sciemment les dispositions des articles L. 228-1 à L. 228-3-1, le tribunal dans le ressort duquel la société a son siège social peut, sur demande de la société ou d'un ou plusieurs actionnaires détenant au moins 5 % du capital, prononcer la privation totale ou partielle, pour une durée totale ne pouvant excéder cinq ans, des droits de vote attachés aux actions ayant fait l'objet de l'interrogation et, éventuellement et pour la même période, du dividende correspondant.
Article L228-3-4
Toute personne participant à un titre quelconque à la direction ou à la gestion du dépositaire central d'instruments financiers ainsi que toute personne employée par celui-ci, par la société émettrice ou par l'intermédiaire inscrit, et ayant dans le cadre de son activité professionnelle connaissance des renseignements mentionnés aux articles L. 228-1 à L. 228-3-2 est tenue au secret professionnel dans les conditions et sous les peines prévues aux articles 226-13 et 226-14 du code pénal. Le secret
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professionnel ne peut être opposé ni à l'Autorité des marchés financiers ni à l'autorité judiciaire.
Article L228-4
A peine de nullité, l'émission de parts bénéficiaires ou parts de fondateur est interdite.
Toutefois, les parts bénéficiaires ou parts de fondateurs émises avant le 1er avril 1967 demeurent régies par les textes les concernant.
Article L228-5
A l'égard de la société, les titres sont indivisibles, sous réserve de l'application des articles L. 225-110 et L. 225-118.
Article L228-6
Nonobstant toutes stipulations statutaires contraires, les sociétés qui ont effectué soit des échanges de titres consécutifs à une opération de fusion ou de scission, de réduction de capital, de regroupement ou de division et de conversion obligatoire de titres au porteur en titres nominatifs, soit des distributions de titres imputées sur les réserves ou liées à une réduction de capital, soit des distributions ou attributions d'actions gratuites peuvent, sur simple décision du conseil d'administration, du directoire ou des gérants, vendre selon des modalités fixées par décret en Conseil d'Etat les titres dont les ayants droit n'ont pas demandé la délivrance, à la condition d'avoir procédé, deux ans au moins à l'avance, à une publicité selon des modalités fixées par ledit décret.
A dater de cette vente, les titres anciens ou les anciens droits aux distributions ou attributions sont, en tant que de besoin, annulés et leurs titulaires ne peuvent plus prétendre qu'à la répartition en numéraire du produit net de la vente des titres non réclamés.
Article L228-6-1
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, l'assemblée générale extraordinaire des actionnaires ayant autorisé une fusion ou une scission peut décider qu'à l'issue d'une période qui ne peut excéder une limite fixée par décret en Conseil d'Etat, suivant la date d'inscription à leur compte du nombre entier d'actions attribuées, une vente globale des actions non attribuées correspondant aux droits formant rompus aura lieu, selon des modalités fixées par ce décret, en vue de la répartition des fonds entre les intéressés.
Article L228-6-2
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Les droits non pécuniaires attachés aux valeurs mobilières inscrites en compte joint sont exercés par l'un ou l'autre des cotitulaires dans les conditions déterminées par la convention d'ouverture de compte.
Article L228-6-3
Les titres dont les titulaires, malgré le respect des formalités de convocation aux assemblées générales, sont inconnus du teneur de compte ou n'ont pas été atteints par les convocations, depuis dix années révolues, peuvent être vendus selon la procédure prévue à l'article L. 228-6. Cette vente a lieu à l'expiration d'un délai fixé, par décret en Conseil d'Etat, à compter de la publicité prévue à cet article, à condition que le teneur de compte ait, pendant ce délai, accompli toutes les diligences nécessaires, dans les conditions fixées par ce même décret, pour entrer en contact avec les titulaires ou leurs ayants droit.
Section 2 : Des actions.
Article L228-7
Les actions de numéraire sont celles dont le montant est libéré en espèces ou par compensation, celles qui sont émises par suite d'une incorporation au capital de réserves, bénéfices ou primes d'émission, et celles dont le montant résulte pour partie d'une incorporation de réserves, bénéfices ou primes d'émission et pour partie d'une libération en espèces. Ces dernières doivent être intégralement libérées lors de la souscription.
Sous réserve des règles spécifiques applicables aux actions résultant d'une fusion ou d'une scission, toutes les autres actions sont des actions d'apport.
Article L228-8
Le montant nominal des actions ou coupures d'action peut être fixé par les statuts. Cette option s'applique alors à toutes les émissions d'actions.
Article L228-9
L'action de numéraire est nominative jusqu'à son entière libération.
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Article L228-10
Les actions ne sont négociables qu'après l'immatriculation de la société au registre du commerce et des sociétés. En cas d'augmentation de capital, les actions sont négociables à compter de la réalisation de celle-ci.
La négociation de promesse d'actions est interdite, à moins qu'il ne s'agisse d'actions à créer dont l'admission sur un marché réglementé a été demandée, ou à l'occasion d'une augmentation du capital d'une société dont les actions anciennes sont déjà admises aux négociations sur un marché réglementé. En ce cas, la négociation n'est valable que si elle est effectuée sous la condition suspensive de la réalisation de l'augmentation de capital. A défaut d'indication expresse, cette condition est présumée.
Article L228-11
Lors de la constitution de la société ou au cours de son existence, il peut être créé des actions de préférence, avec ou sans droit de vote, assorties de droits particuliers de toute nature, à titre temporaire ou permanent. Ces droits sont définis par les statuts dans le respect des dispositions des articles L. 225-10 et L. 225-122 à L. 225-125.
Le droit de vote peut être aménagé pour un délai déterminé ou déterminable. Il peut être suspendu pour une durée déterminée ou déterminable ou supprimé.
Les actions de préférence sans droit de vote ne peuvent représenter plus de la moitié du capital social, et dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, plus du quart du capital social.
Toute émission ayant pour effet de porter la proportion au-delà de cette limite peut être annulée.
Par dérogation aux articles L. 225-132 et L. 228-91, les actions de préférence sans droit de vote à l'émission auxquelles est attaché un droit limité de participation aux dividendes, aux réserves ou au partage du patrimoine en cas de liquidation sont privées de droit préférentiel de souscription pour toute augmentation de capital en numéraire, sous réserve de stipulations contraires des statuts.
Article L228-12
L'assemblée générale extraordinaire des actionnaires est seule compétente pour décider l'émission, le rachat et la conversion des actions de préférence au vu d'un rapport spécial des commissaires aux comptes. Elle peut déléguer ce pouvoir dans les conditions fixées par les articles L. 225-129 à L. 225-129-6.
Les modalités de rachat ou de conversion des actions de préférence peuvent également être fixées dans les statuts.
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A tout moment de l'exercice en cours et au plus tard lors de la première réunion suivant la clôture de celui-ci, le conseil d'administration ou le directoire constate, s'il y a lieu, le nombre et le montant nominal des actions issues de la conversion des actions de préférence, au cours de l'exercice écoulé, et apporte les modifications nécessaires aux clauses des statuts relatives au montant du capital social et au nombre des titres qui le composent.
Le président du directoire ou le directeur général peut, sur délégation du directoire ou du conseil d'administration, procéder à ces opérations à tout moment de l'exercice et au plus tard dans le délai fixé par décret en Conseil d'Etat.
Article L228-13
Les droits particuliers mentionnés à l'article L. 228-11 peuvent être exercés dans la société qui possède directement ou indirectement plus de la moitié du capital de l'émettrice ou dans la société dont l'émettrice possède directement ou indirectement plus de la moitié du capital.
L'émission doit alors être autorisée par l'assemblée générale extraordinaire de la société appelée à émettre des actions de préférence et par celle de la société au sein de laquelle les droits sont exercés.
Les commissaires aux comptes des sociétés intéressées doivent établir un rapport spécial.
Article L228-14
Les actions de préférence peuvent être converties en actions ordinaires ou en actions de préférence d'une autre catégorie.
En cas de conversion d'actions de préférence en actions aboutissant à une réduction de capital non motivée par des pertes, les créanciers dont la créance est antérieure à la date du dépôt au greffe du procès-verbal de délibération de l'assemblée générale, ou du conseil d'administration ou du directoire en cas de délégation, peuvent former opposition à la conversion dans le délai et suivant les modalités fixés par décret en Conseil d'Etat.
Les opérations de conversion ne peuvent commencer pendant le délai d'opposition ni, le cas échéant, avant qu'il ait été statué en première instance sur cette opposition.
Article L228-15
La création de ces actions donne lieu à l'application des articles L. 225-8, L. 225-14, L. 225-147 et L. 225-148 relatifs aux avantages particuliers lorsque les actions sont émises au profit d'un ou plusieurs actionnaires nommément désignés. Dans ce cas, le commissaire aux apports prévu par ces articles est un commissaire aux comptes n'ayant pas réalisé depuis cinq ans et ne réalisant pas de mission au sein de la société.
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Les titulaires d'actions devant être converties en actions de préférence de la catégorie à créer ne peuvent, à peine de nullité de la délibération, prendre part au vote sur la création de cette catégorie et les actions qu'ils détiennent ne sont pas prises en compte pour le calcul du quorum et de la majorité, à moins que l'ensemble des actions ne fassent l'objet d'une conversion en actions de préférence.
Par dérogation au premier alinéa, lorsque l'émission porte sur des actions de préférence relevant d'une catégorie déjà créée, l'évaluation des avantages particuliers qui en résultent est faite dans le rapport spécial mentionné à l'article L. 228-12.
Article L228-16
En cas de modification ou d'amortissement du capital, l'assemblée générale extraordinaire détermine les incidences de ces opérations sur les droits des porteurs d'actions de préférence.
Ces incidences peuvent également être constatées dans les statuts.
Article L228-17
En cas de fusion ou de scission, les actions de préférence peuvent être échangées contre des actions des sociétés bénéficiaires du transfert de patrimoine comportant des droits particuliers équivalents, ou selon une parité d'échange spécifique tenant compte des droits particuliers abandonnés.
En l'absence d'échange contre des actions conférant des droits particuliers équivalents, la fusion ou la scission est soumise à l'approbation de l'assemblée spéciale prévue à l'article L. 225-99.
Article L228-18
Le dividende distribué, le cas échéant, aux titulaires d'actions de préférence peut être accordé en titres de capital, selon les modalités fixées par l'assemblée générale extraordinaire ou les statuts.
Article L228-19
Les porteurs d'actions de préférence, constitués en assemblée spéciale, ont la faculté de donner mission à l'un des commissaires aux comptes de la société d'établir un rapport spécial sur le respect par la société des droits particuliers attachés aux actions de préférence. Ce rapport est diffusé à ces porteurs à l'occasion d'une assemblée spéciale.
Article L228-21
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Les actions demeurent négociables après la dissolution de la société et jusqu'à la clôture de la liquidation.
Article L228-22
L'annulation de la société ou d'une émission d'actions n'entraîne pas la nullité des négociations intervenues antérieurement à la décision d'annulation, si les titres sont réguliers en la forme. Toutefois, l'acquéreur peut exercer un recours en garantie contre son vendeur.
Article L228-23
Dans une société dont les actions ne sont pas admises aux négociations sur un marché réglementé, la cession d'actions ou de valeurs mobilières donnant accès au capital, à quelque titre que ce soit, peut être soumise à l'agrément de la société par une clause des statuts.
Une clause d'agrément ne peut être stipulée que si les titres sont nominatifs en vertu de la loi ou des statuts.
Cette clause est écartée en cas de succession, de liquidation du régime matrimonial ou de cession, soit à un conjoint, soit à un ascendant ou à un descendant.
Les dispositions de l'alinéa précédent ne sont pas applicables lorsqu'une société dont les actions ne sont pas admises aux négociations sur un marché réglementé réserve des actions à ses salariés, dès lors que la clause d'agrément a pour objet d'éviter que lesdites actions ne soient dévolues ou cédées à des personnes n'ayant pas la qualité de salarié de la société.
Toute cession effectuée en violation d'une clause d'agrément figurant dans les statuts est nulle.
Article L228-24
Si une clause d'agrément est stipulée, la demande d'agrément indiquant les nom, prénoms et adresse du cessionnaire, le nombre des titres de capital ou valeurs mobilières donnant accès au capital dont la cession est envisagée et le prix offert, est notifiée à la société. L'agrément résulte, soit d'une notification, soit du défaut de réponse dans un délai de trois mois à compter de la demande.
Si la société n'agrée pas le cessionnaire proposé, le conseil d'administration, le directoire ou les gérants, selon le cas, sont tenus, dans le délai de trois mois à compter de la notification du refus, de faire acquérir les titres de capital ou valeurs mobilières donnant accès au capital, soit par un actionnaire ou par un tiers, soit, avec le consentement du cédant, par la société en vue d'une réduction du capital. A défaut d'accord entre les parties, le prix des titres de capital ou valeurs mobilières donnant accés au capital est déterminé dans les conditions prévues à l'article 1843-4 du code civil. Le cédant peut à tout moment renoncer à la cession de ses titres de capital ou valeurs
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mobilières donnant accès au capital. Toute clause contraire à l'article 1843-4 dudit code est réputée non écrite.
Si, à l'expiration du délai prévu à l'alinéa précédent, l'achat n'est pas réalisé, l'agrément est considéré comme donné. Toutefois, ce délai peut être prolongé par décision de justice à la demande de la société.
Article L228-26
Si la société a donné son consentement à un projet de nantissement d'actions dans les conditions prévues au premier alinéa de l'article L. 228-24, ce consentement emporte agrément du cessionnaire en cas de réalisation forcée des actions nanties selon les dispositions du premier alinéa de l'article 2078 du code civil, à moins que la société ne préfère, après la cession, racheter sans délai les actions, en vue de réduire son capital.
Article L228-27
A défaut par l'actionnaire de libérer aux époques fixées par le conseil d'administration, le directoire ou les gérants, selon le cas, les sommes restant à verser sur le montant des actions par lui souscrites, la société lui adresse une mise en demeure.
Un mois au moins après cette mise en demeure restée sans effet, la société poursuit, sans aucune autorisation de justice, la vente desdites actions.
La vente des actions cotées est effectuée en bourse. Celle des actions non cotées est effectuée aux enchères publiques. L'actionnaire défaillant reste débiteur ou profite de la différence. Les modalités d'application du présent alinéa sont déterminées par décret en Conseil d'Etat.
Article L228-28
L'actionnaire défaillant, les cessionnaires successifs et les souscripteurs sont tenus solidairement du montant non libéré de l'action. La société peut agir contre eux, soit avant ou après la vente, soit en même temps, pour obtenir tant la somme due que le remboursement des frais exposés.
Celui qui a désintéressé la société dispose d'un recours pour le tout contre les titulaires successifs de l'action. La charge définitive de la dette incombe au dernier d'entre eux.
Deux ans après le virement d'un compte de valeurs mobilières à un autre compte, tout souscripteur ou actionnaire qui a cédé son titre cesse d'être tenu des versements non encore appelés.
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Article L228-29
A l'expiration du délai fixé par décret en Conseil d'Etat, les actions sur le montant desquelles les versements exigibles n'ont pas été effectués, cessent de donner droit à l'admission et aux votes dans les assemblées d'actionnaires et sont déduites pour le calcul du quorum.
Le droit aux dividendes et le droit préférentiel de souscription aux augmentations de capital attachés à ces actions sont suspendus.
Après paiement des sommes dues, en principal et intérêt, l'actionnaire peut demander le versement des dividendes non prescrits. Il ne peut exercer une action du chef du droit préférentiel de souscription à une augmentation de capital, après expiration du délai fixé pour l'exercice de ce droit.
Article L228-29-1
Les actions ayant une valeur nominale inférieure ou égale à un montant fixé par décret en Conseil d'Etat et non admises aux négociations sur un marché réglementé peuvent être regroupées nonobstant toute disposition législative ou statutaire contraire. Ces regroupements sont décidés par les assemblées générales d'actionnaires statuant dans les conditions prévues pour la modification des statuts et conformément aux dispositions de l'article L. 228-29-2.
Article L228-29-2
Les regroupements d'actions prévus à l'article L. 228-29-1 comportent l'obligation, pour les actionnaires, de procéder aux achats ou aux cessions d'actions nécessaires pour réaliser le regroupement.
La valeur nominale des actions regroupées ne peut être supérieure à un montant fixé par décret en Conseil d'Etat.
Pour faciliter ces opérations, la société doit, avant la décision de l'assemblée générale, obtenir d'un ou de plusieurs actionnaires l'engagement de servir, pendant un délai de deux ans, au prix fixé par l'assemblée, la contrepartie tant à l'achat qu'à la vente des offres portant sur les rompus ou des demandes tendant à compléter le nombre de titres appartenant à chacun des actionnaires intéressés.
Article L228-29-3
A l'expiration du délai fixé par le décret prévu à l'article L. 228-29-7, les actions non présentées en vue de leur regroupement perdent leur droit de vote et leur droit au dividende est suspendu.
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Le décret mentionné au premier alinéa peut accorder un délai supplémentaire aux actionnaires ayant pris l'engagement prévu au troisième alinéa de l'article L. 228-29-2.
Les dividendes dont le paiement a été suspendu en exécution du premier alinéa sont, en cas de regroupement ultérieur, versés aux propriétaires des actions anciennes dans la mesure où ils n'ont pas été atteints par la prescription.
Article L228-29-4
Lorsque les propriétaires de titres n'ont pas la libre administration de leurs biens, la demande d'échange des anciens titres et les achats ou cessions de rompus nécessaires pour réaliser le regroupement sont assimilés à des actes de simple administration, sauf si les nouveaux titres sont demandés sous la forme au porteur en échange de titres nominatifs.
Article L228-29-5
Les titres nouveaux présentent les mêmes caractéristiques et confèrent de plein droit et sans l'accomplissement d'aucune formalité les mêmes droits réels ou de créances que les titres anciens qu'ils remplacent.
Les droits réels et les nantissements sont reportés de plein droit sur les titres nouveaux attribués en remplacement des titres anciens qui en sont grevés.
Article L228-29-6
En cas d'inobservation par la société soit des articles L. 228-29-1 ou L. 228-29-2, soit des conditions dans lesquelles doivent être prises les décisions des assemblées générales et des formalités de publicité fixées par le décret prévu à l'article L. 228-29-7, le regroupement reste facultatif pour les actionnaires. Les dispositions de l'article L. 228-29-3 ne peuvent être appliquées aux actionnaires.
Si le ou les actionnaires ayant pris l'engagement prévu à l'article L. 228-29-2 ne remplissent pas celui-ci, les opérations de regroupement peuvent être annulées. Dans ce cas, les achats et les ventes de rompus peuvent être annulés à la demande des actionnaires qui y ont procédé ou de leurs ayants cause, à l'exception des actionnaires défaillants, sans préjudice de tous dommages et intérêts s'il y a lieu.
Article L228-29-7
Un décret en Conseil d'Etat fixe les modalités d'application des articles L. 228-29-1 à L. 228-29-6,
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notamment les conditions non prévues à l'article L. 228-29-1 dans lesquelles doivent être prises les décisions des assemblées générales d'actionnaires et accomplies les formalités de publicité de ces décisions.
Section 3 : Dispositions applicables aux catégories de titres en voie d'extinction.
Sous-section 1 : Dispositions générales.
Article L228-29-8
Aucun titre nouveau ne peut être émis en application des articles de la présente section à l'exception de ceux qui seraient émis en application de décisions d'assemblées générales antérieures à l'entrée en vigueur de l'ordonnance n° 2004-604 du 24 juin 2004 portant réforme du régime des valeurs mobilières émises par les sociétés commerciales et extension à l'outre-mer de dispositions ayant modifié la législation commerciale.
Article L228-29-9
Les porteurs de titres régis par la présente section disposent, sauf application de l'article L. 225-138, d'un droit préférentiel de souscription des actions de préférence mentionnées à l'article L. 228-11 lorsque celles-ci confèrent des droits équivalents à ceux des titres qu'ils possèdent.
Les porteurs de titres régis par la présente section disposent, sauf application de l'article L. 225-138, d'un droit de préférence à la souscription des valeurs mobilières mentionnées à l'article L. 228-91 lorsque celles-ci donnent lieu à l'attribution de titres conférant des droits équivalents à ceux des titres qu'ils possèdent.
Article L228-29-10
Pour le calcul des quotités prévues à l'article L. 228-11, il est tenu compte des actions à dividende prioritaire sans droit de vote et des certificats d'investissement existants.
Toutefois, l'application des dispositions de l'alinéa précédent ne fait pas obstacle au maintien des droits des titulaires de titres existants.
Sous-section 2 : Des certificats d'investissement.
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Article L228-30
L'assemblée générale extraordinaire d'une société par actions, ou dans les sociétés qui n'en sont pas dotées, l'organe qui en tient lieu, peut décider, sur le rapport du conseil d'administration ou du directoire, selon le cas, et sur celui des commissaires aux comptes, la création, dans une proportion qui ne peut être supérieure au quart du capital social, de certificats d'investissement représentatifs des droits pécuniaires et de certificats de droit de vote représentatifs des autres droits attachés aux actions émises à l'occasion d'une augmentation de capital ou d'un fractionnement des actions existantes.
En cas d'augmentation de capital, les porteurs d'actions et, s'il en existe, les porteurs de certificats d'investissement, bénéficient d'un droit de souscription préférentiel aux certificats d'investissement émis et la procédure suivie est celle des augmentations de capital. Les porteurs de certificats d'investissement renoncent au droit préférentiel en assemblée spéciale convoquée et statuant selon les règles de l'assemblée générale extraordinaire des actionnaires. Les certificats de droit de vote sont répartis entre les porteurs d'actions et les porteurs des certificats de droit de vote, s'il en existe, au prorata de leurs droits.
En cas de fractionnement, l'offre de création des certificats d'investissement est faite en même temps et dans une proportion égale à leur part du capital à tous les porteurs d'actions. A l'issue d'un délai fixé par l'assemblée générale extraordinaire, le solde des possibilités de création non attribuées est réparti entre les porteurs d'actions qui ont demandé à bénéficier de cette répartition supplémentaire dans une proportion égale à leur part du capital et, en tout état de cause, dans la limite de leurs demandes. Après cette répartition, le solde éventuel est réparti par le conseil d'administration ou le directoire, selon le cas.
Le certificat de droit de vote doit revêtir la forme nominative.
Le certificat d'investissement est négociable. Sa valeur nominale est égale à celle des actions. Lorsque les actions sont divisées, les certificats d'investissement le sont également.
Le certificat de droit de vote ne peut être cédé qu'accompagné d'un certificat d'investissement. Toutefois, il peut être également cédé au porteur du certificat d'investissement. La cession entraîne de plein droit reconstitution de l'action dans l'un et l'autre cas. L'action est également reconstituée de plein droit entre les mains du porteur d'un certificat d'investissement et d'un certificat de droit de vote. Celui-ci en fait la déclaration à la société dans les quinze jours. Faute de cette déclaration, l'action est privée du droit de vote jusqu'à régularisation et pendant un délai d'un mois suivant celle-ci.
Il ne peut être attribué de certificat représentant moins d'un droit de vote. L'assemblée générale fixe les modalités d'attribution des certificats pour les droits formant rompus.
En cas de fusion ou de scission, les certificats d'investissement et les certificats de droit de vote d'une société qui disparaît peuvent être échangés contre des actions de sociétés bénéficiaires du transfert de patrimoine.
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Article L228-31
L'assemblée générale extraordinaire d'une société dont les actions sont admises aux négociations sur un marché réglementé et dont les certificats d'investissement existants représentent au plus 1 % du capital social peut décider, sur le rapport du conseil d'administration, de procéder à la reconstitution des certificats existants en actions, et à celle des certificats existants assortis d'avantages particuliers en actions conférant à leurs titulaires les mêmes avantages.
L'assemblée générale extraordinaire prévue à l'alinéa précédent statue dans les conditions prévues pour l'approbation des avantages particuliers par l'article L. 225-147, après qu'une assemblée des titulaires de certificats de droits de vote, convoquée et statuant selon les règles des assemblées spéciales d'actionnaires, a approuvé le projet à une majorité de 95 % des titulaires présents ou représentés. La cession s'opère alors à la société, par dérogation au sixième alinéa de l'article L. 228-30, au prix fixé par l'assemblée générale extraordinaire mentionnée au premier alinéa du présent article.
Le prix mentionné à l'alinéa précédent est déterminé selon les modalités énoncées au 2° de l'article 283-1-1 de la loi n° 66-537 du 24 juillet 1966 sur les sociétés commerciales (1).
Le montant de l'indemnisation revenant aux détenteurs non identifiés est consigné.
La reconstitution s'opère par la cession aux porteurs de certificats d'investissement, à titre gratuit, des certificats de droits de vote correspondants.
A cet effet, la société peut demander l'identification des porteurs de certificats, même en l'absence de disposition statutaire expresse, selon les modalités prévues par l'article L. 228-2.
Article L228-32
Les porteurs de certificats d'investissement peuvent obtenir communication des documents sociaux dans les mêmes conditions que les actionnaires.
Article L228-33
En cas de distribution gratuite d'actions, de nouvelles actions de préférence sans droit de vote et assorties des mêmes droits que les certificats d'investissement doivent être créées et remises gratuitement aux propriétaires des certificats anciens, dans la proportion du nombre des actions nouvelles attribuées aux actions anciennes, sauf renonciation de leur part au profit de l'ensemble des porteurs ou de certains d'entre eux.
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Article L228-34
En cas d'augmentation de capital en numéraire, à l'exception de celle réservée aux salariés sur le fondement de l'article L. 225-138-1, il est émis de nouvelles actions de préférence sans droit de vote et assorties des mêmes droits que les certificats d'investissement en nombre tel que la proportion qui existait avant l'augmentation entre actions ordinaires et certificats d'investissement soit maintenue, en tenant compte de ces actions de préférence, après l'augmentation en considérant que celle-ci sera entièrement réalisée.
Les propriétaires des certificats d'investissement ont, proportionnellement au nombre de titres qu'ils possèdent, un droit de préférence à la souscription à titre irréductible de ces nouvelles actions de préférence. Lors d'une assemblée spéciale, convoquée et statuant selon les règles de l'assemblée générale extraordinaire des actionnaires, les propriétaires des certificats d'investissement peuvent renoncer à ce droit. Les actions de préférence non souscrites sont réparties par le conseil d'administration ou le directoire. La réalisation de l'augmentation de capital s'apprécie sur sa fraction correspondant à l'émission d'actions. Toutefois, par dérogation aux dispositions du premier alinéa ci-dessus, lorsque les propriétaires de certificats ont renoncé à leur droit préférentiel de souscription, il n'est pas procédé à l'émission de nouvelles actions de préférence.
Article L228-35
En cas d'émission d'obligations convertibles en actions, les porteurs des certificats d'investissement ont, proportionnellement au nombre de titres qu'ils possèdent, un droit de préférence à leur souscription à titre irréductible. Leur assemblée spéciale, convoquée et statuant selon les règles de l'assemblée générale extraordinaire des actionnaires, peut y renoncer.
Ces obligations ne peuvent être converties qu'en actions de préférence sans droit de vote et assorties des mêmes droits que les certificats d'investissement.
Sous-section 3 : Les actions de priorité.
Article L228-35-1
Lors de la constitution de la société ou au cours de son existence, il peut être créé des actions de priorité jouissant d'avantages par rapport à toutes autres actions, sous réserve des dispositions des articles L. 225-122 à L. 225-125.
Par exception à l'article L. 225-99, les statuts ou le contrat d'émission peuvent prévoir que la décision de conversion des actions de priorité en actions ordinaires par l'assemblée générale extraordinaire ne s'impose pas aux porteurs de ces actions.
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Sous-section 4 : Les actions à dividende prioritaire sans droit de vote.
Article L228-35-2
Il peut de même être créé des actions à dividende prioritaire sans droit de vote dans les conditions prévues aux articles L. 228-35-3 à L. 228-35-11 sous réserve des dispositions des articles L. 225-122 à L. 225-126.
Article L228-35-3
Les actions à dividende prioritaire sans droit de vote peuvent être créées par augmentation de capital ou par conversion d'actions ordinaires déjà émises. Elles peuvent être converties en actions ordinaires.
Les actions à dividende prioritaire sans droit de vote ne peuvent représenter plus du quart du montant du capital social. Leur valeur nominale est égale à celle des actions ordinaires ou, le cas échéant, des actions ordinaires de l'une des catégories précédemment émises par la société.
Les titulaires d'actions à dividende prioritaire sans droit de vote bénéficient des droits reconnus aux autres actionnaires, à l'exception du droit de participer et de voter, du chef de ces actions, aux assemblées générales des actionnaires de la société.
En cas de création d'actions à dividende prioritaire sans droit de vote par conversion d'actions ordinaires déjà émises ou en cas de conversion d'actions à dividende prioritaire sans droit de vote en actions ordinaires, l'assemblée générale extraordinaire détermine le montant maximal d'actions à convertir et fixe les conditions de conversion sur rapport spécial du commissaire aux comptes. Sa décision n'est définitive qu'après approbation des assemblées spéciales prévues aux articles L. 228-35-6 et L. 228-103.
L'offre de conversion est faite en même temps et à proportion de leur part dans le capital social à tous les actionnaires, à l'exception des personnes mentionnées à l'article L. 228-35-8. L'assemblée générale extraordinaire fixe le délai pendant lequel les actionnaires peuvent accepter l'offre de conversion.
Par exception à l'article L. 225-99, les statuts ou le contrat d'émission peuvent prévoir que la décision de conversion des actions à dividende prioritaire sans droit de vote en actions ordinaires par l'assemblée générale extraordinaire ne s'impose pas aux porteurs de ces actions.
Article L228-35-4
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Les actions à dividende prioritaire sans droit de vote donnent droit à un dividende prioritaire prélevé sur le bénéfice distribuable de l'exercice avant toute autre affectation. S'il apparaît que le dividende prioritaire ne peut être intégralement versé en raison de l'insuffisance du bénéfice distribuable, celui-ci doit être réparti à due concurrence entre les titulaires d'actions à dividende prioritaire sans droit de vote. Le droit au paiement du dividende prioritaire qui n'a pas été intégralement versé en raison de l'insuffisance du bénéfice distribuable est reporté sur l'exercice suivant et, s'il y a lieu, sur les deux exercices ultérieurs ou, si les statuts le prévoient, sur les exercices ultérieurs. Ce droit s'exerce prioritairement par rapport au paiement du dividende prioritaire dû au titre de l'exercice.
Le dividende prioritaire ne peut être inférieur ni au premier dividende visé à l'article L. 232-16 ni à un montant égal à 7,5 % du montant libéré du capital représenté par les actions à dividende prioritaire sans droit de vote. Ces actions ne peuvent donner droit au premier dividende.
Après prélèvement du dividende prioritaire ainsi que du premier dividende, si les statuts en prévoient, ou d'un dividende de 5 % au profit de toutes les actions ordinaires calculé dans les conditions prévues à l'article L. 232-16, les actions à dividende prioritaire sans droit de vote ont, proportionnellement à leur montant nominal, les mêmes droits que les actions ordinaires.
Dans le cas où les actions ordinaires sont divisées en catégories ouvrant des droits inégaux au premier dividende, le montant du premier dividende prévu au deuxième alinéa du présent article s'entend du premier dividende le plus élevé.
Article L228-35-5
Lorsque les dividendes prioritaires dus au titre de trois exercices n'ont pas été intégralement versés, les titulaires des actions correspondantes acquièrent, proportionnellement à la quotité du capital représentée par ces actions, un droit de vote égal à celui des autres actionnaires.
Le droit de vote prévu à l'alinéa précédent subsiste jusqu'à l'expiration de l'exercice au cours duquel le dividende prioritaire aura été intégralement versé, y compris le dividende dû au titre des exercices antérieurs.
Article L228-35-6
Les titulaires d'actions à dividende prioritaire sans droit de vote sont réunis en assemblée spéciale dans des conditions fixées par décret en Conseil d'Etat.
Tout actionnaire possédant des actions à dividende prioritaire sans droit de vote peut participer à l'assemblée spéciale. Toute clause contraire est réputée non écrite.
L'assemblée spéciale des actionnaires à dividende prioritaire sans droit de vote peut émettre un avis avant toute décision de l'assemblée générale. Elle statue alors à la majorité des voix exprimées par les actionnaires présents ou représentés. Dans le cas où il est procédé à un scrutin, il n'est pas tenu compte des bulletins blancs. L'avis est transmis à la société. Il est porté à la connaissance de
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l'assemblée générale et consigné à son procès-verbal.
L'assemblée spéciale peut désigner un ou, si les statuts le prévoient, plusieurs mandataires chargés de représenter les actionnaires à dividende prioritaire sans droit de vote à l'assemblée générale des actionnaires et, le cas échéant, d'y exposer leur avis avant tout vote de cette dernière. Cet avis est consigné au procès-verbal de l'assemblée générale.
Sous réserve de l'article L. 228-35-7, toute décision modifiant les droits des titulaires d'actions à dividende prioritaire sans droit de vote n'est définitive qu'après approbation par l'assemblée spéciale visée au premier alinéa du présent article, statuant selon les conditions de quorum et de majorité prévues à l'article L. 225-99.
S'il est fait obstacle à la désignation des mandataires chargés de représenter les actionnaires à dividende prioritaire sans droit de vote à l'assemblée générale des actionnaires, le président du tribunal, statuant en référé, peut à la demande de tout actionnaire désigner un mandataire chargé de cette fonction.
Article L228-35-7
En cas d'augmentation de capital par apports en numéraire, les titulaires d'actions à dividende prioritaire sans droit de vote bénéficient, dans les mêmes conditions que les actionnaires ordinaires, d'un droit préférentiel de souscription. Toutefois, l'assemblée générale extraordinaire peut décider, après avis de l'assemblée spéciale prévue à l'article L. 228-35-6, qu'ils auront un droit préférentiel à souscrire, dans les mêmes conditions, de nouvelles actions de préférence sans droit de vote et assorties des mêmes droits que les actions à dividende prioritaire sans droit de vote qui seront émises dans la même proportion.
L'attribution gratuite d'actions nouvelles, à la suite d'une augmentation de capital par incorporation de réserves, bénéfices ou primes d'émission, s'applique aux titulaires d'actions à dividende prioritaire sans droit de vote. Toutefois l'assemblée générale extraordinaire peut décider, après avis de l'assemblée spéciale prévue à l'article L. 228-35-6, que les titulaires d'actions à dividende prioritaire sans droit de vote recevront, au lieu et place d'actions ordinaires, des actions de préférence sans droit de vote et assorties des mêmes droits que les actions à dividende prioritaire sans droit de vote qui seront émises dans la même proportion.
Toute majoration du montant nominal des actions existantes à la suite d'une augmentation de capital par incorporation de réserves, bénéfices ou primes d'émission, s'applique aux actions à dividende prioritaire sans droit de vote. Le dividende prioritaire prévu à l'article L. 228-35-4 est alors calculé, à compter de la réalisation de l'augmentation du capital, sur le nouveau montant nominal majoré, s'il y a lieu, de la prime d'émission versée lors de la souscription des actions anciennes.
Article L228-35-8
Le président et les membres du conseil d'administration, les directeurs généraux, les membres du directoire et du conseil de surveillance d'une société anonyme, les gérants d'une société en
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commandite par actions et leur conjoint non séparé de corps ainsi que leurs enfants mineurs non émancipés ne peuvent détenir, sous quelque forme que ce soit, des actions à dividende prioritaire sans droit de vote émises par cette société.
Article L228-35-9
Il est interdit à la société qui a émis des actions à dividende prioritaire sans droit de vote d'amortir son capital.
En cas de réduction du capital non motivée par des pertes, les actions à dividende prioritaire sans droit de vote sont, avant les actions ordinaires, achetées dans les conditions prévues aux deux derniers alinéas de l'article L. 228-35-10 et annulées.
Toutefois, ces dispositions ne sont pas applicables aux réductions de capital réalisées dans le cadre de l'article L. 225-209. Dans ce cas, les dispositions de l'article L. 225-99 ne sont pas applicables si les actions ont été acquises sur un marché réglementé.
Les actions à dividende prioritaire sans droit de vote ont, proportionnellement à leur montant nominal, les mêmes droits que les autres actions sur les réserves distribuées au cours de l'existence de la société.
Article L228-35-10
Les statuts peuvent donner à la société la faculté d'exiger le rachat, soit de la totalité de ses propres actions à dividende prioritaire sans droit de vote, soit de certaines catégories d'entre elles, chaque catégorie étant déterminée par la date de son émission. Le rachat d'une catégorie d'actions à dividende prioritaire sans droit de vote doit porter sur l'intégralité des actions de cette catégorie. Le rachat est décidé par l'assemblée générale statuant dans les conditions fixées à l'article L. 225-204. Les dispositions de l'article L. 225-205 sont applicables. Les actions rachetées sont annulées conformément à l'article L. 225-207 et le capital réduit de plein droit.
Le rachat d'actions à dividende prioritaire sans droit de vote ne peut être exigé par la société que si une stipulation particulière a été insérée à cet effet dans les statuts avant l'émission de ces actions.
La valeur des actions à dividende prioritaire sans droit de vote est déterminée au jour du rachat d'un commun accord entre la société et une assemblée spéciale des actionnaires vendeurs, statuant selon les conditions de quorum et de majorité prévues à l'article L. 225-99. En cas de désaccord, il est fait application de l'article 1843-4 du code civil.
Le rachat des actions à dividende prioritaire sans droit de vote ne peut intervenir que si le dividende prioritaire dû au titre des exercices antérieurs et de l'exercice en cours a été intégralement versé.
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Article L228-35-11
Il n'est pas tenu compte des actions à dividende prioritaire sans droit de vote pour la détermination du pourcentage prévu à l'article L. 233-1 ou à l'article L. 233-2.
Section 4 : Des titres participatifs.
Article L228-36
Les sociétés par actions appartenant au secteur public et les sociétés coopératives constituées sous la forme de société anonyme ou de société à responsabilité limitée peuvent émettre des titres participatifs. Ces titres ne sont remboursables qu'en cas de liquidation de la société ou, à son initiative, à l'expiration d'un délai qui ne peut être inférieur à sept ans et dans les conditions prévues au contrat d'émission.
Leur rémunération comporte une partie fixe et une partie variable calculée par référence à des éléments relatifs à l'activité ou aux résultats de la société et assise sur le nominal du titre. Un décret en Conseil d'Etat fixe les conditions dans lesquelles l'assiette de la partie variable de la rémunération est plafonnée.
Les titres participatifs sont négociables.
Pour l'application de l'article 26 de la loi n° 78-741 du 13 juillet 1978 relative à l'orientation de l'épargne vers le financement des entreprises, les prêts participatifs ne sont remboursés qu'après désintéressement complet de tous les autres créanciers privilégiés ou chirographaires à l'exclusion des propriétaires de titres participatifs.
Article L228-37
L'émission et le remboursement de titres participatifs doivent être autorisés dans les conditions prévues par le cinquième alinéa de l'article L. 225-100 et les articles L. 228-40 à L. 228-44.
Les porteurs de titres participatifs d'une même émission sont groupés de plein droit pour la défense de leurs intérêts communs en une masse qui jouit de la personnalité civile. Ils sont soumis aux dispositions des articles L. 228-47 à L. 228-71, L. 228-73 et L. 228-76 à L. 228-90.
En outre, la masse est réunie au moins une fois par an pour entendre le rapport des dirigeants sociaux sur la situation et l'activité de la société au cours de l'exercice écoulé et le rapport des commissaires aux comptes sur les comptes de l'exercice et sur les éléments servant à la détermination de la rémunération des titres participatifs.
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Les représentants de la masse assistent aux assemblées d'actionnaires ou de porteurs de parts. Ils sont consultés sur toutes les questions inscrites à l'ordre du jour, à l'exception de celles relatives à la désignation ou à la révocation des membres des organes sociaux. Ils peuvent intervenir à tout moment au cours de l'assemblée.
Les porteurs de titres participatifs peuvent obtenir communication des documents sociaux dans les mêmes conditions que les actionnaires.
Dans les entreprises publiques non pourvues d'une assemblée générale, le conseil d'administration exerce les pouvoirs dévolus à l'assemblée générale ordinaire pour l'émission des titres participatifs. Le quatrième alinéa du présent article n'est pas applicable.
Section 5 : Des obligations.
Article L228-38
Comme il est dit à l'article L. 213-5 du code monétaire et financier :
"Art. L213-5 - Les obligations sont des titres négociables qui, dans une même émission, confèrent les mêmes droits de créance pour une même valeur nominale."
Article L228-39
L'émission d'obligations par une société par actions n'ayant pas établi deux bilans régulièrement approuvés par les actionnaires doit être précédée d'une vérification de l'actif et du passif dans les conditions prévues aux articles L. 225-8 et L. 225-10.
L'émission d'obligations est interdite aux sociétés dont le capital n'est pas intégralement libéré sauf si les actions non libérées ont été réservées aux salariés en application de l'article L. 225-187 ou de l'article L. 443-5 du code du travail, et sauf si elle est faite en vue de l'attribution aux salariés des obligations émises au titre de la participation de ceux-ci aux fruits de l'expansion de l'entreprise.
Article L228-40
Le conseil d'administration, le directoire, le ou les gérants ont qualité pour décider ou autoriser l'émission d'obligations, sauf si les statuts réservent ce pouvoir à l'assemblée générale ou si celle-ci décide de l'exercer.
Le conseil d'administration peut déléguer à un ou plusieurs de ses membres, au directeur général ou,
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en accord avec ce dernier, à un ou plusieurs directeurs généraux délégués, et dans les établissements de crédit, à toute personne de son choix, les pouvoirs nécessaires pour réaliser, dans un délai d'un an l'émission d'obligations et en arrêter les modalités.
Le directoire peut déléguer à son président et avec l'accord de celui-ci à un ou plusieurs de ses membres, et dans les établissements de crédit, à toute personne de son choix, les pouvoirs nécessaires pour réaliser dans le même délai, l'émission d'obligations et en arrêter les modalités.
Les personnes désignées rendent compte au conseil d'administration ou au directoire dans les conditions déterminées par ces organes.
Article L228-44
La société ne peut constituer un gage quelconque sur ses propres obligations.
Article L228-45
Dans le cas où la société émettrice a continué à payer les produits d'obligations remboursables par suite d'un tirage au sort, elle ne peut répéter ces sommes lorsque ces obligations sont présentées au remboursement.
Toute clause contraire est réputée non écrite.
Article L228-46
Les porteurs d'obligations d'une même émission sont groupés de plein droit pour la défense de leurs intérêts communs, en une masse qui jouit de la personnalité civile.
Toutefois, en cas d'émissions successives d'obligations, la société peut, lorsqu'une clause de chaque contrat d'émission le prévoit, grouper en une masse unique les porteurs d'obligations ayant des droits identiques.
Article L228-47
La masse est représentée par un ou plusieurs mandataires élus par l'assemblée générale des obligataires. Leur nombre ne peut en aucun cas excéder trois. Les représentants peuvent être désignés dans le contrat d'émission.
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Article L228-48
Le mandat de représentant de la masse ne peut être confié qu'aux personnes de nationalité française ou ressortissant d'un Etat membre de la Communauté européenne, domiciliées en territoire français, et aux associations et sociétés y ayant leur siège.
Article L228-49
Ne peuvent être choisis comme représentants de la masse :
1° La société débitrice ;
2° Les sociétés possédant au moins le dixième du capital de la société débitrice ou dont celle-ci possède au moins le dixième du capital ;
3° Les sociétés garantes de tout ou partie des engagements de la société débitrice ;
4° Les gérants, administrateurs, membres du directoire, du conseil de surveillance, directeurs généraux, commissaires aux comptes ou employés des sociétés visées aux 1° et 3°, ainsi que leurs ascendants, descendants et conjoint ;
5° Les personnes auxquelles l'exercice de la profession de banquier est interdit ou qui sont déchues du droit de diriger, administrer ou gérer une société à un titre quelconque.
Article L228-50
En cas d'urgence, les représentants de la masse peuvent être désignés par décision de justice à la demande de tout intéressé.
Article L228-51
Lorsqu'ils n'ont pas été désignés dans le contrat d'émission, les représentants de la masse des porteurs d'obligations d'un emprunt sont nommés dans le délai d'un an à compter de la date d'émission et au plus tard un mois avant le premier amortissement prévu.
Cette nomination est faite par l'assemblée générale ou, à défaut, par décision de justice, à la demande de tout intéressé.
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Article L228-52
Les représentants de la masse peuvent être relevés de leurs fonctions par l'assemblée générale des obligataires.
Article L228-53
Les représentants de la masse ont, sauf restriction décidée par l'assemblée générale des obligataires, le pouvoir d'accomplir au nom de la masse tous les actes de gestion pour la défense des intérêts communs des obligataires.
Article L228-54
Les représentants de la masse, dûment autorisés par l'assemblée générale des obligataires, ont seuls qualité pour engager, au nom de ceux-ci, les actions en nullité de la société ou des actes et délibérations postérieurs à sa constitution, ainsi que toutes actions ayant pour objet la défense des intérêts communs des obligataires, et notamment requérir la mesure prévue à l'article L. 237-14.
Les actions en justice dirigées contre l'ensemble des obligataires d'une même masse ne peuvent être intentées que contre le représentant de cette masse.
Toute action intentée contrairement aux dispositions du présent article doit être déclarée d'office irrecevable.
Article L228-55
Les représentants de la masse ne peuvent s'immiscer dans la gestion des affaires sociales. Ils ont accès aux assemblées générales des actionnaires, mais sans voix délibérative.
Ils ont le droit d'obtenir communication des documents mis à la disposition des actionnaires dans les mêmes conditions que ceux-ci.
Article L228-56
La rémunération des représentants de la masse telle que fixée par l'assemblée générale ou par le contrat d'émission est à la charge de la société débitrice.
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A défaut de fixation de cette rémunération, ou si son montant est contesté par la société, il est statué par décision de justice.
Sans préjudice de l'action en responsabilité contre les mandataires sociaux ou le représentant de la masse, toute décision accordant à ce dernier une rémunération en violation des dispositions du présent article est nulle.
Article L228-57
L'assemblée générale des obligataires d'une même masse peut être réunie à toute époque.
Article L228-58
L'assemblée générale des obligataires est convoquée par le conseil d'administration, le directoire ou les gérants, par les représentants de la masse ou par les liquidateurs pendant la période de liquidation.
Un ou plusieurs obligataires, réunissant au moins le trentième des titres d'une masse, peuvent adresser à la société et au représentant de la masse une demande tendant à la convocation de l'assemblée.
Si l'assemblée générale n'a pas été convoquée dans le délai fixé par décret en Conseil d'Etat, les auteurs de la demande peuvent charger l'un d'entre eux de poursuivre en justice la désignation d'un mandataire qui convoquera l'assemblée.
Article L228-59
La convocation des assemblées générales d'obligataires est faite dans les mêmes conditions de forme et de délai que celle des assemblées d'actionnaires. En outre, les avis de convocation contiennent des mentions spéciales qui sont déterminées par décret en Conseil d'Etat.
Toute assemblée irrégulièrement convoquée peut être annulée. Toutefois, l'action en nullité n'est pas recevable lorsque tous les obligataires de la masse intéressée sont présents ou représentés.
Article L228-60
L'ordre du jour des assemblées est arrêté par l'auteur de la convocation.
Toutefois, un ou plusieurs obligataires ont la faculté, dans les conditions prévues au deuxième alinéa de l'article L. 228-58, de requérir l'inscription à l'ordre du jour de projets de résolution.
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Ceux-ci sont inscrits à l'ordre du jour et soumis par le président de séance au vote de l'assemblée.
L'assemblée ne peut délibérer sur une question qui n'est pas inscrite à l'ordre du jour.
Sur deuxième convocation, l'ordre du jour de l'assemblée ne peut être modifié.
Article L228-60-1
A chaque assemblée est tenue une feuille de présence.
Les décisions prises à chaque assemblée sont constatées par procès-verbal, signé par les membres du bureau et conservé au siège social dans un registre spécial.
Les mentions que doivent comporter la feuille de présence et le procès-verbal sont déterminées par décret en Conseil d'Etat.
Article L228-61
S'il existe plusieurs masses d'obligataires, elles ne peuvent en aucun cas délibérer au sein d'une assemblée commune.
Tout obligataire a le droit de participer à l'assemblée ou de s'y faire représenter par un mandataire de son choix.
Tout obligataire peut voter par correspondance, au moyen d'un formulaire dont les mentions sont fixées par décret en Conseil d'Etat. Les dispositions contraires des statuts sont réputées non écrites.
Pour le calcul du quorum, il n'est tenu compte que des formulaires qui ont été reçus par la société avant la réunion de l'assemblée, dans les conditions de délais fixées par décret en Conseil d'Etat. Les formulaires ne donnant aucun sens de vote ou exprimant une abstention sont considérés comme des votes négatifs.
Si les statuts le prévoient, sont réputés présents pour le calcul du quorum et de la majorité les obligataires qui participent à l'assemblée par visioconférence ou par des moyens de télécommunication permettant leur identification. La nature des moyens techniques admis et les conditions d'application de cette disposition sont déterminées par décret en Conseil d'Etat.
Les porteurs d'obligations amorties et non remboursées par suite de la défaillance de la société débitrice ou à raison d'un litige portant sur les conditions de remboursement, peuvent participer à l'assemblée.
La société qui détient au moins 10 % du capital de la société débitrice ne peut voter à l'assemblée
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avec les obligations qu'elle détient.
Article L228-62
Ne peuvent représenter les obligataires aux assemblées générales, les gérants, administrateurs, membres du directoire et du conseil de surveillance, directeurs généraux, commissaires aux comptes ou employés de la société débitrice ou des sociétés garantes de tout ou partie des engagements de ladite société, ainsi que leurs ascendants, descendants et conjoint.
Article L228-63
La représentation d'un obligataire ne peut être confiée aux personnes auxquelles l'exercice de la profession de banquier est interdit ou qui sont déchues du droit de diriger, d'administrer ou de gérer une société à un titre quelconque.
Article L228-64
L'assemblée est présidée par un représentant de la masse. En cas d'absence des représentants ou en cas de désaccord entre eux, l'assemblée désigne une personne pour exercer les fonctions de président. En cas de convocation par un mandataire de justice, l'assemblée est présidée par ce dernier.
A défaut de représentants de la masse désignés dans les conditions prévues aux articles L. 228-50 et L. 228-51, la première assemblée est ouverte sous la présidence provisoire du porteur détenant ou du mandataire représentant le plus grand nombre d'obligations.
Article L228-65
I. - L'assemblée générale délibère sur toutes mesures ayant pour objet d'assurer la défense des obligataires et l'exécution du contrat d'emprunt ainsi que sur toute proposition tendant à la modification du contrat et notamment :
1° Sur toute proposition relative à la modification de l'objet ou de la forme de la société ;
2° Sur toute proposition, soit de compromis, soit de transaction sur des droits litigieux ou ayant fait l'objet de décisions judiciaires ;
3° Sur les propositions de fusion ou de scission de la société dans les cas prévus aux articles L. 236-13 et L. 236-18 ;
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4° Sur toute proposition relative à l'émission d'obligations comportant un droit de préférence par rapport à la créance des obligataires composant la masse ;
5° Sur toute proposition relative à l'abandon total ou partiel des garanties conférées aux obligataires, au report de l'échéance du paiement des intérêts et à la modification des modalités d'amortissement ou du taux des intérêts ;
6° Sur tout projet de transfert du siège social d'une société européenne dans un autre Etat membre.
II. - L'assemblée générale délibère dans les conditions de quorum prévues au deuxième alinéa de l'article L. 225-98. Elle statue à la majorité des deux tiers des voix dont disposent les porteurs présents ou représentés.
Article L228-66
Le droit de vote dans les assemblées générales d'obligataires appartient au nu-propriétaire.
Article L228-67
Le droit de vote attaché aux obligations doit être proportionnel à la quotité du montant de l'emprunt qu'elles représentent. Chaque obligation donne droit à une voix au moins.
Article L228-68
Les assemblées ne peuvent ni accroître les charges des obligataires ni établir un traitement inégal entre les obligataires d'une même masse.
Elles ne peuvent décider la conversion des obligations en actions, sous réserve des dispositions de l'article L. 228-106.
Toute disposition contraire est réputée non écrite.
Article L228-69
Tout obligataire a le droit d'obtenir, dans les conditions et délais déterminés par décret en Conseil d'Etat, communication du texte des résolutions qui seront proposées et des rapports qui seront présentés à l'assemblée générale.
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Il a, à toute époque, le même droit en ce qui concerne les procès-verbaux et les feuilles de présence des assemblées générales de la masse à laquelle il appartient.
Article L228-70
Les obligataires ne sont pas admis individuellement à exercer un contrôle sur les opérations de la société ou à demander communication des documents sociaux.
Article L228-71
La société débitrice supporte les frais de convocation, de tenue des assemblées générales, de publicité de leurs décisions ainsi que les frais résultant de la procédure prévue à l'article L. 228-50. Les autres dépenses de gestion décidées par l'assemblée générale de la masse peuvent être retenues sur les intérêts servis aux obligataires et leur montant peut être fixé par décision de justice.
Les retenues visées à l'alinéa précédent ne peuvent excéder le dixième de l'intérêt annuel.
Article L228-72
A défaut d'approbation par l'assemblée générale des propositions visées aux 1° et 4° du I. de l'article L. 228-65, le conseil d'administration, le directoire ou les gérants de la société débitrice peuvent passer outre, en offrant de rembourser les obligations dans le délai fixé par décret en Conseil d'Etat.
La décision du conseil d'administration, du directoire ou des gérants de passer outre est publiée dans les conditions fixées par décret en Conseil d'Etat, qui détermine également le délai pendant lequel le remboursement doit être demandé.
Article L228-73
Si l'assemblée générale des obligataires de la société absorbée ou scindée n'a pas approuvé une des propositions visées aux 3° et 6° du I de l'article L. 228-65 ou si elle n'a pu délibérer valablement faute du quorum requis, le conseil d'administration, le directoire ou les gérants de la société débitrice peuvent passer outre. La décision est publiée dans les conditions fixées par décret en Conseil d'Etat.
Les obligataires conservent alors leur qualité dans la société absorbante ou dans les sociétés bénéficiaires des apports résultant de la scission, selon le cas.
Toutefois, l'assemblée générale des obligataires peut donner mandat aux représentants de la masse
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de former opposition à l'opération dans les conditions et avec les effets prévus à l'article L. 236-14.
Article L228-74
Les obligations rachetées par la société émettrice, ainsi que les obligations sorties au tirage et remboursées, sont annulées et ne peuvent être remises en circulation.
Article L228-75
En l'absence de dispositions spéciales du contrat d'émission, la société ne peut imposer aux obligataires le remboursement anticipé des obligations.
Article L228-76
En cas de dissolution anticipée de la société, non provoquée par une fusion ou par une scission, l'assemblée générale des obligataires peut exiger le remboursement des obligations et la société peut l'imposer.
Article L228-77
En cas d'émission d'obligations assorties de sûretés particulières, celles-ci sont constituées par la société avant l'émission, pour le compte de la masse des obligataires. L'acceptation résulte du seul fait des souscriptions. Elle rétroagit à la date de l'inscription pour les sûretés soumises à inscription et à la date de leur constitution pour les autres sûretés.
Article L228-78
Les garanties prévues à l'article L. 228-77 sont conférées par le président du conseil d'administration, le représentant du directoire ou le gérant, sur autorisation de l'organe social habilité à cet effet par les statuts.
Article L228-79
Les sûretés sont constituées dans un acte spécial. Les formalités de publicité desdites sûretés doivent être accomplies avant toute souscription, pour le compte de la masse des obligataires en
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formation.
Dans le délai de six mois à compter de l'ouverture de la souscription, le résultat de celle-ci est constaté dans un acte authentique par le représentant de la société.
Les modalités de l'inscription et du renouvellement de l'inscription des sûretés sont déterminées par décret en Conseil d'Etat.
Les représentants de la masse veillent, sous leur responsabilité, à l'observation des dispositions relatives au renouvellement de l'inscription.
Article L228-80
La mainlevée des inscriptions intervient dans les conditions déterminées par décret en Conseil d'Etat.
Article L228-81
Les garanties constituées postérieurement à l'émission des obligations sont conférées par le président du conseil d'administration, le représentant du directoire ou le gérant, sur autorisation de l'organe social habilité à cet effet par les statuts. Elles sont acceptées par le représentant de la masse.
Article L228-82
L'émission d'obligations, dont le remboursement est garanti par une société de capitalisation, est interdite.
Article L228-83
En cas de redressement ou de liquidation judiciaires de la société, les représentants de la masse des obligataires sont habilités à agir au nom de celle-ci.
Article L228-84
Les représentants de la masse déclarent au passif du redressement ou de la liquidation judiciaires de la société, pour tous les obligataires de cette masse, le montant en principal des obligations restant
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en circulation augmenté pour mémoire des coupons d'intérêts échus et non payés, dont le décompte est établi par le mandataire judiciaire. Ils ne sont pas tenus de fournir les titres de leurs mandants, à l'appui de cette déclaration.
Article L228-85
A défaut de déclaration par les représentants de la masse, une décision de justice désigne à la demande du mandataire judiciaire, un mandataire chargé d'assurer la représentation de la masse dans les opérations de redressement ou de liquidation judiciaires et d'en déclarer la créance.
Article L228-86
Les représentants de la masse sont consultés par le mandataire judiciaire sur les modalités de règlement des obligations proposées en application de l'article L. 626-4. Ils donnent leur accord dans le sens défini par l'assemblée générale ordinaire des obligataires, convoquée à cet effet.
Article L228-87
Les frais entraînés par la représentation des obligataires au cours de la procédure de redressement judiciaire de la société incombent à celle-ci et sont considérés comme des frais d'administration judiciaire.
Article L228-88
Le redressement ou la liquidation judiciaires de la société ne met pas fin au fonctionnement et au rôle de l'assemblée générale des obligataires.
Article L228-89
En cas de clôture pour insuffisance d'actif, le représentant de la masse ou le mandataire de justice désigné, recouvre l'exercice des droits des obligataires.
Article L228-90
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Sauf clause contraire du contrat d'émission, les dispositions des articles L. 228-46 à L. 228-69, L. 228-71, L. 228-72, L. 228-76 à L. 228-81 et L. 228-83 à L. 228-89 ne sont pas applicables aux sociétés dont les emprunts sont soumis à un régime légal spécial, ni aux emprunts garantis par l'Etat, les départements, les communes ou les établissements publics ni aux emprunts émis à l'étranger par des sociétés françaises.
Section 6 : Des valeurs mobilières donnant accès au capital ou donnant droit à l'attribution de titres de créance
Sous-section 1 : Dispositions générales
Article L228-91
Les sociétés par actions peuvent émettre des valeurs mobilières donnant accès au capital ou donnant droit à l'attribution de titres de créance.
Les actionnaires d'une société émettant des valeurs mobilières donnant accès au capital ont, proportionnellement au montant de leurs actions, un droit de préférence à la souscription de ces valeurs mobilières.
Ce droit est régi par les dispositions applicables au droit de préférence à la souscription attaché aux titres de capital conformément aux articles L. 225-132 et L. 225-135 à L. 225-140.
Le contrat d'émission peut prévoir que ces valeurs mobilières et les titres de capital ou de créances auxquels ces valeurs mobilières donnent droit ne peuvent être cédés et négociés qu'ensemble. Dans ce cas, si le titre émis à l'origine est un titre de capital, celui-ci ne relève pas d'une catégorie déterminée au sens de l'article L. 225-99.
Les titres de capital ne peuvent être convertis ou transformés en valeurs mobilières représentatives de créances. Toute clause contraire est réputée non écrite.
Les valeurs mobilières émises en application du présent article ne peuvent être regardées comme constitutives d'une promesse d'action pour l'application du second alinéa de l'article L. 228-10.
Article L228-92
Les émissions de valeurs mobilières donnant accès au capital ou donnant droit à l'attribution de titres de créance régies par l'article L. 228-91 sont autorisées par l'assemblée générale extraordinaire des actionnaires conformément aux articles L. 225-129 à L. 225-129-6. Celle-ci se prononce sur le rapport du conseil d'administration ou du directoire et sur le rapport spécial du commissaire aux
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comptes.
Article L228-93
Une société par actions peut émettre des valeurs mobilières donnant accès au capital de la société qui possède directement ou indirectement plus de la moitié de son capital ou de la société dont elle possède directement ou indirectement plus de la moitié du capital.
A peine de nullité, l'émission doit être autorisée par l'assemblée générale extraordinaire de la société appelée à émettre ces valeurs mobilières et par celle de la société au sein de laquelle les droits sont exercés, dans les conditions prévues par l'article L. 228-92.
Article L228-95
Sont nulles les décisions prises en violation du deuxième et du troisième alinéa de l'article L. 228-91.
Article L228-97
Lors de l'émission de valeurs mobilières représentatives de créances sur la société émettrice, y compris celles donnant le droit de souscrire ou d'acquérir une valeur mobilière, il peut être stipulé que ces valeurs mobilières ne seront remboursées qu'après désintéressement des autres créanciers, à l'exclusion ou y compris des titulaires de prêts participatifs et de titres participatifs, nonobstant les dispositions de l'article L. 228-36 du présent code et celles des articles L. 313-13 et suivants du code monétaire et financier.
Dans ces catégories de valeurs mobilières, il peut être également stipulé un ordre de priorité des paiements.
Sous-section 2 : Dispositions relatives aux valeurs mobilières donnant accès au capital.
Article L228-98
A dater de l'émission de valeurs mobilières donnant accès au capital, la société appelée à attribuer ces titres ne peut modifier sa forme ou son objet, à moins d'y être autorisée par le contrat d'émission ou dans les conditions prévues à l'article L. 228-103.
En outre, elle ne peut ni modifier les règles de répartition de ses bénéfices, ni amortir son capital, ni
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créer d'actions de préférence entraînant une telle modification ou un tel amortissement, à moins d'y être autorisée dans les conditions prévues à l'article L. 228-103 et sous réserve de prendre les dispositions nécessaires au maintien des droits des titulaires des valeurs mobilières donnant accès au capital dans les conditions définies à l'article L. 228-99 ou par le contrat d'émission.
Sous ces mêmes réserves, elle peut cependant créer des actions de préférence.
En cas de réduction de son capital motivée par des pertes et réalisée par la diminution du montant nominal ou du nombre des titres composant le capital, les droits des titulaires des valeurs mobilières donnant accès au capital sont réduits en conséquence, comme s'ils les avaient exercés avant la date à laquelle la réduction de capital est devenue définitive.
Article L228-99
La société appelée à attribuer les titres de capital ou les valeurs mobilières y donnant accès doit prendre les mesures nécessaires à la protection des intérêts des titulaires des droits ainsi créés si elle décide de procéder à l'émission, sous quelque forme que ce soit, de nouveaux titres de capital avec droit préférentiel de souscription réservé à ses actionnaires, de distribuer des réserves, en espèces ou en nature, et des primes d'émission ou de modifier la répartition de ses bénéfices par la création d'actions de préférence.
A cet effet, elle doit :
1° Soit mettre les titulaires de ces droits en mesure de les exercer, si la période prévue au contrat d'émission n'est pas encore ouverte, de telle sorte qu'ils puissent immédiatement participer aux opérations mentionnées au premier alinéa ou en bénéficier ;
2° Soit prendre les dispositions qui leur permettront, s'ils viennent à exercer leurs droits ultérieurement, de souscrire à titre irréductible les nouvelles valeurs mobilières émises, ou en obtenir l'attribution à titre gratuit, ou encore recevoir des espèces ou des biens semblables à ceux qui ont été distribués, dans les mêmes quantités ou proportions ainsi qu'aux mêmes conditions, sauf en ce qui concerne la jouissance, que s'ils avaient été, lors de ces opérations, actionnaires ;
3° Soit procéder à un ajustement des conditions de souscription, des bases de conversion, des modalités d'échange ou d'attribution initialement prévues de façon à tenir compte de l'incidence des opérations mentionnées au premier alinéa.
Sauf stipulations différentes du contrat d'émission, la société peut prendre simultanément les mesures prévues aux 1° et 2°. Elle peut, dans tous les cas, les remplacer par l'ajustement autorisé au 3°. Cet ajustement est organisé par le contrat d'émission lorsque les titres de capital ne sont pas admis aux négociations sur un marché réglementé.
Les conditions d'application du présent article sont fixées par décret en Conseil d'Etat.
Article L228-100
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Les dispositions des articles L. 228-98 et L. 228-99 sont applicables aussi longtemps qu'il existe des droits attachés à chacun des éléments des valeurs mobilières mentionnées à ces articles.
Article L228-101
Si la société appelée à émettre les titres de capital est absorbée par une autre société ou fusionne avec une ou plusieurs autres sociétés pour former une société nouvelle, ou procède à une scission, les titulaires de valeurs mobilières donnant accès au capital exercent leurs droits dans la ou les sociétés bénéficiaires des apports. L'article L. 228-65 n'est pas applicable, sauf stipulations contraires du contrat d'émission.
Le nombre de titres de capital de la ou des sociétés absorbantes ou nouvelles auquel ils peuvent prétendre est déterminé en corrigeant le nombre de titres qu'il est prévu d'émettre ou d'attribuer au contrat d'émission en fonction du nombre d'actions à créer par la ou les sociétés bénéficiaires des apports. Le commissaire aux apports émet un avis sur le nombre de titres ainsi déterminé.
L'approbation du projet de fusion ou de scission par les actionnaires de la ou des sociétés bénéficiaires des apports ou de la ou des sociétés nouvelles emporte renonciation par les actionnaires et, le cas échéant, par les titulaires de certificats d'investissement de ces sociétés, au droit préférentiel de souscription mentionné à l'article L. 228-35 ou, au deuxième alinéa de l'article L. 228-91, au profit des titulaires de valeurs mobilières donnant accès de manière différée au capital.
La ou les sociétés bénéficiaires des apports ou la ou les nouvelles sociétés sont substituées de plein droit à la société émettrice dans ses obligations envers les titulaires desdites valeurs mobilières.
Article L228-102
Sauf stipulations spéciales du contrat d'émission et hors le cas de dissolution anticipée ne résultant pas d'une fusion ou d'une scission, la société ne peut imposer aux titulaires de valeurs mobilières donnant accès à son capital le rachat ou le remboursement de leurs droits.
Article L228-103
Les titulaires de valeurs mobilières donnant accès à terme au capital après détachement, s'il y a lieu, des droits du titre d'origine en application de la présente section sont groupés de plein droit, pour la défense de leurs intérêts communs, en une masse qui jouit de la personnalité civile et est soumise à des dispositions identiques à celles qui sont prévues, en ce qui concerne les obligations, par les articles L. 228-47 à L. 228-64, L. 228-66 et L. 228-90. Il est formé, s'il y a lieu, une masse distincte pour chaque nature de titres donnant les mêmes droits.
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Les assemblées générales des titulaires de ces valeurs mobilières sont appelées à autoriser toutes modifications au contrat d'émission et à statuer sur toute décision touchant aux conditions de souscription ou d'attribution de titres de capital déterminées au moment de l'émission.
Chaque valeur mobilière donnant accès au capital donne droit à une voix. Les conditions de quorum et de majorité sont celles qui sont déterminées aux deuxième et troisième alinéas de l'article L. 225-96.
Les frais d'assemblée ainsi que, d'une façon générale, tous les frais afférents au fonctionnement des différentes masses sont à la charge de la société appelée à émettre ou attribuer de nouvelles valeurs mobilières représentatives de son capital social.
Lorsque les valeurs mobilières émises en application de la présente section sont des obligations destinées à être converties ou remboursées en titres de capital ou échangées contre des titres de capital, les dispositions des deuxième, troisième et quatrième alinéas du présent article sont applicables à la masse créée en application de l'article L. 228-46.
Article L228-104
Les délibérations ou stipulations prises en violation des articles L. 228-98 à L. 228-101 et L. 228-103 sont nulles.
Article L228-105
Les titulaires des valeurs mobilières donnant accès au capital disposent, dans les conditions fixées par décret en Conseil d'Etat, auprès de la société émettrice des titres qu'ils ont vocation à recevoir, d'un droit de communication des documents sociaux transmis par la société aux actionnaires ou aux titulaires de certificats d'investissement ou mis à leur disposition.
Lorsque les droits à l'attribution d'une quote-part du capital social sont incorporés ou attachés à des obligations, le droit de communication est exercé par les représentants de la masse des obligataires, conformément à l'article L. 228-55.
Après détachement de ces droits du titre d'origine, le droit de communication est exercé par les représentants de la masse constituée conformément à l'article L. 228-103.
Dans tous les cas, les représentants des différentes masses ont accès à l'assemblée générale des actionnaires, mais sans voix délibérative. Ils ne peuvent, en aucune façon, s'immiscer dans la gestion des affaires sociales.
Article L228-106
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Lorsqu'une procédure de sauvegarde ou de redressement judiciaire est ouverte à l'égard d'une société émettrice de valeurs mobilières donnant accès au capital dans les conditions de l'article L. 228-91, le délai prévu pour l'exercice du droit à attribution d'une quote-part de capital social est ouvert dès le jugement arrêtant le plan de sauvegarde ou de redressement judiciaire, au gré de chaque titulaire, et dans les conditions prévues par ce plan.
Chapitre IX : De la société européenne
Article L229-1
Les sociétés européennes immatriculées en France au registre du commerce et des sociétés ont la personnalité juridique à compter de leur immatriculation.
La société européenne est régie par les dispositions du règlement (CE) n° 2157/2001 du Conseil du 8 octobre 2001 relatif au statut de la société européenne, celles du présent chapitre et celles applicables aux sociétés anonymes non contraires à celles-ci.
La société européenne est soumise aux dispositions de l'article L. 210-3. Le siège statutaire et l'administration centrale de la société européenne ne peuvent être dissociés.
Article L229-2
Toute société européenne régulièrement immatriculée au registre du commerce et des sociétés peut transférer son siège dans un autre Etat membre de la Communauté européenne. Elle établit un projet de transfert. Ce projet est déposé au greffe du tribunal dans le ressort duquel la société est immatriculée et fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Le transfert de siège est décidé par l'assemblée générale extraordinaire dans les conditions prévues à l'article L. 225-96 et est soumis à la ratification des assemblées spéciales d'actionnaires mentionnées aux articles L. 225-99 et L. 228-35-6.
En cas d'opposition à l'opération, les actionnaires peuvent obtenir le rachat de leurs actions dans les conditions fixées par décret en Conseil d'Etat.
Le projet de transfert de siège est soumis aux assemblées spéciales des porteurs de certificats d'investissement statuant selon les règles de l'assemblée générale des actionnaires, à moins que la société n'acquière ces titres sur simple demande de leur part et que cette acquisition ait été acceptée par leur assemblée spéciale.L'offre d'acquisition est soumise à publicité dont les modalités sont fixées par décret en Conseil d'Etat. Tout porteur de certificats d'investissement qui n'a pas cédé ses titres dans le délai fixé par décret en Conseil d'Etat le demeure sous réserve d'un échange de ces
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certificats d'investissement et de droit de vote contre des actions.
Le projet de transfert est soumis à l'assemblée d'obligataires de la société, à moins que le remboursement des titres sur simple demande de leur part ne soit offert auxdits obligataires.L'offre de remboursement est soumise à publicité dont les modalités sont fixées par décret en Conseil d'Etat. Tout obligataire qui n'a pas demandé le remboursement dans le délai fixé par décret en Conseil d'Etat conserve sa qualité dans la société aux conditions fixées dans le projet de transfert.
Les créanciers non obligataires de la société transférant son siège et dont la créance est antérieure au transfert du siège peuvent former opposition à celui-ci dans le délai fixé par décret en Conseil d'Etat. Une décision de justice rejette l'opposition ou ordonne soit le remboursement des créances, soit la constitution de garanties si la société transférant son siège en offre et si elles sont jugées suffisantes.A défaut de remboursement des créances ou de constitution des garanties ordonnées, le transfert de siège est inopposable à ces créanciers.L'opposition formée par un créancier n'a pas pour effet d'interdire la poursuite des opérations de transfert. Les dispositions du présent alinéa ne mettent pas obstacle à l'application des conventions autorisant le créancier à exiger le remboursement immédiat de sa créance en cas de transfert de siège.
Un notaire délivre un certificat attestant de manière concluante l'accomplissement des actes et formalités préalables au transfert.
Article L229-3
I.-Dans un délai fixé par voie réglementaire, le greffier du tribunal dans le ressort duquel la société participant à l'opération est immatriculée délivre, après avoir procédé à la vérification prévue à l'article L. 236-6, une attestation de conformité des actes et des formalités préalables à la fusion.
Un notaire ou le greffier du tribunal dans le ressort duquel la société issue de la fusion sera immatriculée contrôle, dans un délai fixé par voie réglementaire, la légalité de la réalisation de la fusion et de la constitution de la société nouvelle issue de la fusion.
A cette fin, chaque société qui fusionne remet au notaire ou au greffier le certificat visé à l'article 25 du règlement (CE) n° 2157 / 2001 du Conseil du 8 octobre 2001 précité dans un délai de six mois à compter de sa délivrance ainsi qu'une copie du projet de fusion approuvé par la société.
Le notaire ou le greffier contrôle en particulier que les sociétés qui fusionnent ont approuvé un projet de fusion dans les mêmes termes et que les modalités relatives à l'implication des salariés ont été fixées conformément aux chapitres Ier à III du titre V du livre II de la deuxième partie du code du travail.
Il contrôle en outre que la constitution de la société européenne formée par fusion correspond aux conditions fixées par les dispositions législatives françaises.
II.-Les causes de nullité de la délibération de l'une des assemblées qui ont décidé de l'opération de fusion conformément au droit applicable à la société anonyme ou les manquements au contrôle de légalité constituent une cause de dissolution de la société européenne.
Lorsqu'il est possible de porter remède à l'irrégularité susceptible d'entraîner la dissolution, le tribunal saisi de l'action en dissolution d'une société européenne créée par fusion accorde un délai
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pour régulariser la situation.
Les actions en dissolution de la société européenne se prescrivent par six mois à compter de la date de la dernière inscription au registre du commerce et des sociétés rendue nécessaire par l'opération.
Lorsque la dissolution de la société européenne est prononcée, il est procédé à sa liquidation conformément aux dispositions des statuts et du chapitre VII du titre III du présent livre.
Lorsqu'une décision judiciaire prononçant la dissolution d'une société européenne pour l'une des causes prévues au sixième alinéa du présent article est devenue définitive, cette décision fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Article L229-4
L'autorité compétente pour s'opposer, conformément aux dispositions du 14 de l'article 8 et de l'article 19 du règlement (CE) n° 2157/2001 du Conseil du 8 octobre 2001, précité, au transfert de siège social d'une société européenne immatriculée en France et dont résulterait un changement du droit applicable ainsi qu'à la constitution d'une société européenne par voie de fusion impliquant une société relevant du droit français, est le procureur de la République.
Il se saisit d'office ou est saisi par toute personne ou autorité qui estime qu'une telle opération est contraire à un intérêt public. La décision du procureur de la République est susceptible de recours devant la cour d'appel de Paris.
Article L229-5
Les sociétés promouvant l'opération de constitution d'une société européenne holding établissent un projet commun de constitution de la société européenne.
Ce projet est déposé au greffe du tribunal dans le ressort duquel lesdites sociétés sont immatriculées et fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Un ou plusieurs commissaires à la constitution d'une société européenne holding, désignés par décision de justice, établissent sous leur responsabilité un rapport destiné aux actionnaires de chaque société dont les mentions sont précisées par décret en Conseil d'Etat.
Par accord entre les sociétés qui promeuvent l'opération, le ou les commissaires peuvent établir un rapport écrit pour les actionnaires de l'ensemble des sociétés.
Les dispositions des troisième et quatrième alinéas de l'article L. 236-9 et des articles L. 236-13 et L. 236-14 sont applicables en cas de constitution d'une société européenne holding.
Article L229-6
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Par exception à la deuxième phrase de l'article L. 225-1, une société européenne peut constituer une société européenne dont elle est le seul actionnaire. Elle est soumise aux dispositions applicables à la société européenne et à celles relatives à la société à responsabilité limitée à associé unique édictées par les articles L. 223-5 et L. 223-31.
Dans cette hypothèse, l'actionnaire unique exerce les pouvoirs dévolus à l'assemblée générale.
En cas de société européenne unipersonnelle, les articles L. 225-25, L. 225-26, L. 225-72 et L. 225-73 ne s'appliquent pas aux administrateurs ou membres du conseil de surveillance de cette société.
Article L229-7
La direction et l'administration de la société européenne sont régies par les dispositions de la section 2 du chapitre V du présent titre, à l'exception du premier alinéa des articles L. 225-37 et L. 225-82 et du quatrième alinéa de l'article L. 225-64.
Toutefois, par exception à l'article L. 225-62, en cas de vacance au sein du directoire, un membre du conseil de surveillance peut être nommé par ce conseil pour exercer les fonctions de membre du directoire pour une durée maximale fixée par décret en Conseil d'Etat. Pendant cette durée, les fonctions de l'intéressé au sein du conseil de surveillance sont suspendues.
Les dispositions du premier alinéa de l'article L. 225-17, du deuxième alinéa de l'article L. 225-22, de l'article L. 225-69 et du deuxième alinéa de l'article L. 225-79 ne peuvent faire obstacle à la participation des travailleurs définie à l'article L. 439-25 du code du travail.
Chaque membre du conseil de surveillance peut se faire communiquer par le président du directoire les documents qu'il estime nécessaires à l'accomplissement de sa mission.
La société européenne est dirigée par un directoire composé de sept membres au plus.
Les statuts doivent prévoir des règles similaires à celles énoncées aux articles L. 225-38 à L. 225-42 et L. 225-86 à L. 225-90. Toutefois, lorsqu'il s'agit d'une société visée à l'article L. 229-6, la mention au registre des délibérations vaut approbation de la convention.
Article L229-8
Les assemblées générales de la société européenne sont soumises aux règles prescrites par la section 3 du chapitre V du présent titre dans la mesure où elles sont compatibles avec le règlement (CE) n° 2157/2001 du Conseil, du 8 octobre 2001, précité.
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Article L229-9
Si la société européenne n'a plus son administration centrale en France, tout intéressé peut demander au tribunal la régularisation de la situation par le transfert du siège social ou le rétablissement de l'administration centrale au lieu du siège social en France, le cas échéant sous astreinte.
Le tribunal fixe une durée maximale pour cette régularisation.
A défaut de régularisation à l'issue de ce délai, le tribunal prononce la liquidation de la société dans les conditions prévues aux articles L. 237-1 à L. 237-31.
Ces décisions sont adressées par le greffe du tribunal au procureur de la République. Le juge indique dans sa décision que le jugement est transmis par le greffe.
En cas de constat de déplacement de l'administration centrale en France d'une société européenne immatriculée dans un autre Etat membre de la Communauté européenne, contrevenant à l'article 7 du règlement (CE) n° 2157 / 2001 du Conseil, du 8 octobre 2001, précité, le procureur de la République du tribunal de grande instance dans le ressort duquel l'administration centrale est installée doit informer sans délai l'Etat membre du siège statutaire.
En cas de constat de déplacement de l'administration centrale dans un autre Etat membre de la Communauté européenne d'une société européenne immatriculée en France, contrevenant à l'article 7 du règlement (CE) n° 2157 / 2001 du Conseil, du 8 octobre 2001, précité, les autorités de cet Etat membre doivent informer sans délai le procureur de la République du tribunal de grande instance dans le ressort duquel la société est immatriculée.
Article L229-10
Toute société européenne peut se transformer en société anonyme si, au moment de la transformation, elle est immatriculée depuis plus de deux ans et a fait approuver le bilan de ses deux premiers exercices.
La société établit un projet de transformation de la société en société anonyme. Ce projet est déposé au greffe du tribunal du siège de la société et fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Un ou plusieurs commissaires à la transformation désignés par décision de justice établissent sous leur responsabilité un rapport destiné aux actionnaires de la société se transformant attestant que les capitaux propres sont au moins équivalents au capital social. Ils sont soumis aux incompatibilités prévues à l'article L. 822-11.
La transformation en société anonyme est décidée selon les dispositions prévues aux articles L. 225-96 et L. 225-99.
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Article L229-11
Les statuts d'une société européenne qui n'entend pas offrir au public ses actions peuvent soumettre tout transfert d'actions à des restrictions à la libre négociabilité sans que ces restrictions ne puissent avoir pour effet de rendre ces actions inaliénables pour une durée excédant dix ans.
Toute cession réalisée en violation de ces clauses statutaires est nulle. Cette nullité est opposable au cessionnaire ou à ses ayants droit. Elle peut être régularisée par une décision prise à l'unanimité des actionnaires non parties au contrat ou à l'opération visant à transférer les actions.
Article L229-12
Dans les conditions qu'ils déterminent, les statuts d'une société européenne qui n'entend pas offrir au public ses actions peuvent prévoir qu'un actionnaire peut être tenu de céder ses actions. Ils peuvent également prévoir la suspension des droits non pécuniaires de cet actionnaire tant que celui-ci n'a pas procédé à cette cession.
Article L229-13
Les statuts d'une société européenne qui n'entend pas offrir au public ses actions peuvent prévoir que la société actionnaire dont le contrôle est modifié au sens de l'article L. 233-16 doit, dès cette modification, en informer la société européenne. Celle-ci peut décider, dans les conditions fixées par les statuts, de suspendre l'exercice des droits non pécuniaires de cet actionnaire et de l'exclure.
Les dispositions du premier alinéa peuvent s'appliquer, dans les mêmes conditions, à l'actionnaire qui a acquis cette qualité à la suite d'une opération de fusion, de scission ou de dissolution.
Article L229-14
Si les statuts ne précisent pas les modalités d'évaluation du prix de cession des actions lorsque la société européenne met en oeuvre une clause introduite en application des articles L. 229-11 à L. 229-13, ce prix est fixé par accord entre les parties ou, à défaut, déterminé dans les conditions prévues à l'article 1843-4 du code civil.
Lorsque les actions sont rachetées par la société européenne, celle-ci est tenue de les céder dans un délai de six mois ou de les annuler.
Article L229-15
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Les clauses stipulées en application des articles L. 229-11 à L. 229-14 ne sont adoptées ou modifiées qu'à l'unanimité des actionnaires.
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Partie législative
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE III : Dispositions communes aux diverses sociétés commerciales
Chapitre Ier : Du capital variable
Article L231-1
Il peut être stipulé dans les statuts des sociétés qui n'ont pas la forme de société anonyme ainsi que dans toute société coopérative que le capital social est susceptible d'augmentation par des versements successifs des associés ou l'admission d'associés nouveaux et de diminution par la reprise totale ou partielle des apports effectués.
Les sociétés dont les statuts contiennent la stipulation ci-dessus sont soumises, indépendamment des règles générales qui leur sont propres suivant leur forme spéciale, aux dispositions du présent chapitre.
Article L231-2
Si la société a usé de la faculté accordée par l'article L. 231-1 cette circonstance doit être mentionnée dans tous les actes et documents émanant de la société et destinés aux tiers, par l'addition des mots " à capital variable ".
Article L231-3
Ne sont pas assujettis aux formalités de dépôt et de publication les actes constatant les augmentations ou les diminutions du capital social opérées dans les termes de l'article L. 231-1, ou les retraits d'associés, autres que les gérants ou administrateurs, qui auraient lieu conformément à l'article L. 231-6.
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Article L231-4
Les actions ou coupons d'actions sont nominatifs, même après leur entière libération.
Ils ne sont négociables qu'après la constitution définitive de la société.
La négociation ne peut avoir lieu que par voie de transfert sur les registres de la société, et les statuts peuvent donner, soit au conseil d'administration, soit à l'assemblée générale, le droit de s'opposer au transfert.
Article L231-5
Les statuts déterminent une somme au-dessous de laquelle le capital ne peut être réduit par les reprises des apports autorisés par l'article L. 231-1.
Cette somme ne pourra être inférieure ni au dixième du capital social stipulé dans les statuts ni, pour les sociétés autres que coopératives, au montant minimal du capital exigé pour la forme de la société considérée par les dispositions législatives la régissant.
Les sociétés coopératives sont définitivement constituées après le versement du dixième.
Article L231-6
Chaque associé peut se retirer de la société lorsqu'il le juge convenable à moins de conventions contraires et sauf application du premier alinéa de l'article L. 231-5.
Il peut être stipulé que l'assemblée générale a le droit de décider, à la majorité fixée pour la modification des statuts, que l'un ou plusieurs des associés cessent de faire partie de la société.
L'associé qui cesse de faire partie de la société, soit par l'effet de sa volonté, soit par suite de décision de l'assemblée générale, reste tenu, pendant cinq ans, envers les associés et envers les tiers, de toutes les obligations existant au moment de sa retraite.
Article L231-7
La société, quelle que soit sa forme, est valablement représentée en justice par ses administrateurs.
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Article L231-8
La société n'est dissoute ni par la mort ou par le retrait d'un associé ni par un jugement de liquidation, ou par une mesure d'interdiction d'exercer une profession commerciale, ou par une mesure d'incapacité prononcée à l'égard de l'un des associés ou la déconfiture de l'un d'entre eux. Elle continue de plein droit entre les autres associés.
Chapitre II : Des comptes sociaux
Section 1 : Des documents comptables
Article L232-1
I. - A la clôture de chaque exercice le conseil d'administration, le directoire ou les gérants dressent l'inventaire, les comptes annuels conformément aux dispositions de la section 2 du chapitre III du titre II du livre Ier et établissent un rapport de gestion écrit. Ils annexent au bilan :
1° Un état des cautionnements, avals et garanties donnés par la société. Cette disposition n'est pas applicable aux sociétés exploitant un établissement de crédit ou une entreprise d'assurance ;
2° Un état des sûretés consenties par elle.
II. - Le rapport de gestion expose la situation de la société durant l'exercice écoulé, son évolution prévisible, les événements importants survenus entre la date de la clôture de l'exercice et la date à laquelle il est établi, ses activités en matière de recherche et de développement.
III. - Les documents mentionnés au présent article sont, le cas échéant, mis à la disposition des commissaires aux comptes dans des conditions déterminées par décret en Conseil d'Etat.
IV. - Sont dispensées de l'obligation d'établir un rapport de gestion les sociétés à responsabilité limitée et les sociétés par actions simplifiées dont l'associé unique, personne physique, assume personnellement la gérance ou la présidence, et qui ne dépassent pas à la clôture d'un exercice social deux des seuils fixés par décret en Conseil d'Etat relatifs au total de leur bilan, au montant de leur chiffre d'affaires hors taxe et au nombre moyen de leurs salariés au cours de l'exercice.
Article L232-2
Dans les sociétés commerciales qui répondent à l'un des critères définis par décret en Conseil d'Etat et tirés du nombre de salariés ou du chiffre d'affaires, compte tenu éventuellement de la nature de l'activité, le conseil d'administration, le directoire ou les gérants sont tenus d'établir une situation de
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l'actif réalisable et disponible, valeurs d'exploitation exclues, et du passif exigible, un compte de résultat prévisionnel, un tableau de financement en même temps que le bilan annuel et un plan de financement prévisionnel.
Le décret en Conseil d'Etat ci-dessus mentionné précise la périodicité, les délais et les modalités d'établissement de ces documents.
Pour la détermination du nombre des salariés, sont assimilés aux salariés de la société, ceux des sociétés, quelle que soit leur forme, dont elle détient directement ou indirectement plus de la moitié du capital.
Article L232-3
Dans les sociétés anonymes, les documents visés à l'article L. 232-2 sont analysés dans des rapports écrits sur l'évolution de la société, établis par le conseil d'administration ou le directoire. Les documents et rapports sont communiqués simultanément au conseil de surveillance, au commissaire aux comptes et au comité d'entreprise.
En cas de non-observation des dispositions de l'article L. 232-2 et de l'alinéa précédent, ou si les informations données dans les rapports visés à l'alinéa précédent appellent des observations de sa part, le commissaire aux comptes le signale dans un rapport au conseil d'administration ou au directoire, selon le cas. Le rapport du commissaire aux comptes est communiqué simultanément au comité d'entreprise. Il est donné connaissance de ce rapport à la prochaine assemblée générale.
Article L232-4
Dans les sociétés autres que les sociétés anonymes, les rapports prévus à l'article L. 232-3 sont établis par les gérants qui les communiquent au commissaire aux comptes, au comité d'entreprise et, le cas échéant, au conseil de surveillance lorsqu'il est institué dans ces sociétés.
En cas de non-observation des dispositions de l'article L. 232-2 et de l'alinéa précédent, ou si les informations données dans les rapports visés à l'alinéa précédent appellent des observations de sa part, le commissaire aux comptes le signale dans un rapport au gérant ou dans le rapport annuel. Il peut demander que son rapport soit adressé aux associés ou qu'il en soit donné connaissance à l'assemblée des associés. Ce rapport est communiqué au comité d'entreprise.
Article L232-5
Les sociétés qui établissent des comptes consolidés conformément aux articles L. 233-18 à L. 233-26 peuvent, dans les conditions prévues à l'article L. 123-17 et par dérogation à l'article L. 123-18, inscrire les titres des sociétés qu'elles contrôlent de manière exclusive, au sens de l'article L. 233-16, à l'actif du bilan en fonction de la quote-part des capitaux propres déterminée d'après les règles de consolidation que ces titres représentent. Cette méthode d'évaluation, si elle est choisie,
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s'applique à l'ensemble des titres qui répondent aux conditions précédentes. Il est fait mention de l'option dans l'annexe.
La contrepartie de la variation annuelle de la quote-part globale de capitaux propres représentative de ces titres ne constitue pas un élément de résultat ; elle est inscrite distinctement dans un poste de capitaux propres ; elle n'est pas distribuable et ne peut être utilisée à compenser les pertes. Néanmoins, si l'écart global devient négatif, il est inscrit au compte de résultat.
Si une société fait usage de la méthode prévue aux alinéas précédents, les sociétés qu'elle contrôle appliquent la même méthode lorsqu'elles contrôlent elles-mêmes d'autres sociétés dans les mêmes conditions.
Un décret en Conseil d'Etat fixe les modalités d'application du présent article.
Article L232-6
Lorsque, dans les conditions définies à l'article L. 123-17, des modifications interviennent dans la présentation des comptes annuels comme dans les méthodes d'évaluation retenues, elles sont de surcroît signalées dans le rapport de gestion et, le cas échéant, dans le rapport des commissaires aux comptes.
Section 2 : Des documents propres aux sociétés faisant publiquement appel à l'épargne
Article L232-7
Les sociétés dont les actions sont admises aux négociations sur un marché réglementé annexent à leurs comptes annuels un tableau relatif à la répartition et à l'affectation des sommes distribuables qui seront proposées à l'assemblée générale.
Les I, III, IV et VII de l'article L. 451-1-2 du code monétaire et financier sont applicables aux sociétés mentionnées au premier alinéa, à l'exception des sociétés d'investissement à capital variable.
Section 3 : Des amortissements et des provisions
Article L232-9
Sous réserve des dispositions du deuxième alinéa de l'article L. 232-15, les frais de constitution de la société sont amortis avant toute distribution de bénéfices et, au plus tard, dans un délai de cinq
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ans.
Les frais d'augmentation de capital sont amortis au plus tard à l'expiration du cinquième exercice suivant celui au cours duquel ils ont été engagés. Ces frais peuvent être imputés sur le montant des primes d'émission afférentes à cette augmentation.
Toutefois, les sociétés dont l'objet exclusif est la construction et la gestion d'immeubles locatifs à usage principal d'habitation ou le crédit-bail immobilier, ainsi que les sociétés immobilières pour le commerce et l'industrie, peuvent amortir les frais de constitution de la société et les frais d'augmentation de capital dans les mêmes conditions que leurs immeubles. Les sociétés agréées pour le financement des télécommunications peuvent amortir les frais de constitution et les frais d'augmentation de capital dans les mêmes conditions que leurs immeubles et leurs équipements.
Section 4 : Des bénéfices
Article L232-10
A peine de nullité de toute délibération contraire, dans les sociétés à responsabilité limitée et les sociétés par actions, il est fait sur le bénéfice de l'exercice, diminué, le cas échéant, des pertes antérieures, un prélèvement d'un vingtième au moins affecté à la formation d'un fonds de réserve dit " réserve légale ".
Ce prélèvement cesse d'être obligatoire, lorsque la réserve atteint le dixième du capital social.
Article L232-11
Le bénéfice distribuable est constitué par le bénéfice de l'exercice, diminué des pertes antérieures, ainsi que des sommes à porter en réserve en application de la loi ou des statuts, et augmenté du report bénéficiaire.
En outre, l'assemblée générale peut décider la mise en distribution de sommes prélevées sur les réserves dont elle a la disposition. En ce cas, la décision indique expressément les postes de réserve sur lesquels les prélèvements sont effectués. Toutefois, les dividendes sont prélevés par priorité sur le bénéfice distribuable de l'exercice.
Hors le cas de réduction du capital, aucune distribution ne peut être faite aux actionnaires lorsque les capitaux propres sont ou deviendraient à la suite de celle-ci inférieurs au montant du capital augmenté des réserves que la loi ou les statuts ne permettent pas de distribuer.
L'écart de réévaluation n'est pas distribuable. Il peut être incorporé en tout ou partie au capital.
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Article L232-12
Après approbation des comptes annuels et constatation de l'existence de sommes distribuables, l'assemblée générale détermine la part attribuée aux associés sous forme de dividendes.
Toutefois, lorsqu'un bilan établi au cours ou à la fin de l'exercice et certifié par un commissaire aux comptes fait apparaître que la société, depuis la clôture de l'exercice précédent, après constitution des amortissements et provisions nécessaires, déduction faite s'il y a lieu des pertes antérieures ainsi que des sommes à porter en réserve en application de la loi ou des statuts et compte tenu du report bénéficiaire, a réalisé un bénéfice, il peut être distribué des acomptes sur dividendes avant l'approbation des comptes de l'exercice. Le montant de ces acomptes ne peut excéder le montant du bénéfice défini au présent alinéa. Ils sont répartis aux conditions et suivant les modalités fixées par décret en Conseil d'Etat.
Tout dividende distribué en violation des règles ci-dessus énoncées est un dividende fictif.
Article L232-13
Les modalités de mise en paiement des dividendes votés par l'assemblée générale sont fixées par elle ou, à défaut, par le conseil d'administration, le directoire ou les gérants, selon le cas.
Toutefois, la mise en paiement des dividendes doit avoir lieu dans un délai maximal de neuf mois après la clôture de l'exercice. La prolongation de ce délai peut être accordée par décision de justice.
Article L232-14
Une majoration de dividendes dans la limite de 10 % peut être attribuée par des statuts à tout actionnaire qui justifie, à la clôture de l'exercice, d'une inscription nominative depuis deux ans au moins et du maintien de celle-ci à la date de mise en paiement du dividende. Son taux est fixé par l'assemblée générale extraordinaire. Dans les sociétés dont les titres de capital sont admis aux négociations sur un marché réglementé, le nombre de titres éligibles à cette majoration de dividendes ne peut excéder, pour un même actionnaire, 0, 5 % du capital de la société. La même majoration peut être attribuée, dans les mêmes conditions en cas de distribution d'actions gratuites.
Cette majoration ne peut être attribuée avant la clôture du deuxième exercice suivant la modification des statuts.
Article L232-15
Il est interdit de stipuler un intérêt fixe ou intercalaire au profit des associés. Toute clause contraire est réputée non écrite.
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Les dispositions de l'alinéa précédent ne sont pas applicables, lorsque l'Etat a accordé aux actions la garantie d'un dividende minimal.
Article L232-16
Les statuts peuvent prévoir l'attribution, à titre de premier dividende, d'un intérêt calculé sur le montant libéré et non remboursé des actions. Sauf disposition contraire des statuts, les réserves ne sont pas prises en compte pour le calcul du premier dividende.
Article L232-17
La société ne peut exiger des actionnaires ou porteurs de parts aucune répétition de dividendes, sauf lorsque les deux conditions suivantes sont réunies :
1° Si la distribution a été effectuée en violation des dispositions des articles L. 232-11, L. 232-12 et L. 232-15 ;
2° Si la société établit que les bénéficiaires avaient connaissance du caractère irrégulier de cette distribution au moment de celle-ci ou ne pouvaient l'ignorer compte tenu des circonstances.
Article L232-18
Dans les sociétés par actions, les statuts peuvent prévoir que l'assemblée statuant sur les comptes de l'exercice a la faculté d'accorder à chaque actionnaire, pour tout ou partie du dividende mis en distribution ou des acomptes sur dividende, une option entre le paiement du dividende ou des acomptes sur dividende en numéraire ou en actions.
Lorsqu'il existe des catégories différentes d'actions, l'assemblée générale statuant sur les comptes de l'exercice a la faculté de décider que les actions souscrites seront de la même catégorie que les actions ayant donné droit au dividende ou aux acomptes sur dividende.
L'offre de paiement du dividende ou des acomptes sur dividende en actions doit être faite simultanément à tous les actionnaires.
Article L232-19
Le prix d'émission des actions émises dans les conditions prévues à l'article L. 232-18 ne peut être inférieur au nominal.
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Dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, le prix d'émission ne peut être inférieur à 90 % de la moyenne des cours cotés aux vingt séances de bourse précédant le jour de la décision de mise en distribution diminuée du montant net du dividende ou des acomptes sur dividende.
Dans les autres sociétés, le prix d'émission est fixé, au choix de la société, soit en divisant le montant de l'actif net calculé d'après le bilan le plus récent par le nombre de titres existants, soit à dire d'expert désigné en justice à la demande du conseil d'administration ou du directoire, selon le cas. L'application des règles de détermination du prix d'émission est vérifiée par le commissaire aux comptes qui présente un rapport spécial à l'assemblée générale visée à l'article L. 232-18.
Lorsque le montant des dividendes ou des acomptes sur dividende auquel il a droit ne correspond pas à un nombre entier d'actions, l'actionnaire peut recevoir le nombre d'actions immédiatement inférieur complété d'une soulte en espèces ou, si l'assemblée générale l'a demandé, le nombre d'actions immédiatement supérieur, en versant la différence en numéraire.
Article L232-20
La demande de paiement du dividende en actions, accompagnée, le cas échéant, du versement prévu au deuxième alinéa de l'article L. 232-19 doit intervenir dans un délai fixé par l'assemblée générale, sans qu'il puisse être supérieur à trois mois à compter de la date de ladite assemblée générale. L'augmentation de capital est réalisée du seul fait de cette demande, et, le cas échéant, de ce versement et ne donne pas lieu aux formalités prévues à l'article L. 225-142, au deuxième alinéa de l'article L. 225-144, et à l'article L. 225-146.
Toutefois, en cas d'augmentation du capital, le conseil d'administration ou le directoire, selon le cas, peut suspendre l'exercice du droit d'obtenir le paiement du dividende en actions pendant un délai qui ne peut excéder trois mois.
Lors de sa première réunion suivant l'expiration du délai fixé par l'assemblée générale en application du premier alinéa du présent article, le conseil d'administration ou, selon le cas, le directoire, constate le nombre des actions émises en application du présent article et apporte les modifications nécessaires aux clauses des statuts relatives au montant du capital social et au nombre des actions qui le représentent. Le président peut, sur délégation du conseil d'administration ou du directoire, procéder à ces opérations dans le mois qui suit l'expiration du délai fixé par l'assemblée générale.
Section 5 : De la publicité des comptes
Article L232-21
I. - Les sociétés en nom collectif dont tous les associés indéfiniment responsables sont des sociétés à responsabilité limitée ou des sociétés par actions sont tenues de déposer, en double exemplaire, au
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greffe du tribunal, pour être annexés au registre du commerce et des sociétés, dans le mois qui suit l'approbation des comptes annuels par l'assemblée ordinaire des associés :
1° Les comptes annuels, le rapport de gestion et, le cas échéant, les comptes consolidés, le rapport sur la gestion du groupe, les rapports des commissaires aux comptes sur les comptes annuels et les comptes consolidés, éventuellement complétés de leurs observations sur les modifications apportées par l'assemblée qui leur ont été soumis ;
2° La proposition d'affectation du résultat soumis à l'assemblée et la résolution d'affectation votée ou la décision d'affectation prise.
II. - En cas de refus d'approbation ou d'acceptation, une copie de la délibération de l'assemblée est déposée dans le même délai.
III. - Les obligations définies ci-dessus s'imposent également aux sociétés en nom collectif dont tous les associés indéfiniment responsables sont des sociétés en nom collectif ou en commandite simple dont tous les associés indéfiniment responsables sont des sociétés à responsabilité limitée ou par actions.
IV. - Pour l'application du présent article, sont assimilées aux sociétés à responsabilité limitée ou par actions les sociétés de droit étranger d'une forme juridique comparable.
Article L232-22
I. - Toute société à responsabilité limitée est tenue de déposer, en double exemplaire, au greffe du tribunal, pour être annexés au registre du commerce et des sociétés, dans le mois qui suit l'approbation des comptes annuels par l'assemblée ordinaire des associés ou par l'associé unique :
1° Les comptes annuels, le rapport de gestion et, le cas échéant, les comptes consolidés, le rapport sur la gestion du groupe, les rapports des commissaires aux comptes sur les comptes annuels et les comptes consolidés, éventuellement complétés de leurs observations sur les modifications apportées par l'assemblée ou l'associé unique aux comptes annuels qui leur ont été soumis ;
2° La proposition d'affectation du résultat soumise à l'assemblée ou à l'associé unique et la résolution d'affectation votée ou la décision d'affectation prise.
Lorsque l'associé unique, personne physique, assume personnellement la gérance de la société, il est fait exception à l'obligation de déposer le rapport de gestion, qui doit toutefois être tenu à la disposition de toute personne qui en fait la demande.
II. - En cas de refus d'approbation ou d'acceptation, une copie de la délibération de l'assemblée ou de la décision de l'associé unique est déposée dans le même délai.
Article L232-23
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I. - Toute société par actions est tenue de déposer, en double exemplaire, au greffe du tribunal, pour être annexés au registre du commerce et des sociétés, dans le mois qui suit l'approbation des comptes annuels par l'assemblée générale des actionnaires :
1° Les comptes annuels, le rapport de gestion, le rapport des commissaires aux comptes sur les comptes annuels, éventuellement complété de leurs observations sur les modifications apportées par l'assemblée aux comptes annuels qui ont été soumis à cette dernière ainsi que, le cas échéant, les comptes consolidés, le rapport sur la gestion du groupe, le rapport des commissaires aux comptes sur les comptes consolidés et le rapport du conseil de surveillance ;
2° La proposition d'affectation du résultat soumise à l'assemblée et la résolution d'affectation votée.
Lorsque l'associé unique, personne physique, d'une société par actions simplifiée assume personnellement la présidence de la société, il est fait exception à l'obligation de déposer le rapport de gestion qui doit toutefois être tenu à la disposition de toute personne qui en fait la demande.
II. - En cas de refus d'approbation des comptes annuels, une copie de la délibération de l'assemblée est déposée dans le même délai.
Chapitre III : Des filiales, des participations et des sociétés contrôlées
Section 1 : Définitions
Article L233-1
Lorsqu'une société possède plus de la moitié du capital d'une autre société, la seconde est considérée, pour l'application du présent chapitre, comme filiale de la première.
Article L233-2
Lorsqu'une société possède dans une autre société une fraction du capital comprise entre 10 et 50 %, la première est considérée, pour l'application du présent chapitre, comme ayant une participation dans la seconde.
Article L233-3
I. - Une société est considérée, pour l'application des sections 2 et 4 du présent chapitre, comme en
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contrôlant une autre :
1° Lorsqu'elle détient directement ou indirectement une fraction du capital lui conférant la majorité des droits de vote dans les assemblées générales de cette société ;
2° Lorsqu'elle dispose seule de la majorité des droits de vote dans cette société en vertu d'un accord conclu avec d'autres associés ou actionnaires et qui n'est pas contraire à l'intérêt de la société ;
3° Lorsqu'elle détermine en fait, par les droits de vote dont elle dispose, les décisions dans les assemblées générales de cette société ;
4° Lorsqu'elle est associée ou actionnaire de cette société et dispose du pouvoir de nommer ou de révoquer la majorité des membres des organes d'administration, de direction ou de surveillance de cette société.
II. - Elle est présumée exercer ce contrôle lorsqu'elle dispose directement ou indirectement, d'une fraction des droits de vote supérieure à 40 % et qu'aucun autre associé ou actionnaire ne détient directement ou indirectement une fraction supérieure à la sienne.
III. - Pour l'application des mêmes sections du présent chapitre, deux ou plusieurs personnes agissant de concert sont considérées comme en contrôlant conjointement une autre lorsqu'elles déterminent en fait les décisions prises en assemblée générale.
Article L233-4
Toute participation au capital même inférieure à 10 % détenue par une société contrôlée est considérée comme détenue indirectement par la société qui contrôle cette société.
Article L233-5
Le ministère public et l'Autorité des marchés financiers pour les sociétés dont les actions sont admises aux négociations sur un marché d'instruments financiers mentionné au II de l'article L. 233-7 sont habilités à agir en justice pour faire constater l'existence d'un contrôle sur une ou plusieurs sociétés.
Section 2 : Des notifications et des informations
Article L233-6
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Lorsqu'une société a pris, au cours d'un exercice, une participation dans une société ayant son siège social sur le territoire de la République française représentant plus du vingtième, du dixième, du cinquième, du tiers ou de la moitié du capital de cette société ou s'est assuré le contrôle d'une telle société, il en est fait mention dans le rapport présenté aux associés sur les opérations de l'exercice et, le cas échéant, dans le rapport des commissaires aux comptes.
Le conseil d'administration, le directoire ou le gérant d'une société rend compte dans son rapport de l'activité et des résultats de l'ensemble de la société, des filiales de la société et des sociétés qu'elle contrôle par branche d'activité. Lorsque cette société établit et publie des comptes consolidés, le rapport ci-dessus mentionné peut être inclus dans le rapport sur la gestion du groupe mentionné à l'article L. 233-26.
Article L233-7
I.-Lorsque les actions d'une société ayant son siège sur le territoire de la République sont admises aux négociations sur un marché réglementé d'un Etat partie à l'accord sur l'Espace économique européen ou sur un marché d'instruments financiers admettant aux négociations des actions pouvant être inscrites en compte chez un intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier, toute personne physique ou morale agissant seule ou de concert qui vient à posséder un nombre d'actions représentant plus du vingtième, du dixième, des trois vingtièmes, du cinquième, du quart, du tiers, de la moitié, des deux tiers, des dix-huit vingtièmes ou des dix-neuf vingtièmes du capital ou des droits de vote informe la société dans un délai fixé par décret en Conseil d'Etat, à compter du franchissement du seuil de participation, du nombre total d'actions ou de droits de vote qu'elle possède.
L'information mentionnée à l'alinéa précédent est également donnée dans les mêmes délais lorsque la participation en capital ou en droits de vote devient inférieure aux seuils mentionnés par cet alinéa.
La personne tenue à l'information prévue au premier alinéa précise en outre dans sa déclaration :
a) Le nombre de titres qu'elle possède donnant accès à terme aux actions à émettre et les droits de vote qui y seront attachés ;
b) Les actions déjà émises que cette personne peut acquérir, en vertu d'un accord ou d'un instrument financier mentionné à l' article L. 211-1 du code monétaire et financier , sans préjudice des dispositions du 4° du I de l'article L. 233-9 du présent code. Il en est de même pour les droits de vote que cette personne peut acquérir dans les mêmes conditions ;
c) Les actions déjà émises sur lesquelles porte tout accord ou instrument financier mentionné à l' article L. 211-1 du code monétaire et financier , réglé exclusivement en espèces et ayant pour cette personne un effet économique similaire à la possession desdites actions. Il en va de même pour les droits de vote sur lesquels porte dans les mêmes conditions tout accord ou instrument financier (1).
II.-La personne tenue à l'information mentionnée au I informe également l'Autorité des marchés financiers, dans un délai et selon des modalités fixés par son règlement général, à compter du franchissement du seuil de participation, lorsque les actions de la société sont admises aux négociations sur un marché réglementé ou sur un marché d'instruments financiers autre qu'un marché réglementé, à la demande de la personne qui gère ce marché d'instruments financiers. Dans ce dernier cas, l'information peut ne porter que sur une partie des seuils mentionnés au I, dans les
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conditions fixées par le règlement général de l'Autorité des marchés financiers. Cette information est portée à la connaissance du public dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
Le règlement général précise également les modalités de calcul des seuils de participation et les conditions dans lesquelles un accord ou instrument financier, mentionné au c du I, est considéré comme ayant un effet économique similaire à la possession d'actions.
III.-Les statuts de la société peuvent prévoir une obligation supplémentaire d'information portant sur la détention de fractions du capital ou des droits de vote inférieures à celle du vingtième mentionnée au I.L'obligation porte sur la détention de chacune de ces fractions, qui ne peuvent être inférieures à 0, 5 % du capital ou des droits de vote.
IV.-Les obligations d'information prévues aux I, II et III ne s'appliquent pas aux actions :
1° Acquises aux seules fins de la compensation, du règlement ou de la livraison d'instruments financiers, dans le cadre habituel du cycle de règlement à court terme défini par le règlement général de l'Autorité des marchés financiers ;
2° Détenues par les teneurs de comptes conservateurs dans le cadre de leur activité de tenue de compte et de conservation ;
3° Détenues par un prestataire de services d'investissement dans son portefeuille de négociation au sens de la directive 2006 / 49 / CE du Parlement et du Conseil du 14 juin 2006 sur l'adéquation des fonds propres des entreprises d'investissement et des établissements de crédit à condition que ces actions ne représentent pas une quotité du capital ou des droits de vote de l'émetteur de ces titres supérieure à un seuil fixé par le règlement général de l'Autorité des marchés financiers et que les droits de vote attachés à ces titres ne soient pas exercés ni autrement utilisés pour intervenir dans la gestion de l'émetteur ;
4° Remises aux membres du Système européen de banques centrales ou par ceux-ci dans l'exercice de leurs fonctions d'autorités monétaires, dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
V.-Les obligations d'information prévues aux I, II et III ne s'appliquent pas :
1° Au teneur de marché lors du franchissement du seuil du vingtième du capital ou des droits de vote dans le cadre de la tenue de marché, à condition qu'il n'intervienne pas dans la gestion de l'émetteur dans les conditions fixées par le règlement général de l'Autorité des marchés financiers ;
2° Lorsque la personne mentionnée au I est contrôlée, au sens de l'article L. 233-3, par une entité soumise à l'obligation prévue aux I à III pour les actions détenues par cette personne ou que cette entité est elle-même contrôlée, au sens de l'article L. 233-3, par une entité soumise à l'obligation prévue aux I à III pour ces mêmes actions.
VI.-En cas de non-respect de l'obligation d'information mentionnée au III, les statuts de la société peuvent prévoir que les dispositions des deux premiers alinéas de l'article L. 233-14 ne s'appliquent qu'à la demande, consignée dans le procès-verbal de l'assemblée générale, d'un ou plusieurs actionnaires détenant une fraction du capital ou des droits de vote de la société émettrice au moins égale à la plus petite fraction du capital dont la détention doit être déclarée. Cette fraction ne peut toutefois être supérieure à 5 %.
VII. # Lorsque les actions de la société sont admises aux négociations sur un marché réglementé, la personne tenue à l'information prévue au I est tenue de déclarer, à l'occasion des franchissements de seuil du dixième, des trois vingtièmes, du cinquième ou du quart du capital ou des droits de vote, les
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objectifs qu'elle a l'intention de poursuivre au cours des six mois à venir.
Cette déclaration précise les modes de financement de l'acquisition, si l'acquéreur agit seul ou de concert, s'il envisage d'arrêter ses achats ou de les poursuivre, d'acquérir ou non le contrôle de la société, la stratégie qu'il envisage vis-à-vis de l'émetteur et les opérations pour la mettre en œuvre ainsi que tout accord de cession temporaire ayant pour objet les actions et les droits de vote. Elle précise si l'acquéreur envisage de demander sa nomination ou celle d'une ou plusieurs personnes comme administrateur, membre du directoire ou du conseil de surveillance. Le règlement général de l'Autorité des marchés financiers précise le contenu de ces éléments en tenant compte, le cas échéant, du niveau de la participation et des caractéristiques de la personne qui procède à la déclaration.
Cette déclaration est adressée à la société dont les actions ont été acquises et doit parvenir à l'Autorité des marchés financiers dans des délais fixés par décret en Conseil d'Etat. Cette information est portée à la connaissance du public dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
En cas de changement d'intention dans le délai de six mois à compter du dépôt de cette déclaration, une nouvelle déclaration motivée doit être adressée à la société et à l'Autorité des marchés financiers sans délai et portée à la connaissance du public dans les mêmes conditions. Cette nouvelle déclaration fait courir à nouveau le délai de six mois mentionné au premier alinéa.
Article L233-7-1
Lorsque les actions de la société ont cessé d'être admises aux négociations sur un marché réglementé pour être admises aux négociations sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations, la personne tenue à l'information mentionnée au I de l'article L. 233-7 informe également l'Autorité des marchés financiers dans un délai et selon des modalités fixées par son règlement général, à compter du franchissement du seuil de participation, pendant une durée de trois ans à compter de la date à laquelle ces actions ont cessé d'être admises aux négociations sur un marché réglementé. Cette information est portée à la connaissance du public dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
L'alinéa précédent est applicable aux sociétés dont la capitalisation boursière est inférieure à un milliard d'euros.
Le VII de l'article L. 233-7 est également applicable à la personne mentionnée au premier alinéa du présent article.
Article L233-8
I.-Au plus tard dans les quinze jours qui suivent l'assemblée générale ordinaire, toute société par actions informe ses actionnaires du nombre total de droits de vote existant à cette date. Dans la mesure où, entre deux assemblées générales ordinaires, le nombre de droits de vote varie d'un pourcentage fixé par arrêté du ministre chargé de l'économie, par rapport au nombre déclaré antérieurement, la société, lorsqu'elle en a connaissance, informe ses actionnaires.
II.-Les sociétés mentionnées au I de l'article L. 233-7 dont des actions sont admises aux négociations sur un marché réglementé d'un Etat partie à l'accord sur l'Espace économique européen
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publient chaque mois le nombre total de droits de vote et le nombre d'actions composant le capital de la société s'ils ont varié par rapport à ceux publiés antérieurement, dans des conditions et selon des modalités fixées par le règlement général de l'Autorité des marchés financiers. Ces sociétés sont réputées remplir l'obligation prévue au I.
Article L233-9
I.-Sont assimilés aux actions ou aux droits de vote possédés par la personne tenue à l'information prévue au I de l'article L. 233-7 :
1° Les actions ou les droits de vote possédés par d'autres personnes pour le compte de cette personne ;
2° Les actions ou les droits de vote possédés par les sociétés que contrôle cette personne au sens de l'article L. 233-3 ;
3° Les actions ou les droits de vote possédés par un tiers avec qui cette personne agit de concert ;
4° Les actions déjà émises que cette personne, ou l'une des personnes mentionnées aux 1° à 3° est en droit d'acquérir à sa seule initiative, immédiatement ou à terme, en vertu d'un accord ou d'un instrument financier mentionné à l' article L. 211-1 du code monétaire et financier . Il en va de même pour les droits de vote que cette personne peut acquérir dans les mêmes conditions. Le règlement général de l'Autorité des marchés financiers précise les conditions d'application du présent alinéa ;
5° Les actions dont cette personne a l'usufruit ;
6° Les actions ou les droits de vote possédés par un tiers avec lequel cette personne a conclu un accord de cession temporaire portant sur ces actions ou droits de vote ;
7° Les actions déposées auprès de cette personne, à condition que celle-ci puisse exercer les droits de vote qui leur sont attachés comme elle l'entend en l'absence d'instructions spécifiques des actionnaires ;
8° Les droits de vote que cette personne peut exercer librement en vertu d'une procuration en l'absence d'instructions spécifiques des actionnaires concernés.
II.-Ne sont pas assimilées aux actions ou aux droits de vote possédés par la personne tenue à l'information prévue au I de l'article L. 233-7 :
1° Les actions détenues par les organismes de placement collectif en valeurs mobilières ou les SICAF gérés par une société de gestion de portefeuille contrôlée par cette personne au sens de l'article L. 233-3, dans les conditions fixées par le règlement général de l'Autorité des marchés financiers sauf exceptions prévues par ce même règlement ;
2° Les actions détenues dans un portefeuille géré par un prestataire de services d'investissement contrôlé par cette personne au sens de l'article L. 233-3, dans le cadre du service de gestion de portefeuille pour compte de tiers dans les conditions fixées par le règlement général de l'Autorité des marchés financiers, sauf exceptions prévues par ce même règlement ;
3° Les instruments financiers mentionnés au 4° du I détenus par un prestataire de services d'investissement dans son portefeuille de négociation au sens de la directive 2006 / 49 / CE du Parlement et du Conseil du 14 juin 2006 sur l'adéquation des fonds propres des entreprises
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d'investissement et des établissements de crédit à condition que ces instruments ne donnent pas accès à une quotité du capital ou des droits de vote de l'émetteur de ces titres supérieure à un seuil fixé par le règlement général de l'Autorité des marchés financiers.
Article L233-10
I. - Sont considérées comme agissant de concert les personnes qui ont conclu un accord en vue d'acquérir ou de céder des droits de vote ou en vue d'exercer les droits de vote, pour mettre en oeuvre une politique vis-à-vis de la société.
II. - Un tel accord est présumé exister :
1° Entre une société, le président de son conseil d'administration et ses directeurs généraux ou les membres de son directoire ou ses gérants ;
2° Entre une société et les sociétés qu'elle contrôle au sens de l'article L. 233-3 ;
3° Entre des sociétés contrôlées par la même ou les mêmes personnes ;
4° Entre les associés d'une société par actions simplifiée à l'égard des sociétés que celle-ci contrôle ;
5° Entre le fiduciaire et le bénéficiaire d'un contrat de fiducie, si ce bénéficiaire est le constituant.
III. - Les personnes agissant de concert sont tenues solidairement aux obligations qui leur sont faites par les lois et règlements.
Article L233-10-1
En cas d'offre publique d'acquisition, sont considérées comme agissant de concert les personnes qui ont conclu un accord avec l'auteur d'une offre publique visant à obtenir le contrôle de la société qui fait l'objet de l'offre. Sont également considérées comme agissant de concert les personnes qui ont conclu un accord avec la société qui fait l'objet de l'offre afin de faire échouer cette offre.
Article L233-11
Toute clause d'une convention prévoyant des conditions préférentielles de cession ou d'acquisition d'actions admises aux négociations sur un marché réglementé et portant sur au moins 0,5 % du capital ou des droits de vote de la société qui a émis ces actions doit être transmise dans un délai de cinq jours de bourse à compter de la signature de la convention ou de l'avenant introduisant la clause concernée, à la société et à l'Autorité des marchés financiers. A défaut de transmission, les effets de cette clause sont suspendus, et les parties déliées de leurs engagements, en période d'offre
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publique.
La société et l'Autorité des marchés financiers doivent également être informées de la date à laquelle la clause prend fin.
Les clauses des conventions conclues avant la date de publication de la loi n° 2001-420 du 15 mai 2001 relative aux nouvelles régulations économiques qui n'ont pas été transmises à l'Autorité des marchés financiers à cette date doivent lui être transmises, dans les mêmes conditions et avec les mêmes effets que ceux mentionnés au premier alinéa, dans un délai de six mois.
Les informations mentionnées aux alinéas précédents sont portées à la connaissance du public dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
Article L233-12
Lorsqu'une société est contrôlée directement ou indirectement par une société par actions, elle notifie à cette dernière et à chacune des sociétés participant à ce contrôle le montant des participations qu'elle détient directement ou indirectement dans leur capital respectif ainsi que les variations de ce montant.
Les notifications sont faites dans le délai d'un mois à compter soit du jour où la prise de contrôle a été connue de la société pour les titres qu'elle détenait avant cette date, soit du jour de l'opération pour les acquisitions ou aliénations ultérieures.
Article L233-13
En fonction des informations reçues en application des articles L. 233-7 et L. 233-12, le rapport présenté aux actionnaires sur les opérations de l'exercice mentionne l'identité des personnes physiques ou morales détenant directement ou indirectement plus du vingtième, du dixième, des trois vingtièmes, du cinquième, du quart, du tiers, de la moitié, des deux tiers, des dix-huit vingtièmes ou des dix-neuf vingtièmes du capital social ou des droits de vote aux assemblées générales. Il fait également apparaître les modifications intervenues au cours de l'exercice. Il indique le nom des sociétés contrôlées et la part du capital de la société qu'elles détiennent. Il en est fait mention, le cas échéant, dans le rapport des commissaires aux comptes.
Article L233-14
L'actionnaire qui n'aurait pas procédé régulièrement à la déclaration prévue aux I et II de l'article L. 233-7 ou au VII de cet article est privé des droits de vote attachés aux actions excédant la fraction qui n'a pas été régulièrement déclarée pour toute assemblée d'actionnaires qui se tiendrait jusqu'à l'expiration d'un délai de deux ans suivant la date de régularisation de la notification.
Dans les mêmes conditions, les droits de vote attachés à ces actions et qui n'ont pas été régulièrement déclarés ne peuvent être exercés ou délégués par l'actionnaire défaillant.
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Le tribunal de commerce dans le ressort duquel la société a son siège social peut, le ministère public entendu, sur demande du président de la société, d'un actionnaire ou de l'Autorité des marchés financiers, prononcer la suspension totale ou partielle, pour une durée ne pouvant excéder cinq ans, de ses droits de vote à l'encontre de tout actionnaire qui n'aurait pas procédé aux déclarations prévues à l'article L. 233-7 ou qui n'aurait pas respecté le contenu de la déclaration prévue au VII de cet article pendant la période de six mois suivant sa publication dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
Article L233-15
Le conseil d'administration, le directoire ou le gérant de toute société ayant des filiales ou des participations, annexe au bilan de la société un tableau, en vue de faire apparaître la situation des dites filiales et participations.
Section 3 : Des comptes consolidés
Article L233-16
I. - Les sociétés commerciales établissent et publient chaque année à la diligence du conseil d'administration, du directoire, du ou des gérants, selon le cas, des comptes consolidés ainsi qu'un rapport sur la gestion du groupe, dès lors qu'elles contrôlent de manière exclusive ou conjointe une ou plusieurs autres entreprises ou qu'elles exercent une influence notable sur celles-ci, dans les conditions ci-après définies.
II. - Le contrôle exclusif par une société résulte :
1° Soit de la détention directe ou indirecte de la majorité des droits de vote dans une autre entreprise ;
2° Soit de la désignation, pendant deux exercices successifs, de la majorité des membres des organes d'administration, de direction ou de surveillance d'une autre entreprise. La société consolidante est présumée avoir effectué cette désignation lorsqu'elle a disposé au cours de cette période, directement ou indirectement, d'une fraction supérieure à 40 % des droits de vote, et qu'aucun autre associé ou actionnaire ne détenait, directement ou indirectement, une fraction supérieure à la sienne ;
3° Soit du droit d'exercer une influence dominante sur une entreprise en vertu d'un contrat ou de clauses statutaires, lorsque le droit applicable le permet. (1)
III. - Le contrôle conjoint est le partage du contrôle d'une entreprise exploitée en commun par un nombre limité d'associés ou d'actionnaires, de sorte que les décisions résultent de leur accord.
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IV. - L'influence notable sur la gestion et la politique financière d'une entreprise est présumée lorsqu'une société dispose, directement ou indirectement, d'une fraction au moins égale au cinquième des droits de vote de cette entreprise.
Article L233-17
Par dérogation aux dispositions de l'article L. 233-16, les sociétés mentionnées audit article, à l'exception de celles qui émettent des valeurs mobilières admises aux négociations sur un marché réglementé ou des titres de créances négociables, sont exemptées, dans des conditions fixées par décret en Conseil d'Etat, de l'obligation d'établir et de publier des comptes consolidés et un rapport sur la gestion du groupe :
1° Lorsqu'elles sont elles-mêmes sous le contrôle d'une entreprise qui les inclut dans ses comptes consolidés et publiés. En ce cas, toutefois, l'exemption est subordonnée à la condition qu'un ou plusieurs actionnaires ou associés de l'entreprise contrôlée représentant au moins le dixième de son capital social ne s'y opposent pas ;
2° Ou lorsque l'ensemble constitué par une société et les entreprises qu'elle contrôle ne dépasse pas pendant deux exercices successifs sur la base des derniers comptes annuels arrêtés une taille déterminée par référence à deux des trois critères mentionnés à l'article L. 123-16.
Article L233-18
Les comptes des entreprises placées sous le contrôle exclusif de la société consolidante sont consolidés par intégration globale.
Les comptes des entreprises contrôlées conjointement avec d'autres actionnaires ou associés par la société consolidante sont consolidés par intégration proportionnelle.
Les comptes des entreprises sur lesquelles la société consolidante exerce une influence notable sont consolidés par mise en équivalence.
Article L233-19
I. - Sous réserve d'en justifier dans l'annexe établie par la société consolidante, une filiale ou une participation est laissée en dehors de la consolidation lorsque des restrictions sévères et durables remettent en cause substantiellement le contrôle ou l'influence exercée par la société consolidante sur la filiale ou la participation ou les possibilités de transfert de fonds par la filiale ou la participation.
II. - Sous la même réserve, une filiale ou une participation peut être laissée en dehors de la consolidation lorsque :
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1° Les actions ou parts de cette filiale ou participation ne sont détenues qu'en vue de leur cession ultérieure ;
2° La filiale ou la participation ne représente, seule ou avec d'autres, qu'un intérêt négligeable par rapport à l'objectif défini à l'article L. 233-21 ;
3° Les informations nécessaires à l'établissement des comptes consolidés ne peuvent être obtenues sans frais excessifs ou dans des délais compatibles avec ceux qui sont fixés en application des dispositions de l'article L. 233-27.
Article L233-20
Les comptes consolidés comprennent le bilan et le compte de résultat consolidés ainsi qu'une annexe : ils forment un tout indissociable.
A cet effet, les entreprises comprises dans la consolidation sont tenues de faire parvenir à la société consolidante les informations nécessaires à l'établissement des comptes consolidés.
Les comptes consolidés sont établis et publiés selon des modalités fixées par un règlement de l'Autorité des normes comptables. Ce règlement détermine notamment le classement des éléments du bilan et du compte de résultat ainsi que les mentions à inclure dans l'annexe.
Article L233-21
Les comptes consolidés doivent être réguliers et sincères et donner une image fidèle du patrimoine, de la situation financière ainsi que du résultat de l'ensemble constitué par les entreprises comprises dans la consolidation.
Il est fait application, le cas échéant, des dispositions prévues aux premier et deuxième alinéas de l'article L. 123-14.
Article L233-22
Sous réserve des dispositions de l'article L. 233-23, les comptes consolidés sont établis selon les principes comptables et les règles d'évaluation du présent code compte tenu des aménagements indispensables résultant des caractéristiques propres aux comptes consolidés par rapport aux comptes annuels.
Les éléments d'actif et de passif, les éléments de charge et de produit compris dans les comptes consolidés sont évalués selon des méthodes homogènes, sauf si les retraitements nécessaires sont de coût disproportionné et d'incidence négligeable sur le patrimoine, la situation financière et le
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résultat consolidés.
Article L233-23
Sous réserve d'en justifier dans l'annexe, la société consolidante peut faire usage, dans les conditions prévues à l'article L. 123-17, de règles d'évaluation fixées par règlement de l'Autorité des normes comptables, et destinées :
1° A tenir compte des variations de prix ou des valeurs de remplacement ;
2° A évaluer les biens fongibles en considérant que le premier bien sorti est le dernier bien rentré ;
3° A permettre la prise en compte de règles non conformes à celles fixées par les articles L. 123-18 à L. 123-21.
Article L233-24
Lorsqu'elles utilisent les normes comptables internationales adoptées par règlement de la Commission européenne, les sociétés commerciales qui établissent et publient des comptes consolidés au sens de l'article L. 233-16 sont dispensées de se conformer aux règles comptables prévues par les articles L. 233-18 à L. 233-23 pour l'établissement et la publication de leurs comptes consolidés.
Article L233-25
Sous réserve d'en justifier dans l'annexe, les comptes consolidés peuvent être établis à une date différente de celle des comptes annuels de la société consolidante.
Si la date de clôture de l'exercice d'une entreprise comprise dans la consolidation est antérieure de plus de trois mois à la date de clôture de l'exercice de consolidation, ceux-ci sont établis sur la base de comptes intérimaires contrôlés par un commissaire aux comptes ou, s'il n'en est point, par un professionnel chargé du contrôle des comptes.
Article L233-26
Le rapport sur la gestion du groupe expose la situation de l'ensemble constitué par les entreprises comprises dans la consolidation, son évolution prévisible, les événements importants survenus entre la date de clôture de l'exercice de consolidation et la date à laquelle les comptes consolidés sont établis ainsi que ses activités en matière de recherche et de développement. Ce rapport peut être inclus dans le rapport de gestion mentionné à l'article L. 232-1.
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Article L233-27
Un décret en Conseil d'Etat fixe les conditions dans lesquelles les comptes consolidés et le rapport sur la gestion du groupe sont mis à la disposition des commissaires aux comptes.
Article L233-28
Les personnes morales ayant la qualité de commerçant qui, sans y être tenues en raison de leur forme juridique ou de la taille de l'ensemble du groupe, publient des comptes consolidés, se conforment aux dispositions des articles L. 233-16 et L. 233-18 à L. 233-27. En ce cas, lorsque leurs comptes annuels sont certifiés dans les conditions prévues à l'article L. 823-9, leurs comptes consolidés le sont dans les conditions du deuxième alinéa de cet article.
Section 4 : Des participations réciproques
Article L233-29
Une société par actions ne peut posséder d'actions d'une autre société, si celle-ci détient une fraction de son capital supérieure à 10 %.
A défaut d'accord entre les sociétés intéressées pour régulariser la situation, celle qui détient la fraction la plus faible du capital de l'autre doit aliéner son investissement. Si les investissements réciproques sont de la même importance, chacune des sociétés doit réduire le sien, de telle sorte qu'il n'excède pas 10 % du capital de l'autre.
Lorsqu'une société est tenue d'aliéner les actions d'une autre société, l'aliénation est effectuée dans le délai fixé par décret en Conseil d'Etat. La société ne peut exercer les droits de vote attachés à ces actions.
Article L233-30
Si une société autre qu'une société par actions compte parmi ses associés une société par actions détenant une fraction de son capital supérieure à 10 %, elle ne peut détenir d'actions émises par cette dernière.
Si elle vient à en posséder, elle doit les aliéner dans le délai fixé par décret en Conseil d'Etat et elle ne peut, de leur chef, exercer le droit de vote.
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Si une société autre qu'une société par actions compte parmi ses associés une société par actions détenant une fraction de son capital égale ou inférieure à 10 %, elle ne peut détenir qu'une fraction égale ou inférieure à 10 % des actions émises par cette dernière.
Si elle vient à en posséder une fraction plus importante, elle doit aliéner l'excédent dans le délai fixé par décret en Conseil d'Etat et elle ne peut, du chef de cet excédent, exercer le droit de vote.
Article L233-31
Lorsque des actions ou des droits de vote d'une société sont possédés par une ou plusieurs sociétés dont elle détient directement ou indirectement le contrôle, les droits de vote attachés à ces actions ou ces droits de vote ne peuvent être exercés à l'assemblée générale de la société. Il n'en est pas tenu compte pour le calcul du quorum.
Section 5 : Des offres publiques d'acquisition
Article L233-32
I. - Pendant la période d'offre publique visant une société dont des actions sont admises aux négociations sur un marché réglementé, le conseil d'administration, le conseil de surveillance, à l'exception de leur pouvoir de nomination, le directoire, le directeur général ou l'un des directeurs généraux délégués de la société visée doivent obtenir l'approbation préalable de l'assemblée générale pour prendre toute mesure dont la mise en oeuvre est susceptible de faire échouer l'offre, hormis la recherche d'autres offres.
II. - Sans préjudice des autres mesures permises par la loi, l'assemblée générale extraordinaire de la société visée, statuant dans les conditions de quorum et de majorité prévues à l'article L. 225-98, peut décider l'émission de bons permettant de souscrire, à des conditions préférentielles, à des actions de ladite société, et leur attribution gratuite à tous les actionnaires de cette société ayant cette qualité avant l'expiration de la période d'offre publique.
L'assemblée générale peut déléguer cette compétence au conseil d'administration ou au directoire. Elle fixe le montant maximum de l'augmentation de capital pouvant résulter de l'exercice de ces bons ainsi que le nombre maximum de bons pouvant être émis.
La délégation peut également prévoir la fixation de conditions relatives à l'obligation ou à l'interdiction, pour le conseil d'administration ou le directoire, de procéder à l'émission et à l'attribution gratuite de ces bons, d'y surseoir ou d'y renoncer. La société visée porte à la connaissance du public, avant la clôture de l'offre, son intention d'émettre ces bons.
Les conditions d'exercice de ces bons, qui doivent être relatives aux termes de l'offre ou de toute
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offre concurrente éventuelle, ainsi que les autres caractéristiques de ces bons, dont le prix d'exercice ou les modalités de détermination de ce prix, sont fixées par l'assemblée générale ou, sur délégation de celle-ci, par le conseil d'administration ou le directoire. Ces bons deviennent caducs de plein droit dès que l'offre et toute offre concurrente éventuelle échouent, deviennent caduques ou sont retirées.
III. - Toute délégation d'une mesure dont la mise en oeuvre est susceptible de faire échouer l'offre, hormis la recherche d'autres offres, accordée par l'assemblée générale avant la période d'offres, est suspendue en période d'offre publique.
Toute décision du conseil d'administration, du conseil de surveillance, du directoire, du directeur général ou de l'un des directeurs généraux délégués, prise avant la période d'offre, qui n'est pas totalement ou partiellement mise en oeuvre, qui ne s'inscrit pas dans le cours normal des activités de la société et dont la mise en oeuvre est susceptible de faire échouer l'offre doit faire l'objet d'une approbation ou d'une confirmation par l'assemblée générale.
Article L233-33
Les dispositions de l'article L. 233-32 ne sont pas applicables lorsque la société fait l'objet d'une ou plusieurs offres publiques engagées par des entités, agissant seules ou de concert au sens de l'article L. 233-10, dont l'une au moins n'applique pas ces dispositions ou des mesures équivalentes ou qui sont respectivement contrôlées, au sens du II ou du III de l'article L. 233-16, par des entités dont l'une au moins n'applique pas ces dispositions ou des mesures équivalentes. Toutefois, les dispositions de l'article L. 233-32 s'appliquent si les seules entités qui n'appliquent pas les dispositions de cet article ou des mesures équivalentes ou qui sont contrôlées, au sens du II ou du III de l'article L. 233-16, par des entités qui n'appliquent pas ces dispositions ou des mesures équivalentes, agissent de concert, au sens de l'article L. 233-10, avec la société faisant l'objet de l'offre. Toute contestation portant sur l'équivalence des mesures fait l'objet d'une décision de l'Autorité des marchés financiers.
Dans le cas où le premier alinéa s'applique, toute mesure prise par le conseil d'administration, le conseil de surveillance, le directoire, le directeur général ou l'un des directeurs généraux délégués de la société visée doit avoir été expressément autorisée pour l'hypothèse d'une offre publique par l'assemblée générale dans les dix-huit mois précédant le jour du dépôt de l'offre. L'autorisation peut notamment porter sur l'émission par le conseil d'administration ou le directoire des bons visés au II de l'article L. 233-32 ; dans ce cas, l'assemblée générale extraordinaire des actionnaires statue dans les conditions de quorum et de majorité prévues à l'article L. 225-98.
Article L233-34
Sauf lorsqu'elles résultent d'une obligation législative, les clauses des statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé prévoyant des restrictions statutaires au transfert d'actions de la société sont inopposables à l'auteur d'une offre publique pour les titres qui lui seraient apportés dans le cadre de son offre.
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Article L233-35
Les statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé peuvent prévoir que les effets de toute clause d'une convention conclue après le 21 avril 2004 prévoyant des restrictions au transfert d'actions de la société sont inopposables à l'auteur de l'offre, en période d'offre publique.
Article L233-36
Les statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé peuvent prévoir que les effets de toute clause d'une convention conclue après le 21 avril 2004 prévoyant des restrictions à l'exercice des droits de vote attachés à des actions de la société sont suspendus en période d'offre publique visant la société lors des assemblées réunies aux fins d'adopter ou d'autoriser toute mesure susceptible de faire échouer l'offre.
Article L233-37
Les statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé peuvent prévoir que les effets des restrictions statutaires à l'exercice des droits de vote attachés à des actions de la société sont suspendus en période d'offre publique visant la société lors des assemblées réunies aux fins d'adopter ou d'autoriser toute mesure susceptible de faire échouer l'offre.
Article L233-38
Les statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé peuvent prévoir que les effets des restrictions statutaires à l'exercice des droits de vote attachés à des actions de la société ainsi que les effets de toute clause d'une convention conclue après le 21 avril 2004 prévoyant des restrictions à l'exercice des droits de vote attachés à des actions de la société sont suspendus lors de la première assemblée générale suivant la clôture de l'offre lorsque l'auteur de l'offre, agissant seul ou de concert, vient à détenir, à l'issue de celle-ci, une fraction du capital ou des droits de vote supérieure à une quotité fixée par le règlement général de l'Autorité des marchés financiers, sans pouvoir atteindre le seuil prévu par le dernier alinéa de l'article L. 225-125.
Article L233-39
Les statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé peuvent prévoir que les droits extraordinaires de nomination ou révocation des administrateurs,
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membres du conseil de surveillance, membres du directoire, directeurs généraux, directeurs généraux délégués, détenus par certains actionnaires sont suspendus lors de la première assemblée générale suivant la clôture de l'offre lorsque l'auteur de l'offre, agissant seul ou de concert, détient à l'issue de celle-ci une fraction du capital ou des droits de vote supérieure à une quotité fixée par le règlement général de l'Autorité des marchés financiers.
Article L233-40
Lorsqu'une société décide d'appliquer ou de mettre fin à l'application des dispositions prévues aux articles L. 233-35 à L. 233-39, elle en informe l'Autorité des marchés financiers, qui rend cette décision publique. Les conditions et modalités d'application du présent article sont fixées par le règlement général de l'Autorité des marchés financiers.
Chapitre IV : De la procédure d'alerte
Article L234-1
Lorsque le commissaire aux comptes d'une société anonyme relève, à l'occasion de l'exercice de sa mission, des faits de nature à compromettre la continuité de l'exploitation, il en informe le président du conseil d'administration ou du directoire dans des conditions fixées par décret en Conseil d'Etat.
A défaut de réponse sous quinze jours ou si celle-ci ne permet pas d'être assuré de la continuité de l'exploitation, le commissaire aux comptes invite, par un écrit dont copie est transmise au président du tribunal de commerce, le président du conseil d'administration ou le directoire à faire délibérer le conseil d'administration ou le conseil de surveillance sur les faits relevés. Le commissaire aux comptes est convoqué à cette séance. La délibération du conseil d'administration ou du conseil de surveillance est communiquée au président du tribunal de commerce et au comité d'entreprise ou, à défaut, aux délégués du personnel.
En cas d'inobservation de ces dispositions ou si le commissaire aux comptes constate qu'en dépit des décisions prises la continuité de l'exploitation demeure compromise, une assemblée générale est convoquée dans des conditions et délais fixés par décret en Conseil d'Etat. Le commissaire aux comptes établit un rapport spécial qui est présenté à cette assemblée. Ce rapport est communiqué au comité d'entreprise ou, à défaut, aux délégués du personnel.
Si, à l'issue de la réunion de l'assemblée générale, le commissaire aux comptes constate que les décisions prises ne permettent pas d'assurer la continuité de l'exploitation, il informe de ses démarches le président du tribunal de commerce et lui en communique les résultats.
Article L234-2
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Dans les autres sociétés que les sociétés anonymes, le commissaire aux comptes demande au dirigeant, dans des conditions fixées par décret en Conseil d'Etat, des explications sur les faits visés au premier alinéa de l'article L. 234-1. Le dirigeant est tenu de lui répondre sous quinze jours. La réponse est communiquée au comité d'entreprise ou, à défaut, aux délégués du personnel et, s'il en existe un, au conseil de surveillance. Le commissaire aux comptes en informe le président du tribunal de commerce.
En cas d'inobservation de ces dispositions ou s'il constate qu'en dépit des décisions prises la continuité de l'exploitation demeure compromise, le commissaire aux comptes établit un rapport spécial et invite, par un écrit dont la copie est envoyée au président du tribunal de commerce, le dirigeant à faire délibérer sur les faits relevés une assemblée générale convoquée dans des conditions et délais fixés par décret en Conseil d'Etat.
Si, à l'issue de la réunion de l'assemblée générale, le commissaire aux comptes constate que les décisions prises ne permettent pas d'assurer la continuité de l'exploitation, il informe de ses démarches le président du tribunal de commerce et lui en communique les résultats.
Article L234-3
Le comité d'entreprise ou, à défaut, les délégués du personnel exercent dans les sociétés commerciales les attributions prévues aux articles L. 422-4 et L. 432-5 du code du travail.
Le président du conseil d'administration, le directoire ou les gérants, selon le cas, communiquent aux commissaires aux comptes les demandes d'explication formées par le comité d'entreprise ou les délégués du personnel, les rapports adressés au conseil d'administration ou au conseil de surveillance, selon le cas, ainsi que les réponses faites par ces organes, en application des articles L. 422-4 et L. 432-5 du code du travail.
Article L234-4
Les dispositions du présent chapitre ne sont pas applicables lorsqu'une procédure de conciliation ou de sauvegarde a été engagée par les dirigeants conformément aux dispositions des titres Ier et II du livre VI.
Chapitre V : Des nullités
Article L235-1
La nullité d'une société ou d'un acte modifiant les statuts ne peut résulter que d'une disposition expresse du présent livre ou des lois qui régissent la nullité des contrats. En ce qui concerne les
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sociétés à responsabilité limitée et les sociétés par actions, la nullité de la société ne peut résulter ni d'un vice de consentement ni de l'incapacité, à moins que celle-ci n'atteigne tous les associés fondateurs. La nullité de la société ne peut non plus résulter des clauses prohibées par l'article 1844-1 du code civil.
La nullité d'actes ou délibérations autres que ceux prévus à l'alinéa précédent ne peut résulter que de la violation d'une disposition impérative du présent livre ou des lois qui régissent les contrats.
Article L235-2
Dans les sociétés en nom collectif et en commandite simple, l'accomplissement des formalités de publicité est requis à peine de nullité de la société, de l'acte ou de la délibération, selon les cas, sans que les associés et la société puissent se prévaloir, à l'égard des tiers, de cette cause de nullité. Toutefois, le tribunal a la faculté de ne pas prononcer la nullité encourue, si aucune fraude n'est constatée.
Article L235-2-1
Les délibérations prises en violation des dispositions régissant les droits de vote attachés aux actions peuvent être annulées.
Article L235-3
L'action en nullité est éteinte lorsque la cause de la nullité a cessé d'exister le jour où le tribunal statue sur le fond en première instance, sauf si cette nullité est fondée sur l'illicéité de l'objet social.
Article L235-4
Le tribunal de commerce, saisi d'une action en nullité, peut, même d'office, fixer un délai pour permettre de couvrir les nullités. Il ne peut prononcer la nullité moins de deux mois après la date de l'exploit introductif d'instance.
Si, pour couvrir une nullité, une assemblée doit être convoquée ou une consultation des associés effectuée, et s'il est justifié d'une convocation régulière de cette assemblée ou de l'envoi aux associés du texte des projets de décision accompagné des documents qui doivent leur être communiqués, le tribunal accorde par jugement le délai nécessaire pour que les associés puissent prendre une décision.
Article L235-5
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Si, à l'expiration du délai prévu à l'article L. 235-4, aucune décision n'a été prise, le tribunal statue à la demande de la partie la plus diligente.
Article L235-6
En cas de nullité d'une société ou d'actes et délibérations postérieurs à sa constitution, fondée sur un vice du consentement ou l'incapacité d'un associé, et lorsque la régularisation peut intervenir, toute personne y ayant intérêt peut mettre en demeure celui qui est susceptible de l'opérer, soit de régulariser, soit d'agir en nullité dans un délai de six mois à peine de forclusion. Cette mise en demeure est dénoncée à la société.
La société ou un associé peut soumettre au tribunal saisi dans le délai prévu à l'alinéa précédent, toute mesure susceptible de supprimer l'intérêt du demandeur, notamment par le rachat de ses droits sociaux. En ce cas, le tribunal peut, soit prononcer la nullité, soit rendre obligatoires les mesures proposées, si celles-ci ont été préalablement adoptées par la société aux conditions prévues pour les modifications statutaires. Le vote de l'associé dont le rachat des droits est demandé est sans influence sur la décision de la société.
En cas de contestation, la valeur des droits sociaux à rembourser à l'associé est déterminée conformément aux dispositions de l'article 1843-4 du code civil. Toute clause contraire est réputée non écrite.
Article L235-7
Lorsque la nullité d'actes et délibérations postérieurs à la constitution de la société est fondée sur la violation des règles de publicité, toute personne ayant intérêt à la régularisation de l'acte peut mettre la société en demeure d'y procéder, dans le délai fixé par décret en Conseil d'Etat. A défaut de régularisation dans ce délai, tout intéressé peut demander la désignation, par décision de justice, d'un mandataire chargé d'accomplir la formalité.
Article L235-8
La nullité d'une opération de fusion ou de scission ne peut résulter que de la nullité de la délibération de l'une des assemblées qui ont décidé l'opération ou du défaut de dépôt de la déclaration de conformité mentionnée au troisième alinéa de l'article L. 236-6.
Lorsqu'il est possible de porter remède à l'irrégularité susceptible d'entraîner la nullité, le tribunal saisi de l'action en nullité d'une fusion ou d'une scission accorde aux sociétés intéressées un délai pour régulariser la situation.
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Article L235-9
Les actions en nullité de la société ou d'actes et délibérations postérieurs à sa constitution se prescrivent par trois ans à compter du jour où la nullité est encourue, sous réserve de la forclusion prévue à l'article L. 235-6.
Toutefois, l'action en nullité d'une fusion ou d'une scission de sociétés se prescrit par six mois à compter de la date de la dernière inscription au registre du commerce et des sociétés rendue nécessaire par l'opération.
L'action en nullité fondée sur l'article L. 225-149-3 se prescrit par trois mois à compter de la date de l'assemblée générale suivant la décision d'augmentation de capital.
Article L235-10
Lorsque la nullité de la société est prononcée, il est procédé à sa liquidation conformément aux dispositions des statuts et du chapitre VII du présent titre.
Article L235-11
Lorsqu'une décision judiciaire prononçant la nullité d'une fusion ou d'une scission est devenue définitive, cette décision fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Elle est sans effet sur les obligations nées à la charge ou au profit des sociétés auxquelles le ou les patrimoines sont transmis entre la date à laquelle prend effet la fusion ou la scission et celle de la publication de la décision prononçant la nullité.
Dans le cas de la fusion, les sociétés ayant participé à l'opération sont solidairement responsables de l'exécution des obligations mentionnées à l'alinéa précédent à la charge de la société absorbante. Il en est de même, dans le cas de scission, de la société scindée pour les obligations des sociétés auxquelles le patrimoine est transmis. Chacune des sociétés auxquelles le patrimoine est transmis répond des obligations à sa charge nées entre la date de prise d'effet de la scission et celle de la publication de la décision prononçant la nullité.
Article L235-12
Ni la société ni les associés ne peuvent se prévaloir d'une nullité à l'égard des tiers de bonne foi. Cependant, la nullité résultant de l'incapacité ou d'un vice du consentement est opposable même aux tiers, par l'incapable et ses représentants légaux, ou par l'associé dont le consentement a été surpris
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par erreur, dol ou violence.
Article L235-13
L'action en responsabilité fondée sur l'annulation de la société ou des actes et délibérations postérieurs à sa constitution se prescrit par trois ans à compter du jour où la décision d'annulation est passée en force de chose jugée.
La disparition de la cause de nullité ne met pas obstacle à l'exercice de l'action en dommages intérêts tendant à la réparation du préjudice causé par le vice dont la société, l'acte ou la délibération était entaché. Cette action se prescrit par trois ans à compter du jour où la nullité a été couverte.
Article L235-14
Le fait pour le président des organes de direction et d'administration ou le président de séance de ces organes de ne pas constater les délibérations de ces organes par des procès-verbaux est sanctionné par la nullité des délibérations desdits organes.
L'action est ouverte à tout administrateur, membre du directoire ou membre du conseil de surveillance.
Cette action en nullité peut être exercée jusqu'à l'approbation du procès-verbal de la deuxième réunion du conseil d'administration, du directoire ou du conseil de surveillance qui suit celle dont les délibérations sont susceptibles d'être annulées.
Elle est soumise aux articles L. 235-4 et L. 235-5.
Chapitre VI : De la fusion et de la scission
Section 1 : Dispositions générales
Article L236-1
Une ou plusieurs sociétés peuvent, par voie de fusion, transmettre leur patrimoine à une société existante ou à une nouvelle société qu'elles constituent.
Une société peut aussi, par voie de scission, transmettre son patrimoine à plusieurs sociétés existantes ou à plusieurs sociétés nouvelles.
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Ces possibilités sont ouvertes aux sociétés en liquidation à condition que la répartition de leurs actifs entre les associés n'ait pas fait l'objet d'un début d'exécution.
Les associés des sociétés qui transmettent leur patrimoine dans le cadre des opérations mentionnées aux trois alinéas précédents reçoivent des parts ou des actions de la ou des sociétés bénéficiaires et, éventuellement, une soulte en espèces dont le montant ne peut dépasser 10 % de la valeur nominale des parts ou des actions attribuées.
Article L236-2
Les opérations visées à l'article L. 236-1 peuvent être réalisées entre des sociétés de forme différente.
Elles sont décidées, par chacune des sociétés intéressées, dans les conditions requises pour la modification de ses statuts.
Si l'opération comporte la création de sociétés nouvelles, chacune de celles-ci est constituée selon les règles propres à la forme de société adoptée.
Lorsque les opérations comportent la participation de sociétés anonymes et de sociétés à responsabilité limitée, les dispositions des articles L. 236-10, L. 236-11, L. 236-13, L. 236-14, L. 236-15, L. 236-18, L. 236-19, L. 236-20 et L. 236-21 sont applicables.
Article L236-3
I. - La fusion ou la scission entraîne la dissolution sans liquidation des sociétés qui disparaissent et la transmission universelle de leur patrimoine aux sociétés bénéficiaires, dans l'état où il se trouve à la date de réalisation définitive de l'opération. Elle entraîne simultanément l'acquisition, par les associés des sociétés qui disparaissent, de la qualité d'associés des sociétés bénéficiaires, dans les conditions déterminées par le contrat de fusion ou de scission.
II. - Toutefois, il n'est pas procédé à l'échange de parts ou d'actions de la société bénéficiaire contre des parts ou actions des sociétés qui disparaissent lorsque ces parts ou actions sont détenues :
1° Soit par la société bénéficiaire ou par une personne agissant en son propre nom mais pour le compte de cette société ;
2° Soit par la société qui disparaît ou par une personne agissant en son propre nom mais pour le compte de cette société.
Article L236-4
La fusion ou la scission prend effet :
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1° En cas de création d'une ou plusieurs sociétés nouvelles, à la date d'immatriculation, au registre du commerce et des sociétés, de la nouvelle société ou de la dernière d'entre elles ;
2° Dans les autres cas, à la date de la dernière assemblée générale ayant approuvé l'opération sauf si le contrat prévoit que l'opération prend effet à une autre date, laquelle ne doit être ni postérieure à la date de clôture de l'exercice en cours de la ou des sociétés bénéficiaires ni antérieure à la date de clôture du dernier exercice clos de la ou des sociétés qui transmettent leur patrimoine.
Article L236-5
Par dérogation aux dispositions du deuxième alinéa de l'article L. 236-2, si l'opération projetée a pour effet d'augmenter les engagements d'associés ou d'actionnaires de l'une ou de plusieurs sociétés en cause, elle ne peut être décidée qu'à l'unanimité desdits associés ou actionnaires.
Article L236-6
Toutes les sociétés qui participent à l'une des opérations mentionnées à l'article L. 236-1 établissent un projet de fusion ou de scission.
Ce projet est déposé au greffe du tribunal de commerce du siège desdites sociétés et fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
A peine de nullité, les sociétés participant à l'une des opérations mentionnées au premier et au deuxième alinéa de l'article L. 236-1 sont tenues de déposer au greffe une déclaration dans laquelle elles relatent tous les actes effectués en vue d'y procéder et par laquelle elles affirment que l'opération a été réalisée en conformité des lois et règlements. Le greffier, sous sa responsabilité, s'assure de la conformité de la déclaration aux dispositions du présent article.
Article L236-7
Les dispositions du présent chapitre relatives aux obligataires sont applicables aux titulaires de titres participatifs.
Section 2 : Dispositions particulières aux sociétés anonymes
Article L236-8
Les opérations visées à l'article L. 236-1 et réalisées uniquement entre sociétés anonymes sont
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soumises aux dispositions de la présente section.
Article L236-9
La fusion est décidée par l'assemblée générale extraordinaire de chacune des sociétés qui participent à l'opération.
La fusion est soumise, le cas échéant, dans chacune des sociétés qui participent à l'opération, à la ratification des assemblées spéciales d'actionnaires mentionnées aux articles L. 225-99 et L. 228-15.
Le projet de fusion est soumis aux assemblées spéciales des porteurs de certificats d'investissement statuant selon les règles de l'assemblée générale des actionnaires, à moins que la société absorbante n'acquière ces titres sur simple demande de leur part, dans les conditions de publicité dont les modalités sont fixées par décret en Conseil d'Etat, et que cette acquisition ait été acceptée par leur assemblée spéciale. Tout porteur de certificats d'investissement qui n'a pas cédé ses titres dans le délai fixé par décret en Conseil d'Etat le demeure dans la société absorbante aux conditions fixées par le contrat de fusion, sous réserve des dispositions du dernier alinéa de l'article L. 228-30.
Le conseil d'administration ou le directoire de chacune des sociétés participant à l'opération établit un rapport écrit qui est mis à la disposition des actionnaires.
Article L236-10
I.-Sauf si les actionnaires des sociétés participant à l'opération de fusion en décident autrement dans les conditions prévues au II du présent article, un ou plusieurs commissaires à la fusion, désignés par décision de justice et soumis à l'égard des sociétés participantes aux incompatibilités prévues à l'article L. 822-11, établissent sous leur responsabilité un rapport écrit sur les modalités de la fusion.
Les commissaires à la fusion vérifient que les valeurs relatives attribuées aux actions des sociétés participant à l'opération sont pertinentes et que le rapport d'échange est équitable. Ils peuvent obtenir à cette fin, auprès de chaque société, communication de tous documents utiles et procéder à toutes vérifications nécessaires.
Le ou les rapports des commissaires à la fusion sont mis à la disposition des actionnaires. Ils indiquent :
1° La ou les méthodes suivies pour la détermination du rapport d'échange proposé ;
2° Le caractère adéquat de cette ou ces méthodes en l'espèce ainsi que les valeurs auxquelles chacune de ces méthodes conduit, un avis étant donné sur l'importance relative donnée à ces méthodes dans la détermination de la valeur retenue ;
3° Les difficultés particulières d'évaluation s'il en existe.
II.-La décision de ne pas faire désigner un commissaire à la fusion est prise, à l'unanimité, par les actionnaires de toutes les sociétés participant à l'opération.A cette fin, les actionnaires sont
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consultés avant que ne commence à courir le délai exigé pour la remise de ce rapport préalablement à l'assemblée générale appelée à se prononcer sur le projet de fusion.
III.-Lorsque l'opération de fusion comporte des apports en nature ou des avantages particuliers, le commissaire à la fusion ou, s'il n'en a pas été désigné en application du II, un commissaire aux apports désigné dans les conditions prévues à l'article L. 225-8 établit le rapport prévu à l'article L. 225-147.
Article L236-11
Lorsque, depuis le dépôt au greffe du tribunal de commerce du projet de fusion et jusqu'à la réalisation de l'opération, la société absorbante détient en permanence la totalité des actions représentant la totalité du capital des sociétés absorbées, il n'y a lieu ni à approbation de la fusion par l'assemblée générale extraordinaire des sociétés absorbées ni à l'établissement des rapports mentionnés au dernier alinéa de l'article L. 236-9, et à l'article L. 236-10.
Article L236-12
Lorsque la fusion est réalisée par voie de création d'une société nouvelle, celle-ci peut être constituée sans autres apports que ceux des sociétés qui fusionnent.
Dans tous les cas, le projet de statuts de la société nouvelle est approuvé par l'assemblée générale extraordinaire de chacune des sociétés qui disparaissent. Il n'y a pas lieu à approbation de l'opération par l'assemblée générale de la société nouvelle.
Article L236-13
Le projet de fusion est soumis aux assemblées d'obligataires des sociétés absorbées, à moins que le remboursement des titres sur simple demande de leur part ne soit offert auxdits obligataires. L'offre de remboursement est soumise à publicité, dont les modalités sont fixées par décret en Conseil d'Etat.
Lorsqu'il y a lieu à remboursement sur simple demande, la société absorbante devient débitrice des obligataires de la société absorbée.
Tout obligataire qui n'a pas demandé le remboursement dans le délai fixé par décret en Conseil d'Etat conserve sa qualité dans la société absorbante aux conditions fixées par le contrat de fusion.
Article L236-14
La société absorbante est débitrice des créanciers non obligataires de la société absorbée au lieu et place de celle-ci, sans que cette substitution emporte novation à leur égard.
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Les créanciers non obligataires des sociétés participant à l'opération de fusion et dont la créance est antérieure à la publicité donnée au projet de fusion peuvent former opposition à celui-ci dans le délai fixé par décret en Conseil d'Etat. Une décision de justice rejette l'opposition ou ordonne, soit le remboursement des créances, soit la constitution de garanties si la société absorbante en offre et si elles sont jugées suffisantes.
A défaut de remboursement des créances ou de constitution des garanties ordonnées, la fusion est inopposable à ce créancier.
L'opposition formée par un créancier n'a pas pour effet d'interdire la poursuite des opérations de fusion.
Les dispositions du présent article ne mettent pas obstacle à l'application des conventions autorisant le créancier à exiger le remboursement immédiat de sa créance en cas de fusion de la société débitrice avec une autre société.
Article L236-15
Le projet de fusion n'est pas soumis aux assemblées d'obligataires de la société absorbante. Toutefois, l'assemblée générale des obligataires peut donner mandat aux représentants de la masse de former opposition à la fusion dans les conditions et sous les effets prévus aux alinéas deuxième et suivants de l'article L. 236-14.
Article L236-16
Les articles L. 236-9 et L. 236-10 sont applicables à la scission.
Article L236-17
Lorsque la scission doit être réalisée par apports à des sociétés anonymes nouvelles, chacune des sociétés nouvelles peut être constituée sans autre apport que celui de la société scindée.
En ce cas, et si les actions de chacune des sociétés nouvelles sont attribuées aux actionnaires de la société scindée proportionnellement à leurs droits dans le capital de cette société, il n'y a pas lieu à l'établissement du rapport mentionné à l'article L. 236-10.
Dans tous les cas, les projets de statuts des sociétés nouvelles sont approuvés par l'assemblée générale extraordinaire de la société scindée. Il n'y a pas lieu à approbation de l'opération par l'assemblée générale de chacune des sociétés nouvelles.
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Article L236-18
Le projet de scission est soumis aux assemblées d'obligataires de la société scindée, conformément aux dispositions du 3° du I de l'article L. 228-65, à moins que le remboursement des titres sur simple demande de leur part ne soit offert auxdits obligataires. L'offre de remboursement est soumise à publicité, dont les modalités sont fixées par décret en Conseil d'Etat.
Lorsqu'il y a lieu à remboursement sur simple demande, les sociétés bénéficiaires des apports résultant de la scission sont débitrices solidaires des obligataires qui demandent le remboursement.
Article L236-19
Le projet de scission n'est pas soumis aux assemblées d'obligataires des sociétés auxquelles le patrimoine est transmis. Toutefois, l'assemblée ordinaire des obligataires peut donner mandat aux représentants de la masse de former opposition à la scission, dans les conditions et sous les effets prévus aux alinéas deuxième et suivants de l'article L. 236-14.
Article L236-20
Les sociétés bénéficiaires des apports résultant de la scission sont débitrices solidaires des obligataires et des créanciers non obligataires de la société scindée, au lieu et place de celle-ci sans que cette substitution emporte novation à leur égard.
Article L236-21
Par dérogation aux dispositions de l'article L. 236-20, il peut être stipulé que les sociétés bénéficiaires de la scission ne seront tenues que de la partie du passif de la société scindée mise à la charge respective et sans solidarité entre elles.
En ce cas, les créanciers non obligataires des sociétés participantes peuvent former opposition à la scission dans les conditions et sous les effets prévus aux alinéas deuxième et suivants de l'article L. 236-14.
Article L236-22
La société qui apporte une partie de son actif à une autre société et la société qui bénéficie de cet apport peuvent décider d'un commun accord de soumettre l'opération aux dispositions des articles L. 236-16 à L. 236-21.
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Section 3 : Dispositions particulières aux sociétés à responsabilité limitée
Article L236-23
Les dispositions des articles L. 236-10, L. 236-11, L. 236-13, L. 236-14, L. 236-15, L. 236-18, L. 236-19, L. 236-20 et L. 236-21 sont applicables aux fusions ou aux scissions des sociétés à responsabilité limitée au profit de sociétés de même forme.
Lorsque la fusion est réalisée par apports à une société à responsabilité limitée nouvelle, celle-ci peut être constituée sans autres apports que ceux des sociétés qui fusionnent.
Lorsque la scission est réalisée par apports à des sociétés à responsabilité limitée nouvelles, celles-ci peuvent être constituées sans autre apport que celui de la société scindée. En ce cas, et si les parts de chacune des sociétés nouvelles sont attribuées aux associés de la société scindée proportionnellement à leurs droits dans le capital de cette société, il n'y a pas lieu à l'établissement du rapport mentionné à l'article L. 236-10.
Dans les cas prévus aux deux alinéas précédents, les associés des sociétés qui disparaissent peuvent agir de plein droit en qualité de fondateurs des sociétés nouvelles et il est procédé conformément aux dispositions régissant les sociétés à responsabilité limitée.
Article L236-24
La société qui apporte une partie de son actif à une autre société et la société qui bénéficie de cet apport peuvent décider d'un commun accord de soumettre l'opération aux dispositions applicables en cas de scission par apports à des sociétés à responsabilité limitée existantes.
Section 4 : Dispositions particulières aux fusions transfrontalières
Article L236-25
Les sociétés anonymes, les sociétés en commandite par actions, les sociétés européennes immatriculées en France, les sociétés à responsabilité limitée et les sociétés par actions simplifiées peuvent participer, avec une ou plusieurs sociétés ressortissant du champ d'application du paragraphe 1 de l'article 2 de la directive 2005 / 56 / CE du Parlement européen et du Conseil, du 26 octobre 2005, sur les fusions transfrontalières des sociétés de capitaux et immatriculées dans un ou plusieurs autres Etats membres de la Communauté européenne, à une opération de fusion dans les conditions prévues par les dispositions de la présente section ainsi que par celles non contraires des sections 1 à 3 du présent chapitre.
Article L236-26
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Par dérogation à l'article L. 236-1 et lorsque la législation d'au moins un des Etats membres de la Communauté européenne concernés par la fusion le permet, le traité de fusion peut prévoir, pour les opérations mentionnées à l'article L. 236-25, le versement en espèces d'une soulte supérieure à 10 % de la valeur nominale ou, à défaut, du pair comptable, des titres, parts ou actions attribués.
Le pair comptable est défini comme la quote-part du capital social représentée par une action ou une part sociale.
Article L236-27
L'organe de gestion, d'administration ou de direction de chacune des sociétés participant à l'opération établit un rapport écrit qui est mis à la disposition des associés.
En complément du respect des obligations prévues à l'article L. 2323-19 du code du travail, le rapport mentionné au premier alinéa du présent article est mis à la disposition des délégués du personnel ou, à défaut, des salariés eux-mêmes, dans les conditions prévues par décret en Conseil d'Etat.
Sans préjudice du dernier alinéa de l'article L. 225-105, l'avis du comité d'entreprise consulté en application de l'article L. 2323-19 du code du travail ou, à défaut, l'avis des délégués du personnel est, s'il est transmis dans des délais prévus par décret en Conseil d'Etat, annexé au rapport mentionné au premier alinéa du présent article.
Article L236-28
Les associés qui décident la fusion peuvent subordonner la réalisation de celle-ci à leur approbation des modalités décidées pour la participation des salariés, au sens de l'article L. 2371-1 du code du travail, dans la société issue de la fusion transfrontalière.
Ils se prononcent, par une résolution spéciale, sur la possibilité de mise en œuvre de procédures d'analyse et de modification du rapport d'échange des titres ou d'indemnisation des associés minoritaires, lorsque cette possibilité est offerte aux associés de l'une des sociétés participant à la fusion par la législation qui lui est applicable. La décision prise en application de ces procédures lie la société issue de la fusion.
Article L236-29
Dans un délai fixé par décret en Conseil d'Etat, le greffier du tribunal dans le ressort duquel la société participant à l'opération est immatriculée délivre, après avoir procédé à la vérification prévue à l'article L. 236-6, une attestation de conformité des actes et des formalités préalables à la fusion.
Ce certificat précise si une procédure d'analyse et de modification du rapport d'échange des titres ou d'indemnisation des associés minoritaires est en cours.
Article L236-30
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Un notaire ou le greffier du tribunal dans le ressort duquel la société issue de la fusion sera immatriculée contrôle, dans un délai fixé par décret en Conseil d'Etat, la légalité de la réalisation de la fusion et de la constitution de la société nouvelle issue de la fusion.
Il contrôle en particulier que les sociétés qui fusionnent ont approuvé un projet de fusion dans les mêmes termes et que les modalités relatives à la participation des salariés ont été fixées conformément au titre VII du livre III de la deuxième partie du code du travail.
Article L236-31
La fusion transfrontalière prend effet :
1° En cas de création d'une société nouvelle, conformément à l'article L. 236-4 ;
2° En cas de transmission à une société existante, selon les prévisions du contrat, sans toutefois pouvoir être antérieure au contrôle de légalité, ni postérieure à la date de clôture de l'exercice en cours de la société bénéficiaire pendant lequel a été réalisé ce contrôle.
La nullité d'une fusion transfrontalière ne peut pas être prononcée après la prise d'effet de l'opération.
Article L236-32
Lorsque l'une des sociétés participant à l'opération mentionnée à l'article L. 236-25 est soumise à un régime de participation des salariés, et que tel est également le cas de la société issue de la fusion, cette dernière adopte une forme juridique permettant l'exercice de cette participation.
Chapitre VII : De la liquidation
Section 1 : Dispositions générales
Article L237-1
Sous réserve des dispositions du présent chapitre, la liquidation des sociétés est régie par les dispositions contenues dans les statuts.
Article L237-2
La société est en liquidation dès l'instant de sa dissolution pour quelque cause que ce soit sauf dans
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le cas prévu au troisième alinéa de l'article 1844-5 du code civil. Sa dénomination sociale est suivie de la mention " société en liquidation ".
La personnalité morale de la société subsiste pour les besoins de la liquidation, jusqu'à la clôture de celle-ci.
La dissolution d'une société ne produit ses effets à l'égard des tiers qu'à compter de la date à laquelle elle est publiée au registre du commerce et des sociétés.
Article L237-3
L'acte de nomination du liquidateur est publié par celui-ci, dans les conditions et délais fixés par décret en Conseil d'Etat, qui détermine également les documents à déposer en annexe au registre du commerce et des sociétés.
Article L237-4
Ne peuvent être nommées liquidateurs les personnes auxquelles l'exercice des fonctions de directeur général, d'administrateur, de gérant de société, de membre du directoire ou du conseil de surveillance est interdit ou qui sont déchues du droit d'exercer ces fonctions.
Article L237-5
La dissolution de la société n'entraîne pas de plein droit la résiliation des baux des immeubles utilisés pour son activité sociale, y compris des locaux d'habitation dépendant de ces immeubles.
Si, en cas de cession du bail, l'obligation de garantie ne peut plus être assurée dans les termes de celui-ci, il peut y être substitué, par décision de justice, toute garantie offerte par le cessionnaire ou un tiers, et jugée suffisante.
Article L237-6
Sauf consentement unanime des associés, la cession de tout ou partie de l'actif de la société en liquidation à une personne ayant eu dans cette société la qualité d'associé en nom, de commandité, de gérant, d'administrateur, de directeur général, de membre du conseil de surveillance, de membre du directoire, de commissaire aux comptes ou de contrôleur, ne peut avoir lieu qu'avec l'autorisation du tribunal de commerce, le liquidateur et, s'il en existe, le commissaire aux comptes ou le contrôleur dûment entendus.
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Article L237-7
La cession de tout ou partie de l'actif de la société en liquidation au liquidateur ou à ses employés ou à leurs conjoint, ascendants ou descendants est interdite.
Article L237-8
La cession globale de l'actif de la société ou l'apport de l'actif à une autre société, notamment par voie de fusion, est autorisé :
1° Dans les sociétés en nom collectif, à l'unanimité des associés ;
2° Dans les sociétés en commandite simple, à l'unanimité des commandités et à la majorité en nombre et en capital des commanditaires ;
3° Dans les sociétés à responsabilité limitée, à la majorité exigée pour la modification des statuts ;
4° Dans les sociétés par actions, aux conditions de quorum et de majorité prévues pour les assemblées extraordinaires et, en outre, dans les sociétés en commandite par actions, avec l'accord unanime des commandités.
Article L237-9
Les associés, y compris les titulaires d'actions à dividende prioritaire sans droit de vote, sont convoqués en fin de liquidation pour statuer sur le compte définitif, sur le quitus de la gestion du liquidateur et la décharge de son mandat et pour constater la clôture de la liquidation.
A défaut, tout associé peut demander en justice la désignation d'un mandataire chargé de procéder à la convocation.
Article L237-10
Si l'assemblée de clôture prévue à l'article L. 237-9 ne peut délibérer ou si elle refuse d'approuver les comptes du liquidateur, il est statué, par décision de justice, à la demande de celui-ci ou de tout intéressé.
Article L237-11
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L'avis de clôture de la liquidation est publié selon les modalités fixées par décret en Conseil d'Etat.
Article L237-12
Le liquidateur est responsable, à l'égard tant de la société que des tiers, des conséquences dommageables des fautes par lui commises dans l'exercice de ses fonctions.
L'action en responsabilité contre les liquidateurs se prescrit dans les conditions prévues à l'article L. 225-254.
Article L237-13
Toutes actions contre les associés non liquidateurs ou leurs conjoint survivant, héritiers ou ayants cause, se prescrivent par cinq ans à compter de la publication de la dissolution de la société au registre du commerce et des sociétés.
Section 2 : Dispositions applicables sur décision judiciaire
Article L237-14
I. - A défaut de clauses statutaires ou de convention expresse entre les parties, la liquidation de la société dissoute est effectuée conformément aux dispositions de la présente section, sans préjudice de l'application de la première section du présent chapitre.
II. - En outre, il peut être ordonné par décision de justice que cette liquidation sera effectuée dans les mêmes conditions à la demande :
1° De la majorité des associés, dans les sociétés en nom collectif ;
2° D'associés représentant au moins 5 % du capital, dans les sociétés en commandite simple, les sociétés à responsabilité limitée et les sociétés par actions ;
3° Des créanciers sociaux.
III. - Dans ce cas, les dispositions des statuts contraires à celles du présent chapitre sont réputées non écrites.
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Article L237-15
Les pouvoirs du conseil d'administration, du directoire ou des gérants prennent fin à dater de la décision de justice prise en application de l'article L. 237-14 ou de la dissolution de la société si elle est postérieure.
Article L237-16
La dissolution de la société ne met pas fin aux fonctions du conseil de surveillance et des commissaires aux comptes.
Article L237-17
En l'absence de commissaires aux comptes, et même dans les sociétés qui ne sont pas tenues d'en désigner, un ou plusieurs contrôleurs peuvent être nommés par les associés dans les conditions prévues au I de l'article L. 237-27. A défaut, ils peuvent être désignés, par décision de justice, à la demande du liquidateur ou de tout intéressé.
L'acte de nomination des contrôleurs fixe leurs pouvoirs, obligations et rémunérations ainsi que la durée de leurs fonctions. Ils encourent la même responsabilité que les commissaires aux comptes.
Article L237-18
I. - Un ou plusieurs liquidateurs sont désignés par les associés, si la dissolution résulte du terme statutaire ou si elle est décidée par les associés.
II. - Le liquidateur est nommé :
1° Dans les sociétés en nom collectif, à l'unanimité des associés ;
2° Dans les sociétés en commandite simple, à l'unanimité des commandités et à la majorité en capital des commanditaires ;
3° Dans les sociétés à responsabilité limitée, à la majorité en capital des associés ;
4° Dans les sociétés anonymes, aux conditions de quorum et de majorité prévues pour les assemblées générales ordinaires ;
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5° Dans les sociétés en commandite par actions, aux conditions de quorum et de majorité prévues pour les assemblées générales ordinaires, cette majorité devant comprendre l'unanimité des commandités ;
6° Dans les sociétés par actions simplifiées, à l'unanimité des associés, sauf clause contraire.
Article L237-19
Si les associés n'ont pu nommer un liquidateur, celui-ci est désigné par décision de justice à la demande de tout intéressé, dans les conditions déterminées par décret en conseil d'Etat.
Article L237-20
Si la dissolution de la société est prononcée par décision de justice, cette décision désigne un ou plusieurs liquidateurs.
Article L237-21
La durée du mandat du liquidateur ne peut excéder trois ans. Toutefois, ce mandat peut être renouvelé par les associés ou le président du tribunal de commerce, selon que le liquidateur a été nommé par les associés ou par décision de justice.
Si l'assemblée des associés n'a pu être valablement réunie, le mandat est renouvelé par décision de justice, à la demande du liquidateur.
En demandant le renouvellement de son mandat, le liquidateur indique les raisons pour lesquelles la liquidation n'a pu être clôturée, les mesures qu'il envisage de prendre et les délais que nécessite l'achèvement de la liquidation.
Article L237-22
Le liquidateur est révoqué et remplacé selon les formes prévues pour sa nomination.
Article L237-23
Dans les six mois de sa nomination, le liquidateur convoque l'assemblée des associés à laquelle il
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fait rapport sur la situation active et passive de la société, sur la poursuite des opérations de liquidation et le délai nécessaire pour les terminer. Le délai dans lequel le liquidateur fait son rapport peut être porté à douze mois sur sa demande par décision de justice.
A défaut, il est procédé à la convocation de l'assemblée soit par l'organe de contrôle, s'il en existe un, soit par un mandataire désigné, par décision de justice, à la demande de tout intéressé.
Si la réunion de l'assemblée est impossible ou si aucune décision n'a pu être prise, le liquidateur demande en justice les autorisations nécessaires pour aboutir à la liquidation.
Article L237-24
Le liquidateur représente la société. Il est investi des pouvoirs les plus étendus pour réaliser l'actif, même à l'amiable. Les restrictions à ces pouvoirs, résultant des statuts ou de l'acte de nomination, ne sont pas opposables aux tiers.
Il est habilité à payer les créanciers et répartir le solde disponible.
Il ne peut continuer les affaires en cours ou en engager de nouvelles pour les besoins de la liquidation que s'il y a été autorisé, soit par les associés, soit par décision de justice s'il a été nommé par la même voie.
Article L237-25
Le liquidateur, dans les trois mois de la clôture de chaque exercice, établit les comptes annuels au vu de l'inventaire qu'il a dressé des divers éléments de l'actif et du passif existant à cette date et un rapport écrit par lequel il rend compte des opérations de liquidation au cours de l'exercice écoulé.
Sauf dispense accordée par décision de justice, le liquidateur convoque selon les modalités prévues par les statuts, au moins une fois par an et dans les six mois de la clôture de l'exercice l'assemblée des associés qui statue sur les comptes annuels, donne les autorisations nécessaires et éventuellement renouvelle le mandat des contrôleurs, commissaires aux comptes ou membres du conseil de surveillance.
Si l'assemblée n'est pas réunie, le rapport prévu au premier alinéa ci-dessus est déposé au greffe du tribunal de commerce et communiqué à tout intéressé.
Article L237-26
En période de liquidation, les associés peuvent prendre communication des documents sociaux, dans les mêmes conditions qu'antérieurement.
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Article L237-27
I. - Les décisions prévues au deuxième alinéa de l'article L. 237-25 sont prises :
1° A la majorité des associés en capital, dans les sociétés en nom collectif, en commandite simple et à responsabilité limitée ;
2° Dans les conditions de quorum et de majorité des assemblées ordinaires, dans les sociétés par actions ;
3° Sauf clause contraire, à l'unanimité des associés, dans les sociétés par actions simplifiée.
II. - Si la majorité requise ne peut être réunie, il est statué, par décision de justice, à la demande du liquidateur ou de tout intéressé.
III. - Lorsque la délibération entraîne modification des statuts, elle est prise dans les conditions prescrites à cet effet, pour chaque forme de société.
IV. - Les associés liquidateurs peuvent prendre part au vote.
Article L237-28
En cas de continuation de l'exploitation sociale, le liquidateur est tenu de convoquer l'assemblée des associés, dans les conditions prévues à l'article L. 237-25. A défaut, tout intéressé peut demander la convocation, soit par les commissaires aux comptes, le conseil de surveillance ou l'organe de contrôle, soit par un mandataire désigné par décision de justice.
Article L237-29
Sauf clause contraire des statuts, le partage des capitaux propres subsistant après remboursement du nominal des actions ou des parts sociales est effectué entre les associés dans les mêmes proportions que leur participation au capital social.
Article L237-30
Le remboursement des actions à dividende prioritaire sans droit de vote doit s'effectuer avant celui des actions ordinaires.
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Il en est de même pour le dividende prioritaire qui n'a pas été intégralement versé.
Les actions à dividende prioritaire sans droit de vote ont, proportionnellement à leur montant nominal, les mêmes droits que les autres actions sur le boni de liquidation.
Toute clause contraire aux dispositions du présent article est réputée non écrite.
Article L237-31
Sous réserve des droits des créanciers, le liquidateur décide s'il convient de distribuer les fonds devenus disponibles en cours de liquidation.
Après mise en demeure infructueuse du liquidateur, tout intéressé peut demander en justice qu'il soit statué sur l'opportunité d'une répartition en cours de liquidation.
La décision de répartition des fonds est publiée selon les modalités fixées par décret en Conseil d'Etat.
Chapitre VIII : Des injonctions de faire
Article L238-1
Lorsque les personnes intéressées ne peuvent obtenir la production, la communication ou la transmission des documents visés aux 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 et L. 237-26, elles peuvent demander au président du tribunal statuant en référé soit d'enjoindre sous astreinte au liquidateur ou aux administrateurs, gérants, et dirigeants de les communiquer, soit de désigner un mandataire chargé de procéder à cette communication.
La même action est ouverte à toute personne intéressée ne pouvant obtenir du liquidateur, des administrateurs, gérants ou dirigeants communication d'une formule de procuration conforme aux prescriptions fixées par décret en Conseil d'Etat ou des renseignements exigés par ce décret en vue de la tenue des assemblées.
Lorsqu'il est fait droit à la demande, l'astreinte et les frais de procédure sont à la charge des administrateurs, des gérants, des dirigeants ou du liquidateur mis en cause.
Article L238-2
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Tout intéressé peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au liquidateur de remplir les obligations prévues aux articles L. 237-21 et L. 237-25.
Article L238-3
Le ministère public ainsi que tout intéressé peuvent demander au président du tribunal statuant en référé d'enjoindre sous astreinte au représentant légal d'une société à responsabilité limitée, d'une société anonyme, d'une société par actions simplifiée, d'une société européenne ou d'une société en commandite par actions de porter sur tous les actes et documents émanant de la société la dénomination sociale, précédée ou suivie immédiatement et lisiblement des mots "société à responsabilité limitée" ou des initiales "SARL", "société anonyme" ou des initiales "SA", "société par actions simplifiée" ou des initiales "SAS", "société européenne" ou des initiales "SE" ou "société en commandite par actions", et de l'énonciation du capital social.
Article L238-3-1
Tout intéressé peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte aux sociétés utilisant le sigle "SE" dans leur dénomination sociale en méconnaissance des dispositions de l'article 11 du règlement (CE) n° 2157/2001 du Conseil, du 8 octobre 2001, relatif au statut de la société européenne (SE), de modifier cette dénomination sociale.
Article L238-4
Tout intéressé peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au président des organes de direction et d'administration de transcrire les procès-verbaux de ces réunions sur un registre spécial tenu au siège social.
Article L238-5
Tout intéressé peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au président de l'assemblée générale des actionnaires ou des obligataires de transcrire les procès-verbaux de ces assemblées sur un registre spécial tenu au siège social.
Article L238-6
Si l'assemblée spéciale des actionnaires à dividende prioritaire n'est pas consultée dans les
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conditions prévues aux articles L. 228-35-6, L. 228-35-7 et L. 228-35-10, le président du tribunal statuant en référé peut, à la demande de tout actionnaire, enjoindre sous astreinte aux gérants ou au président du conseil d'administration ou du directoire de convoquer cette assemblée ou désigner un mandataire chargé de procéder à cette convocation.
La même action est ouverte à tout actionnaire ou tout titulaire de valeurs mobilières donnant accès au capital lorsque l'assemblée générale ou spéciale à laquelle il appartient n'est pas consultée dans les conditions prévues à l'article L. 225-99, au deuxième alinéa de l'article L. 225-129-6 et aux articles L. 228-16 ou L. 228-103.
Chapitre IX : De la location d'actions et de parts sociales
Article L239-1
Les statuts peuvent prévoir que les actions des sociétés par actions ou les parts sociales des sociétés à responsabilité limitée soumises à l'impôt sur les sociétés de plein droit ou sur option peuvent être données à bail, au sens des dispositions de l'article 1709 du code civil, au profit d'une personne physique.
La location d'actions ne peut porter que sur des titres nominatifs non négociables sur un marché réglementé, non inscrits aux opérations d'un dépositaire central et non soumis à l'obligation de conservation prévue à l'article L. 225-197-1 du présent code ou aux délais d'indisponibilité prévus aux chapitres II et III du titre IV du livre IV du code du travail.
La location d'actions ou de parts sociales ne peut pas porter sur des titres :
1° Détenus par des personnes physiques dans le cadre de la gestion de leur patrimoine privé lorsque les produits et plus-values bénéficient d'un régime d'exonération en matière d'impôt sur le revenu ;
2° Inscrits à l'actif d'une société de capital-risque mentionnée à l'article 1er-1 de la loi n° 85-695 du 11 juillet 1985 portant diverses dispositions d'ordre économique et financier ou d'une société unipersonnelle d'investissement à risque mentionnée à l'article 208 D du code général des impôts ;
3° Détenus par un fonds commun de placement à risques, un fonds commun de placement dans l'innovation ou un fonds d'investissement de proximité respectivement mentionnés aux articles L. 214-36, L. 214-41 et L. 214-41-1 du code monétaire et financier.
A peine de nullité, les actions ou parts louées ne peuvent faire l'objet d'une sous-location ou d'un prêt de titres au sens des articles L. 211-22 à L. 211-26 du même code.
Les actions des sociétés par actions ou les parts sociales des sociétés à responsabilité limitée, lorsque les unes ou les autres de ces sociétés sont constituées pour l'exercice des professions visées à l'article 1er de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés
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des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé et aux sociétés de participations financières de professions libérales, ne peuvent pas faire l'objet du contrat de bail prévu au présent article, sauf au profit de professionnels salariés ou collaborateurs libéraux exerçant en leur sein.
Lorsque la société fait l'objet d'une procédure de sauvegarde ou de redressement judiciaire en application du titre III du livre VI du présent code, la location de ses actions ou parts sociales ne peut intervenir que dans les conditions fixées par le tribunal ayant ouvert cette procédure.
Article L239-2
Le contrat de bail est constaté par acte authentique ou sous seing privé soumis à la procédure de l'enregistrement. Il comporte, à peine de nullité, des mentions dont la liste est fixée par décret en Conseil d'Etat.
Il est rendu opposable à la société dans les formes prévues à l'article 1690 du code civil.
La délivrance des actions ou parts est réalisée à la date à laquelle est inscrite, dans le registre des titres nominatifs de la société par actions ou dans les statuts de la société à responsabilité limitée, à côté du nom de l'actionnaire ou de l'associé, la mention du bail et du nom du locataire. A compter de cette date, la société doit adresser au locataire les informations dues aux actionnaires ou associés et prévoir sa participation et son vote aux assemblées conformément aux dispositions du deuxième alinéa de l'article L. 239-3.
Les actions ou parts louées font l'objet d'une évaluation en début et en fin de contrat, ainsi qu'à la fin de chaque exercice comptable lorsque le bailleur est une personne morale. Cette évaluation est effectuée sur la base de critères tirés des comptes sociaux. Elle est certifiée par un commissaire aux comptes.
Article L239-3
Les dispositions légales ou statutaires prévoyant l'agrément du cessionnaire de parts ou d'actions sont applicables dans les mêmes conditions au locataire.
Le droit de vote attaché à l'action ou à la part sociale louée appartient au bailleur dans les assemblées statuant sur les modifications statutaires ou le changement de nationalité de la société et au locataire dans les autres assemblées. Pour l'exercice des autres droits attachés aux actions et parts sociales louées, le bailleur est considéré comme le nu-propriétaire et le locataire comme l'usufruitier.
Pour l'application des dispositions du livre IV du présent code, le bailleur et le locataire sont considérés comme détenteurs d'actions ou de parts sociales.
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Article L239-4
Le bail est renouvelé dans les mêmes conditions que la conclusion du bail initial.
En cas de non-renouvellement du contrat de bail ou de résiliation, la partie la plus diligente fait procéder à la radiation de la mention portée dans le registre des titres nominatifs de la société par actions ou dans les statuts de la société à responsabilité limitée.
Article L239-5
Tout intéressé peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au représentant légal de la société par actions ou de la société à responsabilité limitée, en cas de signification ou d'arrivée à terme d'un contrat de bail portant sur des actions ou des parts sociales de la société, de modifier le registre des titres nominatifs ou les statuts et de convoquer l'assemblée des associés à cette fin.
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Partie législative
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE IV : Dispositions pénales
Chapitre Ier : Des infractions concernant les sociétés à responsabilité limitée
Article L241-1
Est puni d'un emprisonnement de six mois et d'une amende de 9 000 euros le fait, pour les associés d'une société à responsabilité limitée, d'omettre, dans l'acte de société, la déclaration concernant la répartition des parts sociales entre tous les associés, la libération des parts ou le dépôt des fonds.
Les dispositions du présent article sont applicables en cas d'augmentation du capital.
Article L241-2
Est puni d'un emprisonnement de six mois et d'une amende de 9 000 euros le fait, pour des gérants, d'émettre, directement ou par personne interposée, pour le compte de la société des valeurs mobilières quelconques à l'exception des obligations émises dans les conditions déterminées par l'article L. 223-11.
Article L241-3
Est puni d'un emprisonnement de cinq ans et d'une amende de 375 000 euros :
1° Le fait, pour toute personne, de faire attribuer frauduleusement à un apport en nature une évaluation supérieure à sa valeur réelle ;
2° Le fait, pour les gérants, d'opérer entre les associés la répartition de dividendes fictifs, en l'absence d'inventaire ou au moyen d'inventaires frauduleux ;
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3° Le fait, pour les gérants, même en l'absence de toute distribution de dividendes, de présenter aux associés des comptes annuels ne donnant pas, pour chaque exercice, une image fidèle du résultat des opérations de l'exercice, de la situation financière et du patrimoine à l'expiration de cette période en vue de dissimuler la véritable situation de la société ;
4° Le fait, pour les gérants, de faire, de mauvaise foi, des biens ou du crédit de la société, un usage qu'ils savent contraire à l'intérêt de celle-ci, à des fins personnelles ou pour favoriser une autre société ou entreprise dans laquelle ils sont intéressés directement ou indirectement ;
5° Le fait, pour les gérants, de faire, de mauvaise foi, des pouvoirs qu'ils possèdent ou des voix dont ils disposent, en cette qualité, un usage qu'ils savent contraire aux intérêts de la société, à des fins personnelles ou pour favoriser une autre société ou une autre entreprise dans laquelle ils sont intéressés directement ou indirectement.
Article L241-4
Est puni d'une amende de 9000 euros :
1° Le fait, pour les gérants, de ne pas, pour chaque exercice, dresser l'inventaire, établir les comptes annuels et un rapport de gestion ;
2°et 3° (supprimés).
Article L241-5
Est puni d'un emprisonnement de six mois et d'une amende de 9 000 euros le fait, pour les gérants, de ne pas procéder à la réunion de l'assemblée des associés dans les six mois de la clôture de l'exercice ou, en cas de prolongation, dans le délai fixé par décision de justice, ou de ne pas soumettre à l'approbation de ladite assemblée ou de l'associé unique les documents prévus au 1° de l'article L. 241-4.
Article L241-6
Est puni d'un emprisonnement de six mois et d'une amende de 4 500 euros le fait, pour les gérants, lorsque les capitaux propres de la société, du fait de pertes constatées dans les documents comptables, deviennent inférieurs à la moitié du capital social :
1° De ne pas dans les quatre mois qui suivent l'approbation des comptes ayant fait apparaître ces pertes, consulter les associés afin de décider s'il y a lieu à dissolution anticipée de la société ;
2° De ne pas déposer au greffe du tribunal de commerce, inscrire au registre du commerce et des
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sociétés et publier dans un journal d'annonces légales, la décision adoptée par les associés.
Article L241-9
Les dispositions des articles L. 241-2 à L. 241-6 sont applicables à toute personne qui, directement ou par personne interposée, aura, en fait, exercé la gestion d'une société à responsabilité limitée sous le couvert ou au lieu et place de son gérant légal.
Chapitre II : Des infractions concernant les sociétés anonymes
Section 1 : Des infractions relatives à la constitution
Article L242-1
Est puni d'une amende de 9 000 euros le fait, pour les fondateurs, le président, les administrateurs ou les directeurs généraux d'une société anonyme, d'émettre des actions ou des coupures d'actions soit avant l'immatriculation de ladite société au registre du commerce et des sociétés, soit à une époque quelconque, si l'immatriculation a été obtenue par fraude, soit encore sans que les formalités de constitution de ladite société aient été régulièrement accomplies.
Un emprisonnement d'un an peut, en outre, être prononcé si les actions ou coupures d'actions sont émises sans que les actions de numéraire aient été libérées à la souscription d'un quart au moins ou sans que les actions d'apport aient été intégralement libérées antérieurement à l'immatriculation de la société au registre du commerce et des sociétés.
Est puni des peines prévues à l'alinéa précédent le fait, pour les personnes visées au premier alinéa, de ne pas maintenir les actions de numéraire en la forme nominative jusqu'à leur entière libération.
Les peines prévues au présent article peuvent être portées au double, lorsque les actions ou les coupures d'actions émises ont fait l'objet d'une offre au public.
Article L242-2
Est puni d'un emprisonnement de cinq ans et d'une amende de 9000 euros le fait, pour toute personne :
1°, 2° et 3° (supprimés) ;
4° De faire attribuer frauduleusement à un apport en nature une évaluation supérieure à sa valeur réelle.
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Article L242-3
Est puni d'un emprisonnement d'un an et d'une amende de 9000 euros le fait, pour les fondateurs, le président du conseil d'administration, les administrateurs ou les directeurs généraux d'une société anonyme, ainsi que pour les titulaires ou porteurs d'actions, de négocier :
1° Des actions de numéraire qui ne sont pas demeurées sous la forme nominative jusqu'à leur entière libération ;
2° Des actions de numéraire pour lesquelles le versement du quart n'a pas été effectué ;
3° (supprimé).
Article L242-4
Est puni des peines prévues à l'article L. 242-3 le fait, pour toute personne, d'avoir établi ou publié la valeur des actions ou promesses d'actions visées audit article.
Article L242-5
Est puni d'un emprisonnement de six mois et d'une amende de 9000 euros le fait d'accepter ou de conserver les fonctions de commissaire aux apports, nonobstant les incompatibilités et interdictions légales.
Section 2 : Des infractions relatives à la direction et à l'administration
Article L242-6
Est puni d'un emprisonnement de cinq ans et d'une amende de 375 000 euros le fait pour :
1° Le président, les administrateurs ou les directeurs généraux d'une société anonyme d'opérer entre les actionnaires la répartition de dividendes fictifs, en l'absence d'inventaire, ou au moyen d'inventaires frauduleux ;
2° Le président, les administrateurs ou les directeurs généraux d'une société anonyme de publier ou présenter aux actionnaires, même en l'absence de toute distribution de dividendes, des comptes
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annuels ne donnant pas, pour chaque exercice, une image fidèle du résultat des opérations de l'exercice, de la situation financière et du patrimoine, à l'expiration de cette période, en vue de dissimuler la véritable situation de la société ;
3° Le président, les administrateurs ou les directeurs généraux d'une société anonyme de faire, de mauvaise foi, des biens ou du crédit de la société, un usage qu'ils savent contraire à l'intérêt de celle-ci, à des fins personnelles ou pour favoriser une autre société ou entreprise dans laquelle ils sont intéressés directement ou indirectement ;
4° Le président, les administrateurs ou les directeurs généraux d'une société anonyme de faire, de mauvaise foi, des pouvoirs qu'ils possèdent ou des voix dont ils disposent, en cette qualité, un usage qu'ils savent contraire aux intérêts de la société, à des fins personnelles ou pour favoriser une autre société ou entreprise dans laquelle ils sont intéressés directement ou indirectement.
Article L242-8
Est puni d'une amende de 9000 euros le fait, pour le président, les administrateurs ou les directeurs généraux d'une société anonyme, de ne pas, pour chaque exercice, dresser l'inventaire et établir des comptes annuels et un rapport de gestion.
Section 3 : Des infractions relatives aux assemblées d'actionnaires
Article L242-9
Est puni d'un emprisonnement de deux ans et d'une amende de 9000 euros :
1° Le fait d'empêcher un actionnaire de participer à une assemblée d'actionnaires ;
2° Alinéa abrogé.
3° Le fait de se faire accorder, garantir ou promettre des avantages pour voter dans un certain sens ou pour ne pas participer au vote, ainsi que le fait d'accorder, garantir ou promettre ces avantages.
Article L242-10
Est puni d'un emprisonnement de six mois et d'une amende de 9000 euros le fait, pour le président ou les administrateurs d'une société anonyme, de ne pas réunir l'assemblée générale ordinaire dans les six mois de la clôture de l'exercice ou, en cas de prolongation, dans le délai fixé par décision de justice ou de ne pas soumettre à l'approbation de ladite assemblée les comptes annuels et le rapport de gestion prévus à l'article L. 232-1.
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Article L242-15
Est puni d'une amende de 3750 euros le fait, pour le président ou les administrateurs d'une société anonyme :
1° Paragraphe abrogé.
2° De ne pas annexer à la feuille de présence les pouvoirs donnés à chaque mandataire ;
3° De ne pas procéder à la constatation des décisions de toute assemblée d'actionnaires par un procès-verbal signé des membres du bureau mentionnant : la date et le lieu de la réunion, le mode de convocation, l'ordre du jour, la composition du bureau, le nombre d'actions participant au vote et le quorum atteint, les documents et rapports soumis à l'assemblée, un résumé des débats, le texte des résolutions mises aux voix et le résultat des votes.
Section 4 : Des infractions relatives aux modifications du capital social
Sous-section 1 : De l'augmentation du capital
Article L242-17
I.-Est puni d'une amende de 9000 euros le fait, pour le président, les administrateurs ou les directeurs généraux d'une société anonyme, d'émettre, lors d'une augmentation de capital, des actions ou des coupures d'actions :
1° Soit avant que le certificat du dépositaire ait été établi, ou le contrat de garantie prévu à l'article L. 225-145 signé ;
2° Soit encore sans que les formalités préalables à l'augmentation de capital aient été régulièrement accomplies.
II.-Un emprisonnement d'un an peut, en outre, être prononcé, si les actions ou coupures d'actions sont émises sans que le capital antérieurement souscrit de la société ait été intégralement libéré, ou sans que les nouvelles actions d'apport aient été intégralement libérées antérieurement à l'inscription modificative au registre du commerce et des sociétés, ou encore, sans que les actions de numéraire nouvelles aient été libérées, lors de la souscription, d'un quart au moins de leur valeur nominale et, le cas échéant, de la totalité de la prime d'émission.
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III.-Est puni des peines d'amende et d'emprisonnement prévues au I et au II le fait, pour les mêmes personnes de ne pas maintenir les actions de numéraire en la forme nominative jusqu'à leur entière libération.
IV. # Les peines prévues au présent article peuvent être portées au double, lorsque les actions ou les coupures d'actions émises ont fait l'objet d'une offre au public.
V.-Les dispositions du présent article ne sont applicables ni aux actions qui ont été régulièrement émises par conversion d'obligations convertibles à tout moment, ou par utilisation des bons de souscription, ni aux actions émises dans les conditions prévues aux articles L. 232-18 à L. 232-20.
Article L242-20
Est puni d'un emprisonnement de deux ans et d'une amende de 18 000 euros le fait, pour le président, les administrateurs ou les commissaires aux comptes d'une société anonyme, de donner ou confirmer des indications inexactes dans les rapports présentés à l'assemblée générale appelée à décider de la suppression du droit préférentiel de souscription des actionnaires.
Article L242-21
Les dispositions des articles L. 242-2 à L. 242-5 relatives à la constitution des sociétés anonymes sont applicables en cas d'augmentation de capital.
Sous-section 3 : De la réduction du capital
Article L242-23
Est puni d'une amende de 9000 euros le fait, pour le président ou les administrateurs d'une société anonyme, de procéder à une réduction du capital social :
1° Sans respecter l'égalité des actionnaires ;
2° Sans assurer la publicité de la décision de réduction du capital, au registre du commerce et des sociétés et dans un journal habilité à recevoir les annonces légales.
Article L242-24
Est puni de la peine prévue à l'article L. 242-23 le fait, pour le président, les administrateurs ou les
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directeurs généraux d'une société anonyme, de souscrire, acquérir, prendre en gage, conserver ou vendre, au nom de la société, des actions émises par celle-ci en violation des dispositions des articles L. 225-206 à L. 225-215.
Est passible de la même peine le fait, pour le président, les administrateurs ou les directeurs généraux, d'utiliser des actions achetées par la société, en application de l'article L. 225-208, à des fins autres que celles prévues audit article.
Est passible de la même peine le fait, pour le président, les administrateurs ou les directeurs généraux d'une société anonyme, d'effectuer, au nom de celle-ci, les opérations interdites par le premier alinéa de l'article L. 225-216.
Section 6 : Des infractions relatives à la dissolution
Article L242-29
Est puni d'un emprisonnement de six mois et d'une amende de 4500 euros le fait, pour le président ou les administrateurs d'une société anonyme, lorsque les capitaux propres de la société, du fait de pertes constatées dans les documents comptables, deviennent inférieurs à la moitié du capital social :
1° De ne pas, dans les quatre mois qui suivent l'approbation des comptes ayant fait apparaître ces pertes, convoquer l'assemblée générale extraordinaire à l'effet de décider s'il y a lieu à dissolution anticipée de la société ;
2° De ne pas déposer au greffe du tribunal de commerce, inscrire au registre du commerce et des sociétés et publier dans un journal d'annonces légales la décision adoptée par l'assemblée générale.
Section 7 : Des infractions relatives aux sociétés anonymes comportant un directoire et un conseil de surveillance
Article L242-30
Les peines prévues par les articles L. 242-6 à L. 242-29 pour les présidents, les directeurs généraux et les administrateurs des sociétés anonymes sont applicables, selon leurs attributions respectives, aux membres du directoire et aux membres du conseil de surveillance des sociétés anonymes régies par les dispositions des articles L. 225-57 à L. 225-93.
Les dispositions de l'article L. 246-2 sont en outre applicables aux sociétés anonymes régies par les articles L. 225-57 à L. 225-93.
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Section 8 : Des infractions relatives aux sociétés anonymes à participation ouvrière
Article L242-31
Est puni d'une amende de 3 750 euros le fait, pour le président, les administrateurs ou les directeurs généraux d'une société anonyme à participation ouvrière, usant de la faculté d'émettre des actions de travail, de ne pas mentionner cette circonstance par l'addition des mots "à participation ouvrière" sur tous actes ou sur tous documents émanant de la société et destinés aux tiers.
Chapitre III : Des infractions concernant les sociétés en commandite par actions
Article L243-1
Les articles L. 242-1 à L. 242-29 s'appliquent aux sociétés en commandite par actions.
Les peines prévues pour les présidents, les administrateurs ou les directeurs généraux des sociétés anonymes sont applicables, en ce qui concerne leurs attributions, aux gérants des sociétés en commandite par actions.
Chapitre IV : Des infractions concernant les sociétés par actions simplifiées
Article L244-1
Les articles L. 242-1 à L. 242-6, L. 242-8, L. 242-17 à L. 242-29 s'appliquent aux sociétés par actions simplifiées.
Les peines prévues pour le président, les administrateurs ou les directeurs généraux des sociétés anonymes sont applicables au président et aux dirigeants des sociétés par actions simplifiées.
Les articles L. 242-20, L. 242-26, et L. 242-27 s'appliquent aux commissaires aux comptes des sociétés par actions simplifiées.
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Article L244-2
Le fait, pour un président ou un dirigeant de société par actions simplifiée de ne pas consulter les associés dans les conditions prévues par les statuts en cas d'augmentation, d'amortissement ou de réduction du capital, de fusion, de scission, de dissolution ou de transformation en une société d'une autre forme est puni de six mois d'emprisonnement et de 7500 euros d'amende.
Article L244-3
Est puni d'une amende de 18 000 euros le fait, pour les dirigeants d'une société par actions simplifiée, de procéder à une offre au public de titres financiers ou de faire admettre des actions aux négociations sur un marché réglementé.
Article L244-4
Les dispositions des articles L. 244-1, L. 244-2 et L. 244-3 sont applicables à toute personne qui, directement ou par personne interposée, aura en fait exercé la direction d'une société par actions simplifiée sous le couvert ou au lieu et place du président et des dirigeants de cette société.
Chapitre IV bis : Des infractions concernant les sociétés européennes
Article L244-5
Les articles L. 242-1 à L. 242-30 s'appliquent aux sociétés européennes.
Les peines prévues pour le président, les administrateurs, les directeurs généraux, les membres du directoire ou les membres du conseil de surveillance des sociétés anonymes sont applicables au président, aux administrateurs, aux directeurs généraux, aux membres du directoire ou aux membres du conseil de surveillance des sociétés européennes.
L'article L. 242-20 s'applique aux commissaires aux comptes des sociétés européennes.
Chapitre V : Des infractions relatives aux valeurs mobilières émises par les sociétés par actions
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Section 1 : Des infractions relatives aux actions.
Article L245-3
Sont punis d'un emprisonnement de six mois et d'une amende de 6 000 euros le président et les administrateurs, les directeurs généraux, les membres du directoire et du conseil de surveillance d'une société anonyme, les gérants d'une société en commandite par actions :
1° Dont la société procède à l'amortissement de son capital alors que la totalité des actions à dividende prioritaire sans droit de vote n'ont pas été intégralement rachetées et annulées ;
2° Dont la société, en cas de réduction du capital non motivée par des pertes et réalisée selon les modalités prévues à l'article L. 225-207, ne rachète pas, en vue de leur annulation, les actions à dividende prioritaire sans droit de vote avant les actions ordinaires.
Article L245-4
Le fait, pour le président et les administrateurs, les directeurs généraux, les membres du directoire et du conseil de surveillance d'une société anonyme, les gérants des sociétés en commandite par actions, de détenir, directement ou indirectement dans les conditions prévues par l'article L. 228-35-8, des actions à dividende prioritaire sans droit de vote de la société qu'ils dirigent est puni des peines prévues à l'article L. 245-3.
Article L245-5
Est puni d'un emprisonnement de six mois et d'une amende de 6 000 euros le fait, pour le liquidateur d'une société, de ne pas respecter les dispositions de l'article L. 237-30.
Section 3 : Des infractions relatives aux obligations
Article L245-9
Est puni d'une amende de 9 000 euros le fait, pour le président, les administrateurs, les directeurs généraux ou les gérants d'une société par actions d'émettre, pour le compte de cette société, des obligations négociables qui, dans une même émission, ne confèrent pas les mêmes droits de créance pour une même valeur nominale.
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Article L245-11
Est puni d'un emprisonnement de deux ans et d'une amende de 9000 euros le fait :
1° D'empêcher un obligataire de participer à une assemblée générale d'obligataires ;
2° De se faire accorder, garantir ou promettre des avantages particuliers pour voter dans un certain sens ou pour ne pas participer au vote, ainsi que le fait d'accorder, garantir ou promettre ces avantages particuliers.
Article L245-12
Est puni d'une amende de 6 000 euros le fait :
1° Pour le président, les administrateurs, les directeurs généraux, les gérants, les commissaires aux comptes, les membres du conseil de surveillance ou les employés de la société débitrice ou de la société garante de tout ou partie des engagements de la société débitrice ainsi que pour leurs ascendants, descendants ou conjoints de représenter des obligataires à leur assemblée générale, ou d'accepter d'être les représentants de la masse des obligataires ;
2° Pour le président, les administrateurs, les directeurs généraux ou les gérants de sociétés détenant au moins 10 % du capital des sociétés débitrices, de prendre part à l'assemblée générale des obligataires à raison des obligations détenues par ces sociétés.
Article L245-13
Est puni d'une amende de 4 500 euros le fait, pour le président de l'assemblée générale des obligataires, de ne pas procéder à la constatation des décisions de toute assemblée générale d'obligataires par procès-verbal, mentionnant la date et le lieu de la réunion, le mode de convocation, l'ordre du jour, la composition du bureau, le nombre d'obligataires participant au vote et le quorum atteint, les documents et rapports soumis à l'assemblée, un résumé des débats, le texte des résolutions mises aux voix et le résultat des votes.
Article L245-15
Les infractions prévues aux articles L. 245-9, et aux articles L. 245-12 et L. 245-13 sont punies de cinq ans d'emprisonnement et de 18 000 euros d'amende lorsqu'elles ont été commises frauduleusement en vue de priver les obligataires ou certains d'entre eux d'une part des droits attachés à leur titre de créance.
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Section 4 : Dispositions communes
Article L245-16
Les dispositions du présent chapitre visant le président, les administrateurs, les directeurs généraux et les gérants de sociétés par actions sont applicables à toute personne qui, directement ou par personne interposée, aura, en fait, exercé la direction, l'administration ou la gestion desdites sociétés sous le couvert ou au lieu et place de leurs représentants légaux.
Section 5 : Des infractions relatives aux sociétés anonymes comportant un directoire et un conseil de surveillance
Article L245-17
Les peines prévues par les articles L. 245-1 à L. 245-15 pour les présidents, les directeurs généraux et les administrateurs des sociétés anonymes sont applicables, selon leurs attributions respectives, aux membres du directoire et aux membres du conseil de surveillance des sociétés anonymes régies par les dispositions des articles L. 225-57 à L. 225-93.
Les dispositions de l'article L. 245-16 sont en outre applicables aux sociétés anonymes régies par les articles L. 225-57 à L. 225-93.
Chapitre VI : Des infractions communes aux diverses formes de sociétés par actions
Article L246-2
Les dispositions des articles L. 242-1 à L. 242-29, L. 243-1 et L. 244-5, visant le président, les administrateurs ou les directeurs généraux de sociétés anonymes ou de sociétés européennes et les gérants de sociétés en commandite par actions sont applicables à toute personne qui, directement ou par personne interposée, a, en fait, exercé la direction, l'administration ou la gestion desdites sociétés sous le couvert ou au lieu et place de leurs représentants légaux.
Chapitre VII : Des infractions communes aux diverses formes de
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sociétés commerciales
Section 1 : Des infractions relatives aux filiales, aux participations et aux sociétés contrôlées
Article L247-1
I. - Est puni d'un emprisonnement de deux ans et d'une amende de 9000 euros le fait, pour les présidents, les administrateurs, les directeurs généraux ou les gérants de toute société :
1° De ne pas faire mention dans le rapport annuel présenté aux associés sur les opérations de l'exercice, d'une prise de participation dans une société ayant son siège sur le territoire de la République française représentant plus du vingtième, du dixième, du cinquième, du tiers, de la moitié ou des deux tiers du capital ou des droits de vote aux assemblées générales de cette société ou de la prise de contrôle d'une telle société ;
2° De ne pas, dans le même rapport, rendre compte de l'activité et des résultats de l'ensemble de la société, des filiales de la société et des sociétés qu'elle contrôle par branche d'activité ;
3° De ne pas annexer au bilan de la société le tableau prévu à l'article L. 233-15 et comportant les renseignements en vue de faire apparaître la situation desdites filiales et participations.
II. - Est puni d'une amende de 9000 euros le fait, pour les membres du directoire, du conseil d'administration ou les gérants des sociétés visées à l'article L. 233-16, sous réserve des dérogations prévues à l'article L. 233-17, de ne pas établir et adresser aux actionnaires ou associés, dans les délais prévus par la loi, les comptes consolidés. Le tribunal peut en outre ordonner l'insertion du jugement, aux frais du condamné, dans un ou plusieurs journaux.
III. - Est puni des peines mentionnées au I le fait, pour le commissaire aux comptes, de ne pas faire figurer dans son rapport les mentions visées au 1° du I du présent article.
Article L247-2
I.-Est puni d'une amende de 18 000 euros le fait pour les présidents, les administrateurs, les membres du directoire, les gérants ou les directeurs généraux des personnes morales, ainsi que pour les personnes physiques de s'abstenir de remplir les obligations d'informations auxquelles cette personne est tenue, en application de l'article L. 233-7, du fait des participations qu'elle détient.
II.-Est puni de la même peine le fait, pour les présidents, les administrateurs, les membres du directoire, les gérants ou les directeurs généraux d'une société, de s'abstenir de procéder aux
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notifications auxquelles cette société est tenue, en application de l'article L. 233-12, du fait des participations qu'elle détient dans la société par actions qui la contrôle.
III.-Est puni de la même peine le fait, pour les présidents, les administrateurs, les membres du directoire, les gérants ou les directeurs généraux d'une société, d'omettre de faire mention dans le rapport présenté aux actionnaires sur les opérations de l'exercice de l'identité des personnes détenant des participations significatives dans cette société, des modifications intervenues au cours de l'exercice, du nom des sociétés contrôlées et de la part du capital de la société que ces sociétés détiennent, dans les conditions prévues par l'article L. 233-13.
IV.-Est puni de la même peine le fait, pour le commissaire aux comptes, d'omettre dans son rapport les mentions visées au III.
V. # Pour les sociétés dont les actions sont admises aux négociations sur un marché d'instruments financiers mentionné au II de l'article L. 233-7, les poursuites sont engagées après que l'avis de l'Autorité des marchés financiers a été demandé.
Article L247-3
Est puni d'une amende de 18 000 euros le fait, pour les présidents, les administrateurs, les membres du directoire, les directeurs généraux ou les gérants de sociétés, de contrevenir aux dispositions des articles L. 233-29 à L. 233-31.
Pour les sociétés dont les actions sont admises aux négociations sur un marché réglementé, les poursuites pour infraction aux dispositions de l'article L. 233-31 sont engagées après que l'avis de l'Autorité des marchés financiers a été demandé.
Section 2 : Des infractions relatives à la publicité
Article L247-4
Est puni d'une amende de 9 000 euros le fait, pour toute personne, de ne pas satisfaire aux obligations résultant de l'article L. 225-109 dans le délai et suivant les modalités fixées par décret en Conseil d'Etat.
Section 3 : Des infractions relatives à la liquidation
Article L247-5
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Est puni d'un emprisonnement de deux ans et d'une amende 9 000 euros le fait de contrevenir à l'interdiction d'exercer les fonctions de liquidateur.
Quiconque est condamné par application de l'alinéa précédent ne peut plus être employé, à quelque titre que ce soit, par la société dans laquelle il a exercé les fonctions prohibées. En cas d'infraction à cette interdiction, la personne condamnée et son employeur, si ce dernier en a eu connaissance, sont punis des peines prévues audit alinéa.
Article L247-6
Est puni d'un emprisonnement de six mois et d'une amende de 9 000 euros le fait, pour le liquidateur d'une société :
1° De ne pas publier dans le délai d'un mois de sa nomination, dans un journal d'annonces légales dans le département du siège social, l'acte le nommant liquidateur et déposer au registre du commerce et des sociétés les décisions prononçant la dissolution ;
2° De ne pas convoquer les associés, en fin de liquidation, pour statuer sur le compte définitif, sur le quitus de sa gestion et la décharge de son mandat, et pour constater la clôture de la liquidation, ou de ne pas, dans le cas prévu à l'article L. 237-10, déposer ses comptes au greffe du tribunal ni demander en justice l'approbation de ceux-ci.
Article L247-7
Est puni des peines prévues à l'article L. 247-6, au cas où la liquidation d'une société intervient conformément aux dispositions des articles L. 237-14 à L. 237-31, le fait, pour un liquidateur :
1° De ne pas présenter dans les six mois de sa nomination, un rapport sur la situation active et passive, sur la poursuite des opérations de liquidation, ni solliciter les autorisations nécessaires pour les terminer ;
2° De ne pas établir les comptes annuels au vu de l'inventaire et un rapport écrit dans lequel il rend compte des opérations de liquidation au cours de l'exercice écoulé, dans les trois mois de la clôture de chaque exercice ;
3° (supprimé) ;
4° et 5° : Paragraphes abrogés.
6° De ne pas déposer à un compte ouvert dans un établissement de crédit au nom de la société en liquidation, dans le délai de quinze jours à compter de la décision de répartition, les sommes affectées aux répartitions entre les associés et les créanciers, ou de ne pas déposer à la Caisse des dépôts et consignations, dans le délai d'un an à compter de la clôture de la liquidation, les sommes
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attribuées à des créanciers ou à des associés et non réclamées par eux.
Article L247-8
Est puni d'un emprisonnement de cinq ans et d'une amende de 9000 euros le fait, pour un liquidateur, de mauvaise foi :
1° De faire des biens ou du crédit de la société en liquidation, un usage qu'il sait contraire à l'intérêt de celle-ci, à des fins personnelles ou pour favoriser une autre société ou entreprise dans laquelle il est intéressé directement ou indirectement ;
2° De céder tout ou partie de l'actif de la société en liquidation contrairement aux dispositions des articles L. 237-6 et L. 237-7.
Section 4 : Des infractions relatives aux sociétés anonymes comportant un directoire et un conseil de surveillance
Article L247-9
Les peines prévues par les articles L. 247-1 à L. 247-4 pour les présidents, les directeurs généraux et les administrateurs de sociétés anonymes, sont applicables, selon leurs attributions respectives, aux membres du directoire et aux membres du conseil de surveillance des sociétés anonymes régies par les dispositions des articles L. 225-57 à L. 225-93.
Section 5 : Des infractions relatives aux sociétés à capital variable.
Article L247-10
Est puni d'une amende de 3 750 euros le fait, pour le président, le gérant ou, de façon générale, le dirigeant d'une société usant de la faculté prévue à l'article L. 231-1 de ne pas mentionner cette circonstance par l'addition des mots " à capital variable " sur tous actes et sur tous documents émanant de la société et destinés aux tiers.
Chapitre VIII : Dispositions concernant les directeurs généraux délégués des sociétés anonymes ou des sociétés européennes.
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Article L248-1
Les dispositions du présent titre visant les directeurs généraux des sociétés anonymes ou des sociétés européennes sont applicables, selon leurs attributions respectives, aux directeurs généraux délégués.
Chapitre IX : Peines complémentaires applicables aux personnes physiques
Article L249-1
Les personnes physiques coupables des infractions prévues aux chapitres Ier à VIII du présent titre encourent également à titre de peines complémentaires l'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, soit d'exercer une fonction publique ou d'exercer l'activité professionnelle ou sociale dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise, soit d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour leur propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale. Ces interdictions d'exercice peuvent être prononcées cumulativement.
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Partie législative
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE V : Des groupements d'intérêt économique
Chapitre Ier : Du groupement d'intérêt économique de droit français.
Article L251-1
Deux ou plusieurs personnes physiques ou morales peuvent constituer entre elles un groupement d'intérêt économique pour une durée déterminée.
Le but du groupement est de faciliter ou de développer l'activité économique de ses membres, d'améliorer ou d'accroître les résultats de cette activité. Il n'est pas de réaliser des bénéfices pour lui-même.
Son activité doit se rattacher à l'activité économique de ses membres et ne peut avoir qu'un caractère auxiliaire par rapport à celle-ci.
Article L251-2
Les personnes exerçant une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé peuvent constituer un groupement d'intérêt économique ou y participer.
Article L251-3
Le groupement d'intérêt économique peut être constitué sans capital.
Les droits de ses membres ne peuvent être représentés par des titres négociables. Toute clause contraire est réputée non écrite.
Article L251-4
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Le groupement d'intérêt économique jouit de la personnalité morale et de la pleine capacité à dater de son immatriculation au registre du commerce et des sociétés, sans que cette immatriculation emporte présomption de commercialité du groupement. Le groupement d'intérêt économique dont l'objet est commercial peut faire de manière habituelle et à titre principal tous actes de commerce pour son propre compte. Il peut être titulaire d'un bail commercial.
Les personnes qui ont agi au nom d'un groupement d'intérêt économique en formation avant qu'il ait acquis la jouissance de la personnalité morale sont tenues, solidairement et indéfiniment, des actes ainsi accomplis, à moins que le groupement, après avoir été régulièrement constitué et immatriculé, ne reprenne les engagements souscrits. Ces engagements sont alors réputés avoir été souscrits dès l'origine par le groupement.
Article L251-5
La nullité du groupement d'intérêt économique ainsi que des actes ou délibérations de celui-ci ne peut résulter que de la violation des dispositions impératives du présent chapitre, ou de l'une des causes de nullité des contrats en général.
L'action en nullité est éteinte lorsque la cause de la nullité a cessé d'exister le jour où le tribunal statue sur le fond en première instance, sauf si cette nullité est fondée sur l'illicéité de l'objet du groupement.
Les articles 1844-12 à 1844-17 du code civil sont applicables aux groupements d'intérêt économique.
Article L251-6
Les membres du groupement sont tenus des dettes de celui-ci sur leur patrimoine propre. Toutefois, un nouveau membre peut, si le contrat le permet, être exonéré des dettes nées antérieurement à son entrée dans le groupement. La décision d'exonération doit être publiée. Ils sont solidaires, sauf convention contraire avec le tiers cocontractant.
Les créanciers du groupement ne peuvent poursuivre le paiement des dettes contre un membre qu'après avoir vainement mis en demeure le groupement par acte extrajudiciaire.
Article L251-7
Le groupement d'intérêt économique peut émettre des obligations, aux conditions générales d'émission de ces titres par les sociétés, s'il est lui-même composé exclusivement de sociétés qui satisfont aux conditions prévues par le présent livre pour l'émission d'obligations.
Le groupement d'intérêt économique peut également émettre des obligations aux conditions
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générales d'émission de ces titres prévues par la loi n° 85-698 du 11 juillet 1985 autorisant l'émission de valeurs mobilières par certaines associations s'il est lui-même composé exclusivement d'associations qui satisfont aux conditions prévues par cette loi pour l'émission d'obligations.
Article L251-8
I. - Le contrat de groupement d'intérêt économique détermine l'organisation du groupement, sous réserve des dispositions du présent chapitre. Il est établi par écrit et publié selon les modalités fixées par décret en Conseil d'Etat.
II. - Le contrat contient notamment les indications suivantes :
1° La dénomination du groupement ;
2° Les nom, raison sociale ou dénomination sociale, la forme juridique, l'adresse du domicile ou du siège social et, s'il y a lieu, le numéro d'identification de chacun des membres du groupement, ainsi que, selon le cas, la ville où se situe le greffe où il est immatriculé ou la ville où se situe la chambre des métiers où il est inscrit ;
3° La durée pour laquelle le groupement est constitué ;
4° L'objet du groupement ;
5° L'adresse du siège du groupement.
III. - Toutes les modifications du contrat sont établies et publiées dans les mêmes conditions que le contrat lui-même. Elles ne sont opposables aux tiers qu'à dater de cette publicité.
Article L251-9
Le groupement, au cours de son existence, peut accepter de nouveaux membres dans les conditions fixées par le contrat constitutif.
Tout membre du groupement peut se retirer dans les conditions prévues par le contrat, sous réserve qu'il ait exécuté ses obligations.
Article L251-10
L'assemblée des membres du groupement est habilitée à prendre toute décision, y compris de dissolution anticipée ou de prorogation, dans les conditions déterminées par le contrat. Celui-ci peut prévoir que toutes les décisions ou certaines d'entre elles seront prises aux conditions de quorum et
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de majorité qu'il fixe. Dans le silence du contrat, les décisions sont prises à l'unanimité.
Le contrat peut aussi attribuer à chaque membre un nombre de voix différent de celui attribué aux autres. A défaut, chaque membre dispose d'une voix.
L'assemblée est obligatoirement réunie à la demande d'un quart au moins des membres du groupement.
Article L251-11
Le groupement est administré par une ou plusieurs personnes. Une personne morale peut être nommée administrateur du groupement sous réserve qu'elle désigne un représentant permanent, qui encourt les mêmes responsabilités civile et pénale que s'il était administrateur en son nom propre. Le ou les administrateurs du groupement, et le représentant permanent de la personne morale nommée administrateur sont responsables individuellement ou solidairement selon le cas, envers le groupement ou envers les tiers, des infractions aux dispositions législatives et réglementaires applicables aux groupements, de la violation des statuts du groupement, ainsi que de leurs fautes de gestion. Si plusieurs administrateurs ont coopéré aux mêmes faits, le tribunal détermine la part contributive de chacun dans la réparation du dommage. Sous cette réserve, le contrat de groupement ou, à défaut, l'assemblée des membres organise librement l'administration du groupement et nomme les administrateurs dont il détermine les attributions, les pouvoirs et les conditions de révocation.
Dans les rapports avec les tiers, un administrateur engage le groupement par tout acte entrant dans l'objet de celui-ci. Toute limitation de pouvoirs est inopposable aux tiers.
Article L251-12
Le contrôle de la gestion, qui doit être confié à des personnes physiques, et le contrôle des comptes sont exercés dans les conditions prévues par le contrat constitutif du groupement.
Toutefois, lorsqu'un groupement émet des obligations dans les conditions prévues à l'article L. 251-7, le contrôle de la gestion doit être exercé par une ou plusieurs personnes physiques nommées par l'assemblée. La durée de leurs fonctions et leurs pouvoirs sont déterminés dans le contrat.
Le contrôle des comptes dans les groupements visés à l'alinéa précédent et dans les groupements qui comptent cent salariés ou plus à la clôture d'un exercice doit être exercé par un ou plusieurs commissaires aux comptes choisis sur la liste visée à l'article L. 822-1 et nommés par l'assemblée pour une durée de six exercices. Les dispositions du présent code concernant les incompatibilités, les pouvoirs, les fonctions, les obligations, la responsabilité, la récusation, la révocation, la rémunération du commissaire aux comptes des sociétés anonymes ainsi que les sanctions prévues par l'article L. 242-27 sont applicables aux commissaires des groupements d'intérêt économique, sous réserve des règles propres à ceux-ci.
Dans les cas prévus aux deux alinéas précédents, les dispositions des articles L. 242-25, L. 242-26
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et. L. 242-28, L. 245-8 à L. 245-17 sont applicables aux dirigeants du groupement, aux personnes physiques dirigeants des sociétés membres ou représentants permanents des personnes morales dirigeants de ces sociétés.
Article L251-13
Dans les groupements qui répondent à l'un des critères définis à l'article L. 232-2, les administrateurs sont tenus d'établir une situation de l'actif réalisable et disponible, valeurs d'exploitation exclues, et du passif exigible, un compte de résultat prévisionnel, un tableau de financement en même temps que le bilan annuel et un plan de financement prévisionnel.
Un décret en Conseil d'Etat précise la périodicité, les délais et les modalités d'établissement de ces documents.
Article L251-14
Les documents visés à l'article L. 251-13 sont analysés dans des rapports écrits sur l'évolution du groupement établis par les administrateurs. Les documents et rapports sont communiqués au commissaire aux comptes et au comité d'entreprise.
En cas de non-observation des dispositions de l'article L. 251-13 et de l'alinéa précédent, ou si les informations données dans les rapports visés à l'alinéa précédent appellent des observations de sa part, le commissaire aux comptes le signale dans un rapport aux administrateurs ou dans le rapport annuel. Il peut demander que son rapport soit adressé aux membres du groupement ou qu'il en soit donné connaissance à l'assemblée de ceux-ci. Ce rapport est communiqué au comité d'entreprise.
Article L251-15
Lorsque le commissaire aux comptes relève, à l'occasion de l'exercice de sa mission, des faits de nature à compromettre la continuité de l'exploitation du groupement, il en informe les administrateurs, dans des conditions qui sont fixées par décret en Conseil d'Etat. Ceux-ci sont tenus de lui répondre sous quinze jours. La réponse est communiquée au comité d'entreprise. Le commissaire aux comptes en informe le président du tribunal.
En cas d'inobservation de ces dispositions, ou s'il constate qu'en dépit des décisions prises la continuité de l'exploitation demeure compromise, le commissaire aux comptes établit un rapport spécial et invite par écrit les administrateurs à faire délibérer la prochaine assemblée générale sur les faits relevés. Ce rapport est communiqué au comité d'entreprise.
Si, à l'issue de la réunion de l'assemblée générale, le commissaire aux comptes constate que les décisions prises ne permettent pas d'assurer la continuité de l'exploitation, il informe de ses démarches le président du tribunal et lui en communique les résultats.
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Article L251-16
Le comité d'entreprise ou, à défaut, les délégués du personnel exercent dans les groupements d'intérêt économique, les attributions prévues aux articles L. 422-4 et L. 432-5 du code du travail.
Les administrateurs communiquent au commissaire aux comptes les demandes d'explication formées par le comité d'entreprise ou les délégués du personnel, les rapports qui leur sont adressés et les réponses qu'ils ont faites en application des articles L. 422-4 et L. 432-5 du code du travail.
Article L251-17
Les actes et documents émanant du groupement et destinés aux tiers, notamment les lettres, factures, annonces et publications diverses, doivent indiquer lisiblement la dénomination du groupement suivie des mots : "groupement d'intérêt économique" ou du sigle :
"GIE".
Toute infraction aux dispositions de l'alinéa ci-dessus est punie d'une amende de 3 750 euros.
Article L251-18
Toute société ou association dont l'objet correspond à la définition du groupement d'intérêt économique peut être transformée en un tel groupement sans donner lieu à dissolution ni à création d'une personne morale nouvelle.
Un groupement d'intérêt économique peut être transformé en société en nom collectif sans donner lieu à dissolution ni à création d'une personne morale nouvelle.
Article L251-19
Le groupement d'intérêt économique est dissous :
1° Par l'arrivée du terme ;
2° Par la réalisation ou l'extinction de son objet ;
3° Par la décision de ses membres dans les conditions prévues à l'article L. 251-10 ;
4° Par décision judiciaire, pour de justes motifs ;
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5° Par le décès d'une personne physique ou par la dissolution d'une personne morale, membre du groupement, sauf stipulation contraire du contrat.
Article L251-20
Si l'un des membres est frappé d'incapacité, de faillite personnelle ou de l'interdiction de diriger, gérer, administrer ou contrôler une entreprise commerciale, quelle qu'en soit la forme, ou une personne morale de droit privé non commerçante, le groupement est dissous, à moins que sa continuation ne soit prévue par le contrat ou que les autres membres ne la décident à l'unanimité.
Article L251-21
La dissolution du groupement d'intérêt économique entraîne sa liquidation. La personnalité du groupement subsiste pour les besoins de la liquidation.
Article L251-22
La liquidation s'opère conformément aux dispositions du contrat. A défaut, un liquidateur est nommé par l'assemblée des membres du groupement ou, si l'assemblée n'a pu procéder à cette nomination, par décision de justice.
Après paiement des dettes, l'excédent d'actif est réparti entre les membres dans les conditions prévues par le contrat. A défaut, la répartition est faite par parts égales.
Article L251-23
L'appellation "groupement d'intérêt économique" et le sigle "GIE" ne peuvent être utilisés que par les groupements soumis aux dispositions du présent chapitre. L'emploi illicite de cette appellation, de ce sigle ou de toute expression de nature à prêter à confusion avec ceux-ci est puni d'un emprisonnement d'un an et d'une amende de 6 000 euros.
Le tribunal peut, en outre, ordonner la publication du jugement, aux frais du condamné, dans trois journaux au maximum et son affichage dans les conditions prévues à l'article 131-35 du code pénal.
Chapitre II : Du groupement européen d'intérêt économique.
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Article L252-1
Les groupements européens d'intérêt économique immatriculés en France au registre du commerce et des sociétés ont la personnalité juridique dès leur immatriculation.
Article L252-2
Les groupements européens d'intérêt économique ont un caractère civil ou commercial selon leur objet. L'immatriculation n'emporte pas présomption de commercialité d'un groupement.
Article L252-3
Les droits des membres du groupement ne peuvent être représentés par des titres négociables.
Article L252-4
Les décisions collégiales du groupement européen d'intérêt économique sont prises par l'assemblée des membres du groupement. Toutefois, les statuts peuvent stipuler que ces décisions, ou certaines d'entre elles, peuvent être prises sous forme de consultation écrite.
Article L252-5
Le ou les gérants d'un groupement européen d'intérêt économique sont responsables, individuellement ou solidairement selon le cas, envers le groupement ou envers les tiers, soit des infractions aux dispositions législatives ou réglementaires applicables au groupement, soit des violations des statuts, soit de leurs fautes de gestion. Si plusieurs gérants ont coopéré aux mêmes faits, le tribunal détermine la part contributive de chacun dans la réparation du dommage.
Article L252-6
Une personne morale peut être nommée gérant d'un groupement européen d'intérêt économique. Lors de sa nomination, elle est tenue de désigner un représentant permanent qui encourt les mêmes responsabilités civile et pénale que s'il était gérant en son nom propre, sans préjudice de la responsabilité solidaire de la personne morale qu'il représente.
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Article L252-7
Les dispositions du chapitre précédent applicables aux groupements d'intérêt économique de droit français relatives aux obligations comptables, au contrôle des comptes et à la liquidation sont applicables aux groupements européens d'intérêt économique.
Article L252-8
Toute société ou association, tout groupement d'intérêt économique peut être transformé en un groupement européen d'intérêt économique sans donner lieu à dissolution ni à création d'une personne morale nouvelle.
Un groupement européen d'intérêt économique peut être transformé en un groupement d'intérêt économique de droit français ou une société en nom collectif, sans donner lieu à dissolution ni à création d'une personne morale nouvelle.
Article L252-9
La nullité du groupement européen d'intérêt économique ainsi que des actes ou délibérations de celui-ci ne peut résulter que de la violation des dispositions impératives du règlement n° 2137-85 du 25 juillet 1985 du Conseil des Communautés européennes, ou des dispositions du présent chapitre ou de l'une des causes de nullité des contrats en général.
L'action en nullité est éteinte lorsque la cause de la nullité a cessé d'exister le jour où le tribunal statue sur le fond en première instance, sauf si cette nullité est fondée sur l'illicéité de l'objet du groupement.
Il est fait application des articles 1844-12 à 1844-17 du code civil.
Article L252-10
Les groupements européens d'intérêt économique ne peuvent, à peine de nullité des contrats conclus ou des titres émis, procéder à une offre au public de titres financiers
Est puni d'un emprisonnement de deux ans et d'une amende de 300 000 euros le fait, pour le ou les gérants d'un groupement européen d'intérêt économique ou le représentant permanent d'une personne morale gérant d'un groupement européen d'intérêt économique de procéder à une offre au public de titres financiers
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Article L252-11
L'utilisation dans les rapports avec les tiers de tous actes, lettres, notes et documents similaires ne comportant pas les mentions prescrites par l'article 25 du règlement n° 2137-85 du 25 juillet 1985 du Conseil des Communautés européennes est punie des peines prévues à l'article L. 251-17.
Article L252-12
L'appellation "groupement européen d'intérêt économique" et le sigle "GEIE" ne peuvent être utilisés que par les groupements soumis aux dispositions du règlement n° 2137-85 du 25 juillet 1985 du Conseil des Communautés européennes. L'emploi illicite de cette appellation ou de ce sigle ou de toute expression de nature à prêter à confusion avec ceux-ci est puni des peines prévues à l'article L. 251-23.
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Partie législative
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité.
TITRE Ier : Des liquidations, des ventes au déballage, des soldes et des ventes en magasins d'usine.
Article L310-1
Sont considérées comme liquidations les ventes accompagnées ou précédées de publicité et annoncées comme tendant, par une réduction de prix, à l'écoulement accéléré de la totalité ou d'une partie des marchandises d'un établissement commercial à la suite d'une décision, quelle qu'en soit la cause, de cessation, de suspension saisonnière ou de changement d'activité, ou de modification substantielle des conditions d'exploitation.
Les liquidations sont soumises à déclaration préalable auprès de l'autorité administrative dont relève le lieu de la liquidation. Cette déclaration comporte la cause et la durée de la liquidation qui ne peut excéder deux mois. Elle est accompagnée d'un inventaire des marchandises à liquider. Lorsque l'événement motivant la liquidation n'est pas intervenu au plus tard dans les six mois qui suivent la déclaration, le déclarant est tenu d'en informer l'autorité administrative compétente.
Pendant la durée de la liquidation, il est interdit de proposer à la vente d'autres marchandises que celles figurant à l'inventaire sur le fondement duquel la déclaration préalable a été déposée.
Article L310-2
I.-Sont considérées comme ventes au déballage les ventes de marchandises effectuées dans des locaux ou sur des emplacements non destinés à la vente au public de ces marchandises, ainsi qu'à partir de véhicules spécialement aménagés à cet effet. Les ventes au déballage ne peuvent excéder deux mois par année civile dans un même local ou sur un même emplacement. Elles font l'objet d'une déclaration préalable auprès du maire de la commune dont dépend le lieu de la vente. Les particuliers non inscrits au registre du commerce et des sociétés sont autorisés à participer aux ventes au déballage en vue de vendre exclusivement des objets personnels et usagés deux fois par an au plus.
II.-Les dispositions du I ne sont pas applicables aux professionnels :
1° Effectuant, dans une ou plusieurs communes, des tournées de ventes définies par le 1° de l'article L. 121-22 du code de la consommation ;
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2° Réalisant des ventes définies par l'article L. 320-2 ;
3° Qui justifient d'une permission de voirie ou d'un permis de stationnement pour les ventes réalisées sur la voie publique.
III.-Les dispositions du I ne sont pas applicables aux organisateurs de :
1° Manifestations commerciales comportant des ventes de marchandises au public dans un parc d'exposition ;
2° Manifestations commerciales qualifiées de salon professionnel ne se tenant pas dans un parc d'exposition ;
3° Fêtes foraines et de manifestations agricoles lorsque seuls des producteurs ou des éleveurs y sont exposants.
Article L310-3
I. - Sont considérées comme soldes les ventes qui, d'une part, sont accompagnées ou précédées de publicité et sont annoncées comme tendant, par une réduction de prix, à l'écoulement accéléré de marchandises en stock et qui, d'autre part, ont lieu durant les périodes définies, pour l'année civile, comme suit :
1° Deux périodes d'une durée de cinq semaines chacune, dont les dates et heures de début sont fixées par décret ; ce décret peut prévoir, pour ces deux périodes, des dates différentes dans les départements qu'il fixe pour tenir compte d'une forte saisonnalité des ventes, ou d'opérations commerciales menées dans des régions frontalières ;
2° Une période d'une durée maximale de deux semaines ou deux périodes d'une durée maximale d'une semaine, dont les dates sont librement choisies par le commerçant ; ces périodes complémentaires s'achèvent toutefois au plus tard un mois avant le début des périodes visées au 1° ; elles sont soumises à déclaration préalable auprès de l'autorité administrative compétente du département du lieu des soldes ou du département du siège de l'entreprise pour les entreprises de vente à distance. Les produits annoncés comme soldés doivent avoir été proposés à la vente et payés depuis au moins un mois à la date de début de la période de soldes considérée.
II. - Dans toute publicité, enseigne, dénomination sociale ou nom commercial, l'emploi du mot : solde(s) ou de ses dérivés est interdit pour désigner toute activité, dénomination sociale ou nom commercial, enseigne ou qualité qui ne se rapporte pas à une opération de soldes telle que définie au I ci-dessus.
Article L310-4
La dénomination de magasin ou de dépôt d'usine ne peut être utilisée que par les producteurs vendant directement au public la partie de leur production non écoulée dans le circuit de distribution
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ou faisant l'objet de retour. Ces ventes directes concernent exclusivement les productions de la saison antérieure de commercialisation, justifiant ainsi une vente à prix minoré.
Article L310-5
Est puni d'une amende de 15 000 euros :
1° Le fait de procéder à une liquidation sans la déclaration préalable mentionnée à l'article L. 310-1 ou en méconnaissance des conditions prévues à cet article ;
2° Le fait de procéder à une vente au déballage sans la déclaration prévue par l'article L. 310-2 ou en méconnaissance de cette déclaration ;
3° Le fait de réaliser des soldes portant sur des marchandises détenues depuis moins d'un mois à la date de début de la période de soldes considérée ;
4° Le fait d'utiliser le mot : solde (s) ou ses dérivés dans les cas où cette utilisation ne se rapporte pas à une opération de soldes définie au I de l'article L. 310-3 ;
5° Le fait d'utiliser la dénomination magasin d'usine ou dépôt d'usine en méconnaissance des dispositions de l'article L. 310-4 ;
5° bis Le fait, pour un parc d'exposition, de ne pas se faire enregistrer ou de ne pas déclarer de programme de manifestations commerciales en application du second alinéa de l'article L. 762-1, ou de ne pas déclarer les modifications au programme faisant l'objet de la déclaration annuelle initiale ;
6° Le fait d'organiser une manifestation commerciale sans la déclaration prévue au second alinéa de l'article L. 762-2 ou de ne pas respecter les conditions de réalisation de la manifestation déclarée.
Les personnes physiques encourent également la peine complémentaire d'affichage ou de diffusion de la décision prononcée, dans les conditions prévues par l'article 131-35 du code pénal.
Article L310-6
Les personnes morales déclarées responsables pénalement, dans les conditions prévues par l'article 121-2 du code pénal, des infractions définies à l'article L. 310-5 du présent code encourent, outre l'amende suivant les modalités prévues par l'article 131-38 du code pénal, la peine prévue par le 9° de l'article 131-39 du même code.
Article L310-7
Les modalités d'application des dispositions du présent titre sont fixées par décret en Conseil d'Etat, et notamment les secteurs dans lesquels les annonces, quel qu'en soit le support, de réduction de prix aux consommateurs ne peuvent s'exprimer en pourcentage ou par la mention du prix antérieurement pratiqué, et la durée ou les conditions de cette interdiction.
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Partie législative
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité.
TITRE II : Des ventes aux enchères publiques.
Article L320-1
Nul ne peut faire des enchères publiques un procédé habituel de l'exercice de son commerce.
Article L320-2
Sont exceptées de l'interdiction prévue à l'article L. 320-1 les ventes prescrites par la loi ou faites par autorité de justice, ainsi que les ventes après décès, liquidation judiciaire ou cessation de commerce ou dans tous les autres cas de nécessité dont l'appréciation est soumise au tribunal de commerce.
Sont également exceptées les ventes à cri public de comestibles et d'objets de peu de valeur connus dans le commerce sous le nom de menue mercerie.
Chapitre Ier : Des ventes volontaires de meubles aux enchères publiques.
Section 1 : Dispositions générales.
Article L321-1
Les ventes volontaires de meubles aux enchères publiques ne peuvent porter que sur des biens d'occasion ou sur des biens neufs issus directement de la production du vendeur si celui-ci n'est ni commerçant ni artisan. Ces biens sont vendus au détail ou par lot.
Sont considérés comme meubles par le présent chapitre les meubles par nature.
Sont considérés comme d'occasion les biens qui, à un stade quelconque de la production ou de la
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distribution, sont entrés en la possession d'une personne pour son usage propre, par l'effet de tout acte à titre onéreux ou à titre gratuit.
Article L321-2
Les ventes volontaires de meubles aux enchères publiques sont, sauf les cas prévus à l'article L. 321-36 organisées et réalisées par des sociétés de forme commerciale régies par le livre II, et dont l'activité est réglementée par les dispositions du présent chapitre.
Ces ventes peuvent également être organisées et réalisées à titre accessoire par les notaires et les huissiers de justice dans les communes où il n'est pas établi d'office de commissaire-priseur judiciaire. Cette activité est exercée dans le cadre de leur office et selon les règles qui leur sont applicables. Ils ne peuvent être mandatés que par le propriétaire des biens.
Article L321-3
Le fait de proposer, en agissant comme mandataire du propriétaire, un bien aux enchères publiques à distance par voie électronique pour l'adjuger au mieux-disant des enchérisseurs constitue une vente aux enchères publiques au sens du présent chapitre.
Les opérations de courtage aux enchères réalisées à distance par voie électronique, se caractérisant par l'absence d'adjudication et d'intervention d'un tiers dans la conclusion de la vente d'un bien entre les parties, ne constituent pas une vente aux enchères publiques.
Sont également soumises aux dispositions du présent chapitre, à l'exclusion des articles L. 321-7 et L. 321-16 les opérations de courtage aux enchères portant sur des biens culturels réalisées à distance par voie électronique.
Sous-section 1 : Les sociétés de ventes volontaires de meubles aux enchères publiques.
Article L321-4
L'objet des sociétés de ventes volontaires de meubles aux enchères publiques est limité à l'estimation de biens mobiliers, à l'organisation et à la réalisation de ventes volontaires de meubles aux enchères publiques dans les conditions fixées par le présent chapitre.
Les sociétés de ventes volontaires de meubles aux enchères publiques agissent comme mandataires du propriétaire du bien. Elles ne sont pas habilitées à acheter ou à vendre directement ou indirectement pour leur propre compte des biens meubles proposés à la vente aux enchères publiques. Cette interdiction s'applique également aux dirigeants, associés et salariés de la société.
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A titre exceptionnel, ceux-ci peuvent cependant vendre, par l'intermédiaire de la société, des biens leur appartenant à condition qu'il en soit fait mention dans la publicité.
Article L321-5
Les sociétés de ventes volontaires de meubles aux enchères publiques ne peuvent exercer leur activité qu'après avoir obtenu l'agrément du Conseil des ventes volontaires de meubles aux enchères publiques institué à l'article L. 321-18.
Elles doivent présenter des garanties suffisantes en ce qui concerne leur organisation, leurs moyens techniques et financiers, l'honorabilité et l'expérience de leurs dirigeants ainsi que les dispositions propres à assurer pour leurs clients la sécurité des opérations.
Article L321-6
Les sociétés de ventes volontaires de meubles aux enchères publiques doivent, quelle que soit leur forme, désigner un commissaire aux comptes et un commissaire aux comptes suppléant.
Elles doivent justifier :
1° De l'existence dans un établissement de crédit d'un compte destiné exclusivement à recevoir les fonds détenus pour le compte d'autrui ;
2° D'une assurance couvrant leur responsabilité professionnelle ;
3° D'une assurance ou d'un cautionnement garantissant la représentation des fonds mentionnés au 1°.
Article L321-7
Les sociétés de ventes volontaires de meubles aux enchères publiques donnent au Conseil des ventes volontaires de meubles aux enchères publiques toutes précisions utiles sur les locaux où auront lieu de manière habituelle les expositions de meubles offerts à la vente ainsi que les opérations de ventes aux enchères publiques. Lorsque l'exposition ou la vente a lieu dans un autre local, ou à distance par voie électronique, la société en avise préalablement le conseil.
Article L321-8
Les sociétés de ventes volontaires de meubles aux enchères publiques doivent comprendre parmi leurs dirigeants, leurs associés ou leurs salariés au moins une personne ayant la qualification requise
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pour diriger une vente ou titulaire d'un titre, d'un diplôme ou d'une habilitation reconnus équivalents en la matière, dans des conditions définies par décret en Conseil d'Etat.
Article L321-9
Les personnes mentionnées à l'article L. 321-8 sont seules habilitées à diriger la vente, à désigner le dernier enchérisseur comme adjudicataire ou à déclarer le bien non adjugé et à dresser le procès-verbal de cette vente.
Le procès-verbal est arrêté au plus tard un jour franc après clôture de la vente. Il mentionne les nom et adresse du nouveau propriétaire déclarés par l'adjudicataire, l'identité du vendeur, la désignation de l'objet ainsi que son prix constaté publiquement.
Dans le délai de quinze jours à compter de la vente, le vendeur peut, par l'intermédiaire de la société, vendre de gré à gré les biens déclarés non adjugés à l'issue des enchères. Cette transaction n'est précédée d'aucune exposition ni publicité. Elle ne peut être faite à un prix inférieur à la dernière enchère portée avant le retrait du bien de la vente ou, en l'absence d'enchères, au montant de la mise à prix. Le dernier enchérisseur est préalablement informé s'il est connu. Elle fait l'objet d'un acte annexé au procès-verbal de la vente.
Article L321-10
Les sociétés de ventes volontaires de meubles aux enchères publiques tiennent jour par jour un registre en application des articles 321-7 et 321-8 du code pénal ainsi qu'un répertoire sur lequel elles inscrivent leurs procès-verbaux.
Article L321-11
Chaque vente volontaire de meubles aux enchères publiques donne lieu à une publicité sous toute forme appropriée.
Le prix de réserve est le prix minimal arrêté avec le vendeur au-dessous duquel le bien ne peut être vendu. Si le bien a été estimé, ce prix ne peut être fixé à un montant supérieur à l'estimation la plus basse figurant dans la publicité, ou annoncée publiquement par la personne qui procède à la vente et consignée au procès-verbal.
Article L321-12
Une société de ventes volontaires de meubles aux enchères publiques peut garantir au vendeur un prix d'adjudication minimal du bien proposé à la vente, qui est versé en cas d'adjudication du bien.
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Si le bien a été estimé, ce prix ne peut être fixé à un montant supérieur à l'estimation mentionnée à l'article L. 321-11.
Cette faculté n'est offerte qu'à la société qui a passé avec un organisme d'assurance ou un établissement de crédit un contrat aux termes duquel cet organisme ou cet établissement s'engage, en cas de défaillance de la société, à rembourser la différence entre le montant garanti et le prix d'adjudication si le montant du prix garanti n'est pas atteint lors de la vente aux enchères.
Article L321-13
Une société de ventes volontaires de meubles aux enchères publiques peut consentir au vendeur une avance sur le prix d'adjudication du bien proposé à la vente.
Article L321-14
Les sociétés de ventes volontaires de meubles aux enchères publiques sont responsables à l'égard du vendeur et de l'acheteur de la représentation du prix et de la délivrance des biens dont elles ont effectué la vente. Toute clause qui vise à écarter ou à limiter leur responsabilité est réputée non écrite.
Le bien adjugé ne peut être délivré à l'acheteur que lorsque la société en a perçu le prix ou lorsque toute garantie lui a été donnée sur le paiement du prix par l'acquéreur.
A défaut de paiement par l'adjudicataire, après mise en demeure restée infructueuse, le bien est remis en vente à la demande du vendeur sur folle enchère de l'adjudicataire défaillant ; si le vendeur ne formule pas cette demande dans un délai d'un mois à compter de l'adjudication, la vente est résolue de plein droit, sans préjudice de dommages et intérêts dus par l'adjudicataire défaillant.
Les fonds détenus pour le compte du vendeur doivent être versés à celui-ci au plus tard deux mois à compter de la vente.
Article L321-15
Est puni de deux ans d'emprisonnement et de 375 000 euros d'amende le fait de procéder ou de faire procéder à une ou plusieurs ventes volontaires de meubles aux enchères publiques :
1° Si la société qui organise la vente ne dispose pas de l'agrément prévu à l'article L. 321-5 soit qu'elle n'en est pas titulaire, soit que son agrément a été suspendu ou retiré à titre temporaire ou définitif ;
2° Ou si le ressortissant d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen qui organise la vente n'a pas procédé à la déclaration prévue à l'article L. 321-24 ;
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3° Ou si la personne qui dirige la vente ne remplit pas les conditions prévues à l'article L. 321-8 ou est frappée d'une interdiction à titre temporaire ou définitif de diriger de telles ventes.
II.-Les personnes physiques coupables de l'une des infractions aux dispositions prévues au présent article encourent également les peines complémentaires suivantes :
1° L'interdiction, pour une durée de cinq ans au plus, d'exercer une fonction publique ou d'exercer l'activité professionnelle ou sociale dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise ;
2° L'affichage ou la diffusion de la condamnation prononcée dans les conditions prévues par l'article 131-35 du code pénal ;
3° La confiscation des sommes ou objets irrégulièrement reçus par l'auteur de l'infraction, à l'exception des objets susceptibles de restitution.
III.-Les personnes morales déclarées responsables pénalement, dans les conditions prévues par l'article 121-2 du code pénal, des infractions définies par le présent article encourent, outre l'amende suivant les modalités prévues par l'article 131-38 du code pénal, pour une durée de cinq ans au plus, les peines mentionnées aux 1° à 4°, 8° et 9° de l'article 131-39 du même code.L'interdiction mentionnée au 2° de l'article 131-39 du même code porte sur l'activité dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise.
Article L321-16
Les dispositions de l'article L. 720-5 ne sont pas applicables aux locaux utilisés par les sociétés mentionnées à l'article L. 321-2.
Article L321-17
Les sociétés de ventes volontaires de meubles aux enchères publiques et les officiers publics ou ministériels compétents pour procéder aux ventes judiciaires et volontaires ainsi que les experts qui procèdent à l'estimation des biens engagent leur responsabilité au cours ou à l'occasion des ventes de meubles aux enchères publiques, conformément aux règles applicables à ces ventes.
Les clauses qui visent à écarter ou à limiter leur responsabilité sont interdites et réputées non écrites.
Les actions en responsabilité civile engagées à l'occasion des prisées et des ventes volontaires et judiciaires de meuble aux enchères publiques se prescrivent par cinq ans à compter de l'adjudication ou de la prisée.
Sous-section 2 : Le Conseil des ventes volontaires de meubles aux enchères publiques.
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Article L321-18
Il est institué un Conseil de ventes volontaires de meubles aux enchères publiques, doté de la personnalité morale.
Le Conseil des ventes volontaires de meubles aux enchères publiques est chargé :
1° D'agréer les sociétés de ventes volontaires de meubles aux enchères publiques ainsi que les experts visés à la section 3 ;
2° D'enregistrer les déclarations des ressortissants des Etats mentionnés à la section 2 ;
3° De sanctionner, dans les conditions prévues à l'article L. 321-22 les manquements aux lois, règlements et obligations professionnelles applicables aux sociétés de ventes volontaires de meubles aux enchères publiques, aux experts agréés et aux ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen exerçant à titre occasionnel l'activité de ventes volontaires de meubles aux enchères publiques en France ;
4° De collaborer avec les autorités compétentes des autres Etats membres de la Communauté européenne ou parties à l'accord sur l'Espace économique européen afin de faciliter l'application de la directive 2005 / 36 / CE du Parlement européen et du Conseil du 7 septembre 2005 relative à la reconnaissance des qualifications professionnelles ;
5° De vérifier le respect par les sociétés de ventes volontaires de meubles aux enchères publiques de leurs obligations prévues par le chapitre Ier du titre VI du livre V du code monétaire et financier en matière de lutte contre le blanchiment de capitaux et le financement du terrorisme en se faisant communiquer, dans des conditions fixées par décret pris en Conseil d'Etat, les documents relatifs au respect de ces obligations.
La décision du Conseil des ventes volontaires de meubles aux enchères publiques qui refuse ou retire l'agrément d'une société ou d'un expert doit être motivée.
Article L321-19
Le Conseil des ventes volontaires de meubles aux enchères publiques et la Chambre nationale des commissaires-priseurs judiciaires assurent conjointement l'organisation de la formation professionnelle en vue de l'obtention de la qualification requise pour diriger les ventes.
Article L321-20
Le Conseil des ventes volontaires de meubles aux enchères publiques informe la chambre nationale et les chambres des commissaires-priseurs judiciaires, ainsi que les chambres départementales des huissiers de justice et des notaires, des faits commis dans le ressort de celles-ci qui ont été portés à sa connaissance et qui porteraient atteinte à la réglementation des ventes volontaires de meubles aux enchères publiques.
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Les chambres départementales des huissiers de justice et des notaires, la chambre nationale et les chambres des commissaires-priseurs judiciaires procèdent à la même information envers le Conseil des ventes volontaires de meubles aux enchères publiques.
Article L321-21
Le Conseil des ventes volontaires de meubles aux enchères publiques comprend onze membres nommés pour quatre ans par le garde des sceaux, ministre de la justice :
1° Six personnes qualifiées ;
2° Cinq représentants des professionnels, dont un expert.
Le mandat des membres du conseil n'est renouvelable qu'une seule fois.
Le président est élu par les membres du conseil en leur sein.
Des suppléants sont désignés en nombre égal et dans les mêmes formes.
Un magistrat du parquet est désigné pour exercer les fonctions de commissaire du Gouvernement auprès du Conseil des ventes volontaires de meubles aux enchères publiques.
Le financement du conseil est assuré par le versement de cotisations professionnelles acquittées par les sociétés de ventes volontaires de meubles aux enchères publiques et par les experts agréés. Le montant de ces cotisations est fixé par le conseil en fonction de l'activité des assujettis.
Article L321-22
Tout manquement aux lois, règlements ou obligations professionnelles applicables aux sociétés de ventes volontaires de meubles aux enchères publiques, aux experts agréés et aux personnes habilitées à diriger les ventes en vertu du premier alinéa de l'article L. 321-9 peut donner lieu à sanction disciplinaire. La prescription est de trois ans à compter du manquement.
Le conseil statue par décision motivée. Aucune sanction ne peut être prononcée sans que les griefs aient été communiqués au représentant légal de la société, à l'expert ou à la personne habilitée à diriger les ventes, que celui-ci ait été mis à même de prendre connaissance du dossier et qu'il ait été entendu ou dûment appelé.
Les sanctions applicables aux sociétés de ventes volontaires de meubles aux enchères publiques, aux experts agréés et aux personnes habilitées à diriger les ventes, compte tenu de la gravité des faits reprochés, sont : l'avertissement, le blâme, l'interdiction d'exercice de tout ou partie de l'activité
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à titre temporaire pour une durée qui ne peut excéder trois ans et le retrait de l'agrément de la société ou de l'expert ou l'interdiction définitive de diriger des ventes.
En cas d'urgence et à titre conservatoire, le président du conseil peut prononcer la suspension provisoire de l'exercice de tout ou partie de l'activité d'une société de ventes volontaires de meubles aux enchères publiques, d'un expert agréé ou d'une personne habilitée à diriger les ventes, pour une durée qui ne peut excéder un mois, sauf prolongation décidée par le conseil pour une durée qui ne peut excéder trois mois. Il en informe sans délai le conseil.
Article L321-23
Les décisions du Conseil des ventes volontaires de meubles aux enchères publiques et de son président peuvent faire l'objet d'un recours devant la cour d'appel de Paris. Le recours peut être porté devant le premier président de ladite cour statuant en référé.
Section 2 : Libre prestation de services de l'activité de ventes volontaires de meubles aux enchères publiques par les ressortissants des Etats membres de la Communauté européenne et des Etats parties à l'accord sur l'Espace économique européen.
Article L321-24
Les ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen qui exercent à titre permanent l'activité de ventes volontaires de meubles aux enchères publiques dans l'un de ces Etats autres que la France peuvent accomplir, en France, cette activité professionnelle à titre occasionnel. Cette activité ne peut être accomplie qu'après déclaration faite au Conseil des ventes volontaires de meubles aux enchères publiques. La déclaration est faite au moins un mois avant la date de la première vente réalisée en France. Cette déclaration est renouvelée une fois par an si le prestataire envisage d'exercer son activité professionnelle de façon occasionnelle au cours de l'année concernée ou en cas de changement matériel relatif à sa situation professionnelle.
Article L321-25
Les personnes exerçant l'activité de ventes volontaires de meubles aux enchères publiques à titre permanent dans leur pays d'origine font usage, en France, de leur qualité exprimée dans la ou l'une des langues de l'Etat où elles sont établies, accompagnée d'une traduction en français, ainsi que, s'il y a lieu, du nom de l'organisme professionnel dont elles relèvent.
Article L321-26
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Pour pouvoir exercer l'activité de ventes volontaires de meubles aux enchères publiques à titre temporaire et occasionnel, le ressortissant d'un Etat membre de la Communauté européenne ou d'un autre Etat partie à l'accord sur l'Espace économique européen doit justifier dans la déclaration mentionnée à l'article L. 321-24 qu'il est légalement établi dans l'un de ces Etats et qu'il n'encourt aucune interdiction même temporaire d'exercer. Toutefois, lorsque cette activité ou la formation y conduisant n'est pas réglementée dans son Etat d'établissement, le prestataire doit justifier y avoir exercé cette activité pendant au moins deux ans au cours des dix années qui précèdent la prestation.S'il s'agit d'une personne morale, elle doit justifier dans la déclaration qu'elle comprend parmi ses dirigeants, ses associés ou ses salariés une personne remplissant ces conditions.
Article L321-27
Les ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen sont tenus de respecter les règles régissant l'activité de ventes volontaires de meubles aux enchères publiques prévues par le présent chapitre sans préjudice des obligations non contraires qui leur incombent dans l'Etat dans lequel ils sont établis.
Article L321-28
En cas de manquement aux dispositions du présent chapitre, les ressortissants des Etats membres de la Communauté européenne et des Etats parties à l'accord sur l'Espace économique européen sont soumis aux dispositions de l'article L. 321-22. Toutefois, les sanctions de l'interdiction temporaire de l'exercice de l'activité et du retrait de l'agrément sont remplacées par les sanctions de l'interdiction temporaire ou définitive d'exercer en France l'activité de ventes volontaires de meubles aux enchères publiques.
En cas de sanction, le Conseil des ventes volontaires de meubles aux enchères publiques en avise l'autorité compétente de l'Etat d'origine.
Section 3 : Des experts agréés par le Conseil des ventes volontaires de meubles aux enchères publiques.
Article L321-29
Les experts auxquels peuvent avoir recours les sociétés de ventes volontaires de meubles aux enchères publiques, les huissiers de justice, les notaires et les commissaires-priseurs judiciaires peuvent être agréés par le Conseil des ventes volontaires de meubles aux enchères publiques.
Le conseil établit une liste des experts agréés dans chaque spécialité.
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Article L321-30
Tout expert agréé doit être inscrit dans l'une des spécialités dont la nomenclature est établie par le Conseil des ventes volontaires de meubles aux enchères publiques.
Nul ne peut l'être dans plus de deux spécialités, à moins qu'il ne s'agisse de spécialités connexes aux précédentes dont le nombre ne peut être supérieur à deux.
Article L321-31
Tout expert, qu'il soit ou non agréé, est tenu de contracter une assurance garantissant sa responsabilité professionnelle.
Il est solidairement responsable avec l'organisateur de la vente pour ce qui relève de son activité.
Article L321-32
Toute personne inscrite sur la liste prévue à l'article L. 321-29 ne peut faire état de sa qualité que sous la dénomination "d'expert agréé par le Conseil des ventes volontaires de meubles aux enchères publiques".
Cette dénomination doit être accompagnée de l'indication de sa ou ses spécialités.
Article L321-33
Le fait, pour toute personne ne figurant pas sur la liste prévue à l'article L. 321-29 d'user de la dénomination mentionnée à cet article, ou d'une dénomination présentant une ressemblance de nature à causer une méprise dans l'esprit du public, est puni des peines prévues par l'article 433-17 du code pénal.
Article L321-34
Le Conseil des ventes volontaires de meubles aux enchères publiques peut prononcer le retrait de l'agrément d'un expert en cas d'incapacité légale, de faute professionnelle grave, de condamnation pour faits contraires à l'honneur, à la probité ou aux bonnes moeurs.
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Article L321-35
Un expert, qu'il soit ou non agréé ne peut estimer ni mettre en vente un bien lui appartenant ni se porter acquéreur directement ou indirectement pour son propre compte d'un bien dans les ventes aux enchères publiques auxquelles il apporte son concours.
A titre exceptionnel, l'expert peut cependant vendre, par l'intermédiaire d'une personne mentionnée à l'article L. 321-2, un bien lui appartenant à condition qu'il en soit fait mention dans la publicité.
Article L321-35-1
Lorsqu'il a recours à un expert qui n'est pas agréé, l'organisateur de la vente veille au respect par celui-ci des obligations prévues au premier alinéa de l'article L. 321-31 et à l'article L. 321-35.
Section 4 : Dispositions diverses.
Article L321-36
Les ventes aux enchères publiques de meubles appartenant à l'Etat définies à l'article L. 68 du code du domaine de l'Etat, ainsi que toutes les ventes de biens meubles effectuées en la forme domaniale dans les conditions prévues à l'article L. 69 du même code, continuent d'être faites selon les modalités prévues à ces articles. Toutefois, par dérogation aux dispositions des articles L. 68, L. 69 et L. 70 du même code, ces ventes peuvent être faites avec publicité et concurrence, pour le compte de l'Etat, par les sociétés de ventes volontaires de meubles aux enchères publiques dans les conditions prévues par le présent chapitre.
Les ventes de meubles aux enchères publiques relevant du code des douanes sont faites selon les modalités prévues par le même code. Toutefois, par dérogation aux dispositions du code des douanes, ces ventes peuvent également être faites avec publicité et concurrence, pour le compte de l'Etat, par les sociétés de ventes volontaires de meubles aux enchères publiques dans les conditions prévues par le présent chapitre.
Article L321-37
Les tribunaux civils sont seuls compétents pour connaître des actions en justice relatives aux activités de vente dans lesquels est partie une société de ventes volontaires de meubles aux enchères publiques constituée conformément au présent chapitre. Toute clause contraire est réputée non écrite. Néanmoins, les associés peuvent convenir, dans les statuts, de soumettre à des arbitres les contestations qui surviendraient entre eux ou entre sociétés de ventes volontaires à raison de leur activité.
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Article L321-38
Un décret en Conseil d'Etat fixe les conditions d'application du présent chapitre et notamment, le régime du cautionnement prévu à l'article L. 321-6, les conditions d'information du conseil des ventes volontaires de meubles aux enchères publiques lorsque l'exposition ou la vente n'a pas lieu dans les locaux visés dans la première phrase de l'article L. 321-7, les mentions devant figurer sur la publicité prévue à l'article L. 321-11, les modalités d'organisation et de fonctionnement du conseil des ventes aux enchères publiques et les conditions d'agrément des experts par le conseil.
Chapitre II : Des autres ventes aux enchères.
Article L322-1
Les ventes publiques et au détail de marchandises qui ont lieu après décès ou par autorité de justice sont faites selon les formes prescrites et par les officiers ministériels préposés pour la vente forcée du mobilier conformément aux articles 53 de la loi n° 91-650 du 9 juillet 1991 relative à la réforme des procédures civiles d'exécution et 945 du code de procédure civile.
Article L322-2
Les ventes de marchandises après liquidation judiciaire sont faites conformément aux articles L. 642-19 et suivants.
Le mobilier du débiteur ne peut être vendu aux enchères que par le ministère des commissaires-priseurs judiciaires, notaires ou huissiers, conformément aux lois et règlements qui déterminent les attributions de ces différents officiers.
Article L322-3
Les ventes publiques et par enchères après cessation de commerce, ou dans les autres cas de nécessité prévus par l'article L. 320-2, ne peuvent avoir lieu qu'autant qu'elles ont été préalablement autorisées par le tribunal de commerce, sur la requête du commerçant propriétaire, à laquelle est joint un état détaillé des marchandises.
Le tribunal constate, par son jugement, le fait qui donne lieu à la vente ; il indique le lieu de l'arrondissement où se fait la vente ; il peut même ordonner que les adjudications n'ont lieu que par lots dont il fixe l'importance.
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Il décide qui, des courtiers ou des commissaires-priseurs judiciaires ou autres officiers publics, est chargé de la réception des enchères.
L'autorisation ne peut être accordée pour cause de nécessité qu'au marchand sédentaire, ayant depuis un an au moins son domicile réel dans l'arrondissement où la vente doit être opérée.
Des affiches apposées à la porte du lieu où se fait la vente énoncent le jugement qui l'a autorisée.
Article L322-4
Les ventes publiques aux enchères de marchandises en gros sont faites par le ministère des courtiers de marchandises assermentés dans les cas, aux conditions et suivant les formes fixées par décret en Conseil d'Etat.
Article L322-5
Toute infraction aux dispositions des articles L. 320-1, L. 320-2 et L. 322-1 à L. 322-7 est punie de la confiscation des marchandises mises en vente et, en outre, d'une amende de 3 750 euros, qui est prononcée solidairement tant contre le vendeur que contre l'officier public qui l'a assisté, sans préjudice des dommages intérêts, s'il y a lieu.
Est considérée comme complice et frappée des mêmes peines toute personne dont l'interposition a pour but de tourner l'interdiction formulée à l'article L. 320-1.
Article L322-6
Le fait pour les vendeurs ou officiers publics de comprendre dans les ventes faites par autorité de justice, sur saisie, après décès, liquidation judiciaire, cessation de commerce, ou dans les autres cas de nécessité prévus par l'article L. 320-2 des marchandises neuves ne faisant pas partie du fonds ou mobilier mis en vente, est passible des peines prévues à l'article L. 322-5.
Article L322-7
Dans les lieux où il n'y a point de courtiers de commerce, les commissaires-priseurs judiciaires, les notaires et huissiers font les ventes ci-dessus, selon les droits qui leur sont respectivement attribués par les lois et règlements.
Ils sont, pour lesdites ventes, soumis aux formes, conditions et tarifs imposés aux courtiers.
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Article L322-8
Les courtiers assermentés peuvent, sans autorisation du tribunal de commerce, procéder à la vente volontaire aux enchères de marchandises, en gros. Toutefois, une autorisation est requise pour les marchandises telles que le matériel de transport, les armes, munitions et leurs parties accessoires, les objets d'art, de collection ou d'antiquité et les autres biens d'occasion, dont la liste est fixée par arrêté du garde des sceaux, ministre de la justice, et du ministre chargé du commerce.
Article L322-9
Les courtiers établis dans une ville où siège un tribunal de commerce ont qualité pour procéder aux ventes régies par le présent chapitre, dans toute localité dépendant du ressort de ce tribunal où il n'existe pas de courtiers.
Ils se conforment aux dispositions prescrites par les articles 871 et 873 du code général des impôts.
Article L322-10
Le droit de courtage pour les ventes qui font l'objet des articles L. 322-8 à L. 322-13 est fixé, pour chaque localité, par le ministre chargé de l'agriculture, du commerce ou des travaux publics, après avis de la chambre de commerce et d'industrie et du tribunal de commerce. En aucun cas, il ne peut excéder le droit établi dans les ventes de gré à gré, pour les mêmes sortes de marchandises.
Article L322-11
Les contestations relatives aux ventes réalisées en application de l'article L. 322-8 sont portées devant le tribunal de commerce.
Article L322-12
Il est procédé aux ventes prévues à l'article L. 322-8 dans des locaux spécialement autorisés à cet effet, après avis de la chambre de commerce et d'industrie et du tribunal de commerce.
Article L322-13
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Un décret en Conseil d'Etat détermine les mesures nécessaires à l'exécution des articles L. 322-11 et L. 322-12 notamment les formes et les conditions des autorisations prévues par l'article L. 322-12.
Article L322-14
Les tribunaux de commerce peuvent, après décès ou cessation de commerce, et dans tous les autres cas de nécessité dont l'appréciation leur est soumise, autoriser la vente aux enchères en gros des marchandises de toute espèce et de toute provenance.
L'autorisation est donnée sur requête. Un état détaillé des marchandises à vendre est joint à la requête.
Le tribunal constate par son jugement le fait qui donne lieu à la vente.
Article L322-15
Les ventes autorisées en vertu de l'article précédent, ainsi que toutes celles qui sont autorisées ou ordonnées par la justice consulaire dans les divers cas prévus par le présent code sont faites par le ministère des courtiers.
Néanmoins, il appartient toujours au tribunal, ou au juge qui autorise ou ordonne la vente, de désigner, pour y procéder, une autre classe d'officiers publics. Dans ce cas, l'officier public, quel qu'il soit, est soumis aux dispositions qui régissent les courtiers, relativement aux formes, aux tarifs et à la responsabilité.
Article L322-16
Les dispositions des articles L. 322-11 à L. 322-13 sont applicables aux ventes visées aux articles L. 322-14 et L. 322-15.
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Partie législative
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité.
TITRE III : Des clauses d'exclusivité.
Article L330-1
Est limitée à un maximum de dix ans la durée de validité de toute clause d'exclusivité par laquelle l'acheteur, cessionnaire ou locataire de biens meubles s'engage vis à vis de son vendeur, cédant ou bailleur, à ne pas faire usage d'objets semblables ou complémentaires en provenance d'un autre fournisseur.
Article L330-2
Lorsque le contrat comportant la clause d'exclusivité mentionnée à l'article L. 330-1 est suivi ultérieurement, entre les mêmes parties, d'autres engagements analogues portant sur le même genre de biens, les clauses d'exclusivité contenues dans ces nouvelles conventions prennent fin à la même date que celle figurant au premier contrat.
Article L330-3
Toute personne qui met à la disposition d'une autre personne un nom commercial, une marque ou une enseigne, en exigeant d'elle un engagement d'exclusivité ou de quasi-exclusivité pour l'exercice de son activité, est tenue, préalablement à la signature de tout contrat conclu dans l'intérêt commun des deux parties, de fournir à l'autre partie un document donnant des informations sincères, qui lui permette de s'engager en connaissance de cause.
Ce document, dont le contenu est fixé par décret, précise notamment, l'ancienneté et l'expérience de l'entreprise, l'état et les perspectives de développement du marché concerné, l'importance du réseau d'exploitants, la durée, les conditions de renouvellement, de résiliation et de cession du contrat ainsi que le champ des exclusivités.
Lorsque le versement d'une somme est exigé préalablement à la signature du contrat mentionné ci-dessus, notamment pour obtenir la réservation d'une zone, les prestations assurées en contrepartie de cette somme sont précisées par écrit, ainsi que les obligations réciproques des parties en cas de dédit.
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Le document prévu au premier alinéa ainsi que le projet de contrat sont communiqués vingt jours minimum avant la signature du contrat, ou, le cas échéant, avant le versement de la somme mentionnée à l'alinéa précédent.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE Ier : Dispositions générales.
Article L410-1
Les règles définies au présent livre s'appliquent à toutes les activités de production, de distribution et de services, y compris celles qui sont le fait de personnes publiques, notamment dans le cadre de conventions de délégation de service public.
Article L410-2
Sauf dans les cas où la loi en dispose autrement, les prix des biens, produits et services relevant antérieurement au 1er janvier 1987 de l'ordonnance n° 45-1483 du 30 juin 1945 sont librement déterminés par le jeu de la concurrence.
Toutefois, dans les secteurs ou les zones où la concurrence par les prix est limitée en raison soit de situations de monopole ou de difficultés durables d'approvisionnement, soit de dispositions législatives ou réglementaires, un décret en Conseil d'Etat peut réglementer les prix après consultation de l'Autorité de la concurrence.
Les dispositions des deux premiers alinéas ne font pas obstacle à ce que le Gouvernement arrête, par décret en Conseil d'Etat, contre des hausses ou des baisses excessives de prix, des mesures temporaires motivées par une situation de crise, des circonstances exceptionnelles, une calamité publique ou une situation manifestement anormale du marché dans un secteur déterminé. Le décret est pris après consultation du Conseil national de la consommation. Il précise sa durée de validité qui ne peut excéder six mois.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE II : Des pratiques anticoncurrentielles.
Article L420-1
Sont prohibées même par l'intermédiaire direct ou indirect d'une société du groupe implantée hors de France, lorsqu'elles ont pour objet ou peuvent avoir pour effet d'empêcher, de restreindre ou de fausser le jeu de la concurrence sur un marché, les actions concertées, conventions, ententes expresses ou tacites ou coalitions, notamment lorsqu'elles tendent à :
1° Limiter l'accès au marché ou le libre exercice de la concurrence par d'autres entreprises ;
2° Faire obstacle à la fixation des prix par le libre jeu du marché en favorisant artificiellement leur hausse ou leur baisse ;
3° Limiter ou contrôler la production, les débouchés, les investissements ou le progrès technique ;
4° Répartir les marchés ou les sources d'approvisionnement.
Article L420-2
Est prohibée, dans les conditions prévues à l'article L. 420-1, l'exploitation abusive par une entreprise ou un groupe d'entreprises d'une position dominante sur le marché intérieur ou une partie substantielle de celui-ci. Ces abus peuvent notamment consister en refus de vente, en ventes liées ou en conditions de vente discriminatoires ainsi que dans la rupture de relations commerciales établies, au seul motif que le partenaire refuse de se soumettre à des conditions commerciales injustifiées.
Est en outre prohibée, dès lors qu'elle est susceptible d'affecter le fonctionnement ou la structure de la concurrence, l'exploitation abusive par une entreprise ou un groupe d'entreprises de l'état de dépendance économique dans lequel se trouve à son égard une entreprise cliente ou fournisseur. Ces abus peuvent notamment consister en refus de vente, en ventes liées, en pratiques discriminatoires visées au I de l'article L. 442-6 ou en accords de gamme.
Article L420-3
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Est nul tout engagement, convention ou clause contractuelle se rapportant à une pratique prohibée par les articles L. 420-1 et L. 420-2.
Article L420-4
I.-Ne sont pas soumises aux dispositions des articles L. 420-1 et L. 420-2 les pratiques :
1° Qui résultent de l'application d'un texte législatif ou d'un texte réglementaire pris pour son application ;
2° Dont les auteurs peuvent justifier qu'elles ont pour effet d'assurer un progrès économique, y compris par la création ou le maintien d'emplois, et qu'elles réservent aux utilisateurs une partie équitable du profit qui en résulte, sans donner aux entreprises intéressées la possibilité d'éliminer la concurrence pour une partie substantielle des produits en cause. Ces pratiques qui peuvent consister à organiser, pour les produits agricoles ou d'origine agricole, sous une même marque ou enseigne, les volumes et la qualité de production ainsi que la politique commerciale, y compris en convenant d'un prix de cession commun ne doivent imposer des restrictions à la concurrence, que dans la mesure où elles sont indispensables pour atteindre cet objectif de progrès.
II.-Certaines catégories d'accords ou certains accords, notamment lorsqu'ils ont pour objet d'améliorer la gestion des entreprises moyennes ou petites, peuvent être reconnus comme satisfaisant à ces conditions par décret pris après avis conforme de l'Autorité de la concurrence.
Article L420-5
Sont prohibées les offres de prix ou pratiques de prix de vente aux consommateurs abusivement bas par rapport aux coûts de production, de transformation et de commercialisation, dès lors que ces offres ou pratiques ont pour objet ou peuvent avoir pour effet d'éliminer d'un marché ou d'empêcher d'accéder à un marché une entreprise ou l'un de ses produits.
Les coûts de commercialisation comportent également et impérativement tous les frais résultant des obligations légales et réglementaires liées à la sécurité des produits.
Ces dispositions ne sont pas applicables en cas de revente en l'état, à l'exception des enregistrements sonores reproduits sur supports matériels et des vidéogrammes destinés à l'usage privé du public.
Article L420-6
Est puni d'un emprisonnement de quatre ans et d'une amende de 75000 euros le fait, pour toute personne physique de prendre frauduleusement une part personnelle et déterminante dans la conception, l'organisation ou la mise en oeuvre de pratiques visées aux articles L. 420-1 et L. 420-2.
Le tribunal peut ordonner que sa décision soit publiée intégralement ou par extraits dans les journaux qu'il désigne, aux frais du condamné.
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Les actes interruptifs de la prescription devant l'Autorité de la concurrence en application de l'article L. 462-7 sont également interruptifs de la prescription de l'action publique.
Article L420-7
Sans préjudice des articles L. 420-6, L. 462-8, L. 463-1 à L. 463-4, L. 463-6, L. 463-7 et L. 464-1 à L. 464-8, les litiges relatifs à l'application des règles contenues dans les articles L. 420-1 à L. 420-5 ainsi que dans les articles 81 et 82 du traité instituant la Communauté européenne et ceux dans lesquels ces dispositions sont invoquées sont attribués, selon le cas et sous réserve des règles de partage de compétences entre les ordres de juridiction, aux tribunaux de grande instance ou aux tribunaux de commerce dont le siège et le ressort sont fixés par décret en Conseil d'Etat. Ce décret détermine également le siège et le ressort de la ou des cours d'appel appelées à connaître des décisions rendues par ces juridictions.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE III : De la concentration économique.
Article L430-1
I. - Une opération de concentration est réalisée :
1° Lorsque deux ou plusieurs entreprises antérieurement indépendantes fusionnent ;
2° Lorsqu'une ou plusieurs personnes, détenant déjà le contrôle d'une entreprise au moins ou lorsqu'une ou plusieurs entreprises acquièrent, directement ou indirectement, que ce soit par prise de participation au capital ou achat d'éléments d'actifs, contrat ou tout autre moyen, le contrôle de l'ensemble ou de parties d'une ou plusieurs autres entreprises.
II. - La création d'une entreprise commune accomplissant de manière durable toutes les fonctions d'une entité économique autonome constitue une concentration au sens du présent article.
III. - Aux fins de l'application du présent titre, le contrôle découle des droits, contrats ou autres moyens qui confèrent, seuls ou conjointement et compte tenu des circonstances de fait ou de droit, la possibilité d'exercer une influence déterminante sur l'activité d'une entreprise, et notamment :
- des droits de propriété ou de jouissance sur tout ou partie des biens d'une entreprise ;
- des droits ou des contrats qui confèrent une influence déterminante sur la composition, les délibérations ou les décisions des organes d'une entreprise.
Article L430-2
I.-Est soumise aux dispositions des articles L. 430-3 et suivants du présent titre toute opération de concentration, au sens de l'article L. 430-1, lorsque sont réunies les trois conditions suivantes : -le chiffre d'affaires total mondial hors taxes de l'ensemble des entreprises ou groupes de personnes physiques ou morales parties à la concentration est supérieur à 150 millions d'euros ; -le chiffre d'affaires total hors taxes réalisé en France par deux au moins des entreprises ou groupes de personnes physiques ou morales concernés est supérieur à 50 millions d'euros ; -l'opération n'entre pas dans le champ d'application du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, relatif au contrôle des concentrations entre entreprises. II.-Lorsque deux au moins des parties à la
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concentration exploitent un ou plusieurs magasins de commerce de détail, est soumise aux dispositions des articles L. 430-3 et suivants du présent titre toute opération de concentration, au sens de l'article L. 430-1, lorsque sont réunies les trois conditions suivantes : -le chiffre d'affaires total mondial hors taxes de l'ensemble des entreprises ou groupes de personnes physiques ou morales parties à la concentration est supérieur à 75 millions d'euros ; -le chiffre d'affaires total hors taxes réalisé en France dans le secteur du commerce de détail par deux au moins des entreprises ou groupes de personnes physiques ou morales concernés est supérieur à 15 millions d'euros ; -l'opération n'entre pas dans le champ d'application du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, précité. III.-Lorsque au moins une des parties à la concentration exerce tout ou partie de son activité dans un ou plusieurs départements d'outre-mer ou dans les collectivités d'outre-mer de Mayotte, Saint-Pierre-et-Miquelon, Saint-Martin et Saint-Barthélemy, est soumise aux dispositions des articles L. 430-3 et suivants du présent titre toute opération de concentration, au sens de l'article L. 430-1, lorsque sont réunies les trois conditions suivantes : -le chiffre d'affaires total mondial hors taxes de l'ensemble des entreprises ou groupes de personnes physiques ou morales parties à la concentration est supérieur à 75 millions d'euros ; -le chiffre d'affaires total hors taxes réalisé individuellement dans au moins un des départements ou collectivités territoriales concernés par deux au moins des entreprises ou groupes de personnes physiques ou morales concernés est supérieur à 15 millions d'euros ; -l'opération n'entre pas dans le champ d'application du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, précité. IV.-Une opération de concentration visée aux I, II ou III entrant dans le champ du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, précité qui a fait l'objet d'un renvoi total ou partiel à l'Autorité de la concurrence est soumise, dans la limite de ce renvoi, aux dispositions du présent titre. V.-Les chiffres d'affaires visés aux I, II et III sont calculés selon les modalités définies par l'article 5 du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, précité.
Article L430-3
L'opération de concentration doit être notifiée à l'Autorité de la concurrence avant sa réalisation. La notification peut intervenir dès lors que la ou les parties concernées sont en mesure de présenter un projet suffisamment abouti pour permettre l'instruction du dossier et notamment lorsqu'elles ont conclu un accord de principe, signé une lettre d'intention ou dès l'annonce d'une offre publique. Le renvoi à l'Autorité de la concurrence de tout ou partie d'un cas de concentration notifié à la Commission européenne vaut notification au sens du présent article.
L'obligation de notification incombe aux personnes physiques ou morales qui acquièrent le contrôle de tout ou partie d'une entreprise ou, dans le cas d'une fusion ou de la création d'une entreprise commune, à toutes les parties concernées qui doivent alors notifier conjointement. Le contenu du dossier de notification est fixé par décret.
La réception de la notification d'une opération, ou le renvoi total ou partiel d'une opération de dimension communautaire, fait l'objet d'un communiqué publié par l'Autorité de la concurrence selon des modalités fixées par décret.
Dès réception du dossier, l'Autorité de la concurrence en adresse un exemplaire au ministre chargé de l'économie.
Article L430-4
La réalisation effective d'une opération de concentration ne peut intervenir qu'après l'accord de l'Autorité de la concurrence ou, lorsqu'il a évoqué l'affaire dans les conditions prévues à l'article L.
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430-7-1, celui du ministre chargé de l'économie.
En cas de nécessité particulière dûment motivée, les parties qui ont procédé à la notification peuvent demander à l'Autorité de la concurrence une dérogation leur permettant de procéder à la réalisation effective de tout ou partie de la concentration sans attendre la décision mentionnée au premier alinéa et sans préjudice de celle-ci.
Article L430-5
I.-L'Autorité de la concurrence se prononce sur l'opération de concentration dans un délai de vingt-cinq jours ouvrés à compter de la date de réception de la notification complète.
II.-Les parties à l'opération peuvent s'engager à prendre des mesures visant notamment à remédier, le cas échéant, aux effets anticoncurrentiels de l'opération soit à l'occasion de la notification de cette opération, soit à tout moment avant l'expiration du délai de vingt-cinq jours ouvrés à compter de la date de réception de la notification complète, tant que la décision prévue au I n'est pas intervenue.
Si des engagements sont reçus par l'Autorité de la concurrence, le délai mentionné au I est prolongé de quinze jours ouvrés.
En cas de nécessité particulière, telle que la finalisation des engagements mentionnés à l'alinéa précédent, les parties peuvent demander à l'Autorité de la concurrence de suspendre les délais d'examen de l'opération dans la limite de quinze jours ouvrés.
III.-L'Autorité de la concurrence peut :
-soit constater, par décision motivée, que l'opération qui lui a été notifiée n'entre pas dans le champ défini par les articles L. 430-1 et L. 430-2 ;
-soit autoriser l'opération, en subordonnant éventuellement, par décision motivée, cette autorisation à la réalisation effective des engagements pris par les parties.
-soit, si elle estime qu'il subsiste un doute sérieux d'atteinte à la concurrence, engager un examen approfondi dans les conditions prévues à l'article L. 430-6.
IV.-Si l'Autorité de la concurrence ne prend aucune des trois décisions prévues au III dans le délai mentionné au I, éventuellement prolongé en application du II, elle en informe le ministre chargé de l'économie.L'opération est réputée avoir fait l'objet d'une décision d'autorisation au terme du délai ouvert au ministre chargé de l'économie par le I de l'article L. 430-7-1.
Article L430-6
Lorsqu'une opération de concentration fait l'objet, en application du dernier alinéa du III de l'article L. 430-5, d'un examen approfondi, l'Autorité de la concurrence examine si elle est de nature à porter atteinte à la concurrence, notamment par création ou renforcement d'une position dominante ou par création ou renforcement d'une puissance d'achat qui place les fournisseurs en situation de dépendance économique. Elle apprécie si l'opération apporte au progrès économique une contribution suffisante pour compenser les atteintes à la concurrence.
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La procédure applicable à cet examen approfondi de l'opération par l'Autorité de la concurrence est celle prévue au deuxième alinéa de l'article L. 463-2 et aux articles L. 463-4, L. 463-6 et L. 463-7. Toutefois, les parties qui ont procédé à la notification et le commissaire du Gouvernement doivent produire leurs observations en réponse à la communication du rapport dans un délai de quinze jours ouvrés.
Avant de statuer, l'autorité peut entendre des tiers en l'absence des parties qui ont procédé à la notification. Les comités d'entreprise des entreprises parties à l'opération de concentration sont entendus à leur demande par l'autorité dans les mêmes conditions.
Article L430-7
I.-Lorsqu'une opération de concentration fait l'objet d'un examen approfondi, l'Autorité de la concurrence prend une décision dans un délai de soixante-cinq jours ouvrés à compter de l'ouverture de celui-ci. II.-Après avoir pris connaissance de l'ouverture d'un examen approfondi en application du dernier alinéa du III de l'article L. 430-5, les parties peuvent proposer des engagements de nature à remédier aux effets anticoncurrentiels de l'opération.S'ils sont transmis à l'Autorité de la concurrence moins de vingt jours ouvrés avant la fin du délai mentionné au I, celui-ci expire vingt jours ouvrés après la date de réception des engagements. En cas de nécessité particulière, telle que la finalisation des engagements mentionnés à l'alinéa précédent, les parties peuvent demander à l'Autorité de la concurrence de suspendre les délais d'examen de l'opération dans la limite de vingt jours ouvrés. Ces délais peuvent également être suspendus à l'initiative de l'Autorité de la concurrence lorsque les parties ayant procédé à la notification ont manqué de l'informer d'un fait nouveau dès sa survenance ou de lui communiquer, en tout ou partie, les informations demandées dans le délai imparti, ou que des tiers ont manqué de lui communiquer, pour des raisons imputables aux parties ayant procédé à la notification, les informations demandées. En ce cas, le délai reprend son cours dès la disparition de la cause ayant justifié sa suspension. III.-L'Autorité de la concurrence peut, par décision motivée : -soit interdire l'opération de concentration et enjoindre, le cas échéant, aux parties de prendre toute mesure propre à rétablir une concurrence suffisante ; -soit autoriser l'opération en enjoignant aux parties de prendre toute mesure propre à assurer une concurrence suffisante ou en les obligeant à observer des prescriptions de nature à apporter au progrès économique une contribution suffisante pour compenser les atteintes à la concurrence. Les injonctions et prescriptions mentionnées aux deux alinéas précédents s'imposent quelles que soient les clauses contractuelles éventuellement conclues par les parties. Le projet de décision est transmis aux parties intéressées, auxquelles un délai raisonnable est imparti pour présenter leurs observations. IV.-Si l'Autorité de la concurrence n'entend prendre aucune des décisions prévues au III, elle autorise l'opération par une décision motivée.L'autorisation peut être subordonnée à la réalisation effective des engagements pris par les parties qui ont procédé à la notification. V.-Si aucune des décisions prévues aux III et IV n'a été prise dans le délai mentionné au I, éventuellement prolongé en application du II, l'Autorité de la concurrence en informe le ministre chargé de l'économie.L'opération est réputée avoir fait l'objet d'une décision d'autorisation au terme du délai ouvert au ministre chargé de l'économie par le II de l'article L. 430-7-1.
Article L430-7-1
I.-Dans un délai de cinq jours ouvrés à compter de la date à laquelle il a reçu la décision de l'Autorité de la concurrence ou en a été informé en vertu de l'article L. 430-5, le ministre chargé de l'économie peut demander à l'Autorité de la concurrence un examen approfondi de l'opération dans les conditions prévues aux articles L. 430-6 et L. 430-7.
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II.-Dans un délai de vingt-cinq jours ouvrés à compter de la date à laquelle il a reçu la décision de l'Autorité de la concurrence ou en a été informé en vertu de l'article L. 430-7, le ministre chargé de l'économie peut évoquer l'affaire et statuer sur l'opération en cause pour des motifs d'intérêt général autres que le maintien de la concurrence et, le cas échéant, compensant l'atteinte portée à cette dernière par l'opération.
Les motifs d'intérêt général autres que le maintien de la concurrence pouvant conduire le ministre chargé de l'économie à évoquer l'affaire sont, notamment, le développement industriel, la compétitivité des entreprises en cause au regard de la concurrence internationale ou la création ou le maintien de l'emploi.
Lorsqu'en vertu du présent II le ministre chargé de l'économie évoque une décision de l'Autorité de la concurrence, il prend une décision motivée statuant sur l'opération en cause après avoir entendu les observations des parties à l'opération de concentration. Cette décision peut éventuellement être conditionnée à la mise en œuvre effective d'engagements.
Cette décision est transmise sans délai à l'Autorité de la concurrence.
Article L430-8
I.-Si une opération de concentration a été réalisée sans être notifiée, l'Autorité de la concurrence enjoint sous astreinte, dans la limite prévue au II de l'article L. 464-2, aux parties de notifier l'opération, à moins de revenir à l'état antérieur à la concentration. La procédure prévue aux articles L. 430-5 à L. 430-7 est alors applicable.
En outre, l'autorité peut infliger aux personnes auxquelles incombait la charge de la notification une sanction pécuniaire dont le montant maximum s'élève, pour les personnes morales, à 5 % de leur chiffre d'affaires hors taxes réalisé en France lors du dernier exercice clos, augmenté, le cas échéant, de celui qu'a réalisé en France durant la même période la partie acquise et, pour les personnes physiques, à 1, 5 million d'euros.
II.-Si une opération de concentration notifiée et ne bénéficiant pas de la dérogation prévue au deuxième alinéa de l'article L. 430-4 a été réalisée avant l'intervention de la décision prévue au premier alinéa du même article, l'Autorité de la concurrence peut infliger aux personnes ayant procédé à la notification une sanction pécuniaire qui ne peut dépasser le montant défini au I.
III.-En cas d'omission ou de déclaration inexacte dans une notification, l'Autorité de la concurrence peut infliger aux personnes ayant procédé à la notification une sanction pécuniaire qui ne peut dépasser le montant défini au I.
Cette sanction peut s'accompagner du retrait de la décision ayant autorisé la réalisation de l'opération.A moins de revenir à l'état antérieur à la concentration, les parties sont alors tenues de notifier de nouveau l'opération dans un délai d'un mois à compter du retrait de la décision, sauf à encourir les sanctions prévues au I.
IV.-Si elle estime que les parties n'ont pas exécuté dans les délais fixés une injonction, une prescription ou un engagement figurant dans sa décision ou dans la décision du ministre ayant statué sur l'opération en application de l'article L. 430-7-1, l'Autorité de la concurrence constate l'inexécution. Elle peut :
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1° Retirer la décision ayant autorisé la réalisation de l'opération.A moins de revenir à l'état antérieur à la concentration, les parties sont tenues de notifier de nouveau l'opération dans un délai d'un mois à compter du retrait de la décision, sauf à encourir les sanctions prévues au I ;
2° Enjoindre sous astreinte, dans la limite prévue au II de l'article L. 464-2, aux parties auxquelles incombait l'obligation non exécutée d'exécuter dans un délai qu'ils fixent les injonctions, prescriptions ou engagements.
En outre, l'Autorité de la concurrence peut infliger aux personnes auxquelles incombait l'obligation non exécutée une sanction pécuniaire qui ne peut dépasser le montant défini au I.
La procédure applicable est celle prévue au deuxième alinéa de l'article L. 463-2 et aux articles L. 463-4, L. 463-6 et L. 463-7. Toutefois, les parties qui ont procédé à la notification et le commissaire du Gouvernement doivent produire leurs observations en réponse à la communication du rapport dans un délai de quinze jours ouvrés.
L'Autorité de la concurrence se prononce dans un délai de soixante-quinze jours ouvrés.
V.-Si une opération de concentration a été réalisée en contravention des décisions prises en application des articles L. 430-7 et L. 430-7-1, l'Autorité de la concurrence enjoint sous astreinte, dans la limite prévue au II de l'article L. 464-2, aux parties de revenir à l'état antérieur à la concentration.
En outre, l'Autorité de la concurrence peut infliger aux personnes auxquelles les décisions précitées s'imposaient la sanction pécuniaire prévue au I.
Article L430-9
L'Autorité de la concurrence peut, en cas d'exploitation abusive d'une position dominante ou d'un état de dépendance économique, enjoindre, par décision motivée, à l'entreprise ou au groupe d'entreprises en cause de modifier, de compléter ou de résilier, dans un délai déterminé, tous accords et tous actes par lesquels s'est réalisée la concentration de la puissance économique qui a permis les abus même si ces actes ont fait l'objet de la procédure prévue au présent titre.
Article L430-10
Lorsqu'ils interrogent des tiers au sujet de l'opération, de ses effets et des engagements proposés par les parties, et rendent publique leur décision dans des conditions fixées par décret, l'Autorité de la concurrence et le ministre chargé de l'économie tiennent compte de l'intérêt légitime des parties qui procèdent à la notification ou des personnes citées à ce que leurs secrets d'affaires ne soient pas divulgués.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE IV : De la transparence, des pratiques restrictives de concurrence et d'autres pratiques prohibées.
Chapitre préliminaire : Dispositions générales.
Article L440-1
Une Commission d'examen des pratiques commerciales est créée. Elle est composée d'un député et d'un sénateur désignés par les commissions permanentes de leur assemblée compétentes en matière de relations commerciales entre fournisseurs et revendeurs, de membres, éventuellement honoraires, des juridictions administratives et judiciaires, de représentants des secteurs de la production et de la transformation agricole et halieutique, ainsi qu'industrielle et artisanale, des transformateurs, des grossistes, des distributeurs et de l'administration, ainsi que de personnalités qualifiées. Le président de la commission est désigné parmi ses membres par décret. Lorsque celui-ci n'est pas membre d'une juridiction, un vice-président appartenant à une juridiction administrative ou judiciaire est également désigné dans les mêmes conditions. Elle comprend un nombre égal de représentants des producteurs et des revendeurs.
Les membres de la commission sont tenus au secret professionnel pour les faits, actes et renseignements dont ils ont pu avoir connaissance en raison de leurs fonctions.
La commission a pour mission de donner des avis ou formuler des recommandations sur les questions, les documents commerciaux ou publicitaires, y compris les factures et contrats couverts par un secret industriel et commercial, et les pratiques concernant les relations commerciales entre producteurs, fournisseurs, revendeurs qui lui sont soumis. Elle assure, sous la responsabilité de son président, l'anonymat des saisines et des documents qui lui sont soumis, y compris vis-à-vis de ses membres.
La commission est saisie par le ministre chargé de l'économie, le ministre chargé du secteur économique concerné, le président de l'Autorité de la concurrence, toute personne morale, notamment les organisations professionnelles ou syndicales, les associations de consommateurs agréées, les chambres consulaires ou d'agriculture, ainsi que par tout producteur, fournisseur, revendeur s'estimant lésé par une pratique commerciale. Elle peut également se saisir d'office. Le président de la commission peut décider de mettre en place plusieurs chambres d'examen au sein de la commission.
L'avis rendu par la commission porte notamment sur la conformité au droit de la pratique ou du document dont elle est saisie.
La commission entend, à sa demande, les personnes et fonctionnaires qu'elle juge utiles à
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l'accomplissement de sa mission. Son président peut demander qu'une enquête soit effectuée par les agents habilités à cet effet par l'article L. 450-1 du présent code ou l'article L. 215-1 du code de la consommation, selon les procédures prévues. Le compte rendu de l'enquête est remis au président de la commission qui s'assure qu'il préserve l'anonymat des personnes concernées.
La commission peut également décider d'adopter une recommandation sur les questions dont elle est saisie et toutes celles entrant dans ses compétences, notamment celles portant sur le développement des bonnes pratiques. Lorsqu'elle fait suite à une saisine en application du troisième alinéa, cette recommandation ne contient aucune indication de nature à permettre l'identification des personnes concernées. La recommandation est communiquée au ministre chargé de l'économie et est publiée sur décision de la commission.
La commission exerce, en outre, un rôle d'observatoire régulier des pratiques commerciales, des facturations et des contrats conclus entre producteurs, fournisseurs, revendeurs qui lui sont soumis. Elle établit chaque année un rapport d'activité, qu'elle transmet au Gouvernement et aux assemblées parlementaires. Ce rapport est rendu public. Il comprend une analyse détaillée du nombre et de la nature des infractions aux dispositions du présent titre ayant fait l'objet de sanctions administratives ou pénales. Il comprend également les décisions rendues en matière civile sur les opérations engageant la responsabilité de leurs auteurs.
Un décret détermine l'organisation, les moyens et les modalités de fonctionnement de la commission ainsi que les conditions nécessaires pour assurer l'anonymat des acteurs économiques visés dans les avis et recommandations de la commission.
Chapitre Ier : De la transparence.
Article L441-1
Les règles relatives aux conditions de vente au consommateur sont fixées par l'article L. 113-3 du code de la consommation reproduit ci-après :
" Art.L. 113-3.-Tout vendeur de produits ou tout prestataire de services doit par voie de marquage, d'étiquetage, d'affichage ou par tout autre procédé approprié, informer le consommateur sur les prix, les limitations éventuelles de la responsabilité contractuelle et les conditions particulières de la vente, selon des modalités fixées par arrêtés du ministre chargé de l'économie, après consultation du Conseil national de la consommation.
Cette disposition s'applique à toutes les activités visées au dernier alinéa de l'article L. 113-2.
Les règles relatives à l'obligation de renseignements par les établissements de crédit et les organismes mentionnés à l'article L. 518-1 du code monétaire et financier sont fixées par les I et II de l'article L. 312-1-1 du même code."
Article L441-2
Toute publicité à l'égard du consommateur, diffusée sur tout support ou visible de l'extérieur du lieu de vente, mentionnant une réduction de prix ou un prix promotionnel sur les produits alimentaires périssables doit préciser la nature et l'origine du ou des produits offerts et la période pendant laquelle est maintenue l'offre proposée par l'annonceur. La mention relative à l'origine est inscrite
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en caractères d'une taille égale à celle de l'indication du prix.
Lorsque de telles opérations promotionnelles sont susceptibles, par leur ampleur ou leur fréquence, de désorganiser les marchés, un arrêté interministériel ou, à défaut, préfectoral fixe, pour les produits concernés, la périodicité et la durée de telles opérations.
Pour un fruit ou légume frais ayant fait l'objet, entre le fournisseur et son client, d'un accord sur le prix de cession, l'annonce de prix, hors lieu de vente, est autorisée dans un délai maximum de soixante-douze heures précédant le premier jour de l'application du prix annoncé, pour une durée qui ne peut excéder cinq jours à compter de cette date.
Dans tous les autres cas, toute annonce de prix, hors lieu de vente, portant sur un fruit ou légume frais quelle que soit son origine, doit faire l'objet d'un accord interprofessionnel d'une durée d'un an renouvelable, conclu conformément aux dispositions de l'article L. 632-1 du code rural. Cet accord précise les périodes durant lesquelles une telle annonce est possible et ses modalités.
Cet accord peut être étendu conformément aux dispositions des articles L. 632-3 et L. 632-4 du même code.
Les dispositions des trois alinéas précédents ne sont pas applicables aux fruits et légumes frais appartenant à des espèces non produites en France métropolitaine.
Toute infraction aux dispositions des alinéas ci-dessus est punie d'une amende de 15 000 Euros.
La cessation de la publicité réalisée dans des conditions non conformes aux dispositions du présent article peut être ordonnée dans les conditions prévues à l'article L. 121-3 du code de la consommation.
Article L441-2-1
Pour les produits agricoles périssables ou issus de cycles courts de production, d'animaux vifs, de carcasses ou pour les produits de la pêche et de l'aquaculture, figurant sur une liste établie par décret, un distributeur ou prestataire de services ne peut bénéficier de remises, rabais et ristournes ou prévoir la rémunération de services rendus à l'occasion de leur revente, propres à favoriser leur commercialisation et ne relevant pas des obligations d'achat et de vente, ou de services ayant un objet distinct, que si ceux-ci sont prévus dans un contrat écrit portant sur la vente de ces produits par le fournisseur.
Ce contrat comprend notamment des clauses relatives aux engagements sur les volumes, aux modalités de détermination du prix en fonction des volumes et des qualités des produits et des services concernés et à la fixation d'un prix. Il indique les avantages tarifaires consentis par le fournisseur au distributeur au regard des engagements de ce dernier.
Lorsqu'un contrat type relatif aux activités mentionnées au premier alinéa est inclus dans un accord interprofessionnel adopté par l'organisation interprofessionnelle reconnue pour le produit concerné et étendu en application des dispositions des articles L. 632-3 et L. 632-4 du code rural, le contrat
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mentionné au premier alinéa doit être conforme à ce contrat type. Toute infraction aux dispositions du présent article est punie d'une amende de 15 000 Euros.
Article L441-3
Tout achat de produits ou toute prestation de service pour une activité professionnelle doivent faire l'objet d'une facturation.
Le vendeur est tenu de délivrer la facture dès la réalisation de la vente ou la prestation du service. L'acheteur doit la réclamer. La facture doit être rédigée en double exemplaire. Le vendeur et l'acheteur doivent en conserver chacun un exemplaire.
La facture doit mentionner le nom des parties ainsi que leur adresse, la date de la vente ou de la prestation de service, la quantité, la dénomination précise, et le prix unitaire hors TVA des produits vendus et des services rendus ainsi que toute réduction de prix acquise à la date de la vente ou de la prestation de services et directement liée à cette opération de vente ou de prestation de services, à l'exclusion des escomptes non prévus sur la facture.
La facture mentionne également la date à laquelle le règlement doit intervenir. Elle précise les conditions d'escompte applicables en cas de paiement à une date antérieure à celle résultant de l'application des conditions générales de vente ainsi que le taux des pénalités exigibles le jour suivant la date de règlement inscrite sur la facture. Le règlement est réputé réalisé à la date à laquelle les fonds sont mis, par le client, à la disposition du bénéficiaire ou de son subrogé.
Article L441-4
Toute infraction aux dispositions de l'article L. 441-3 est punie d'une amende de 75000 euros.
L'amende peut être portée à 50 % de la somme facturée ou de celle qui aurait dû être facturée.
Article L441-5
Les personnes morales déclarées pénalement responsables de l'infraction prévue à l'article L. 441-4 encourent une peine d'exclusion des marchés publics pour une durée de cinq ans au plus, en application du 5° de l'article 131-39 du code pénal.
Article L441-6
Tout producteur, prestataire de services, grossiste ou importateur est tenu de communiquer ses conditions générales de vente à tout acheteur de produits ou tout demandeur de prestations de services qui en fait la demande pour une activité professionnelle. Celles-ci constituent le socle de la négociation commerciale. Elles comprennent :
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-les conditions de vente ;
-le barème des prix unitaires ;
-les réductions de prix ;
-les conditions de règlement.
Les conditions générales de vente peuvent être différenciées selon les catégories d'acheteurs de produits ou de demandeurs de prestation de services. Dans ce cas, l'obligation de communication prescrite au premier alinéa porte sur les conditions générales de vente applicables aux acheteurs de produits ou aux demandeurs de prestation de services d'une même catégorie.
Tout producteur, prestataire de services, grossiste ou importateur peut convenir avec un acheteur de produits ou demandeur de prestation de services de conditions particulières de vente qui ne sont pas soumises à l'obligation de communication prescrite au premier alinéa.
Sauf dispositions contraires figurant aux conditions de vente ou convenues entre les parties, le délai de règlement des sommes dues est fixé au trentième jour suivant la date de réception des marchandises ou d'exécution de la prestation demandée.
Le délai convenu entre les parties pour régler les sommes dues ne peut dépasser quarante-cinq jours fin de mois ou soixante jours à compter de la date d'émission de la facture.
Les professionnels d'un secteur, clients et fournisseurs, peuvent décider conjointement de réduire le délai maximum de paiement fixé à l'alinéa précédent. Ils peuvent également proposer de retenir la date de réception des marchandises ou d'exécution de la prestation de services demandée comme point de départ de ce délai. Des accords sont conclus à cet effet par leurs organisations professionnelles. Un décret peut étendre le nouveau délai maximum de paiement à tous les opérateurs du secteur ou, le cas échéant, valider le nouveau mode de computation et l'étendre à ces mêmes opérateurs.
Nonobstant les dispositions précédentes, pour le transport routier de marchandises, pour la location de véhicules avec ou sans conducteur, pour la commission de transport ainsi que pour les activités de transitaire, d'agent maritime et de fret aérien, de courtier de fret et de commissionnaire en douane, les délais de paiement convenus ne peuvent en aucun cas dépasser trente jours à compter de la date d'émission de la facture.
Les conditions de règlement doivent obligatoirement préciser les conditions d'application et le taux d'intérêt des pénalités de retard exigibles le jour suivant la date de règlement figurant sur la facture dans le cas où les sommes dues sont réglées après cette date. Sauf disposition contraire qui ne peut toutefois fixer un taux inférieur à trois fois le taux d'intérêt légal, ce taux est égal au taux d'intérêt appliqué par la Banque centrale européenne à son opération de refinancement la plus récente majoré de 10 points de pourcentage. Les pénalités de retard sont exigibles sans qu'un rappel soit nécessaire.
La communication prévue au premier alinéa s'effectue par tout moyen conforme aux usages de la profession.
Est puni d'une amende de 15 000 euros le fait de ne pas respecter les délais de paiement mentionnés aux huitième et onzième alinéas, le fait de ne pas indiquer dans les conditions de règlement les mentions figurant à la première phrase du douzième alinéa ainsi que le fait de fixer un taux ou des conditions d'exigibilité selon des modalités non conformes aux dispositions du même alinéa.
Article L441-6-1
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Les sociétés dont les comptes annuels sont certifiés par un commissaire aux comptes publient des informations sur les délais de paiement de leurs fournisseurs ou de leurs clients suivant des modalités définies par décret.
Ces informations font l'objet d'un rapport du commissaire aux comptes dans des conditions fixées par ce même décret. Le commissaire aux comptes adresse ledit rapport au ministre chargé de l'économie s'il démontre, de façon répétée, des manquements significatifs aux prescriptions des neuvième et dixième alinéas de l'article L. 441-6.
Article L441-7
I.-Une convention écrite conclue entre le fournisseur et le distributeur ou le prestataire de services indique les obligations auxquelles se sont engagées les parties en vue de fixer le prix à l'issue de la négociation commerciale. Etablie soit dans un document unique, soit dans un ensemble formé par un contrat-cadre annuel et des contrats d'application, elle fixe :
1° Les conditions de l'opération de vente des produits ou des prestations de services telles qu'elles résultent de la négociation commerciale dans le respect de l'article L. 441-6 ;
2° Les conditions dans lesquelles le distributeur ou le prestataire de services s'oblige à rendre au fournisseur, à l'occasion de la revente de ses produits ou services aux consommateurs ou en vue de leur revente aux professionnels, tout service propre à favoriser leur commercialisation ne relevant pas des obligations d'achat et de vente, en précisant l'objet, la date prévue, les modalités d'exécution, la rémunération des obligations ainsi que les produits ou services auxquels elles se rapportent ;
3° Les autres obligations destinées à favoriser la relation commerciale entre le fournisseur et le distributeur ou le prestataire de services, en précisant pour chacune l'objet, la date prévue et les modalités d'exécution.
Les obligations relevant des 1° et 3° concourent à la détermination du prix convenu.
La convention unique ou le contrat-cadre annuel est conclu avant le 1er mars ou dans les deux mois suivant le point de départ de la période de commercialisation des produits ou des services soumis à un cycle de commercialisation particulier. Le présent I n'est pas applicable aux produits mentionnés au premier alinéa de l'article L. 441-2-1.
II.-Est puni d'une amende de 75 000 euros le fait de ne pas pouvoir justifier avoir conclu dans les délais prévus une convention satisfaisant aux exigences du I.
Chapitre II : Des pratiques restrictives de concurrence.
Article L442-1
Les règles relatives aux ventes ou prestations avec primes, aux refus de vente ou de prestation, prestations par lots ou par quantités imposées sont fixées par les articles L. 121-35 et L. 122-1 du code de la consommation reproduits ci-après :
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" Art.L. 121-35.-Est interdite toute vente ou offre de vente de produits ou de biens ou toute prestation ou offre de prestation de services, faite aux consommateurs et donnant droit à titre gratuit, immédiatement ou à terme, à une prime consistant en produits, biens ou services sauf s'ils sont identiques à ceux qui font l'objet de la vente ou de la prestation.
Cette disposition ne s'applique pas aux menus objets ou services de faible valeur ni aux échantillons.
Cette disposition s'applique à toutes les activités visées au dernier alinéa de l'articles L. 113-2.
Pour les établissements de crédit et les organismes mentionnés à l'article L. 518-1 du code monétaire et financier, les règles relatives aux ventes avec primes sont fixées par le 2 du I de l'article L. 312-1-2 du même code. "
" Art.L. 122-1.-Il est interdit de refuser à un consommateur la vente d'un produit ou la prestation d'un service, sauf motif légitime, et de subordonner la vente d'un produit à l'achat d'une quantité imposée ou à l'achat concomitant d'un autre produit ou d'un autre service ainsi que de subordonner la prestation d'un service à celle d'un autre service ou à l'achat d'un produit.
Cette disposition s'applique à toutes les activités visées au dernier alinéa de l'articles L. 113-2.
Pour les établissements de crédit et les organismes mentionnés à l'article L. 518-1 du code monétaire et financier, les règles relatives aux ventes subordonnées sont fixées par le 1 du I de l'article L. 312-1-2 du même code. "
Article L442-2
Le fait, pour tout commerçant, de revendre ou d'annoncer la revente d'un produit en l'état à un prix inférieur à son prix d'achat effectif est puni de 75 000 euros d'amende. Cette amende peut être portée à la moitié des dépenses de publicité dans le cas où une annonce publicitaire, quel qu'en soit le support, fait état d'un prix inférieur au prix d'achat effectif. La cessation de l'annonce publicitaire peut être ordonnée dans les conditions prévues à l'article L. 121-3 du code de la consommation.
Le prix d'achat effectif est le prix unitaire net figurant sur la facture d'achat, minoré du montant de l'ensemble des autres avantages financiers consentis par le vendeur exprimé en pourcentage du prix unitaire net du produit et majoré des taxes sur le chiffre d'affaires, des taxes spécifiques afférentes à cette revente et du prix du transport.
Le prix d'achat effectif tel que défini au deuxième alinéa est affecté d'un coefficient de 0, 9 pour le grossiste qui distribue des produits ou services exclusivement à des professionnels qui lui sont indépendants et qui exercent une activité de revendeur au détail, de transformateur ou de prestataire de services final. Est indépendante au sens de la phrase précédente toute entreprise libre de déterminer sa politique commerciale et dépourvue de lien capitalistique ou d'affiliation avec le grossiste.
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Article L442-3
Les personnes morales déclarées pénalement responsables de l'infraction prévue à l'article L. 442-2 encourent la peine mentionnée au 9° de l'article 131-39 du code pénal.
La cessation de l'annonce publicitaire peut être ordonnée dans les conditions prévues à l'article L. 121-3 du code de la consommation.
Article L442-4
I.-Les dispositions de l'article L. 442-2 ne sont pas applicables :
1° Aux ventes volontaires ou forcées motivées par la cessation ou le changement d'une activité commerciale :
2° Aux produits dont la vente présente un caractère saisonnier marqué, pendant la période terminale de la saison des ventes et dans l'intervalle compris entre deux saisons de vente ;
3° Aux produits qui ne répondent plus à la demande générale en raison de l'évolution de la mode ou de l'apparition de perfectionnements techniques ;
4° Aux produits, aux caractéristiques identiques, dont le réapprovisionnement s'est effectué en baisse, le prix effectif d'achat étant alors remplacé par le prix résultant de la nouvelle facture d'achat ;
5° Aux produits alimentaires commercialisés dans un magasin d'une surface de vente de moins de 300 mètres carrés et aux produits non alimentaires commercialisés dans un magasin d'une surface de vente de moins de 1 000 mètres carrés, dont le prix de revente est aligné sur le prix légalement pratiqué pour les mêmes produits par un autre commerçant dans la même zone d'activité ;
6° A condition que l'offre de prix réduit ne fasse l'objet d'une quelconque publicité ou annonce à l'extérieur du point de vente, aux produits périssables à partir du moment où ils sont menacés d'altération rapide ;
7° Aux produits soldés mentionnés à l'article L. 310-3.
II.-Les exceptions prévues au I ne font pas obstacle à l'application du 2° de l'article L. 653-5 et du 1 de l'article L. 654-2.
Article L442-5
Est puni d'une amende de 15000 euros le fait par toute personne d'imposer, directement ou indirectement, un caractère minimal au prix de revente d'un produit ou d'un bien, au prix d'une prestation de service ou à une marge commerciale.
Article L442-6
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I.-Engage la responsabilité de son auteur et l'oblige à réparer le préjudice causé le fait, par tout producteur, commerçant, industriel ou personne immatriculée au répertoire des métiers :
1° D'obtenir ou de tenter d'obtenir d'un partenaire commercial un avantage quelconque ne correspondant à aucun service commercial effectivement rendu ou manifestement disproportionné au regard de la valeur du service rendu. Un tel avantage peut notamment consister en la participation, non justifiée par un intérêt commun et sans contrepartie proportionnée, au financement d'une opération d'animation commerciale, d'une acquisition ou d'un investissement, en particulier dans le cadre de la rénovation de magasins ou encore du rapprochement d'enseignes ou de centrales de référencement ou d'achat. Un tel avantage peut également consister en une globalisation artificielle des chiffres d'affaires ou en une demande d'alignement sur les conditions commerciales obtenues par d'autres clients ;
2° De soumettre ou de tenter de soumettre un partenaire commercial à des obligations créant un déséquilibre significatif dans les droits et obligations des parties ;
3° D'obtenir ou de tenter d'obtenir un avantage, condition préalable à la passation de commandes, sans l'assortir d'un engagement écrit sur un volume d'achat proportionné et, le cas échéant, d'un service demandé par le fournisseur et ayant fait l'objet d'un accord écrit ;
4° D'obtenir ou de tenter d'obtenir, sous la menace d'une rupture brutale totale ou partielle des relations commerciales, des conditions manifestement abusives concernant les prix, les délais de paiement, les modalités de vente ou les services ne relevant pas des obligations d'achat et de vente ;
5° De rompre brutalement, même partiellement, une relation commerciale établie, sans préavis écrit tenant compte de la durée de la relation commerciale et respectant la durée minimale de préavis déterminée, en référence aux usages du commerce, par des accords interprofessionnels. Lorsque la relation commerciale porte sur la fourniture de produits sous marque de distributeur, la durée minimale de préavis est double de celle qui serait applicable si le produit n'était pas fourni sous marque de distributeur.A défaut de tels accords, des arrêtés du ministre chargé de l'économie peuvent, pour chaque catégorie de produits, fixer, en tenant compte des usages du commerce, un délai minimum de préavis et encadrer les conditions de rupture des relations commerciales, notamment en fonction de leur durée. Les dispositions qui précèdent ne font pas obstacle à la faculté de résiliation sans préavis, en cas d'inexécution par l'autre partie de ses obligations ou en cas de force majeure. Lorsque la rupture de la relation commerciale résulte d'une mise en concurrence par enchères à distance, la durée minimale de préavis est double de celle résultant de l'application des dispositions du présent alinéa dans les cas où la durée du préavis initial est de moins de six mois, et d'au moins un an dans les autres cas ;
6° De participer directement ou indirectement à la violation de l'interdiction de revente hors réseau faite au distributeur lié par un accord de distribution sélective ou exclusive exempté au titre des règles applicables du droit de la concurrence ;
7° De soumettre un partenaire à des conditions de règlement qui ne respectent pas le plafond fixé au neuvième alinéa de l'article L. 441-6 ou qui sont manifestement abusives, compte tenu des bonnes pratiques et usages commerciaux, et s'écartent au détriment du créancier, sans raison objective, du délai indiqué au huitième alinéa de l'article L. 441-6. Est notamment abusif le fait, pour le débiteur, de demander au créancier, sans raison objective, de différer la date d'émission de la facture ;
8° De procéder au refus ou retour de marchandises ou de déduire d'office du montant de la facture établie par le fournisseur les pénalités ou rabais correspondant au non-respect d'une date de livraison ou à la non-conformité des marchandises, lorsque la dette n'est pas certaine, liquide et exigible, sans même que le fournisseur n'ait été en mesure de contrôler la réalité du grief
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correspondant ;
9° De ne pas communiquer ses conditions générales de vente, dans les conditions prévues à l'article L. 441-6, à tout acheteur de produits ou tout demandeur de prestations de services qui en fait la demande pour l'exercice d'une activité professionnelle ;
10° De refuser de mentionner sur l'étiquetage d'un produit vendu sous marque de distributeur le nom et l'adresse du fabricant si celui-ci en a fait la demande conformément à l'article L. 112-6 du code de la consommation.
II.-Sont nuls les clauses ou contrats prévoyant pour un producteur, un commerçant, un industriel ou une personne immatriculée au répertoire des métiers, la possibilité :
a) De bénéficier rétroactivement de remises, de ristournes ou d'accords de coopération commerciale ;
b) D'obtenir le paiement d'un droit d'accès au référencement préalablement à la passation de toute commande ;
c) D'interdire au cocontractant la cession à des tiers des créances qu'il détient sur lui ;
d) De bénéficier automatiquement des conditions plus favorables consenties aux entreprises concurrentes par le cocontractant ;
e) D'obtenir d'un revendeur exploitant une surface de vente au détail inférieure à 300 mètres carrés qu'il approvisionne mais qui n'est pas lié à lui, directement ou indirectement, par un contrat de licence de marque ou de savoir-faire, un droit de préférence sur la cession ou le transfert de son activité ou une obligation de non-concurrence postcontractuelle, ou de subordonner l'approvisionnement de ce revendeur à une clause d'exclusivité ou de quasi-exclusivité d'achat de ses produits ou services d'une durée supérieure à deux ans.
L'annulation des clauses relatives au règlement entraîne l'application du délai indiqué au deuxième alinéa de l'article L. 441-6, sauf si la juridiction saisie peut constater un accord sur des conditions différentes qui soient équitables.
III.-L'action est introduite devant la juridiction civile ou commerciale compétente par toute personne justifiant d'un intérêt, par le ministère public, par le ministre chargé de l'économie ou par le président de l'Autorité de la concurrence lorsque ce dernier constate, à l'occasion des affaires qui relèvent de sa compétence, une pratique mentionnée au présent article.
Lors de cette action, le ministre chargé de l'économie et le ministère public peuvent demander à la juridiction saisie d'ordonner la cessation des pratiques mentionnées au présent article. Ils peuvent aussi, pour toutes ces pratiques, faire constater la nullité des clauses ou contrats illicites et demander la répétition de l'indu. Ils peuvent également demander le prononcé d'une amende civile dont le montant ne peut être supérieur à 2 millions d'euros. Toutefois, cette amende peut être portée au triple du montant des sommes indûment versées. La réparation des préjudices subis peut également être demandée. Dans tous les cas, il appartient au prestataire de services, au producteur, au commerçant, à l'industriel ou à la personne immatriculée au répertoire des métiers qui se prétend libéré de justifier du fait qui a produit l'extinction de son obligation.
La juridiction peut ordonner la publication, la diffusion ou l'affichage de sa décision ou d'un extrait de celle-ci selon les modalités qu'elle précise. Elle peut également ordonner l'insertion de la décision ou de l'extrait de celle-ci dans le rapport établi sur les opérations de l'exercice par les gérants, le conseil d'administration ou le directoire de l'entreprise. Les frais sont supportés par la personne condamnée.
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La juridiction peut ordonner l'exécution de sa décision sous astreinte.
Les litiges relatifs à l'application du présent article sont attribués aux juridictions dont le siège et le ressort sont fixés par décret.
Ces juridictions peuvent consulter la Commission d'examen des pratiques commerciales prévue à l'article L. 440-1 sur les pratiques définies au présent article et relevées dans les affaires dont celles-ci sont saisies. La décision de saisir la commission n'est pas susceptible de recours. La commission fait connaître son avis dans un délai maximum de quatre mois à compter de sa saisine. Il est sursis à toute décision sur le fond de l'affaire jusqu'à réception de l'avis ou, à défaut, jusqu'à l'expiration du délai de quatre mois susmentionné. Toutefois, des mesures urgentes ou conservatoires nécessaires peuvent être prises.L'avis rendu ne lie pas la juridiction.
IV.-Le juge des référés peut ordonner, au besoin sous astreinte, la cessation des pratiques abusives ou toute autre mesure provisoire.
Article L442-7
Aucune association ou coopérative d'entreprise ou d'administration ne peut, de façon habituelle, offrir des produits à la vente, les vendre ou fournir des services si ces activités ne sont pas prévues par ses statuts.
Article L442-8
Il est interdit à toute personne d'offrir à la vente des produits ou de proposer des services en utilisant, dans des conditions irrégulières, le domaine public de l'Etat, des collectivités locales et de leurs établissements publics.
Les infractions à l'interdiction mentionnée à l'alinéa précédent sont recherchées et constatées dans les conditions définies par les articles L. 450-1 à L. 450-3 et L. 450-8.
Les agents peuvent consigner, dans des locaux qu'ils déterminent et pendant une durée qui ne peut être supérieure à un mois, les produits offerts à la vente et les biens ayant permis la vente des produits ou l'offre de services.
La consignation donne lieu à l'établissement immédiat d'un procès-verbal. Celui-ci comporte un inventaire des biens et des marchandises consignés ainsi que la mention de leur valeur. Il est communiqué dans les cinq jours de sa clôture au procureur de la République et à l'intéressé.
La juridiction peut ordonner la confiscation des produits offerts à la vente et des biens ayant permis la vente des produits ou l'offre de services. La juridiction peut condamner l'auteur de l'infraction à verser au Trésor public une somme correspondant à la valeur des produits consignés, dans le cas où il n'a pas été procédé à une saisie.
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Article L442-9
Engage la responsabilité de son auteur et l'oblige à réparer le préjudice causé le fait, pour tout producteur, commerçant, industriel ou personne immatriculée au répertoire des métiers, de pratiquer ou de faire pratiquer, en situation de crise conjoncturelle telle que définie par l'article L. 611-4 du code rural, des prix de première cession abusivement bas pour des produits figurant sur la liste prévue à l'article L. 441-2-1 du présent code.
Engage également la responsabilité de son auteur et l'oblige à réparer le préjudice causé le fait pour tout revendeur d'exiger de son fournisseur, en situation de forte hausse des cours de certaines matières premières agricoles, des prix de cession abusivement bas pour les produits agricoles périssables ou issus de cycles courts de production, d'animaux vifs, de carcasses, pour les produits de l'aquaculture, ainsi que pour les produits alimentaires de consommation courante issus de la première transformation de ces produits. Les conditions définissant la situation de forte hausse des cours de certaines matières premières agricoles ainsi que la liste des produits concernés sont fixées par décret.
Le III et le IV de l'article L. 442-6 sont applicables à l'action prévue par le présent article.
Article L442-10
I.-Est nul le contrat par lequel un fournisseur s'engage envers tout producteur, commerçant, industriel ou personne immatriculée au répertoire des métiers sur une offre de prix à l'issue d'enchères inversées à distance, organisées notamment par voie électronique, lorsque l'une au moins des règles suivantes n'a pas été respectée :
1° Préalablement aux enchères, l'acheteur ou la personne qui les organise pour son compte communique de façon transparente et non discriminatoire à l'ensemble des candidats admis à présenter une offre les éléments déterminants des produits ou des prestations de services qu'il entend acquérir, ses conditions et modalités d'achat, ses critères de sélection détaillés ainsi que les règles selon lesquelles les enchères vont se dérouler ;
2° A l'issue de la période d'enchères, l'identité du candidat retenu est révélée au candidat qui, ayant participé à l'enchère, en fait la demande. Si l'auteur de l'offre sélectionnée est défaillant, nul n'est tenu de reprendre le marché au dernier prix ni à la dernière enchère.
II.-L'acheteur ou la personne qui organise les enchères pour son compte effectue un enregistrement du déroulement des enchères qu'il conserve pendant un an. Il est présenté s'il est procédé à une enquête dans les conditions prévues au titre V du présent livre.
III.-Les enchères à distance inversées organisées par l'acheteur ou par son représentant sont interdites pour les produits agricoles figurant sur une liste établie par décret, ainsi que pour les produits alimentaires de consommation courante issus de la première transformation de ces produits.
IV.-Le fait de ne pas respecter les dispositions des I à III engage la responsabilité de son auteur et l'oblige à réparer le préjudice causé. Les dispositions des III et IV de l'article L. 442-6 sont applicables aux opérations visées aux I à III du présent article.
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Chapitre III : Autres pratiques prohibées.
Article L443-1
A peine d'une amende de 75 000 euros, le délai de paiement, par tout producteur, revendeur ou prestataire de services, ne peut être supérieur :
1° A trente jours après la fin de la décade de livraison pour les achats de produits alimentaires périssables et de viandes congelées ou surgelées, de poissons surgelés, de plats cuisinés et de conserves fabriqués à partir de produits alimentaires périssables, à l'exception des achats de produits saisonniers effectués dans le cadre de contrats dits de culture visés aux articles L. 326-1 à L. 326-3 du code rural ;
2° A vingt jours après le jour de livraison pour les achats de bétail sur pied destiné à la consommation et de viandes fraîches dérivées ;
3° A trente jours après la fin du mois de livraison pour les achats de boissons alcooliques passibles des droits de consommation prévus à l'article 403 du code général des impôts ;
4° A défaut d'accords interprofessionnels conclus en application du livre VI du code rural et rendus obligatoires par voie réglementaire à tous les opérateurs sur l'ensemble du territoire métropolitain ou de décisions interprofessionnelles prises en application de la loi du 12 avril 1941 portant création d'un comité interprofessionnel du vin de Champagne pour ce qui concerne les délais de paiement, à quarante-cinq jours fin de mois ou soixante jours à compter de la date d'émission de la facture pour les achats de raisins et de moûts destinés à l'élaboration de vins ainsi que de boissons alcooliques passibles des droits de circulation prévus à l'article 438 du même code.
Article L443-2
I. - Est puni de deux ans d'emprisonnement et de 30 000 euros d'amende le fait d'opérer la hausse ou la baisse artificielle soit du prix de biens ou de services, soit d'effets publics ou privés, notamment à l'occasion d'enchères à distance :
1° En diffusant, par quelque moyen que ce soit, des informations mensongères ou calomnieuses ;
2° En introduisant sur le marché ou en sollicitant soit des offres destinées à troubler les cours, soit des sur-offres ou sous-offres faites aux prix demandés par les vendeurs ou prestataires de services ;
3° Ou en utilisant tout autre moyen frauduleux.
La tentative est punie des mêmes peines.
II. - Lorsque la hausse ou la baisse artificielle des prix concerne des produits alimentaires, la peine est portée à trois ans d'emprisonnement et 45000 euros d'amende.
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III. - Les personnes physiques coupables des infractions prévues au présent article encourent également les peines complémentaires suivantes :
1° L'interdiction des droits civiques, civils et de famille, suivant les modalités de l'article 131-26 du code pénal ;
2° L'affichage ou la diffusion de la décision prononcée dans les conditions prévues par l'article 131-35 du code pénal.
Article L443-3
Les personnes morales déclarées pénalement responsables des infractions prévues aux I et II de l'article L. 443-2 encourent les peines mentionnées aux 2° à 6° et 9° de l'article 131-39 du code pénal. L'interdiction mentionnée au 2° de l'article 131-39 du même code porte sur l'activité dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE V : Des pouvoirs d'enquête.
Article L450-1
I. - Les agents des services d'instruction de l'Autorité de la concurrence habilités à cet effet par le rapporteur général peuvent procéder à toute enquête nécessaire à l'application des dispositions des titres II et III du présent livre. Dans le cas où des investigations sont menées au nom ou pour le compte d'une autorité de concurrence d'un autre Etat membre, en application du 1 de l'article 22 du règlement n° 1 / 2003 du Conseil relatif à la mise en œuvre des règles de concurrence prévues aux articles 81 et 82 du traité instituant la Communauté européenne, le rapporteur général de l'Autorité de la concurrence peut autoriser des agents de l'autorité de concurrence de l'autre Etat membre à assister les agents mentionnés à l'alinéa précédent dans leurs investigations. Les modalités de cette assistance sont fixées par décret en Conseil d'Etat. II. - Des fonctionnaires habilités à cet effet par le ministre chargé de l'économie peuvent procéder aux enquêtes nécessaires à l'application des dispositions du présent livre. Des fonctionnaires de catégorie A relevant du ministre chargé de l'économie, spécialement habilités à cet effet par le garde des sceaux, ministre de la justice, sur la proposition du ministre chargé de l'économie, peuvent recevoir des juges d'instruction des commissions rogatoires. III. - Les agents mentionnés aux I et II peuvent exercer les pouvoirs qu'ils tiennent du présent article et des articles suivants sur l'ensemble du territoire national.
Article L450-2
Les enquêtes donnent lieu à l'établissement de procès-verbaux et, le cas échéant, de rapports.
Les procès-verbaux sont transmis à l'autorité compétente. Un double en est laissé aux parties intéressées. Ils font foi jusqu'à preuve contraire.
Article L450-3
Les agents mentionnés à l'article L. 450-1 peuvent accéder à tous locaux, terrains ou moyens de transport à usage professionnel, demander la communication des livres, factures et tous autres documents professionnels et en obtenir ou prendre copie par tous moyens et sur tous supports, recueillir sur convocation ou sur place les renseignements et justifications.
Ils peuvent demander à l'autorité dont ils dépendent de désigner un expert pour procéder à toute expertise contradictoire nécessaire.
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Article L450-4
Les agents mentionnés à l'article L. 450-1 ne peuvent procéder aux visites en tous lieux ainsi qu'à la saisie de documents et de tout support d'information que dans le cadre d'enquêtes demandées par la Commission européenne, le ministre chargé de l'économie ou le rapporteur général de l'Autorité de la concurrence sur proposition du rapporteur, sur autorisation judiciaire donnée par ordonnance du juge des libertés et de la détention du tribunal de grande instance dans le ressort duquel sont situés les lieux à visiter. Ils peuvent également, dans les mêmes conditions, procéder à la pose de scellés sur tous locaux commerciaux, documents et supports d'information dans la limite de la durée de la visite de ces locaux. Lorsque ces lieux sont situés dans le ressort de plusieurs juridictions et qu'une action simultanée doit être menée dans chacun d'eux, une ordonnance unique peut être délivrée par l'un des juges des libertés et de la détention compétents.
Le juge doit vérifier que la demande d'autorisation qui lui est soumise est fondée ; cette demande doit comporter tous les éléments d'information en possession du demandeur de nature à justifier la visite. Lorsque la visite vise à permettre la constatation d'infractions aux dispositions du livre IV du présent code en train de se commettre, la demande d'autorisation peut ne comporter que les indices permettant de présumer, en l'espèce, l'existence des pratiques dont la preuve est recherchée.
La visite et la saisie s'effectuent sous l'autorité et le contrôle du juge qui les a autorisées. Il désigne le chef du service qui devra nommer les officiers de police judiciaire chargés d'assister à ces opérations et d'apporter leur concours en procédant le cas échéant aux réquisitions nécessaires, ainsi que de le tenir informé de leur déroulement. Lorsqu'elles ont lieu en dehors du ressort de son tribunal de grande instance, il délivre une commission rogatoire pour exercer ce contrôle au juge des libertés et de la détention dans le ressort duquel s'effectue la visite.
Le juge peut se rendre dans les locaux pendant l'intervention. A tout moment, il peut décider la suspension ou l'arrêt de la visite.
L'ordonnance est notifiée verbalement et sur place au moment de la visite à l'occupant des lieux ou à son représentant qui en reçoit copie intégrale contre récépissé ou émargement au procès-verbal. L'ordonnance comporte la mention de la faculté pour l'occupant des lieux ou son représentant de faire appel à un conseil de son choix. L'exercice de cette faculté n'entraîne pas la suspension des opérations de visite et saisie. En l'absence de l'occupant des lieux, l'ordonnance est notifiée après les opérations par lettre recommandée avec avis de réception. Il en va de même lorsqu'il n'est pas procédé à la visite dans un des lieux visés par l'ordonnance. La notification est réputée faite à la date de réception figurant sur l'avis.
L'ordonnance mentionnée au premier alinéa peut faire l'objet d'un appel devant le premier président de la cour d'appel dans le ressort de laquelle le juge a autorisé la mesure, suivant les règles prévues par le code de procédure pénale. Le ministère public et la personne à l'encontre de laquelle a été ordonnée cette mesure peuvent interjeter appel. Cet appel est formé par déclaration au greffe du tribunal de grande instance dans un délai de dix jours à compter de la notification de l'ordonnance. L'appel n'est pas suspensif. L'ordonnance du premier président de la cour d'appel est susceptible d'un pourvoi en cassation selon les règles prévues par le code de procédure pénale. Les pièces saisies sont conservées jusqu'à ce qu'une décision soit devenue définitive.
La visite, qui ne peut commencer avant six heures ou après vingt et une heures, est effectuée en présence de l'occupant des lieux ou de son représentant. L'occupant des lieux peut désigner un ou plusieurs représentants pour assister à la visite et signer le procès-verbal. En cas d'impossibilité, l'officier de police judiciaire requiert deux témoins choisis en dehors des personnes relevant de son
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autorité, de celle de l'administration de la direction générale de la concurrence, de la consommation et de la répression des fraudes ou de celle de l'Autorité de la concurrence.
Les agents mentionnés à l'article L. 450-1, l'occupant des lieux ou son représentant ainsi que l'officier de police judiciaire et, le cas échéant, les agents et autres personnes mandatés par la Commission européenne peuvent seuls prendre connaissance des pièces et documents avant leur saisie. Les agents mentionnés à l'article L. 450-1 peuvent procéder au cours de la visite à des auditions de l'occupant des lieux ou de son représentant en vue de recueillir les informations ou explications utiles aux besoins de l'enquête.
Les inventaires et mises sous scellés sont réalisés conformément à l'article 56 du code de procédure pénale.
Les originaux du procès-verbal et de l'inventaire sont transmis au juge qui a ordonné la visite. Une copie du procès-verbal et de l'inventaire est remise à l'occupant des lieux ou à son représentant. Une copie est également adressée par lettre recommandée avec demande d'avis de réception aux personnes mises en cause ultérieurement par les pièces saisies au cours de l'opération.
Les pièces et documents saisis sont restitués à l'occupant des lieux, dans un délai de six mois à compter de la date à laquelle la décision de l'Autotrité de la concurrence est devenue définitive. L'occupant des lieux est mis en demeure, par lettre recommandée avec avis de réception, de venir les rechercher, dans un délai de deux mois. A l'expiration de ce délai et à défaut de diligences de sa part, les pièces et documents lui sont restitués, à ses frais.
Le déroulement des opérations de visite et saisie peut faire l'objet d'un recours devant le premier président de la cour d'appel dans le ressort de laquelle le juge a autorisé ces dernières, suivant les règles prévues par le code de procédure pénale. Le ministère public, la personne à l'encontre de laquelle a été prise l'ordonnance mentionnée au premier alinéa et les personnes mises en cause au moyen de pièces saisies au cours de ces opérations peuvent former ce recours. Ce dernier est formalisé par déclaration au greffe du tribunal de grande instance dans un délai de dix jours à compter de la remise ou de la réception du procès-verbal et de l'inventaire, ou, pour les personnes n'ayant pas fait l'objet de visite et de saisie et qui sont mises en cause, à compter de la date à laquelle elles ont reçu notification du procès-verbal et de l'inventaire et, au plus tard à compter de la notification de griefs prévue à l'article L. 463-2. Le recours n'est pas suspensif. L'ordonnance du premier président de la cour d'appel est susceptible d'un pourvoi en cassation selon les règles prévues par le code de procédure pénale. Les pièces saisies sont conservées jusqu'à ce qu'une décision soit devenue définitive.
Article L450-5
Le rapporteur général de l'Autorité de la concurrence est informé avant leur déclenchement des investigations que le ministre chargé de l'économie souhaite voir diligenter sur des faits susceptibles de relever des articles L. 420-1, L. 420-2 et L. 420-5 et peut, dans un délai fixé par décret, en prendre la direction. Le rapporteur général est informé sans délai du résultat des investigations menées par les services du ministre. Il peut, dans un délai fixé par décret, proposer à l'Autorité de se saisir d'office.
Article L450-6
Le rapporteur général désigne, pour l'examen de chaque affaire, un ou plusieurs agents des services d'instruction aux fonctions de rapporteur.A sa demande écrite, l'autorité dont dépendent les agents
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mentionnés au II de l'article L. 450-1 met sans délai à sa disposition, en nombre et pour la durée qu'il a indiqués, les agents nécessaires à la réalisation des opérations mentionnées à l'article L. 450-4.
Article L450-7
Les agents mentionnés à l'article L. 450-1 peuvent, sans se voir opposer le secret professionnel, accéder à tout document ou élément d'information détenu par les services et établissements de l'Etat et des autres collectivités publiques.
Article L450-8
Est puni d'un emprisonnement de six mois et d'une amende de 7500 euros le fait pour quiconque de s'opposer, de quelque façon que ce soit, à l'exercice des fonctions dont les agents mentionnés à l'article L. 450-1 sont chargés en application du présent livre.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE VI : De l'Autorité de la concurrence.
Chapitre Ier : De l'organisation.
Article L461-1
I. - L'Autorité de la concurrence est une autorité administrative indépendante. Elle veille au libre jeu de la concurrence. Elle apporte son concours au fonctionnement concurrentiel des marchés aux échelons européen et international.
II. - Les attributions confiées à l'Autorité de la concurrence sont exercées par un collège composé de dix-sept membres, dont un président, nommés pour une durée de cinq ans par décret pris sur le rapport du ministre chargé de l'économie.
Le président est nommé en raison de ses compétences dans les domaines juridique et économique, après avis des commissions du Parlement compétentes en matière de concurrence.
Le collège comprend également :
1° Six membres ou anciens membres du Conseil d'Etat, de la Cour de cassation, de la Cour des comptes ou des autres juridictions administratives ou judiciaires ;
2° Cinq personnalités choisies en raison de leur compétence en matière économique ou en matière de concurrence et de consommation ;
3° Cinq personnalités exerçant ou ayant exercé leurs activités dans les secteurs de la production, de la distribution, de l'artisanat, des services ou des professions libérales.
Quatre vice-présidents sont désignés parmi les membres du collège, dont au moins deux parmi les personnalités mentionnées aux 2° et 3°.
III. - Le mandat des membres du collège est renouvelable, à l'exception de celui du président qui n'est renouvelable qu'une seule fois.
Article L461-2
Le président et les vice-présidents exercent leurs fonctions à plein temps. Ils sont soumis aux règles d'incompatibilité prévues pour les emplois publics.
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Est déclaré démissionnaire d'office par le ministre chargé de l'économie tout membre de l'autorité qui n'a pas participé, sans motif valable, à trois séances consécutives ou qui ne remplit pas les obligations prévues aux troisième et quatrième alinéas. Il peut également être mis fin aux fonctions d'un membre de l'autorité en cas d'empêchement constaté par le collège dans des conditions prévues par son règlement intérieur.
Tout membre de l'autorité doit informer le président des intérêts qu'il détient ou vient à acquérir et des fonctions qu'il exerce dans une activité économique.
Aucun membre de l'autorité ne peut délibérer dans une affaire où il a un intérêt ou s'il représente ou a représenté une des parties intéressées. Le commissaire du Gouvernement auprès de l'autorité est désigné par le ministre chargé de l'économie.
Article L461-3
L'Autorité de la concurrence peut siéger soit en formation plénière, soit en sections, soit en commission permanente. La commission permanente est composée du président et des quatre vice-présidents.
Les formations de l'autorité délibèrent à la majorité des membres présents. Le règlement intérieur de l'autorité détermine les critères de quorum applicables à chacune de ces formations.
En cas de partage égal des voix, la voix du président de la formation est prépondérante.
Le président, ou un vice-président désigné par lui, peut adopter seul les décisions prévues à l'article L. 462-8, ainsi que celles prévues aux articles L. 464-2 à L. 464-6 quand elles visent des faits dont l'Autorité de la concurrence a été saisie par le ministre en application du quatrième alinéa de l'article L. 464-9. Il peut faire de même s'agissant des décisions prévues à l'article L. 430-5.
Article L461-4
L'Autorité de la concurrence dispose de services d'instruction dirigés par un rapporteur général nommé par arrêté du ministre chargé de l'économie après avis du collège.
Ces services procèdent aux investigations nécessaires à l'application des titres II et III du présent livre.
Les rapporteurs généraux adjoints, les rapporteurs permanents ou non permanents et les enquêteurs des services d'instruction sont nommés par le rapporteur général, par décision publiée au Journal officiel.
Un conseiller auditeur possédant la qualité de magistrat ou offrant des garanties d'indépendance et d'expertise équivalentes est nommé par arrêté du ministre chargé de l'économie après avis du collège. Il recueille, le cas échéant, les observations des parties mises en cause et saisissantes sur le déroulement des procédures les concernant dès l'envoi de la notification des griefs. Il transmet au président de l'autorité un rapport évaluant ces observations et proposant, si nécessaire, tout acte permettant d'améliorer l'exercice de leurs droits par les parties.
Les modalités d'intervention du conseiller auditeur sont précisées par décret en Conseil d'Etat.
Les crédits attribués à l'Autorité de la concurrence pour son fonctionnement sont inscrits dans un
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programme relevant du ministère chargé de l'économie. La loi du 10 août 1922 relative à l'organisation du contrôle des dépenses engagées n'est pas applicable à leur gestion.
Le président est ordonnateur des recettes et des dépenses de l'autorité. Il délègue l'ordonnancement des dépenses des services d'instruction au rapporteur général.
Un décret en Conseil d'Etat détermine les conditions dans lesquelles le président de l'autorité la représente dans tous les actes de la vie civile et a qualité pour agir en justice en son nom.
Article L461-5
Les commissions du Parlement compétentes en matière de concurrence peuvent entendre le président de l'Autorité de la concurrence et consulter celle-ci sur toute question entrant dans le champ de ses compétences. Le président de l'Autorité de la concurrence rend compte des activités de celle-ci devant les commissions du Parlement compétentes en matière de concurrence, à leur demande. L'Autorité de la concurrence établit chaque année, avant le 30 juin, un rapport public rendant compte de son activité qu'elle adresse au Gouvernement et au Parlement.
Chapitre II : Des attributions.
Article L462-1
L'Autorité de la concurrence peut être consultée par les commissions parlementaires sur les propositions de loi ainsi que sur toute question concernant la concurrence.
Elle donne son avis sur toute question de concurrence à la demande du Gouvernement. Elle peut également donner son avis sur les mêmes questions à la demande des collectivités territoriales, des organisations professionnelles et syndicales, des organisations de consommateurs agréées, des chambres d'agriculture, des chambres de métiers ou des chambres de commerce et d' industrie, de la Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet, en ce qui concerne les intérêts dont elles ont la charge.
Article L462-2
L'Autorité est obligatoirement consultée par le Gouvernement sur tout projet de texte réglementaire instituant un régime nouveau ayant directement pour effet :
1° De soumettre l'exercice d'une profession ou l'accès à un marché à des restrictions quantitatives ;
2° D'établir des droits exclusifs dans certaines zones ;
3° D'imposer des pratiques uniformes en matière de prix ou de conditions de vente.
Article L462-3
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L'Autorité peut être consultée par les juridictions sur les pratiques anticoncurrentielles définies aux articles L. 420-1, L. 420-2 et L. 420-5 ainsi qu'aux articles 81 et 82 du traité instituant la Communauté européenne et relevées dans les affaires dont elles sont saisies. Elle ne peut donner un avis qu'après une procédure contradictoire. Toutefois, si elle dispose d'informations déjà recueillies au cours d'une procédure antérieure, elle peut émettre son avis sans avoir à mettre en oeuvre la procédure prévue au présent texte.
Le cours de la prescription est suspendu, le cas échéant, par la consultation de l'Autorité.
L'avis de l'Autorité peut être publié après le non-lieu ou le jugement.
Article L462-4
L'Autorité de la concurrence peut prendre l'initiative de donner un avis sur toute question concernant la concurrence. Cet avis est rendu public. Elle peut également recommander au ministre chargé de l'économie ou au ministre chargé du secteur concerné de mettre en œuvre les mesures nécessaires à l'amélioration du fonctionnement concurrentiel des marchés.
Article L462-5
I.-L'Autorité de la concurrence peut être saisie par le ministre chargé de l'économie de toute pratique mentionnée aux articles L. 420-1, L. 420-2 et L. 420-5, ou de faits susceptibles de constituer une telle pratique, ainsi que des manquements aux engagements pris en application de l'article L. 430-7-1 ou pris en application des décisions de concentration intervenues avant l'entrée en vigueur de l'ordonnance n° 2008-1161 du 13 novembre 2008 portant modernisation de la régulation de la concurrence. II.-Pour toutes les pratiques mentionnées aux articles L. 420-1, L. 420-2 et L. 420-5, l'Autorité de la concurrence peut être saisie par les entreprises ou, pour toute affaire qui concerne les intérêts dont ils ont la charge, par les organismes mentionnés au deuxième alinéa de l'article L. 462-1. III.-Le rapporteur général peut proposer à l'Autorité de la concurrence de se saisir d'office des pratiques mentionnées aux I et II et à l'article L. 430-8 ainsi que des manquements aux engagements pris en application des décisions autorisant des opérations de concentration intervenues avant l'entrée en vigueur de l'ordonnance n° 2008-1161 du 13 novembre 2008 portant modernisation de la régulation de la concurrence.
Article L462-6
L'Autorité de la concurrence examine si les pratiques dont elle est saisie entrent dans le champ des articles L. 420-1, L. 420-2 ou L. 420-5 ou peuvent se trouver justifiées par application de l'article L. 420-4. Elle prononce, le cas échéant, des sanctions et des injonctions.
Lorsque les faits lui paraissent de nature à justifier l'application de l'article L. 420-6, elle adresse le dossier au procureur de la République. Cette transmission interrompt la prescription de l'action publique.
La prescription est interrompue également lorsque les faits visés dans la saisine font l'objet d'un acte tendant à leur recherche, leur constatation ou leur sanction par la Commission européenne ou par
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une autorité de concurrence d'un autre Etat membre de la Communauté européenne.
Article L462-7
L'Autorité ne peut être saisie de faits remontant à plus de cinq ans s'il n'a été fait aucun acte tendant à leur recherche, leur constatation ou leur sanction.
Les actes interruptifs de la prescription de l'action publique en application de l'article L. 420-6 sont également interruptifs de la prescription devant l'Autorité de la concurrence.
Toutefois, la prescription est acquise en toute hypothèse lorsqu'un délai de dix ans à compter de la cessation de la pratique anticoncurrentielle s'est écoulé sans que l'Autorité de la concurrence ait statué sur celle-ci.
Article L462-8
l'Autorité de la concurrence peut déclarer, par décision motivée, la saisine irrecevable pour défaut d'intérêt ou de qualité à agir de l'auteur de celle-ci, ou si les faits sont prescrits au sens de l'article L. 462-7, ou si elle estime que les faits invoqués n'entrent pas dans le champ de sa compétence.
Elle peut aussi rejeter la saisine par décision motivée lorsqu'elle estime que les faits invoqués ne sont pas appuyés d'éléments suffisamment probants.
Elle peut aussi rejeter la saisine dans les mêmes conditions, lorsqu'elle est informée qu'une autre autorité nationale de concurrence d'un Etat membre de la Communauté européenne ou la Commission européenne a traité des mêmes faits relevant des dispositions prévues aux articles 81 et 82 du traité instituant la Communauté européenne.
Elle peut aussi rejeter la saisine dans les mêmes conditions ou suspendre la procédure, lorsqu'elle est informée qu'une autre autorité nationale de concurrence d'un Etat membre de la Communauté européenne traite des mêmes faits relevant des dispositions prévues aux articles 81 et 82 du traité instituant la Communauté européenne. Lorsque cette information est reçue par le rapporteur au stade de l'instruction, le rapporteur général peut suspendre son déroulement.
l'Autorité de la concurrence peut aussi décider de clore dans les mêmes conditions une affaire pour laquelle elle s'était saisie d'office.
Il est donné acte, par décision du président de l'Autorité de la concurrence ou d'un vice-président délégué par lui, des désistements des parties ou des dessaisissements effectués par la Commission européenne. En cas de désistement, l'Autorité peut poursuivre l'affaire, qui est alors traitée comme une saisine d'office.
Article L462-9
I.- L'Autorité de la concurrence peut, pour ce qui relève de ses compétences et après information préalable du ministre chargé de l'économie, communiquer les informations ou les documents qu'elle détient ou qu'elle recueille, à leur demande, à la Commission des Communautés européennes ou aux autorités des autres Etats exerçant des compétences analogues, à leur demande, sous réserve de
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réciprocité, et à condition que l'autorité étrangère compétente soit soumise au secret professionnel avec les mêmes garanties qu'en France.
L'Autorité de la concurrence peut, dans les mêmes conditions, selon les mêmes procédures et sous les mêmes sanctions que celles prévues pour l'exécution de sa mission, conduire ou demander au ministre chargé de l'économie de conduire des enquêtes, à la demande d'autorités étrangères exerçant des compétences analogues, sous réserve de réciprocité.
L'obligation de secret professionnel ne fait pas obstacle à la communication par les autorités de concurrence des informations ou documents qu'elles détiennent ou qu'elles recueillent, à leur demande, à la Commission des Communautés européennes et aux autorités des autres Etats exerçant des compétences analogues et astreintes aux mêmes obligations de secret professionnel.
L'assistance demandée par une autorité étrangère exerçant des compétences analogues pour la conduite d'enquêtes ou la transmission d'informations détenues ou recueillies par l'Autorité de la concurrence est refusée par celle-ci lorsque l'exécution de la demande est de nature à porter atteinte à la souveraineté, à la sécurité, aux intérêts économiques essentiels ou à l'ordre public français ou lorsqu'une procédure pénale a déjà été engagée en France sur la base des mêmes faits et contre les mêmes personnes, ou bien lorsque celles-ci ont déjà été sanctionnées par une décision définitive pour les mêmes faits.
Les autorités de concurrence, pour ce qui relève de leurs compétences respectives, peuvent utiliser des informations ou des documents qui leur auront été transmis dans les mêmes conditions par la Commission des Communautés européennes ou les autorités des autres Etats membres exerçant des compétences analogues.
L'Autorité de la concurrence peut, pour la mise en oeuvre du présent article, conclure des conventions organisant ses relations avec les autorités des autres Etats exerçant des compétences analogues. Ces conventions sont approuvées par l'Autorité dans les conditions prévues à l'article L. 463-7. Elles sont publiées au Journal officiel.
II.-Dans la mise en oeuvre des règles de concurrence prévues aux articles 81 et 82 du traité instituant la Communauté européenne, les autorités de concurrence appliquent les dispositions du règlement n° 1 / 2003 du Conseil relatif à la mise en oeuvre des règles de concurrence prévues aux articles 81 et 82 du traité instituant la Communauté européenne, à l'exclusion des dispositions des cinq premiers alinéas du I du présent article.
Pour l'application des dispositions du 4 de l'article 11 de ce règlement, l'Autorité de la concurrence transmet à la Commission européenne un résumé de l'affaire ainsi qu'un document exposant l'orientation envisagée, qui peut être la notification de griefs ou le rapport mentionnés à l'article L. 463-2. Elle peut mettre ces mêmes documents à la disposition des autres autorités de concurrence des Etats membres de la Communauté européenne.
Chapitre III : De la procédure.
Article L463-1
L'instruction et la procédure devant l'Autorité de la concurrence sont pleinement contradictoires sous réserve des dispositions prévues à l'article L. 463-4.
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Article L463-2
Sans préjudice des mesures prévues à l'article L. 464-1, le rapporteur général ou un rapporteur général adjoint désigné par lui notifie les griefs aux intéressés ainsi qu'au commissaire du Gouvernement, qui peuvent consulter le dossier sous réserve des dispositions de l'article L. 463-4 et présenter leurs observations dans un délai de deux mois. Les entreprises destinataires des griefs signalent sans délai au rapporteur chargé du dossier, à tout moment de la procédure d'investigation, toute modification de leur situation juridique susceptible de modifier les conditions dans lesquelles elles sont représentées ou dans lesquelles les griefs peuvent leur être imputés. Elles sont irrecevables à s'en prévaloir si elles n'ont pas procédé à cette information.
Le rapport est ensuite notifié aux parties, au commissaire du Gouvernement et aux ministres intéressés. Il est accompagné des documents sur lesquels se fonde le rapporteur et des observations faites, le cas échéant, par les intéressés.
Les parties ont un délai de deux mois pour présenter un mémoire en réponse qui peut être consulté dans les quinze jours qui précèdent la séance par les personnes visées à l'alinéa précédent.
Lorsque des circonstances exceptionnelles le justifient, le rapporteur général de l'Autorité peut, par une décision non susceptible de recours, accorder un délai supplémentaire d'un mois pour la consultation du dossier et la production des observations des parties.
Article L463-3
Le rapporteur général de l'Autorité de la concurrence peut, lors de la notification des griefs aux parties intéressées, décider que l'affaire sera examinée par l'Autorité sans établissement préalable d'un rapport. Cette décision est notifiée aux parties.
Article L463-4
Sauf dans les cas où la communication ou la consultation de ces documents est nécessaire à l'exercice des droits de la défense d'une partie mise en cause, le rapporteur général de l'Autorité de la concurrence peut refuser à une partie la communication ou la consultation de pièces ou de certains éléments contenus dans ces pièces mettant en jeu le secret des affaires d'autres personnes. Dans ce cas, une version non confidentielle et un résumé des pièces ou éléments en cause lui sont accessibles. Un décret en Conseil d'Etat précise les modalités d'application du présent article.
Article L463-5
Les juridictions d'instruction et de jugement peuvent communiquer à l'Autorité de la concurrence, sur sa demande, les procès-verbaux rapports d'enquête ou autres pièces de l'instruction pénale ayant un lien direct avec des faits dont l'Autorité est saisie.
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Article L463-6
Est punie des peines prévues à l'article 226-13 du code pénal, la divulgation par l'une des parties des informations concernant une autre partie ou un tiers et dont elle n'a pu avoir connaissance qu'à la suite des communications ou consultations auxquelles il a été procédé.
Article L463-7
Les séances de l'Autorité de la concurrence ne sont pas publiques. Seules les parties et le commissaire du Gouvernement peuvent y assister. Les parties peuvent demander à être entendues par l'Autorité et se faire représenter ou assister.
L'Autorité de la concurrence peut entendre toute personne dont l'audition lui paraît susceptible de contribuer à son information.
Le rapporteur général, ou le rapporteur général adjoint désigné par lui et le commissaire du Gouvernement peuvent présenter des observations.
Le rapporteur général, ou le rapporteur général adjoint désigné par lui et le rapporteur assistent au délibéré, sans voix délibérative, sauf lorsque l'Autorité statue sur des pratiques dont elle a été saisie en application de l'article L. 462-5.
Article L463-8
Le rapporteur général peut décider de faire appel à des experts en cas de demande formulée à tout moment de l'instruction par le rapporteur ou une partie. Cette décision n'est susceptible d'aucun recours.
La mission et le délai imparti à l'expert sont précisés dans la décision qui le désigne. Le déroulement des opérations d'expertise se fait de façon contradictoire.
Le financement de l'expertise est à la charge de la partie qui la demande ou à celle du conseil dans le cas où elle est ordonnée à la demande du rapporteur. Toutefois, le conseil peut, dans sa décision sur le fond, faire peser la charge définitive sur la ou les parties sanctionnées dans des proportions qu'il détermine.
Chapitre IV : Des décisions et des voies de recours.
Article L464-1
L'Autorité de la concurrence peut, à la demande du ministre chargé de l'économie, des personnes
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mentionnées au dernier alinéa de l'article L. 462-1 ou des entreprises et après avoir entendu les parties en cause et le commissaire du Gouvernement, prendre les mesures conservatoires qui lui sont demandées ou celles qui lui apparaissent nécessaires.
Ces mesures ne peuvent intervenir que si la pratique dénoncée porte une atteinte grave et immédiate à l'économie générale, à celle du secteur intéressé, à l'intérêt des consommateurs ou à l'entreprise plaignante.
Elles peuvent comporter la suspension de la pratique concernée ainsi qu'une injonction aux parties de revenir à l'état antérieur. Elles doivent rester strictement limitées à ce qui est nécessaire pour faire face à l'urgence.
Article L464-2
I.- L'Autorité de la concurrence peut ordonner aux intéressés de mettre fin aux pratiques anticoncurrentielles dans un délai déterminé ou imposer des conditions particulières. Elle peut aussi accepter des engagements proposés par les entreprises ou organismes et de nature à mettre un terme à ses préoccupations de concurrence susceptibles de constituer des pratiques prohibées visées aux articles L. 420-1, L. 420-2 et L. 420-5.
Elle peut infliger une sanction pécuniaire applicable soit immédiatement, soit en cas d'inexécution des injonctions soit en cas de non-respect des engagements qu'elle a acceptés.
Les sanctions pécuniaires sont proportionnées à la gravité des faits reprochés, à l'importance du dommage causé à l'économie, à la situation de l'organisme ou de l'entreprise sanctionné ou du groupe auquel l'entreprise appartient et à l'éventuelle réitération de pratiques prohibées par le présent titre. Elles sont déterminées individuellement pour chaque entreprise ou organisme sanctionné et de façon motivée pour chaque sanction.
Si le contrevenant n'est pas une entreprise, le montant maximum de la sanction est de 3 millions d'euros. Le montant maximum de la sanction est, pour une entreprise, de 10 % du montant du chiffre d'affaires mondial hors taxes le plus élevé réalisé au cours d'un des exercices clos depuis l'exercice précédant celui au cours duquel les pratiques ont été mises en oeuvre. Si les comptes de l'entreprise concernée ont été consolidés ou combinés en vertu des textes applicables à sa forme sociale, le chiffre d'affaires pris en compte est celui figurant dans les comptes consolidés ou combinés de l'entreprise consolidante ou combinante.
L'Autorité de la concurrence peut ordonner la publication, la diffusion ou l'affichage de sa décision ou d'un extrait de celle-ci selon les modalités qu'elle précise. Elle peut également ordonner l'insertion de la décision ou de l'extrait de celle-ci dans le rapport établi sur les opérations de l'exercice par les gérants, le conseil d'administration ou le directoire de l'entreprise. Les frais sont supportés par la personne intéressée.
II.- L'Autorité de la concurrence peut infliger aux intéressés des astreintes dans la limite de 5 % du chiffre d'affaires journalier moyen, par jour de retard à compter de la date qu'elle fixe, pour les contraindre :
a) A exécuter une décision les ayant obligés à mettre fin aux pratiques anticoncurrentielles, à exécuter une décision ayant imposé des conditions particulières ou à respecter une décision ayant rendu un engagement obligatoire en vertu du I ;
b) A respecter les mesures prononcées en application de l'article L. 464-1.
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Le chiffre d'affaires pris en compte est calculé sur la base des comptes de l'entreprise relatifs au dernier exercice clos à la date de la décision. L'astreinte est liquidée par l'Autorité de la concurrence qui en fixe le montant définitif.
III.-Lorsqu'un organisme ou une entreprise ne conteste pas la réalité des griefs qui lui sont notifiés, le rapporteur général peut proposer à l'Autorité de la concurrence, qui entend les parties et le commissaire du Gouvernement sans établissement préalable d'un rapport, de prononcer la sanction pécuniaire prévue au I en tenant compte de l'absence de contestation. Dans ce cas, le montant maximum de la sanction encourue est réduit de moitié. Lorsque l'entreprise ou l'organisme s'engage en outre à modifier son comportement pour l'avenir, le rapporteur général peut proposer à l'Autorité de la concurrence d'en tenir compte également dans la fixation du montant de la sanction.
IV.-Une exonération totale ou partielle des sanctions pécuniaires peut être accordée à une entreprise ou à un organisme qui a, avec d'autres, mis en oeuvre une pratique prohibée par les dispositions de l'article L. 420-1 s'il a contribué à établir la réalité de la pratique prohibée et à identifier ses auteurs, en apportant des éléments d'information dont l'Autorité ou l'administration ne disposaient pas antérieurement. A la suite de la démarche de l'entreprise ou de l'organisme, l'Autorité de la concurrence, à la demande du rapporteur général ou du ministre chargé de l'économie, adopte à cette fin un avis de clémence, qui précise les conditions auxquelles est subordonnée l'exonération envisagée, après que le commissaire du Gouvernement et l'entreprise ou l'organisme concerné ont présenté leurs observations ; cet avis est transmis à l'entreprise ou à l'organisme et au ministre, et n'est pas publié. Lors de la décision prise en application du I du présent article, l'Autorité peut, si les conditions précisées dans l'avis de clémence ont été respectées, accorder une exonération de sanctions pécuniaires proportionnée à la contribution apportée à l'établissement de l'infraction.
V.-Lorsqu'une entreprise ou un organisme ne défère pas à une convocation ou ne répond pas dans le délai prescrit à une demande de renseignements ou de communication de pièces formulée par un des agents visés au I de l'article L. 450-1 dans l'exercice des pouvoirs qui lui sont conférés par les titres V et VI du livre IV, l'Autorité peut, à la demande du rapporteur général, prononcer à son encontre une injonction assortie d'une astreinte, dans la limite prévue au II.
Lorsqu'une entreprise a fait obstruction à l'investigation ou à l'instruction, notamment en fournissant des renseignements incomplets ou inexacts, ou en communiquant des pièces incomplètes ou dénaturées, l'Autorité peut, à la demande du rapporteur général, et après avoir entendu l'entreprise en cause et le commissaire du Gouvernement, décider de lui infliger une sanction pécuniaire. Le montant maximum de cette dernière ne peut excéder 1 % du montant du chiffre d'affaires mondial hors taxes le plus élevé réalisé au cours d'un des exercices clos depuis l'exercice précédant celui au cours duquel les pratiques ont été mises en œuvre.
Article L464-3
Si les mesures, injonctions ou engagements prévus aux articles L. 464-1 et L. 464-2 ne sont pas respectés, l'Autorité peut prononcer une sanction pécuniaire dans les limites fixées à l'article L. 464-2.
Article L464-4
Les sanctions pécuniaires et les astreintes sont recouvrées comme les créances de l'Etat étrangères à l'impôt et au domaine.
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Article L464-5
L'Autorité, lorsqu'elle statue selon la procédure simplifiée prévue à l'article L. 463-3, peut prononcer les mesures prévues au I de l'article L. 464-2. Toutefois, la sanction pécuniaire ne peut excéder 750 000 euros pour chacun des auteurs de pratiques prohibées.
Article L464-6
Lorsque aucune pratique de nature à porter atteinte à la concurrence sur le marché n'est établie, l'Autorité de la concurrence peut décider, après que l'auteur de la saisine et le commissaire du Gouvernement ont été mis à même de consulter le dossier et de faire valoir leurs observations, qu'il n'y a pas lieu de poursuivre la procédure. Cette décision est motivée.
Article L464-6-1
L'Autorité de la concurrence peut également décider, dans les conditions prévues à l'article L. 464-6, qu'il n'y a pas lieu de poursuivre la procédure lorsque les pratiques mentionnées à l'article L. 420-1 ne visent pas des contrats passés en application du code des marchés publics et que la part de marché cumulée détenue par les entreprises ou organismes parties à l'accord ou à la pratique en cause ne dépasse pas soit :
a) 10 % sur l'un des marchés affectés par l'accord ou la pratique lorsqu'il s'agit d'un accord ou d'une pratique entre des entreprises ou organismes qui sont des concurrents, existants ou potentiels, sur l'un des marchés en cause ;
b) 15 % sur l'un des marchés affectés par l'accord ou la pratique lorsqu'il s'agit d'un accord ou d'une pratique entre des entreprises ou organismes qui ne sont pas concurrents existants ou potentiels sur l'un des marchés en cause.
Article L464-6-2
Toutefois, les dispositions de l'article L. 464-6-1 ne s'appliquent pas aux accords et pratiques qui contiennent l'une quelconque des restrictions caractérisées de concurrence suivantes :
a) Les restrictions qui, directement ou indirectement, isolément ou cumulées avec d'autres facteurs sur lesquels les parties peuvent influer ont pour objet la fixation de prix de vente, la limitation de la production ou des ventes, la répartition de marchés ou des clients ;
b) Les restrictions aux ventes non sollicitées et réalisées par un distributeur en dehors de son territoire contractuel au profit d'utilisateurs finaux ;
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c) Les restrictions aux ventes par les membres d'un réseau de distribution sélective qui opèrent en tant que détaillants sur le marché, indépendamment de la possibilité d'interdire à un membre du système de distribution d'opérer à partir d'un lieu d'établissement non autorisé ;
d) Les restrictions apportées aux livraisons croisées entre distributeurs à l'intérieur d'un système de distribution sélective, y compris entre les distributeurs opérant à des stades différents du commerce.
Article L464-7
La décision de l'Autorité prise au titre de l'article L. 464-1 peut faire l'objet d'un recours en annulation ou en réformation par les parties en cause et le commissaire du Gouvernement devant la cour d'appel de Paris au maximum dix jours après sa notification. La cour statue dans le mois du recours.
Le recours n'est pas suspensif. Toutefois, le premier président de la cour d'appel de Paris peut ordonner qu'il soit sursis à l'exécution des mesures conservatoires, si celles-ci sont susceptibles d'entraîner des conséquences manifestement excessives ou s'il est intervenu, postérieurement à leur notification, des faits nouveaux d'une exceptionnelle gravité.
Article L464-8
Les décisions de l'Autorité de la concurrence mentionnées aux articles L. 462-8, L. 464-2, L. 464-3, L. 464-5, L. 464-6 et L. 464-6-1 sont notifiées aux parties en cause et au ministre chargé de l'économie, qui peuvent, dans le délai d'un mois, introduire un recours en annulation ou en réformation devant la cour d'appel de Paris.
Le recours n'est pas suspensif. Toutefois, le premier président de la cour d'appel de Paris peut ordonner qu'il soit sursis à l'exécution de la décision si celle-ci est susceptible d'entraîner des conséquences manifestement excessives ou s'il est intervenu, postérieurement à sa notification, des faits nouveaux d'une exceptionnelle gravité.
Le pourvoi en cassation, formé le cas échéant, contre l'arrêt de la cour, est exercé dans un délai d'un mois suivant sa notification.
Le président de l'Autorité de la concurrence peut former un pourvoi en cassation contre l'arrêt de la cour d'appel de Paris ayant annulé ou réformé une décision de l'Autorité.
Le ministre chargé de l'économie peut, dans tous les cas, former un pourvoi en cassation contre l'arrêt de la cour d'appel de Paris.
L'Autorité de la concurrence veille à l'exécution de ses décisions.
Article L464-9
Le ministre chargé de l'économie peut enjoindre aux entreprises de mettre un terme aux pratiques visées aux articles L. 420-1, L. 420-2 et L. 420-5 dont elles sont les auteurs lorsque ces pratiques
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affectent un marché de dimension locale, ne concernent pas des faits relevant des articles 81 et 82 du traité instituant la Communauté européenne et sous réserve que le chiffre d'affaires que chacune d'entre elles a réalisé en France lors du dernier exercice clos ne dépasse pas 50 millions d'euros et que leurs chiffres d'affaires cumulés ne dépassent pas 100 millions d'euros. Le ministre chargé de l'économie peut également, dans les mêmes conditions, leur proposer de transiger. Le montant de la transaction ne peut excéder 75 000 € ou 5 % du dernier chiffre d'affaires connu en France si cette valeur est plus faible. Les modalités de la transaction sont fixées par décret en Conseil d'Etat.L'exécution dans les délais impartis des obligations résultant de l'injonction et de l'acceptation de la transaction éteint toute action devant l'Autorité de la concurrence pour les mêmes faits. Le ministre chargé de l'économie informe l'Autorité de la concurrence des transactions conclues. Il ne peut proposer de transaction ni imposer d'injonction lorsque les mêmes faits ont, au préalable, fait l'objet d'une saisine de l'Autorité de la concurrence par une entreprise ou un organisme visé au deuxième alinéa de l'article L. 462-1. En cas de refus de transiger, le ministre chargé de l'économie saisit l'Autorité de la concurrence. Il saisit également l'Autorité de la concurrence en cas d'inexécution des injonctions prévues au premier alinéa ou des obligations résultant de l'acceptation de la transaction. Les sommes issues de la transaction sont versées au Trésor public et recouvrées comme les créances étrangères à l'impôt et au domaine.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE VII : Dispositions diverses.
Article L470-1
La juridiction peut condamner solidairement les personnes morales au paiement des amendes prononcées contre leurs dirigeants en vertu des dispositions du présent livre et des textes pris pour son application.
Article L470-2
En cas de condamnation au titre d'un délit prévu au titre IV du présent livre, la juridiction peut ordonner que sa décision soit affichée ou diffusée dans les conditions prévues par l'article 131-10 du code pénal.
Article L470-3
Lorsqu'une personne ayant fait l'objet, depuis moins de deux ans, d'une condamnation pour l'une des infractions définies par les 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 et L. 443-1, commet la même infraction, le maximum de la peine d'amende encourue est porté au double.
Article L470-4
Lorsqu'une personne morale ayant fait l'objet, depuis moins de deux ans, d'une condamnation pour l'une des infractions définies par les articles L. 441-3, L. 441-4, L. 441-5, L. 441-6, L. 442-2, L. 442-3 et L. 442-4 commet la même infraction, le taux maximum de la peine d'amende encourue est égal à dix fois celui applicable aux personnes physiques pour cette infraction.
Article L470-4-1
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Pour les délits prévus au titre IV du présent livre pour lesquels une peine d'emprisonnement n'est pas encourue et pour les contraventions prévues au présent livre, l'autorité administrative chargée de la concurrence et de la consommation a droit, tant que l'action publique n'a pas été mise en mouvement, de transiger, après accord du procureur de la République, selon les modalités fixées par décret en Conseil d'Etat.
L'acte par lequel le procureur de la République donne son accord à la proposition de transaction est interruptif de la prescription de l'action publique.
L'action publique est éteinte lorsque l'auteur de l'infraction a exécuté dans le délai imparti les obligations résultant pour lui de l'acceptation de la transaction.
Article L470-4-2
I. - La composition pénale prévue à l'article 41-2 du code de procédure pénale est applicable aux personnes morales qui reconnaissent avoir commis un ou plusieurs délits prévus au titre IV du présent livre pour lesquels une peine d'emprisonnement n'est pas encourue ainsi que, le cas échéant, une ou plusieurs contraventions connexes. Seule la mesure prévue par le 1° de l'article 41-2 du même code est applicable à ces personnes.
II. - Pour les délits mentionnés au I, le procureur de la République peut proposer la composition pénale à l'auteur des faits par l'intermédiaire d'un fonctionnaire mentionné au quatrième alinéa de l'article L. 450-1 du présent code.
Article L470-4-3
Pour les délits prévus au titre IV du présent livre pour lesquels une peine d'emprisonnement n'est pas encourue, vaut citation à personne la convocation en justice notifiée au prévenu, sur instruction du procureur de la République, par un fonctionnaire mentionné au quatrième alinéa de l'article L. 450-1.
Les dispositions de l'article 390-1 du code de procédure pénale sont applicables à la convocation ainsi notifiée.
Article L470-5
Pour l'application des dispositions du présent livre, le ministre chargé de l'économie ou son représentant peut, devant les juridictions civiles ou pénales, déposer des conclusions et les développer oralement à l'audience. Il peut également produire les procès-verbaux et les rapports d'enquête.
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Article L470-6
Pour l'application des articles 81 à 83 du traité instituant la Communauté européenne, le ministre chargé de l'économie et les fonctionnaires qu'il a désignés ou habilités conformément aux dispositions du présent livre d'une part, l'Autorité de la concurrence, d'autre part, disposent des pouvoirs respectifs qui leur sont reconnus par les articles du présent livre et du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, relatif au contrôle des concentrations entre entreprises et par le règlement du Conseil n° 1 / 2003 (CE) du 16 décembre 2002 relatif à la mise en oeuvre des règles de concurrence prévues aux articles 81 et 82 du traité instituant la Communauté européenne. Les règles de procédure prévues par ces textes leur sont applicables.
Pour l'application des articles 87 et 88 du traité instituant la Communauté européenne, le ministre chargé de l'économie et les fonctionnaires qu'il a désignés ou habilités conformément aux dispositions de l'article L. 450-1 disposent des pouvoirs qui leur sont reconnus par le titre V du livre IV.
Article L470-7
Les organisations professionnelles peuvent introduire l'action devant la juridiction civile ou commerciale pour les faits portant un préjudice direct ou indirect à l'intérêt collectif de la profession ou du secteur qu'elles représentent, ou à la loyauté de concurrence.
Article L470-7-1
Un décret fixe les modalités de publicité des décisions prises en application des articles L. 462-8, L. 464-1, L. 464-2, L. 464-3, L. 464-5, L. 464-6 et L. 464-6-1.
Article L470-8
Un décret en Conseil d'Etat détermine les modalités d'application du présent livre.
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Partie législative
LIVRE V : Des effets de commerce et des garanties
TITRE Ier : Des effets de commerce
Chapitre Ier : De la lettre de change
Section 1 : De la création et de la forme de la lettre de change.
Article L511-1
I. - La lettre de change contient :
1° La dénomination de lettre de change insérée dans le texte même du titre et exprimée dans la langue employée pour la rédaction de ce titre ;
2° Le mandat pur et simple de payer une somme déterminée ;
3° Le nom de celui qui doit payer, dénommé tiré ;
4° L'indication de l'échéance ;
5° Celle du lieu où le paiement doit s'effectuer ;
6° Le nom de celui auquel ou à l'ordre duquel le paiement doit être fait ;
7° L'indication de la date et du lieu où la lettre est créée ;
8° La signature de celui qui émet la lettre dénommé tireur. Cette signature est apposée, soit à la main, soit par tout procédé non manuscrit.
II. - Le titre dans lequel une des énonciations indiquées au I fait défaut ne vaut pas comme lettre de change, sauf dans les cas déterminés aux III à V du présent article.
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III. - La lettre de change dont l'échéance n'est pas indiquée est considérée comme payable à vue.
IV. - A défaut d'indication spéciale, le lieu désigné à côté du nom du tiré est réputé être le lieu du paiement et, en même temps, le lieu du domicile du tiré.
V. - La lettre de change n'indiquant pas le lieu de sa création est considérée comme souscrite dans le lieu désigné à côté du nom du tireur.
Article L511-2
La lettre de change peut être à l'ordre du tireur lui-même.
Elle peut être tirée sur le tireur lui-même.
Elle peut être tirée pour le compte d'un tiers.
Elle peut être payable au domicile d'un tiers, soit dans la localité où le tiré a son domicile, soit dans une autre localité.
Article L511-3
Dans une lettre de change payable à vue ou à un certain délai de vue, il peut être stipulé par le tireur que la somme sera productive d'intérêts. Dans toute autre lettre de change, cette stipulation est réputée non écrite.
Le taux des intérêts doit être indiqué dans la lettre ; à défaut de cette indication, la clause est réputée non écrite.
Les intérêts courent à partir de la date de la lettre de change si une autre date n'est pas indiquée.
Article L511-4
La lettre de change dont le montant est écrit à la fois en toutes lettres et en chiffres vaut, en cas de différence, pour la somme écrite en toutes lettres.
La lettre de change dont le montant est écrit plusieurs fois, soit en toutes lettres, soit en chiffres, ne vaut, en cas de différence, que pour la moindre somme.
Article L511-5
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Les lettres de change souscrites par des mineurs sont nulles à leur égard, sauf les droits respectifs des parties, conformément à l'article 1312 du code civil.
Si la lettre de change porte des signatures de personnes incapables de s'obliger par lettre de change, des signatures fausses ou des signatures de personnes imaginaires ou des signatures qui, pour toute autre raison, ne sauraient obliger les personnes qui ont signé la lettre de change, ou du nom desquelles elle a été signée, les obligations des autres signataires n'en sont pas moins valables.
Quiconque appose sa signature sur une lettre de change comme représentant d'une personne pour laquelle il n'avait pas le pouvoir d'agir, est obligé lui-même en vertu de la lettre et, s'il a payé, a les mêmes droits qu'aurait eus le prétendu représenté. Il en est de même du représentant qui a dépassé ses pouvoirs.
Article L511-6
Le tireur est garant de l'acceptation et du paiement.
Il peut s'exonérer de la garantie de l'acceptation ; toute clause par laquelle il s'exonère de la garantie du paiement est réputée non écrite.
Section 2 : De la provision.
Article L511-7
La provision doit être faite par le tireur ou par celui pour le compte de qui la lettre de change sera tirée, sans que le tireur pour compte d'autrui cesse d'être personnellement obligé envers les endosseurs et le porteur seulement.
Il y a provision si, à l'échéance de la lettre de change, celui sur qui elle est fournie est redevable au tireur, ou à celui pour compte de qui elle est tirée, d'une somme au moins égale au montant de la lettre de change.
La propriété de la provision est transmise de droit aux porteurs successifs de la lettre de change.
L'acceptation suppose la provision.
Elle en établit la preuve à l'égard des endosseurs.
Qu'il y ait ou non acceptation, le tireur seul est tenu de prouver, en cas de dénégation, que ceux sur qui la lettre était tirée avaient provision à l'échéance ; sinon, il est tenu de la garantir, quoique le
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protêt ait été fait après les délais fixés.
Section 3 : De l'endossement.
Article L511-8
Toute lettre de change, même non expressément tirée à ordre, est transmissible par la voie de l'endossement.
Lorsque le tireur a inséré dans la lettre de change les mots " non à ordre " ou une expression équivalente, le titre n'est transmissible que dans la forme et avec les effets d'une cession ordinaire.
L'endossement peut être fait même au profit du tiré, accepteur ou non, du tireur ou de tout autre obligé. Ces personnes peuvent endosser la lettre à nouveau.
L'endossement doit être pur et simple. Toute condition à laquelle il est subordonné est réputée non écrite.
L'endossement partiel est nul.
L'endossement " au porteur " vaut comme endossement en blanc.
L'endossement doit être inscrit sur la lettre de change ou sur une feuille qui y est attachée et dénommée allonge. Il doit être signé par l'endosseur. La signature de celui-ci est apposée, soit à la main, soit par tout procédé non manuscrit.
L'endossement peut ne pas désigner le bénéficiaire ou consister en un endossement en blanc constitué par la simple signature de l'endosseur. Dans ce dernier cas, l'endossement, pour être valable, doit être inscrit au dos de la lettre de change ou sur l'allonge.
Article L511-9
I. - L'endossement transmet tous les droits résultant de la lettre de change.
II. - Si l'endossement est en blanc, le porteur peut :
1° Remplir le blanc, soit de son nom, soit du nom d'une autre personne ;
2° Endosser la lettre de nouveau en blanc ou à une autre personne ;
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3° Remettre la lettre à un tiers, sans remplir le blanc et sans l'endosser.
Article L511-10
L'endosseur est, sauf clause contraire, garant de l'acceptation et du paiement.
Il peut interdire un nouvel endossement. Dans ce cas, il n'est pas tenu à la garantie envers les personnes auxquelles la lettre est ultérieurement endossée.
Article L511-11
Le détenteur d'une lettre de change est considéré comme porteur légitime s'il justifie de son droit par une suite ininterrompue d'endossements, même si le dernier endossement est en blanc. Les endossements biffés sont à cet égard réputés non écrits. Quand un endossement en blanc est suivi d'un autre endossement, le signataire de celui-ci est réputé avoir acquis la lettre par l'endossement en blanc.
Si une personne a été dépossédée d'une lettre de change par quelque événement que ce soit, le porteur justifiant de son droit de la manière indiquée à l'alinéa précédent n'est tenu de se dessaisir de la lettre que s'il l'a acquise de mauvaise foi ou si, en l'acquérant, il a commis une faute lourde.
Article L511-12
Les personnes actionnées en vertu de la lettre de change ne peuvent pas opposer au porteur les exceptions fondées sur leurs rapports personnels avec le tireur ou avec les porteurs antérieurs, à moins que le porteur, en acquérant la lettre, n'ait agi sciemment au détriment du débiteur.
Article L511-13
Lorsque l'endossement contient la mention " valeur en recouvrement ", " pour encaissement ", " par procuration ", ou toute autre mention impliquant un simple mandat, le porteur peut exercer tous les droits dérivant de la lettre de change, mais il ne peut endosser celle-ci qu'à titre de procuration.
Les obligés ne peuvent, dans ce cas, invoquer contre le porteur que les exceptions qui seraient opposables à l'endosseur.
Le mandat renfermé dans un endossement de procuration ne prend pas fin par le décès du mandant ou la survenance de son incapacité.
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Lorsqu'un endossement contient la mention " valeur en garantie ", " valeur en gage " ou toute autre mention impliquant un nantissement, le porteur peut exercer tous les droits dérivant de la lettre de change, mais un endossement fait par lui ne vaut que comme un endossement à titre de procuration.
Les obligés ne peuvent invoquer contre le porteur les exceptions fondées sur leurs rapports personnels avec l'endosseur, à moins que le porteur, en recevant la lettre, n'ait agi sciemment au détriment du débiteur.
Article L511-14
L'endossement postérieur à l'échéance produit les mêmes effets qu'un endossement antérieur. Toutefois, l'endossement postérieur au protêt faute de paiement, ou fait après l'expiration du délai fixé pour dresser le protêt, ne produit que les effets d'une cession ordinaire.
Sauf preuve contraire, l'endossement sans date est censé avoir été fait avant l'expiration du délai fixé pour dresser le protêt.
Il est défendu d'antidater les ordres à peine de faux.
Section 4 : De l'acceptation.
Article L511-15
La lettre de change peut être, jusqu'à l'échéance, présentée à l'acceptation du tiré, au lieu de son domicile, par le porteur ou même par un simple détenteur.
Dans toute lettre de change, le tireur peut stipuler qu'elle devra être présentée à l'acceptation, avec ou sans fixation de délai.
Il peut interdire dans la lettre la présentation à l'acceptation, à moins qu'il ne s'agisse d'une lettre de change payable chez un tiers ou d'une lettre payable dans une localité autre que celle du domicile du tiré ou d'une lettre tirée à un certain délai de vue.
Il peut aussi stipuler que la présentation à l'acceptation ne pourra avoir lieu avant un terme indiqué.
Tout endosseur peut stipuler que la lettre devra être présentée à l'acceptation, avec ou sans fixation de délai, à moins qu'elle n'ait été déclarée non acceptable par le tireur.
Les lettres de change à un certain délai de vue doivent être présentées à l'acceptation dans le délai d'un an à partir de leur date.
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Le tireur peut abréger ce dernier délai ou en stipuler un plus long.
Ces délais peuvent être abrégés par les endosseurs.
Lorsque la lettre de change est créée en exécution d'une convention relative à des fournitures de marchandises et passée entre commerçants, et que le tireur a satisfait aux obligations résultant pour lui du contrat, le tiré ne peut se refuser à donner son acceptation dès l'expiration d'un délai conforme aux usages normaux du commerce en matière de reconnaissance de marchandises.
Le refus d'acceptation entraîne de plein droit la déchéance du terme aux frais et dépens du tiré.
Article L511-16
Le tiré peut demander qu'une seconde présentation lui soit faite le lendemain de la première. Les intéressés ne sont admis à prétendre qu'il n'a pas été fait droit à cette demande que si celle-ci est mentionnée dans le protêt.
Le porteur n'est pas obligé de se dessaisir, entre les mains du tiré, de la lettre présentée à l'acceptation.
Article L511-17
L'acceptation est écrite sur la lettre de change. Elle est exprimée par le mot " accepté " ou tout autre mot équivalent et est signée du tiré. La simple signature du tiré apposée au recto de la lettre vaut acceptation.
Quand la lettre est payable à un certain délai de vue ou lorsqu'elle doit être présentée à l'acceptation dans un délai déterminé en vertu d'une stipulation spéciale, l'acceptation doit être datée du jour où elle a été donnée, à moins que le porteur n'exige qu'elle soit datée du jour de la présentation. A défaut de date, le porteur, pour conserver ses droits de recours contre les endosseurs et contre le tireur, fait constater cette omission par un protêt dressé en temps utile.
L'acceptation est pure et simple, mais le tiré peut la restreindre à une partie de la somme.
Toute autre modification apportée par l'acceptation aux énonciations de la lettre de change équivaut à un refus d'acceptation. Toutefois, l'accepteur est tenu dans les termes de son acceptation.
Article L511-18
Quand le tireur a indiqué dans la lettre de change un lieu de paiement autre que celui du domicile du tiré, sans désigner un tiers chez qui le paiement doit être effectué, le tiré peut l'indiquer lors de
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l'acceptation. A défaut de cette indication, l'accepteur est réputé s'être obligé à payer lui-même au lieu du paiement.
Si la lettre est payable au domicile du tiré, celui-ci peut, dans l'acceptation, indiquer une adresse du même lieu où le paiement doit être effectué.
Article L511-19
Par l'acceptation, le tiré s'oblige à payer la lettre de change à l'échéance.
A défaut de paiement, le porteur, même s'il est le tireur, a contre l'accepteur une action directe résultant de la lettre de change pour tout ce qui peut être exigé en vertu des articles L. 511-45 et L. 511-46.
Article L511-20
Si le tiré, qui a revêtu la lettre de change de son acceptation, a biffé celle-ci avant la restitution de la lettre, l'acceptation est censée refusée. Sauf preuve contraire, la radiation est réputée avoir été faite avant la restitution du titre.
Toutefois, si le tiré a fait connaître son acceptation par écrit au porteur ou à un signataire quelconque, il est tenu envers ceux-ci dans les termes de son acceptation.
Section 5 : De l'aval.
Article L511-21
Le paiement d'une lettre de change peut être garanti pour tout ou partie de son montant par un aval.
Cette garantie est fournie par un tiers ou même par un signataire de la lettre.
L'aval est donné soit sur la lettre de change ou sur une allonge, soit par un acte séparé indiquant le lieu où il est intervenu.
Il est exprimé par les mots " bon pour aval " ou par toute autre formule équivalente ; il est signé par le donneur d'aval.
Il est considéré comme résultant de la seule signature du donneur d'aval apposée au recto de la lettre de change, sauf quand il s'agit de la signature du tiré ou de celle du tireur.
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L'aval doit indiquer pour le compte de qui il est donné. A défaut de cette indication, il est réputé donné pour le tireur.
Le donneur d'aval est tenu de la même manière que celui dont il s'est porté garant.
Son engagement est valable, alors même que l'obligation qu'il a garantie serait nulle pour toute cause autre qu'un vice de forme.
Quand il paie la lettre de change, le donneur d'aval acquiert les droits résultant de la lettre de change contre le garanti et contre ceux qui sont tenus envers ce dernier en vertu de la lettre de change.
Section 6 : De l'échéance.
Article L511-22
I. - Une lettre de change peut être tirée :
1° A vue ;
2° A un certain délai de vue ;
3° A un certain délai de date ;
4° A jour fixe.
II. - Les lettres de change, soit à d'autres échéances, soit à échéances successives, sont nulles.
Article L511-23
La lettre de change à vue est payable à sa présentation. Elle doit être présentée au paiement dans le délai d'un an à partir de sa date. Le tireur peut abréger ce délai ou en stipuler un plus long. Ces délais peuvent être abrégés par les endosseurs.
Le tireur peut prescrire qu'une lettre de change payable à vue ne doit pas être présentée au paiement avant un terme indiqué. Dans ce cas, le délai de présentation part de ce terme.
Article L511-24
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L'échéance d'une lettre de change à un certain délai de vue est déterminée, soit par la date de l'acceptation, soit par celle du protêt.
En l'absence du protêt, l'acceptation non datée est réputée, à l'égard de l'accepteur, avoir été donnée le dernier jour du délai prévu pour la présentation à l'acceptation.
L'échéance d'une lettre de change tirée à un ou plusieurs mois de date ou de vue a lieu à la date correspondante du mois où le paiement doit être effectué. A défaut de date correspondante, l'échéance a lieu le dernier jour de ce mois.
Quand une lettre de change est tirée à un ou plusieurs mois et demi de date ou de vue, on compte d'abord les mois entiers.
Si l'échéance est fixée au commencement, au milieu ou à la fin du mois, on entend par ces termes le 1er, le 15 ou le dernier jour du mois.
Les expressions " huit jours " ou " quinze jours " s'entendent, non d'une ou deux semaines, mais d'un délai de huit ou quinze jours effectifs.
L'expression " demi-mois " indique un délai de quinze jours.
Article L511-25
Quand une lettre de change est payable à jour fixe dans un lieu où le calendrier est différent de celui du lieu de l'émission, la date de l'échéance est considérée comme fixée d'après le calendrier du lieu de paiement.
Quand une lettre de change tirée entre deux places ayant des calendriers différents est payable à un certain délai de date, le jour de l'émission est ramené au jour correspondant du calendrier du lieu de paiement et l'échéance est fixée en conséquence.
Les délais de présentation des lettres de change sont calculés conformément aux règles de l'alinéa précédent.
Ces règles ne sont pas applicables si une clause de la lettre de change, ou même les simples énonciations du titre, indiquent que l'intention a été d'adopter des règles différentes.
Section 7 : Du paiement.
Article L511-26
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Le porteur d'une lettre de change payable à jour fixe ou à un certain délai de date ou de vue doit présenter la lettre de change au paiement soit le jour où elle est payable, soit l'un des deux jours ouvrables qui suivent.
La présentation d'une lettre de change à une chambre de compensation équivaut à une présentation au paiement.
Article L511-27
Le tiré peut exiger, en payant la lettre de change, qu'elle lui soit remise acquittée par le porteur.
Le porteur ne peut refuser un paiement partiel.
En cas de paiement partiel, le tiré peut exiger que mention de ce paiement soit faite sur la lettre et que quittance lui en soit donnée.
Les paiements faits à compte sur le montant d'une lettre de change sont à la décharge des tireur et endosseur.
Le porteur est tenu de faire protester la lettre de change pour le surplus.
Article L511-28
Le porteur d'une lettre de change ne peut être contraint d'en recevoir le paiement avant l'échéance.
Le tiré qui paie avant l'échéance le fait à ses risques et périls.
Celui qui paie à l'échéance est valablement libéré, à moins qu'il n'y ait de sa part une fraude ou une faute lourde. Il est obligé de vérifier la régularité de la suite des endossements, mais non la signature des endosseurs.
Article L511-29
Lorsqu'une lettre de change est stipulée payable en une monnaie n'ayant pas cours au lieu du paiement, le montant peut en être payé dans la monnaie du pays, d'après sa valeur au jour de l'échéance. Si le débiteur est en retard, le porteur peut, à son choix, demander que le montant de la lettre de change soit payé dans la monnaie du pays d'après le cours, soit du jour de l'échéance, soit du jour du paiement.
Les usages du lieu de paiement servent à déterminer la valeur de la monnaie étrangère. Toutefois, le
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tireur peut stipuler que la somme à payer sera calculée d'après un cours déterminé dans la lettre.
Les règles ci-énoncées ne s'appliquent pas au cas où le tireur a stipulé que le paiement devra être fait dans une certaine monnaie indiquée par une clause de paiement effectif en une monnaie étrangère.
Si le montant de la lettre de change est indiqué dans une monnaie ayant la même dénomination, mais une valeur différente, dans le pays d'émission et dans celui du paiement, on est présumé s'être référé à la monnaie du lieu du paiement.
Article L511-30
A défaut de présentation de la lettre de change au paiement le jour de son échéance, ou l'un des deux jours ouvrables qui suivent, tout débiteur a la faculté d'en remettre le montant en dépôt à la Caisse des dépôts et consignations, aux frais, risques et périls du porteur.
Article L511-31
Il n'est admis d'opposition au paiement qu'en cas de perte de la lettre de change ou de redressement ou liquidation judiciaire du porteur.
Article L511-32
En cas de perte d'une lettre de change non acceptée, celui à qui elle appartient peut en poursuivre le paiement sur toute suivante.
Article L511-33
Si la lettre de change perdue est revêtue de l'acceptation, le paiement ne peut en être exigé sur toute suivante que par ordonnance du juge et en donnant caution.
Article L511-34
Si celui qui a perdu la lettre de change, qu'elle soit acceptée ou non, ne peut représenter toute suivante, il peut demander le paiement de la lettre de change perdue et l'obtenir par l'ordonnance du juge en justifiant de sa propriété par ses livres et en donnant caution.
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Article L511-35
En cas de refus de paiement, sur la demande formée en vertu des deux articles précédents, le propriétaire de la lettre de change perdue conserve tous ses droits par un acte de protestation. Cet acte doit être fait le lendemain de l'échéance de la lettre de change perdue. Les avis prescrits par l'article L. 511-42 doivent être donnés au tireur et aux endosseurs dans les délais fixés par cet article.
Article L511-36
Le propriétaire de la lettre de change égarée doit, pour se procurer la suivante, s'adresser à son endosseur immédiat qui est tenu de lui prêter son nom et ses soins pour agir envers son propre endosseur, et ainsi en remontant d'endosseur à endosseur jusqu'au tireur de la lettre. Le propriétaire de la lettre de change égarée supporte les frais.
Article L511-37
L'engagement de la caution mentionné dans les articles L. 511-33 et L. 511-34 est éteint après trois ans, si, pendant ce temps, il n'y a eu ni demandes ni poursuites en justice.
Section 8 : Du recours faute d'acceptation et faute de paiement.
Article L511-38
I. - Le porteur peut exercer ses recours contre les endosseurs, le tireur et les autres obligés :
1° A l'échéance, si le paiement n'a pas eu lieu ;
2° Même avant l'échéance :
a) S'il y a eu refus total ou partiel d'acceptation ;
b) Dans les cas de redressement ou de liquidation judiciaires du tiré, accepteur ou non, de cessation de ses paiements même non constatée par un jugement, ou de saisie de ses biens demeurée infructueuse ;
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c) Dans les cas de redressement ou de liquidation judiciaire du tireur d'une lettre non acceptable.
II. - Toutefois, les garants contre lesquels un recours est exercé dans les cas prévus par le b et le c du I peuvent, dans les trois jours de l'exercice de ce recours adresser au président du tribunal de commerce de leur domicile une requête pour solliciter des délais. Si la demande est reconnue fondée, l'ordonnance fixe l'époque à laquelle les garants sont tenus de payer les effets de commerce dont il s'agit, sans que les délais ainsi octroyés puissent dépasser la date fixée pour l'échéance. L'ordonnance n'est susceptible ni d'opposition ni d'appel.
Article L511-39
Le refus d'acceptation ou de paiement doit être constaté par un acte authentique dénommé protêt faute d'acceptation ou faute de paiement.
Le protêt faute d'acceptation doit être fait dans les délais fixés pour la présentation à l'acceptation. Si, dans le cas prévu au premier alinéa de l'article L. 511-16, la première présentation a eu lieu le dernier jour du délai, le protêt peut encore être dressé le lendemain.
Le protêt faute de paiement d'une lettre de change payable à jour fixe ou à un certain délai de date ou de vue doit être fait l'un des deux jours ouvrables qui suivent le jour où la lettre de change est payable. S'il s'agit d'une lettre payable à vue, le protêt doit être dressé dans les conditions indiquées à l'alinéa précédent pour dresser le protêt faute d'acceptation.
Le protêt faute d'acceptation dispense de la présentation au paiement et du protêt faute de paiement.
En cas de cessation de paiement du tiré, accepteur ou non, ou en cas de saisie de ses biens demeurée infructueuse, le porteur ne peut exercer ses recours qu'après présentation de la lettre au tiré pour le paiement et après confection d'un protêt.
En cas de redressement ou de liquidation judiciaire du tiré accepteur ou non ainsi qu'en cas de redressement ou de liquidation judiciaire du tireur d'une lettre non acceptable, la production du jugement déclaratif suffit pour permettre au porteur d'exercer ses recours.
Article L511-40
Lorsque le porteur consent à recevoir en paiement, soit un chèque ordinaire, soit un mandat de virement sur la Banque de France, soit un chèque postal, le chèque ou le mandat doit indiquer le nombre et l'échéance des effets ainsi payés. Cette indication n'est toutefois pas imposée pour les chèques ou mandats de virement créés pour le règlement entre banquiers du solde des opérations effectuées entre eux par l'intermédiaire d'une chambre de compensation.
Si le règlement est effectué au moyen d'un chèque ordinaire et si celui-ci n'est pas payé, notification du protêt faute de paiement dudit chèque est faite au domicile de paiement de la lettre de change
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dans le délai prévu à l'article 41 du décret-loi du 30 octobre 1935 unifiant le droit en matière de chèques et relatif aux cartes de paiement. Le protêt faute de paiement du chèque et la notification sont faits par un seul et même exploit, sauf dans le cas où, pour des raisons de compétence territoriale, l'intervention de deux officiers ministériels est nécessaire.
Si le règlement est effectué au moyen d'un mandat de virement et si celui-ci est rejeté par la Banque de France, ou au moyen d'un chèque postal et si celui-ci est rejeté par le centre de chèques postaux détenteur du compte à débiter, la non-exécution fait l'objet d'un acte de notification au domicile de l'émetteur dudit mandat ou dudit chèque postal dans les huit jours à compter de la date de l'émission. Cet acte est dressé par un huissier ou par un notaire.
Article L511-41
Lorsque le dernier jour du délai accordé pour l'accomplissement de l'acte de notification de la non-exécution du mandat de virement ou du chèque postal est un jour férié légal, ce délai est prorogé jusqu'au premier jour ouvrable qui en suit l'expiration. Les jours fériés intermédiaires sont compris dans la computation du délai. Aux jours fériés légaux sont assimilés les jours où, aux termes des lois en vigueur, aucun paiement ne peut être exigé ni aucun protêt dressé.
Le tiré de la lettre de change qui reçoit la notification doit, s'il ne paie pas la lettre de change ainsi que les frais de notification et, s'il y a lieu, du protêt du chèque, restituer la lettre de change à l'officier ministériel instrumentaire. Celui-ci dresse immédiatement le protêt faute de paiement de la lettre de change.
Si le tiré ne restitue pas la lettre de change, un acte de protestation est aussitôt dressé. Le défaut de restitution y est constaté. Le tiers porteur est, en ce cas, dispensé de se conformer aux dispositions des articles L. 511-33 et L. 511-34.
Le défaut de restitution de la lettre de change constitue un délit passible des peines prévues par les articles 314-1 et 314-10 du code pénal.
Article L511-42
Le porteur doit donner avis du défaut d'acceptation ou de paiement à son endosseur dans les quatre jours ouvrables qui suivent le jour du protêt ou celui de la présentation en cas de clause de retour sans frais.
Les notaires et les huissiers sont tenus, à peine de dommages intérêts, lorsque l'effet indique les nom et domicile du tireur de la lettre de change, de prévenir celui-ci dans les quarante-huit heures qui suivent l'enregistrement, par la poste et par lettre recommandée, des motifs du refus de payer. Cette lettre donne lieu, au profit du notaire ou de l'huissier, à un honoraire dont le montant est fixé par voie réglementaire en sus des frais d'affranchissement et de recommandation.
Chaque endosseur doit, dans les deux jours ouvrables qui suivent le jour où il a reçu l'avis, faire
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connaître à son endosseur l'avis qu'il a reçu, en indiquant les noms et les adresses de ceux qui ont donné les avis précédents, et ainsi de suite, en remontant jusqu'au tireur.
Les délais ci-dessus indiqués courent de la réception de l'avis précédent.
Lorsque, en conformité de l'alinéa précédent, un avis est donné à un signataire de la lettre de change, le même avis doit être donné dans le même délai à son avaliseur.
Dans le cas où un endosseur n'a pas indiqué son adresse ou l'a indiquée d'une façon illisible, il suffit que l'avis soit donné à l'endosseur qui le précède.
Celui qui a un avis à donner peut le faire sous une forme quelconque, même par un simple renvoi de la lettre de change.
Il doit prouver qu'il a donné l'avis dans le délai imparti.
Ce délai est considéré comme observé si une lettre missive donnant l'avis a été mise à la poste dans ledit délai.
Celui qui ne donne pas l'avis dans le délai ci-dessus indiqué n'encourt pas de déchéance ; il est responsable, s'il y a lieu, du préjudice causé par sa négligence, sans que les dommages-intérêts puissent dépasser le montant de la lettre de change.
Article L511-43
Le tireur, un endosseur ou un avaliseur peut, par la clause " retour sans frais ", " sans protêt " ou toute autre clause équivalente inscrite sur le titre et signée, dispenser le porteur de faire dresser, pour exercer ses recours, un protêt faute d'acceptation ou faute de paiement.
Cette clause ne dispense pas le porteur de la présentation de la lettre de change dans les délais prescrits ni des avis à donner.
La preuve de l'inobservation des délais incombe à celui qui s'en prévaut contre le porteur.
Si la clause est inscrite par le tireur, elle produit ses effets à l'égard de tous les signataires ; si elle est inscrite par un endosseur ou un avaliseur, elle produit ses effets seulement à l'égard de celui-ci. Si, malgré la clause inscrite par le tireur, le porteur fait dresser le protêt, les frais en restent à sa charge. Quand la clause émane d'un endosseur, ou d'un avaliseur, les frais du protêt, s'il en est dressé un, peuvent être recouvrés contre tous les signataires.
Article L511-44
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Tous ceux qui ont tiré, accepté, endossé ou avalisé une lettre de change sont tenus solidairement envers le porteur.
Le porteur a le droit d'agir contre toutes ces personnes, individuellement ou collectivement, sans être astreint à observer l'ordre dans lequel elles se sont obligées.
Le même droit appartient à tout signataire d'une lettre de change qui a remboursé celle-ci.
L'action intentée contre un des obligés n'empêche pas d'agir contre les autres, même postérieurs à celui qui a été d'abord poursuivi.
Article L511-45
I. - Le porteur peut réclamer à celui contre lequel il exerce son recours :
1° Le montant de la lettre de change non acceptée ou non payée avec les intérêts, s'il en a été stipulé ;
2° Les intérêts au taux légal à partir de l'échéance ;
3° Les frais du protêt, ceux des avis donnés ainsi que les autres frais.
II. - Si le recours est exercé avant l'échéance, déduction est faite d'un escompte sur le montant de la lettre. Cet escompte est calculé d'après le taux de l'escompte officiel fixé par la Banque de France tel qu'il existe à la date du recours au lieu du domicile du porteur.
Article L511-46
Celui qui a remboursé la lettre de change peut réclamer à ses garants :
1° La somme intégrale qu'il a payée ;
2° Les intérêts de ladite somme, calculés au taux légal, à partir du jour où il l'a déboursée ;
3° Les frais qu'il a faits.
Article L511-47
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Tout obligé contre lequel un recours est exercé ou qui est exposé à un recours peut exiger, contre remboursement, la remise de la lettre de change avec le protêt et un compte acquitté.
Tout endosseur qui a remboursé la lettre de change peut biffer son endossement et ceux des endosseurs subséquents.
Article L511-48
En cas d'exercice d'un recours après une acceptation partielle, celui qui rembourse la somme pour laquelle la lettre n'a pas été acceptée, peut exiger que ce remboursement soit mentionné sur la lettre et qu'il lui en soit donné quittance. Le porteur doit en outre lui remettre une copie certifiée conforme de la lettre et le protêt pour permettre l'exercice des recours ultérieurs.
Article L511-49
I. - Après l'expiration des délais fixés :
1° Pour la présentation d'une lettre de change à vue ou à un certain délai de vue ;
2° Pour la confection du protêt faute d'acceptation ou faute de paiement ;
3° Pour la présentation au paiement en cas de clause de retour sans frais,
le porteur est déchu de ses droits contre les endosseurs, contre le tireur et contre les autres obligés, à l'exception de l'accepteur.
II. - Toutefois, la déchéance n'a lieu à l'égard du tireur que s'il justifie qu'il a fait provision à l'échéance. Le porteur, en ce cas, ne conserve d'action que contre celui sur qui la lettre de change était tirée.
III. - A défaut de présentation à l'acceptation dans le délai stipulé par le tireur, le porteur est déchu de ses droits de recours, tant pour défaut de paiement que pour défaut d'acceptation, à moins qu'il ne résulte des termes de la stipulation que le tireur n'a entendu s'exonérer que de la garantie de l'acceptation.
IV. - Si la stipulation d'un délai pour la présentation est contenue dans un endossement, l'endosseur seul peut s'en prévaloir.
Article L511-50
Quand la présentation de la lettre de change ou la confection du protêt dans les délais prescrits est
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empêchée par un obstacle insurmontable tel que la prescription légale d'un Etat quelconque ou tout autre cas de force majeure, ces délais sont prolongés.
Le porteur est tenu de donner, sans retard, avis du cas de force majeure à son endosseur et de mentionner cet avis, daté et signé de lui, sur la lettre de change ou sur une allonge. Pour le surplus, les dispositions de l'article L. 511-42 sont applicables.
Après la cessation de la force majeure, le porteur doit, sans retard, présenter la lettre à l'acceptation ou au paiement et, s'il y a lieu, faire dresser le protêt.
Si la force majeure persiste au-delà de trente jours à partir de l'échéance, les recours peuvent être exercés, sans que ni la présentation ni la confection d'un protêt soit nécessaire, à moins que ces recours ne se trouvent suspendus pour une période plus longue, par application de l'article L. 511-61.
Pour les lettres de change à vue ou à un certain délai de vue, le délai de trente jours court de la date à laquelle le porteur a, même avant l'expiration des délais de présentation, donné avis de la force majeure à son endosseur. Pour les lettres de change à un certain délai de vue, le délai de trente jours s'augmente du délai de vue indiqué dans la lettre de change.
Ne sont point considérés comme constituant des cas de force majeure les faits purement personnels au porteur ou à celui qu'il a chargé de la présentation de la lettre ou de la confection du protêt.
Article L511-51
Indépendamment des formalités prescrites pour l'exercice de l'action en garantie, le porteur d'une lettre de change protestée faute de paiement peut, en obtenant la permission du juge, saisir conservatoirement les effets mobiliers des tireurs, accepteurs et endosseurs.
Section 9 : Des protêts
Sous-section 1 : Des formes
Article L511-52
Les protêts faute d'acceptation ou de paiement sont faits par un notaire ou par un huissier.
Le protêt doit être fait par un seul et même acte :
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1° Au domicile de celui sur qui la lettre de change était payable, ou à son dernier domicile connu ;
2° Au domicile des personnes indiquées par la lettre de change pour la payer au besoin ;
3° Au domicile du tiers qui a accepté par intervention.
En cas de fausse indication de domicile, le protêt est précédé d'un acte de perquisition.
Article L511-53
L'acte de protêt contient la transcription littérale de la lettre de change, de l'acceptation, des endossements et des recommandations qui y sont indiquées, la sommation de payer le montant de la lettre de change. Il énonce la présence ou l'absence de celui qui doit payer, les motifs du refus de payer et l'impuissance ou le refus de signer.
Article L511-54
Nul acte de la part du porteur de la lettre de change ne peut suppléer l'acte de protêt, hors les cas prévus par les articles L. 511-32 à L. 511-37 et par les articles L. 511-40 et L. 511-41.
Article L511-55
Les notaires et les huissiers sont tenus, à peine de destitution, dépens, dommages-intérêts envers les parties, de laisser copie exacte des protêts. Sous les mêmes sanctions, ils sont également tenus de remettre contre récépissé au greffier du tribunal de commerce ou du tribunal de grande instance statuant commercialement du domicile du débiteur, ou de lui adresser par lettre recommandée avec accusé de réception, une copie exacte des protêts faute de paiement des traites acceptées et des billets à ordre. Cette formalité doit être accomplie dans la quinzaine de l'acte.
Sous-section 2 : De la publicité.
Article L511-56
Le greffier du tribunal de commerce tient régulièrement à jour d'après les dénonciations qui lui sont faites par les notaires et huissiers, un état nominatif et par débiteur des protêts faute de paiement des lettres de change acceptées, des billets à ordre et des chèques ainsi que des certificats de non-paiement des chèques postaux qui lui sont dénoncés par les centres de chèques postaux. Cet état comporte des énonciations dont la liste est fixée par décret.
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Article L511-57
Après l'expiration d'un délai d'un mois à compter du jour du protêt ou de l'établissement du certificat de non-paiement du chèque postal et pendant un an à compter de la même date, tout requérant peut se faire délivrer, à ses frais, par les greffiers des tribunaux susvisés, un extrait de l'état nominatif prévu à l'article L. 511-56.
Article L511-58
Sur dépôt contre récépissé par le débiteur de l'effet et du protêt du chèque postal et du certificat de non-paiement ou d'une quittance constatant le paiement du chèque, le greffier du tribunal de commerce effectue, aux frais du débiteur, sur l'état dressé en application de l'article L. 511-56, la radiation de l'avis de protêt ou du certificat de non-paiement.
Les pièces déposées peuvent être retirées pendant l'année qui suit l'expiration du délai d'un an visé à l'article L. 511-57, après quoi le greffier en est déchargé.
Article L511-59
Toute publication, sous quelque forme que ce soit, des états établis en vertu des dispositions de la présente sous-section est interdite sous peine de dommages-intérêts.
Article L511-60
Un décret en Conseil d'Etat détermine les modalités d'application des dispositions de la présente sous-section. Il fixe notamment le montant des rémunérations dues aux notaires ou huissiers ayant dressé les protêts et aux greffiers des tribunaux de commerce pour les différentes formalités dont ils sont chargés.
Sous-section 3 : De la prorogation des délais.
Article L511-61
Dans le cas de mobilisation de l'armée, de fléau ou de calamité publique, d'interruption des services publics gérés ou soumis au contrôle de l'Etat ou des collectivités territoriales, des décrets en conseil
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des ministres peuvent, pour tout ou partie du territoire, proroger les délais dans lesquels doivent être faits les protêts et les autres actes destinés à conserver les recours pour toutes les valeurs négociables.
Dans les mêmes circonstances et sous les mêmes conditions les échéances des valeurs négociables peuvent être prorogées.
Section 10 : Du rechange.
Article L511-62
Toute personne ayant le droit d'exercer un recours peut, sauf stipulation contraire, se rembourser au moyen d'une nouvelle lettre dénommée retraite tirée à vue sur l'un de ses garants et payable au domicile de celui-ci.
La retraite comprend, outre les sommes indiquées dans les articles L. 511-45 et L. 511-46, un droit de courtage et le droit de timbre de la retraite.
Si la retraite est tirée par le porteur, le montant en est fixé d'après le cours d'une lettre de change à vue, tirée du lieu où la lettre primitive était payable sur le lieu du domicile du garant. Si la retraite est tirée par un endosseur, le montant en est fixé d'après le cours d'une lettre à vue tirée du lieu où le tireur de la retraite a son domicile sur le lieu du domicile du garant.
Article L511-63
Le rechange se règle, pour la France continentale, uniformément comme suit : 0,25 % sur les chefs-lieux de départements, 0,50 % sur les chefs-lieux d'arrondissements, 0,75 % sur toute autre place.
En aucun cas, il n'y a lieu à rechange dans le même département.
Article L511-64
Les rechanges ne peuvent être cumulés.
Chaque endosseur n'en supporte qu'un seul ainsi que le tireur.
Section 11 : De l'intervention.
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Article L511-65
Le tireur, un endosseur ou un avaliseur peut indiquer une personne pour accepter ou payer au besoin.
La lettre de change peut être, sous les conditions déterminées ci-après, acceptée ou payée par une personne intervenant pour un débiteur quelconque exposé au recours.
L'intervenant peut être un tiers, même le tiré, ou une personne déjà obligée en vertu de la lettre de change, sauf l'accepteur.
L'intervenant est tenu de donner, dans un délai de deux jours ouvrables, avis de son intervention à celui pour qui il est intervenu. En cas d'inobservation de ce délai, il est responsable, s'il y a lieu, du préjudice causé par sa négligence sans que les dommages-intérêts puissent dépasser le montant de la lettre de change.
Sous-section 1 : De l'acceptation par intervention.
Article L511-66
L'acceptation par intervention peut avoir lieu dans tous les cas où des recours sont ouverts avant l'échéance au porteur d'une lettre de change acceptable.
Lorsqu'il a été indiqué sur la lettre de change une personne pour l'accepter ou la payer au besoin au lieu du paiement, le porteur ne peut exercer avant l'échéance ses droits de recours contre celui qui a apposé l'indication et contre les signataires subséquents à moins qu'il n'ait présenté la lettre de change à la personne désignée et que, celle-ci ayant refusé l'acceptation, ce refus n'ait été constaté par un protêt.
Dans les autres cas d'intervention, le porteur peut refuser l'acceptation par intervention.
Toutefois, s'il l'admet, il perd les recours qui lui appartiennent avant l'échéance contre celui pour qui l'acceptation a été donnée et contre les signataires subséquents.
L'acceptation par intervention est mentionnée sur la lettre de change ; elle est signée par l'intervenant. Elle indique pour le compte de qui elle a lieu ; à défaut de cette indication, l'acceptation est réputée donnée pour le tireur.
L'accepteur par intervention est obligé envers le porteur et envers les endosseurs postérieurs à celui pour le compte duquel il est intervenu, de la même manière que celui-ci.
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Malgré l'acceptation par intervention, celui pour lequel elle a été faite et ses garants peuvent exiger du porteur, contre remboursement de la somme indiquée à l'article L. 511-45, la remise de la lettre de change, du protêt et d'un compte acquitté, s'il y a lieu.
Sous-section 2 : Du paiement par intervention.
Article L511-67
Le paiement par intervention peut avoir lieu dans tous les cas où, soit à l'échéance, soit avant l'échéance, des recours sont ouverts au porteur.
Le paiement doit comprendre toute la somme qu'aurait à acquitter celui pour lequel il a lieu.
Il doit être fait au plus tard le lendemain du dernier jour admis pour la confection du protêt faute de paiement.
Article L511-68
Si la lettre de change a été acceptée par des intervenants ayant leur domicile au lieu du paiement ou si des personnes ayant leur domicile dans ce même lieu ont été indiquées pour payer au besoin, le porteur doit présenter la lettre à toutes ces personnes et faire dresser, s'il y a lieu, un protêt faute de paiement au plus tard le lendemain du dernier jour admis pour la confection du protêt.
A défaut de protêt dressé dans ce délai, celui qui a indiqué le besoin ou pour le compte de qui la lettre a été acceptée et les endosseurs postérieurs cessent d'être obligés.
Article L511-69
Le porteur qui refuse le paiement par intervention perd ses recours contre ceux qui auraient été libérés.
Article L511-70
Le paiement par intervention doit être constaté par un acquit donné sur la lettre de change, avec indication de celui pour qui il est fait. A défaut de cette indication, le paiement est considéré comme fait pour le tireur.
La lettre de change et le protêt, s'il en a été dressé un, doivent être remis au payeur par intervention.
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Article L511-71
Le payeur par intervention acquiert les droits résultant de la lettre de change contre celui pour lequel il a payé et contre ceux qui sont tenus vis-à-vis de ce dernier en vertu de la lettre de change. Toutefois, il ne peut endosser la lettre de change à nouveau.
Les endosseurs postérieurs au signataire pour qui le paiement a eu lieu sont libérés.
En cas de concurrence pour le paiement par intervention, celui qui opère le plus de libération est préféré. Celui qui intervient, en connaissance de cause, contrairement à cette règle, perd ses recours contre ceux qui auraient été libérés.
Section 12 : De la pluralité d'exemplaires et de copies.
Sous-section 1 : De la pluralité d'exemplaires.
Article L511-72
La lettre de change peut être tirée en plusieurs exemplaires identiques.
Ces exemplaires doivent être numérotés dans le texte même du titre ; faute de quoi, chacun d'eux est considéré comme une lettre de change distincte.
Tout porteur d'une lettre n'indiquant pas qu'elle a été tirée en un exemplaire unique peut exiger à ses frais la délivrance de plusieurs exemplaires. A cet effet, il doit s'adresser à son endosseur immédiat qui est tenu de lui prêter ses soins pour agir contre son propre endosseur et ainsi de suite en remontant jusqu'au tireur. Les endosseurs sont tenus de reproduire les endossements sur les nouveaux exemplaires.
Article L511-73
Le paiement fait sur un des exemplaires est libératoire, alors même qu'il n'est pas stipulé que ce paiement annule l'effet des autres exemplaires. Toutefois, le tiré reste tenu à raison de chaque exemplaire accepté dont il n'a pas obtenu la restitution.
L'endosseur qui a transféré les exemplaires à différentes personnes, ainsi que les endosseurs subséquents, sont tenus à raison de tous les exemplaires portant leur signature et qui n'ont pas été restitués.
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Article L511-74
Celui qui a envoyé un des exemplaires à l'acceptation doit indiquer sur les autres exemplaires le nom de la personne entre les mains de laquelle cet exemplaire se trouve. Celle-ci est tenue de le remettre au porteur légitime d'un autre exemplaire. Si elle s'y refuse, le porteur ne peut exercer de recours qu'après avoir fait constater par un protêt :
1° Que l'exemplaire envoyé à l'acceptation ne lui a pas été remis sur sa demande ;
2° Que l'acceptation ou le paiement n'a pu être obtenu sur un autre exemplaire.
Sous-section 2 : Des copies.
Article L511-75
Tout porteur d'une lettre de change a le droit d'en faire des copies.
La copie doit reproduire exactement l'original avec les endossements et toutes les autres mentions qui y figurent. Elle doit indiquer où elle s'arrête.
Elle peut être endossée et avalisée de la même manière et avec les mêmes effets que l'original.
Article L511-76
La copie doit désigner le détenteur du titre original. Celui-ci est tenu de remettre ledit titre au porteur légitime de la copie.
S'il s'y refuse, le porteur ne peut exercer le recours contre les personnes qui ont endossé ou avalisé la copie qu'après avoir fait constater par un protêt que l'original ne lui a pas été remis sur sa demande.
Si le titre original, après le dernier endossement survenu avant que la copie ne soit pas faite, porte la clause : " à partir d'ici, l'endossement ne vaut que sur la copie " ou toute autre formule équivalente, un endossement signé ultérieurement sur l'original est nul.
Section 13 : Des altérations.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article L511-77
En cas d'altération du texte d'une lettre de change, les signataires postérieurs à cette altération sont tenus dans les termes du texte altéré ; les signataires antérieurs le sont dans les termes du texte originaire.
Section 14 : De la prescription.
Article L511-78
Toutes actions résultant de la lettre de change contre l'accepteur se prescrivent par trois ans à compter de la date de l'échéance.
Les actions du porteur contre les endosseurs et contre le tireur se prescrivent par un an à partir de la date du protêt dressé en temps utile ou de celle de l'échéance, en cas de clause de retour sans frais.
Les actions des endosseurs les uns contre les autres et contre le tireur se prescrivent par six mois à partir du jour où l'endosseur a remboursé la lettre ou du jour où il a été lui-même actionné.
Les prescriptions, en cas d'action exercée en justice, ne courent que du jour de la dernière poursuite juridique. Elles ne s'appliquent pas s'il y a eu condamnation, ou si la dette a été reconnue par acte séparé.
L'interruption de la prescription n'a d'effet que contre celui à l'égard duquel l'acte interruptif a été fait.
Néanmoins, les prétendus débiteurs sont tenus, s'ils en sont requis, d'affirmer, sous serment, qu'ils ne sont plus redevables, et leur conjoint survivant, leurs héritiers ou ayants cause, qu'ils estiment de bonne foi qu'il n'est plus rien dû.
Section 15 : Dispositions générales.
Article L511-79
Le paiement d'une lettre de change dont l'échéance est à un jour férié légal ne peut être exigé que le premier jour ouvrable qui suit. De même, tous autres actes relatifs à la lettre de change, notamment la présentation à l'acceptation et le protêt, ne peuvent être faits qu'un jour ouvrable.
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Lorsqu'un de ces actes doit être accompli dans un certain délai dont le dernier jour est un jour férié légal, ce délai est prorogé jusqu'au premier jour ouvrable qui en suit l'expiration. Les jours fériés intermédiaires sont compris dans la computation du délai.
Article L511-80
Aux jours fériés légaux sont assimilés les jours où, aux termes des lois en vigueur, aucun paiement ne peut être exigé, ni aucun protêt dressé.
Article L511-81
Les délais légaux ou conventionnels ne comprennent pas le jour à compter duquel ils commencent à courir.
Aucun jour de grâce ni légal ni judiciaire n'est admis sauf dans les cas prévus par les articles L. 511-38 et L. 511-50.
Chapitre II : Du billet à ordre.
Article L512-1
I. - Le billet à ordre contient ;
1° La clause à ordre ou la dénomination du titre insérée dans le texte même et exprimée dans la langue employée pour la rédaction de ce titre ;
2° La promesse pure et simple de payer une somme déterminée ;
3° L'indication de l'échéance ;
4° Celle du lieu où le paiement doit s'effectuer ;
5° Le nom de celui auquel ou à l'ordre duquel le paiement doit être fait ;
6° L'indication de la date et du lieu où le billet est souscrit ;
7° La signature de celui qui émet le titre dénommé souscripteur.
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II. - Le billet à ordre dont l'échéance n'est pas indiquée est considéré comme payable à vue.
III. - A défaut d'indication spéciale le lieu de création du titre est réputé être le lieu de paiement et, en même temps, le lieu du domicile du souscripteur.
IV. - Le billet à ordre n'indiquant pas le lieu de sa création est considéré comme souscrit dans le lieu désigné à côté du nom du souscripteur.
Article L512-2
Le titre dans lequel une des énonciations indiquées au I de l'article L. 512-1 fait défaut ne vaut pas comme billet à ordre, sauf dans les cas déterminés aux II à IV de l'article L. 512-1.
Article L512-3
Sont applicables au billet à ordre, en tant qu'elles ne sont pas incompatibles avec la nature de ce titre, les dispositions des articles L. 511-2 à L. 511-5 L. 511-8 à L. 511-14, L. 511-18, L. 511-22 à L. 511-47, L. 511-49 à L. 511-55, L. 511-62 à L. 511-65, L. 511-67 à L. 511-71, L. 511-75 à L. 511-81, relatives à la lettre de change.
Article L512-4
Sont également applicables au billet à ordre les dispositions de l'article L. 511-21 relatives à l'aval. Dans le cas prévu au sixième alinéa de cet article, si l'aval n'indique pas pour le compte de qui il a été donné, il est réputé l'avoir été pour le compte du souscripteur du billet à ordre.
Article L512-5
Les dispositions des articles L. 511-56 à L. 511-61 relatives à la publicité et à la prorogation des délais de protêts sont applicables au protêt dressé faute de paiement d'un billet à ordre.
Article L512-6
Le souscripteur d'un billet à ordre est obligé de la même manière que l'accepteur d'une lettre de change.
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Article L512-7
Les billets à ordre payables à un certain délai de vue doivent être présentés au visa du souscripteur dans les délais fixés à l'article L. 511-15. Le délai de vue court de la date du visa signé du souscripteur sur le billet. Le refus du souscripteur de donner son visa daté est constaté par un protêt, dont la date sert de point de départ au délai de vue.
Article L512-8
Le règlement par billet à ordre n'est permis au débiteur que s'il a été expressément prévu par les parties et mentionné sur la facture. Même en ce cas, si le billet à ordre n'est pas parvenu au créancier dans les trente jours qui suivent l'envoi de la facture, le créancier peut émettre une lettre de change que le débiteur est tenu d'accepter selon les conditions prévues aux avant dernier et dernier alinéas de l'article L. 511-15. Toute stipulation contraire est réputée non écrite.
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Partie législative
LIVRE V : Des effets de commerce et des garanties
TITRE II : Des garanties
Chapitre Ier : Dispositions générales sur le gage commercial
Article L521-1
Le gage constitué soit par un commerçant, soit par un individu non commerçant, pour un acte de commerce, se constate à l'égard des tiers, comme à l'égard des parties contractantes, conformément aux dispositions de l'article L. 110-3.
Le gage, à l'égard des valeurs négociables, peut aussi être établi par un endossement régulier, indiquant que les valeurs ont été remises en garantie.
A l'égard des actions, des parts d'intérêts et des obligations nominatives des sociétés financières, industrielles, commerciales ou civiles, dont la transmission s'opère par un transfert sur les registres de la société, ainsi qu'à l'égard des inscriptions nominatives sur le grand-livre de la dette publique, le gage peut également être établi par un transfert, à titre de garantie, inscrit sur lesdits registres.
Il n'est pas dérogé aux dispositions des articles 2355 à 2366 du code civil en ce qui concerne les créances mobilières.
Les effets de commerce donnés en gage sont recouvrables par le créancier gagiste.
Article L521-3
A défaut de paiement à l'échéance, le créancier peut faire procéder à la vente publique des objets donnés en gage huit jours après une simple signification faite au débiteur et au tiers bailleur de gage, s'il y en a un, et selon les modalités prévues par le présent article, sans que la convention puisse y déroger.
Les ventes autres que celles dont les prestataires de services d'investissement sont chargés sont faites par les courtiers. Toutefois, sur la requête des parties, le président du tribunal de commerce peut désigner pour y procéder une autre classe d'officiers publics.
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Les dispositions des articles L. 322-9 à L. 322-13 sur les ventes publiques sont applicables aux ventes prévues par l'alinéa précédent.
Le créancier peut également demander l'attribution judiciaire du gage ou convenir de son appropriation conformément aux articles 2347 et 2348 du code civil.
Chapitre II : Des dépôts en magasins généraux
Section 1 : De l'agrément, de la cession et de la cessation d'exploitation.
Article L522-1
L'exploitant d'un établissement à usage d'entrepôt où des industriels, commerçants, agriculteurs ou artisans déposent des matières premières, des marchandises, des denrées ou des produits fabriqués, ne peut émettre des bulletins de gage négociables et qualifier son établissement de magasin général que s'il a obtenu un agrément du préfet.
Article L522-2
L'arrêté préfectoral statuant sur la demande d'agrément est pris après avis des organismes professionnels et interprofessionnels prévus par le décret en Conseil d'Etat pris pour l'application du présent chapitre. Il est motivé.
Article L522-3
La cession d'un magasin général est subordonnée à l'agrément du préfet, donné dans les mêmes formes.
Article L522-4
Toute cessation d'exploitation non suivie de cession est subordonnée à un préavis de six mois, adressé par l'exploitant au préfet. A l'expiration de ce délai, et si les intérêts généraux du commerce l'exigent, un administrateur provisoire peut être désigné par le président du tribunal de grande instance statuant comme en matière de référé à la demande du ministère public.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article L522-5
Il est interdit aux exploitants des magasins généraux de se livrer, soit directement, soit indirectement, que ce soit pour leur propre compte ou pour le compte d'autrui, à titre de commissionnaire ou à tout autre titre, à aucun commerce ou spéculation ayant pour objet les marchandises pour lesquelles ils sont habilités à délivrer des récépissés-warrants.
Article L522-6
Sont réputées tomber sous le coup de l'article L. 522-5 les sociétés exploitantes de magasins généraux dont l'un des associés, possédant plus de 10 % du capital social, exerce une activité incompatible avec les dispositions dudit article.
Article L522-7
Toute société exploitante qui, par suite d'une modification intervenue dans la répartition du capital entre les associés, ne se trouve plus dans les conditions exigées par l'article L. 522-6 doit, dans le mois qui suit cette modification, solliciter le maintien de l'agrément dont elle est bénéficiaire.
L'agrément reste valable jusqu'à ce que le préfet ait statué par arrêté.
Le préfet peut, soit prononcer le maintien de l'agrément dans les conditions prévues à l'article L. 522-11, soit en prononcer le retrait conformément aux dispositions de l'article L. 522-39.
Article L522-8
Lorsque l'ouverture d'un établissement est subordonnée à l'intervention d'un décret ou d'un arrêté ministériel, l'agrément de cet établissement comme magasin général est accordé par ce décret ou cet arrêté, après consultation des organismes visés à l'article L. 522-2.
Article L522-9
Les exploitants d'établissements agréés n'ont pas à solliciter l'autorisation prévue par les textes réglementant les créations, extensions ou transferts d'établissements.
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Article L522-10
Les décrets ou arrêtés agréant les établissements comme magasins généraux peuvent comporter, pour l'exploitant, l'autorisation d'ouvrir une salle de ventes publiques de marchandises en gros.
Article L522-11
I. - Les entreprises ne répondant pas aux conditions fixées aux articles L. 522-5 et L. 522-6 peuvent cependant solliciter l'agrément comme magasins généraux des entrepôts qu'elles exploitent ou projettent d'exploiter et obtenir, à titre exceptionnel, cet agrément s'il est reconnu que les intérêts du commerce l'exigent.
II. - Dans ce cas :
1° La demande d'agrément fait l'objet à la préfecture et dans la commune du lieu de l'établissement des mesures de publicité qui sont prévues par voie réglementaire ;
2° L'arrêté d'agrément fixe, en sus du cautionnement prévu à l'article L. 522-12, un cautionnement spécial au moins égal à celui-ci. Le cautionnement spécial est fourni soit en numéraire, soit par une caution bancaire agréée par le tribunal de commerce dans le ressort duquel est situé l'établissement.
Article L522-12
L'arrêté préfectoral autorisant l'ouverture du magasin général soumet son exploitant à l'obligation d'un cautionnement.
Sont soumis à la même obligation les établissements visés à l'article L. 522-8.
Le montant de ce cautionnement, proportionnel à la surface affectée au magasinage, est compris entre deux limites fixées par décret en Conseil d'Etat.
Article L522-13
Un ou plusieurs règlements types fixent, dans le cadre des dispositions du présent chapitre et du décret en Conseil d'Etat pris pour son application, les conditions de fonctionnement des établissements.
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Section 2 : Des obligations, des responsabilités et des garanties.
Article L522-14
Toute personne qui remet une marchandise en dépôt à un magasin général est tenue d'en déclarer la nature et la valeur à l'exploitant.
Article L522-15
Les exploitants de magasins généraux sont responsables, dans les limites de la valeur déclarée, de la garde et la conservation des dépôts qui leur sont confiés.
Ils ne sont pas responsables des avaries et déchets naturels provenant de la nature et du conditionnement des marchandises ou des cas de force majeure.
Les règlements types et les règlements particuliers prévus aux articles L. 522-13 et L. 522-17 précisent les obligations des exploitants en ce qui concerne la conservation des dépôts.
Article L522-16
Les marchandises susceptibles d'être warrantées sont obligatoirement assurées contre l'incendie par les polices générales du magasin.
Toutefois, pour les exploitants de magasins généraux établis dans les ports maritimes, cette obligation est suspendue à l'égard des marchandises entreposées couvertes par une assurance maritime tant que cette assurance garantit ces risques.
Si, pendant cette période, un sinistre survient, la responsabilité de l'exploitant du magasin général n'est pas engagée vis-à-vis des déposants, des compagnies d'assurances et des porteurs de warrants.
A l'expiration de ladite période, les marchandises susmentionnées doivent être assurées par les polices générales du magasin.
Article L522-17
Chaque établissement est doté d'un règlement particulier qui complète les dispositions générales des règlements types en fixant les conditions d'exploitation prenant en compte la nature et la situation du magasin.
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Article L522-18
Au règlement prévu à l'article L. 522-17 sont annexés un tarif général et, éventuellement, des tarifs spéciaux pour la rétribution du magasinage, dans les termes du présent chapitre, et des services rendus à cette occasion aux déposants. La perception des taxes correspondantes a lieu indistinctement et sans aucune faveur.
Article L522-19
Les tarifs sont communiqués au préfet un mois au moins avant l'ouverture du magasin général.
Toute modification des tarifs existants doit lui être notifiée, ainsi qu'aux organismes visés à l'article L. 522-2, et ne devient exécutoire qu'un mois après cette notification. Toutefois, ce délai n'est pas applicable aux exploitants dont les tarifs sont soumis à une autorisation administrative.
Section 3 : Du fonctionnement et du contrôle.
Article L522-20
Les exploitants de magasins généraux peuvent prêter sur nantissement des marchandises qu'ils reçoivent en dépôt ou négocier les warrants qui les représentent.
Article L522-21
Les présidents, gérants, directeurs et le personnel des exploitations de magasins généraux sont, sous les peines prévues à l'article 226-13 du code pénal, tenus au secret professionnel pour tout ce qui regarde les marchandises entreposées.
Article L522-22
Les magasins généraux sont placés sous le contrôle de l'administration, dans les conditions fixées par décret en Conseil d'Etat.
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Article L522-23
Les dispositions du présent chapitre, le décret pris pour l'application desdites dispositions, le tarif et les règlements, sont affichés dans la partie des bureaux du magasin où le public a accès.
Section 4 : Des récépissés et des warrants.
Article L522-24
Il est délivré à chaque déposant un ou plusieurs récépissés. Ces récépissés énoncent les nom, profession et domicile du déposant ainsi que la nature de la marchandise déposée et les indications propres à en établir l'identité et à en déterminer la valeur.
Les marchandises fongibles déposées en magasin général et sur lesquelles il a été délivré un récépissé et un warrant peuvent être remplacées par des marchandises de même nature, de même espèce et de même qualité. La possibilité de cette substitution doit être mentionnée à la fois sur le récépissé et sur le warrant.
Les droits et privilèges du porteur du récépissé et du porteur du warrant sont reportés sur les marchandises substituées.
Il peut être délivré un récépissé et un warrant sur un lot de marchandises fongibles à prendre dans un lot plus important.
Article L522-25
A chaque récépissé de marchandise est annexé, sous la dénomination de warrant, un bulletin de gage contenant les mêmes mentions que le récépissé.
Les récépissés de marchandises et les warrants y annexés sont extraits d'un registre à souches.
Article L522-26
Les récépissés et les warrants peuvent être transférés par voie d'endossement, ensemble ou séparément.
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Article L522-27
Tout cessionnaire du récépissé ou du warrant peut exiger la transcription sur les registres à souches dont ils sont extraits de l'endossement fait à son profit, avec indication de son domicile.
Article L522-28
L'endossement du warrant séparé du récépissé vaut nantissement de la marchandise au profit du cessionnaire du warrant.
L'endossement du récépissé transmet au cessionnaire le droit de disposer de la marchandise, à charge pour lui, lorsque le warrant n'est pas transféré avec le récépissé, de payer la créance garantie par le warrant ou d'en laisser payer le montant sur le prix de la vente de la marchandise.
Article L522-29
L'endossement du récépissé et du warrant, transférés ensemble ou séparément, doit être daté.
L'endossement du warrant séparé du récépissé doit, en outre, énoncer le montant intégral, en capital et intérêts, de la créance garantie, la date de son échéance et les nom, profession et domicile du créancier.
Le premier cessionnaire du warrant doit immédiatement faire transcrire l'endossement sur les registres du magasin, avec les énonciations dont il est accompagné. Il est fait mention de cette transcription sur le warrant.
Article L522-30
Le porteur du récépissé séparé du warrant peut, même avant l'échéance, payer la créance garantie par le warrant.
Si le porteur du warrant n'est pas connu ou si, étant connu, il n'est pas d'accord avec le débiteur sur les conditions auxquelles aurait lieu l'anticipation de paiement, la somme due, y compris les intérêts jusqu'à l'échéance, est consignée à l'administration du magasin général qui en demeure responsable. Cette consignation libère la marchandise.
Article L522-31
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A défaut de paiement à l'échéance, le porteur du warrant séparé du récépissé, peut, huit jours après le protêt, et sans aucune formalité de justice, faire procéder par officiers publics à la vente publique aux enchères et en gros de la marchandise engagée, conformément aux dispositions du livre III relatives aux ventes publiques de marchandises en gros.
Dans le cas où le souscripteur primitif du warrant l'a remboursé, il peut faire procéder à la vente de la marchandise, comme il est dit à l'alinéa précédent, contre le porteur du récépissé, huit jours après l'échéance et sans qu'il soit besoin d'aucune mise en demeure.
Article L522-32
I. - Le créancier est payé de sa créance sur le prix, directement et sans formalité de justice, par privilège et préférence à tous créanciers, sans autre déduction que celles :
1° Des contributions indirectes, et droits de douane dus par la marchandise ;
2° Des frais de vente, de magasinage et autres frais pour la conservation de la chose.
II. - Si le porteur du récépissé ne se présente pas lors de la vente de la marchandise, la somme excédant celle qui est due au porteur du warrant est consignée à l'administration du magasin général, comme il est dit à l'article L. 522-30.
Article L522-33
Le porteur du warrant n'a de recours contre l'emprunteur et les endosseurs qu'après avoir exercé ses droits sur la marchandise et en cas d'insuffisance.
Le délai fixé par l'article L. 511-42 pour l'exercice du recours contre les endosseurs, ne court que du jour où la vente de la marchandise est réalisée.
Le porteur du warrant perd, en tout cas, son recours contre les endosseurs s'il n'a pas fait procéder à la vente dans le mois qui suit la date du protêt.
Article L522-34
Le porteur du récépissé et du warrant a, sur les indemnités d'assurance dues en cas de sinistre, les mêmes droits et privilèges que sur la marchandise assurée.
Article L522-35
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Les établissements publics de crédit peuvent recevoir les warrants comme effets de commerce, avec dispense d'une des signatures exigées par leurs statuts.
Article L522-36
Celui qui a perdu un récépissé ou un warrant peut demander et obtenir par ordonnance du juge, en justifiant de sa propriété et en donnant caution, un duplicata s'il s'agit du récépissé, le paiement de la créance garantie s'il s'agit du warrant.
Si dans ce cas le souscripteur du warrant ne s'est pas libéré à l'échéance, le tiers porteur dont l'endos aura été transcrit sur les registres du magasin général pourra être autorisé par ordonnance du juge, à charge de fournir caution, à faire procéder à la vente de la marchandise engagée dans les conditions déterminées à l'article L. 522-31.
Le protêt prévu audit article donne copie des mentions telles qu'elles figurent sur le registre du magasin général.
Article L522-37
En cas de perte du récépissé, la caution prévue à l'article précédent est libérée à l'expiration d'un délai de cinq ans, lorsque les marchandises en faisant l'objet n'ont pas été revendiquées par un tiers au magasin général.
En cas de perte du warrant, la caution est libérée à l'expiration d'un délai de trois ans, à compter de la transcription de l'endos.
Section 5 : Des sanctions.
Article L522-38
Il est interdit d'ouvrir et d'exploiter sans l'autorisation prescrite à l'article L. 522-1 un établissement recevant en dépôt des marchandises pour lesquelles sont délivrés aux déposants, sous le nom de warrants, ou tout autre nom, des bulletins de gages négociables.
Toute infraction à cette prohibition est punie d'une amende de 6000 euros et d'un emprisonnement d'un an.
Le tribunal peut ordonner que le jugement de condamnation sera publié intégralement ou par extraits dans les journaux qu'il désigne et affiché dans les lieux qu'il indique, notamment aux portes
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du domicile et des magasins du condamné, le tout aux frais du condamné, sans toutefois que les frais de cette publication puissent dépasser le maximum de l'amende encourue.
Article L522-39
En cas d'infraction commise par l'exploitant d'un magasin général aux dispositions du présent chapitre ou des décrets en Conseil d'Etat pris pour l'application desdites dispositions, le préfet peut, l'exploitant entendu et après consultation des organismes professionnels et interprofessionnels visés à l'article L. 522-2, prononcer par arrêté, à titre temporaire ou définitif, le retrait de l'agrément.
Dans ce cas, le président du tribunal statuant comme en matière de référé, désigne, à la demande du ministère public, un administrateur provisoire et détermine les pouvoirs dont il dispose pour l'exploitation de l'établissement.
En cas de retrait d'agrément à titre définitif et lorsque l'intérêt du commerce local exige le maintien du magasin général, les pouvoirs de l'administrateur provisoire peuvent comporter la mise aux enchères publiques du fonds de commerce et du matériel nécessaire à son exploitation.
Le retrait d'agrément à titre définitif peut également être prononcé, après consultation des organismes professionnels et interprofessionnels, à l'encontre des établissements qui auraient cessé de fonctionner comme magasins généraux ou comme entrepôts pendant au moins deux ans.
Article L522-40
Un décret en Conseil d'Etat fixe les conditions d'application des dispositions du présent chapitre.
Chapitre III : Du warrant hôtelier
Article L523-1
Tout exploitant d'hôtel peut emprunter sur le mobilier commercial, le matériel et l'outillage servant à son exploitation, même devenus immeubles par destination, tout en conservant la garde dans les locaux de l'hôtel.
Les objets servant de garantie à la créance restent, jusqu'au remboursement des sommes empruntées, le gage du prêteur et de ses ayants droit.
L'emprunteur est responsable desdits objets qui demeurent confiés à ses soins, sans aucune indemnité opposable au prêteur et à ses ayants droit.
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Article L523-2
L'exploitant d'hôtel, lorsqu'il n'est pas propriétaire ou usufruitier de l'immeuble dans lequel il exerce son industrie, doit, avant tout emprunt, aviser par acte extrajudiciaire le propriétaire ou l'usufruitier du fonds loué ou leur mandataire légal, de la nature, de la quantité et de la valeur des objets constitués en gage, ainsi que du montant des sommes à emprunter. Ce même avis doit être réitéré par lettre, par l'intermédiaire du greffier du tribunal d'instance compétent au lieu d'exploitation de l'hôtel meublé. La lettre d'avis est remise au greffier qui doit la viser, l'enregistrer et l'envoyer sous forme de pli d'affaire recommandé avec accusé de réception.
Le propriétaire, l'usufruitier ou leur mandataire légal, dans un délai de quinze jours francs à partir de la notification de l'acte précité, peuvent s'opposer à l'emprunt par acte extrajudiciaire adressé au greffier, lorsque l'emprunteur n'a pas payé les loyers échus, six mois de loyers en cours et six mois à échoir.
L'emprunteur peut obtenir mainlevée de l'opposition moyennant l'acquittement des loyers précités.
Le défaut de réponse de la part du propriétaire, de l'usufruitier, ou de leur mandataire légal, dans le délai ci-dessus fixé, est considéré comme une non-opposition à l'emprunt.
Le privilège du bailleur est réduit, jusqu'à concurrence de la somme prêtée, sur les objets servant de gage à l'emprunt. Il subsiste dans les termes de droit si l'emprunt est réalisé malgré l'opposition du bailleur.
Le bailleur peut toujours renoncer, soit à son opposition, soit au paiement des loyers ci-dessus indiqués, en apposant sa signature sur le registre prévu à l'article L. 523-3.
En cas de conflit entre le privilège du porteur du warrant hôtelier et des créanciers hypothécaires, leur rang est déterminé par les dates respectives de la transcription du premier endossement du warrant et des inscriptions d'hypothèques.
Article L523-3
Il est tenu, dans chaque greffe de tribunal de commerce, un registre à souche, coté et paraphé, dont le volant et la souche portent chacun, d'après les déclarations de l'emprunteur, des mentions dont la liste est fixée par décret.
Le volant contenant ces mentions constitue le warrant hôtelier.
Article L523-4
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Le warrant hôtelier est délivré par le greffier du tribunal de commerce dans le ressort duquel est exploité l'hôtel. L'emprunteur qui le reçoit donne décharge de la remise du titre, en apposant sa signature avec la date sur le registre. Il ne peut être délivré qu'un seul warrant pour les mêmes objets. Le warrant est transféré par l'emprunteur au prêteur par voie d'endossement daté et signé.
Le prêteur doit, dans un délai de cinq jours, faire transcrire sur le registre le premier endossement. Mention de cette transcription est également énoncée sur le warrant.
Article L523-5
Le warrant est transmissible par voie d'endossement établi suivant les prescriptions de l'article L. 523-4, mais non soumis à la formalité de la transcription comme le premier endossement.
Tous ceux qui ont signé ou endossé un warrant sont tenus à la garantie solidaire envers le porteur.
L'escompteur et les réescompteurs d'un warrant sont tenus d'aviser, dans les huit jours, le greffier du tribunal de commerce, par pli recommandé, avec accusé de réception, ou verbalement contre récépissé de l'avis.
L'emprunteur peut, par une mention spéciale inscrite sur le warrant, dispenser l'escompteur et les réescompteurs de donner cet avis. En ce cas, il n'y a pas lieu à application des dispositions des deux derniers alinéas de l'article L. 523-8.
Article L523-6
Le greffier est tenu de délivrer à tout prêteur qui le requiert, soit un état des warrants, soit un certificat établissant qu'il n'existe pas d'inscription. Il est tenu de faire la même délivrance à tout hôtelier ressortissant de son greffe qui le requiert, mais seulement en ce qui concerne le fonds exploité par lui.
Cet état ne remonte pas à une période antérieure de cinq années.
Article L523-7
La radiation de l'inscription est opérée sur la justification, soit du remboursement de la créance garantie par le warrant, soit d'une mainlevée régulière.
L'emprunteur qui a remboursé son warrant fait constater le remboursement au greffe du tribunal de commerce et mention du remboursement ou de la mainlevée est faite sur le registre tenu par le greffier qui lui délivre un certificat de radiation de l'inscription.
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L'inscription est radiée d'office après cinq ans, si elle n'a pas été renouvelée avant l'expiration de ce délai. Si elle est inscrite à nouveau après la radiation d'office, elle ne vaut, à l'égard des tiers, que du jour de la date.
Article L523-8
L'emprunteur conserve le droit de vendre les objets warrantés à l'amiable et avant le paiement de la créance, même sans le concours du prêteur, mais leur tradition à l'acquéreur ne peut être opérée qu'après désintéressement du créancier.
L'emprunteur, même avant l'échéance, peut rembourser la créance garantie par le warrant ; si le porteur du warrant refuse les offres du débiteur, celui-ci peut, pour se libérer, consigner la somme offerte, en observant les formalités prescrites par les articles 1426 à 1429 du code de procédure civile. Les offres sont faites au dernier ayant droit connu par les avis donnés au greffier, en conformité de l'article L. 523-5. Sur le vu d'une quittance de consignation régulière et suffisante, le président du tribunal de commerce dans le ressort duquel le warrant est inscrit rend une ordonnance aux termes de laquelle le gage est transporté sur la somme consignée.
En cas de remboursement anticipé d'un warrant, l'emprunteur bénéficie des intérêts qui restaient à courir jusqu'à l'échéance du warrant, déduction faite d'un délai de dix jours.
Article L523-9
Les établissements publics de crédit peuvent recevoir les warrants hôteliers comme effets de commerce, avec dispense d'une des signatures exigées par leurs statuts.
Article L523-10
Les porteurs de warrants ont, sur les indemnités d'assurances, en cas de sinistre, les mêmes droits et privilèges que sur les objets assurés.
Article L523-11
Le porteur de warrant doit réclamer à l'emprunteur paiement de sa créance échue, et, à défaut de ce paiement, réitérer sa réclamation au débiteur par lettre recommandée avec demande d'avis de réception.
Faute du paiement du warrant à l'échéance le porteur a pour la réalisation du gage, les droits que confèrent aux créanciers privilégiés ou garantis par un nantissement les dispositions des articles L. 143-5 à L. 143-15.
Toutefois, le bailleur peut toujours exercer son privilège jusqu'à concurrence de six mois de loyers
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échus, six mois de loyers en cours et six mois de loyers à échoir.
Si le porteur fait procéder à la vente, il ne peut plus exercer son recours contre les endosseurs et même contre l'emprunteur qu'après avoir fait valoir ses droits sur le prix des objets warrantés. En cas d'insuffisance du prix pour le désintéresser, un délai de trois mois lui est imparti, à dater du jour où la vente est réalisée, pour exercer son recours contre les endosseurs.
Article L523-12
Le porteur du warrant est payé directement de sa créance sur le prix de vente, par privilège et de préférence à tous créanciers, et sans autre déduction que celle des contributions directes et des frais de vente et sans autre formalité qu'une ordonnance du président du tribunal de commerce.
Article L523-13
La fausse déclaration ou le fait pour tout emprunteur de constituer un warrant sur des objets dont il n'est pas propriétaire ou déjà donnés en gage ou en nantissement ainsi que le fait pour tout emprunteur de détourner, dissiper ou volontairement détériorer, au préjudice de son créancier le gage de celui-ci, sont punis, selon les cas, des peines prévues pour l'escroquerie ou l'abus de confiance, aux articles 313-1, 313-7, 313-8 ou 314-1 et 314-10 du code pénal.
Article L523-14
Le montant des droits à percevoir par le greffier est fixé par décret en Conseil d'Etat.
Les avis prescrits par les dispositions du présent chapitre sont envoyés en la forme et avec la taxe des papiers d'affaires recommandés.
Article L523-15
Sont considérées comme nulles et non avenues toutes conventions contraires aux dispositions du présent chapitre, et notamment toutes stipulations qui ont pour effet de porter atteinte au droit des locataires d'instituer le warrant hôtelier.
Chapitre IV : Du warrant pétrolier
Article L524-1
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Les opérateurs, détenteurs de stocks de pétrole brut ou de produits pétroliers peuvent warranter des stocks en garantie de leurs emprunts, tout en en conservant la garde dans leurs usines ou dépôts.
Les produits warrantés restent, jusqu'au remboursement des sommes avancées, le gage du porteur du warrant.
Le warrant est établi sur une certaine quantité de marchandises d'une qualité spécifiée, sans qu'il soit nécessaire de séparer matériellement les produits warrantés des autres produits similaires détenus par l'emprunteur.
L'emprunteur est responsable de la marchandise qui reste confiée à ses soins et à sa garde, et cela sans aucune indemnité opposable au bénéfice du warrant.
Article L524-2
Pour établir la pièce qui est dénommée " warrant pétrolier ", le greffier du tribunal de commerce de la situation des produits à warranter inscrit, d'après les déclarations de l'emprunteur, la nature, la qualité, la quantité, la valeur, le lieu de situation des produits qui doivent servir de gage pour l'emprunt, le montant des sommes empruntées, ainsi que les clauses et conditions particulières relatives au warrant pétrolier, arrêtées entre les parties.
Le warrant est signé par l'emprunteur.
Il n'est valable que pour trois ans au plus, mais peut être renouvelé.
Article L524-3
Le warrant indique si le produit warranté est assuré ou non et, en cas d'assurance, le nom et l'adresse de l'assureur.
Faculté est donnée aux prêteurs de continuer ladite assurance jusqu'à la réalisation du warrant.
Les porteurs de warrants ont, sur les indemnités d'assurances dues en cas de sinistre, les mêmes droits et privilèges que sur les produits assurés.
Article L524-4
Le greffier du tribunal de commerce délivre, à tout requérant, un état des warrants inscrits depuis moins de cinq ans au nom de l'emprunteur ou un certificat établissant qu'il n'existe pas d'inscription.
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Article L524-5
La radiation de l'inscription est opérée sur la justification, soit du remboursement de la créance garantie par le warrant, soit d'une mainlevée régulière.
L'emprunteur qui a remboursé son warrant fait constater le remboursement par le greffe du tribunal de commerce. Mention du remboursement ou de la mainlevée est faite sur le registre prévu à l'article L. 524-2.. Un certificat de radiation de l'inscription lui est délivré.
L'inscription est radiée d'office après cinq ans, si elle n'a pas été renouvelée avant l'expiration du délai. Si elle est inscrite à nouveau après la radiation d'office, elle ne vaut, à l'égard des tiers, que du jour de la nouvelle date.
Article L524-6
L'emprunteur conserve le droit de vendre les produits warrantés à l'amiable et avant le paiement de la créance, même sans le concours du prêteur. Toutefois, la tradition, à l'acquéreur, ne peut être opérée que lorsque le créancier a été désintéressé.
L'emprunteur peut, même avant l'échéance, rembourser la créance garantie par le warrant pétrolier. Si le porteur du warrant refuse les offres du débiteur, celui-ci peut, pour se libérer, consigner la somme offerte dans les conditions prévues aux articles 1426 à 1429 du code de procédure civile. Les offres sont faites au dernier ayant droit connu par les avis donnés au greffe du tribunal de commerce, en conformité de l'article L. 524-8. Au vu d'une quittance de consignation régulière et suffisante, le président du tribunal de commerce compétent à raison du lieu d'inscription du warrant rend une ordonnance aux termes de laquelle le gage est transporté sur la somme consignée.
En cas de remboursement anticipé d'un warrant pétrolier, l'emprunteur bénéficie des intérêts qui restaient à courir jusqu'à l'échéance du warrant, déduction faite d'un délai de dix jours.
Article L524-7
Les établissements publics de crédit peuvent recevoir les warrants comme effets de commerce, avec dispense d'une des signatures exigées par leurs statuts.
Article L524-8
Le warrant pétrolier est transmissible par voie d'endossement. L'endossement est daté et signé, il énonce les noms, professions, domiciles des parties.
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Tous ceux qui ont signé ou endossé un warrant sont tenus à la garantie solidaire envers le porteur.
L'escompteur ou le réescompteur d'un warrant sont tenus d'aviser, dans les huit jours, le greffe du tribunal de commerce, par pli recommandé, avec accusé de réception, ou verbalement contre récépissé de l'avis.
L'emprunteur peut, par une mention spéciale inscrite au warrant, dispenser l'escompteur ou les réescompteurs de donner cet avis, mais, dans ce cas, il n'y a pas lieu à application des dispositions du dernier alinéa de l'article L. 524-6.
Article L524-9
Le porteur du warrant pétrolier doit réclamer à l'emprunteur paiement de sa créance échue, et, à défaut de ce paiement, constater et réitérer sa réclamation au débiteur par lettre recommandée avec demande d'avis de réception.
S'il n'est pas payé dans les cinq jours de l'envoi de cette lettre, le porteur du warrant pétrolier est tenu, à peine de perdre ses droits contre les endosseurs, de dénoncer le défaut de paiement, quinze jours francs au plus tard après l'échéance, par avertissement, pour chacun des endosseurs, remis au greffe du tribunal de commerce, qui lui en donne récépissé. Le greffe du tribunal de commerce fait connaître cet avertissement, dans la huitaine qui suit, aux endosseurs, par lettre recommandée avec demande d'avis de réception.
Article L524-10
En cas de refus de paiement, le porteur du warrant pétrolier peut, quinze jours après la lettre recommandée adressée à l'emprunteur, comme il est dit ci-dessus, faire procéder par un officier public ou ministériel à la vente publique de la marchandise engagée. Il y est procédé en vertu d'une ordonnance rendue sur requête par le président du tribunal de commerce de la situation des marchandises warrantées, fixant les jour, lieu et heure de la vente. Elle est annoncée huit jours au moins à l'avance par affiches apposées dans les lieux indiqués par le président du tribunal de commerce. Le président du tribunal de commerce peut, dans tous les cas, en autoriser l'annonce par la voie des journaux. La publicité donnée est constatée par une mention insérée au procès-verbal de vente.
Article L524-11
L'officier public chargé de procéder prévient, par lettre recommandée, le débiteur et les endosseurs, huit jours à l'avance, des lieu, jour et heure de la vente.
L'emprunteur peut toutefois, par une mention spéciale inscrite au warrant pétrolier, accepter qu'il n'y ait pas obligatoirement vente publique, et que la vente puisse être faite à l'amiable. En pareil cas,
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la vente est toujours faite en vertu d'une ordonnance du président du tribunal de commerce de la situation des marchandises warrantées rendue sur requête.
Article L524-12
Les dispositions de l'article 53 de la loi n° 91-650 du 9 juillet 1991 portant réforme des procédures civiles d'exécution sont applicables aux ventes prévues par les dispositions du présent chapitre.
Article L524-13
Le porteur du warrant est payé directement de ses créances sur le prix de vente, par privilège et de préférence à tous créanciers, sous déduction des frais de vente, et sans autres formalités qu'une ordonnance du président du tribunal de commerce.
Article L524-14
Si le porteur du warrant pétrolier fait procéder à la vente, conformément aux articles L. 524-9 à L. 524-11, il ne peut plus exercer son recours contre les endosseurs et même contre l'emprunteur, qu'après avoir fait valoir ses droits sur le prix des produits warrantés. En cas d'insuffisance du prix pour le désintéresser, un délai d'un mois lui est imparti, à dater du jour où la vente de la marchandise est réalisée, pour exercer son recours contre les endosseurs.
Article L524-15
En cas de non-conformité, constatée entre les existants et les quantités ou qualités warrantés, les prêteurs peuvent mettre immédiatement, par lettre recommandée avec accusé de réception, le titulaire du warrant pétrolier en demeure soit de rétablir la garantie dans les quarante-huit heures suivant la réception de la lettre recommandée, soit de leur rembourser, dans le même délai, tout ou partie des sommes portées sur le warrant pétrolier. S'il ne leur est pas donné satisfaction, les prêteurs ont le droit d'exiger le remboursement total de la créance en la considérant comme échue.
En pareil cas, l'emprunteur perd le bénéfice des dispositions du dernier alinéa de l'article L. 524-6, concernant le remboursement des intérêts.
Article L524-16
En cas de baisse de la valeur des stocks warrantés, dépassant ou égalant 10 %, les prêteurs peuvent mettre, par lettre recommandée avec accusé de réception, les emprunteurs en demeure d'avoir, soit à
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augmenter le gage, soit à rembourser une partie proportionnelle des sommes prêtées. Dans ce dernier cas, les dispositions du dernier alinéa de l'article L. 524-6 sont applicables.
S'il n'est pas satisfait à cette demande dans un délai de huit jours francs, les prêteurs ont la faculté d'exiger le remboursement total de leur créance en la considérant comme échue.
Article L524-17
Le fait pour tout emprunteur d'avoir fait une fausse déclaration, ou d'avoir constitué un warrant pétrolier sur produits déjà warrantés, sans avis préalable donné au nouveau prêteur ou le fait pour tout emprunteur ou dépositaire d'avoir détourné, dissipé ou volontairement détérioré au préjudice de son créancier le gage de celui-ci, est puni selon les cas des peines prévues aux articles 313-1, 313-7 et 313-8 ou 314-1 et 314-10 du code pénal.
Article L524-18
Lorsque, pour l'exécution des dispositions du présent chapitre, il y a lieu à référé, ce référé est porté devant le président du tribunal de commerce de la situation des marchandises warrantées.
Article L524-19
Le montant des droits à percevoir par le greffier du tribunal de commerce à l'occasion des warrants pétroliers est celui fixé par le décret qui régit les warrants agricoles. Ce montant peut toutefois être révisé par un décret spécial aux warrants pétroliers.
Les avis prescrits par les dispositions du présent chapitre sont envoyés en la forme et avec la taxe des papiers d'affaires recommandés.
Article L524-20
Les dispositions du présent chapitre sont applicables sous réserve du respect des obligations imposées par la loi n° 92-1443 du 31 décembre 1992 portant réforme du régime pétrolier, en particulier en ce qui concerne la constitution et la répartition des stocks et sans préjudice de la mise en jeu éventuelle de la responsabilité des opérateurs en cas d'infraction à ces obligations.
Article L524-21
Le présent chapitre est applicable dans les départements du Haut-Rhin, du Bas-Rhin et de la
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Moselle, sous réserve des dispositions spéciales de la loi du 1er juin 1924 portant introduction des lois commerciales françaises dans ces trois départements.
Les greffes compétents pour l'établissement des warrants pétroliers seront ceux prévus à l'article 35 de ladite loi pour l'établissement des warrants hôteliers.
Chapitre V : Du nantissement de l'outillage et du matériel d'équipement.
Article L525-1
Le paiement du prix d'acquisition de l'outillage et du matériel d'équipement professionnel peut être garanti, soit vis-à-vis du vendeur, soit vis-à-vis du prêteur qui avance les fonds nécessaires au paiement du vendeur, par un nantissement restreint à l'outillage ou au matériel ainsi acquis.
Si l'acquéreur a la qualité de commerçant, ce nantissement est soumis, sous réserve des dispositions ci-après, aux règles édictées par les chapitres II et III du titre IV du livre Ier, sans qu'il soit nécessaire d'y comprendre les éléments essentiels du fonds.
Si l'acquéreur n'a pas la qualité de commerçant, le nantissement est soumis aux dispositions de l'article L. 525-16.
Article L525-2
Le nantissement est consenti par un acte authentique ou sous seing privé enregistré au droit fixe.
Lorsqu'il est consenti au vendeur, il est donné dans l'acte de vente.
Lorsqu'il est consenti au prêteur qui avance les fonds nécessaires au paiement du vendeur, le nantissement est donné dans l'acte de prêt.
Cet acte doit mentionner, à peine de nullité, que les fonds versés par le prêteur ont pour objet d'assurer le paiement du prix des biens acquis.
Les biens acquis doivent être énumérés dans le corps de l'acte et chacun d'eux doit être décrit d'une façon précise, afin de l'individualiser par rapport aux autres biens de même nature appartenant à l'entreprise. L'acte indique également le lieu où les biens ont leur attache fixe ou mentionne, au cas contraire, qu'ils sont susceptibles d'être déplacés.
Sont assimilés aux prêteurs de fonds les garants qui interviennent en qualité de caution, de donneur d'aval ou d'endosseur dans l'octroi des crédits d'équipements. Ces personnes sont subrogées de plein
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droit aux créanciers. Il en est de même des personnes qui endossent, escomptent, avalisent ou acceptent les effets créés en représentation desdits crédits.
Article L525-3
A peine de nullité, le nantissement doit être conclu au plus tard dans le délai de deux mois à compter du jour de la livraison du matériel d'équipement sur les lieux où il doit être installé.
A peine de nullité également, le nantissement doit être inscrit dans les conditions requises par les articles L. 142-3 et L. 142-4, et dans un délai de quinze jours à compter de la date de l'acte constitutif du nantissement.
Lorsque la livraison du matériel intervient après la date prévue dans le contrat ou si elle n'est pas faite au lieu primitivement fixé, les créances inscrites deviennent de plein droit exigibles si le débiteur n'a pas fait connaître, dans les quinze jours de cette livraison, au créancier nanti, la date ou le lieu auquel elle est intervenue.
Le nantissement ne peut être opposé aux tiers si, dans la quinzaine de l'avis à lui notifié ou dans la quinzaine du jour où il aura eu connaissance de la date ou du lieu de la livraison, le créancier nanti n'a pas requis du greffier du tribunal où a été prise l'inscription du nantissement, que mention soit faite de cette date ou de ce lieu en marge de ladite inscription.
Article L525-4
Les biens donnés en nantissement par application du présent chapitre peuvent, en outre, à la requête du bénéficiaire du nantissement, être revêtus sur une pièce essentielle et d'une manière apparente d'une plaque fixée à demeure indiquant le lieu, la date et le numéro d'inscription du privilège dont ils sont grevés.
Sous peine des sanctions prévues à l'article L. 525-19, le débiteur ne peut faire obstacle à cette apposition, et les marques ainsi apposées ne peuvent être détruites, retirées ou recouvertes avant l'extinction ou la radiation du privilège du créancier nanti.
Article L525-5
Toute subrogation conventionnelle dans le bénéfice du nantissement doit être mentionnée en marge de l'inscription dans la quinzaine de l'acte authentique ou sous seing privé qui la constate, sur remise au greffier d'une expédition ou d'un original dudit acte.
Les conflits qui peuvent se produire entre les titulaires d'inscriptions successives sont réglés conformément à l'article 1252 du code civil.
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Article L525-6
Le bénéfice du nantissement est transmis de plein droit conformément à l'article 1692 du code civil aux porteurs successifs des effets qu'il garantit, soit que ces effets aient été souscrits ou acceptés à l'ordre du vendeur ou du prêteur ayant fourni tout ou partie du prix, soit plus généralement qu'ils représentent la mobilisation d'une créance valablement gagée suivant les dispositions du présent chapitre.
Si plusieurs effets sont créés pour représenter la créance, le privilège attaché à celle-ci est exercé par le premier poursuivant pour le compte commun et pour le tout.
Article L525-7
Sous peine des sanctions prévues à l'article L. 525-19, le débiteur qui, avant paiement ou remboursement des sommes garanties conformément au présent chapitre, veut vendre à l'amiable tout ou partie des biens grevés, doit solliciter le consentement préalable du créancier nanti, et à défaut, l'autorisation du juge des référés du tribunal de commerce statuant en dernier ressort.
Lorsqu'il a été satisfait aux exigences de publicité requises par le présent chapitre et que les biens grevés ont été revêtus d'une plaque conformément à l'article L. 525-4, le créancier nanti ou ses subrogés disposent pour l'exercice du privilège résultant du nantissement, du droit de suite prévu à l'article L. 143-12.
Article L525-8
Le privilège du créancier nanti en application des dispositions du présent chapitre subsiste si le bien qui est grevé devient immeuble par destination.
L'article 2133 du code civil n'est pas applicable aux biens nantis.
Article L525-9
I. - Le privilège du créancier nanti en application des dispositions du présent chapitre s'exerce sur les biens grevés par préférence à tous autres privilèges, à l'exception :
1° Du privilège des frais de justice ;
2° Du privilège des frais faits pour la conservation de la chose ;
3° Du privilège accordé aux salariés par l'article L. 143-10 du code du travail.
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II. - Il s'exerce, notamment, à l'encontre de tout créancier hypothécaire et par préférence au privilège du Trésor, au privilège visé à l'article L. 243-4 du code de la sécurité sociale, au privilège du vendeur du fonds de commerce à l'exploitation duquel est affecté le bien grevé, ainsi qu'au privilège du créancier nanti sur l'ensemble dudit fonds.
III. - Toutefois, pour que son privilège soit opposable au créancier hypothécaire, au vendeur du fonds de commerce et au créancier nanti sur l'ensemble dudit fonds, préalablement inscrits, le bénéficiaire du nantissement conclu en application du présent chapitre doit signifier auxdits créanciers, par acte extrajudiciaire, une copie de l'acte constatant le nantissement. Cette signification doit, à peine de nullité, être faite dans les deux mois de la conclusion du nantissement.
Article L525-10
Sous réserve des dérogations prévues par le présent chapitre, le privilège du créancier nanti est régi par les dispositions du livre I, titre IV, chapitre III en ce qui concerne les formalités d'inscription, les droits des créanciers en cas de déplacement du fonds, les droits du bailleur de l'immeuble, la purge desdits privilèges et les formalités de mainlevée.
Article L525-11
L'inscription conserve le privilège pendant cinq années à compter de sa régularisation définitive.
Elle garantit, en même temps que le principal, deux années d'intérêts. Elle cesse d'avoir effet si elle n'a pas été renouvelée avant l'expiration du délai ci-dessus ; elle peut être renouvelée deux fois.
Article L525-12
L'état des inscriptions existantes, délivré en application de l'article 32 de la loi du 17 mars 1909 relative à la vente et au nantissement des fonds de commerce, doit comprendre les inscriptions prises en vertu des dispositions du présent chapitre. Il peut être également délivré au requérant, sur sa demande, un état attestant l'existence ou l'absence, sur les biens désignés, d'inscriptions prises soit en vertu des dispositions des chapitres Ier et II du titre IV du livre Ier, soit en vertu des dispositions du présent chapitre.
Article L525-13
La notification, conformément à l'article L. 143-10, de poursuites engagées en vue de parvenir à la réalisation forcée de certains éléments du fonds auquel appartiennent les biens grevés du privilège du vendeur ou du privilège de nantissement en vertu des dispositions du présent chapitre, rend
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exigibles les créances garanties par ces privilèges.
Article L525-14
En cas de non-paiement à l'échéance, le créancier bénéficiaire du privilège établi par le présent chapitre peut poursuivre la réalisation du bien qui en est grevé dans les conditions prévues à l'article L. 521-3. L'officier public chargé de la vente est désigné à sa requête, par le président du tribunal de commerce. Le créancier doit, préalablement à la vente, se conformer aux dispositions de l'article L. 143-10.
Le créancier nanti a la faculté d'exercer la surenchère du dixième, prévue à l'article L. 143-13.
Article L525-15
Les biens grevés en vertu du présent chapitre, dont la vente est poursuivie avec d'autres éléments du fonds, sont l'objet d'une mise à prix distincte ou d'un prix distinct si le cahier des charges oblige l'adjudicataire à les prendre à dire d'expert.
Dans tous les cas, les sommes provenant de la vente de ces biens sont, avant toute distribution, attribuées aux bénéficiaires des inscriptions, à concurrence du montant de leur créance en principal, frais et intérêts conservés par lesdites inscriptions.
La quittance délivrée par le créancier bénéficiaire du privilège n'est soumise qu'au droit fixe.
Article L525-16
Si l'acquéreur n'a pas la qualité de commerçant, le nantissement est soumis aux dispositions des articles L. 525-1 à L. 525-9, L. 525-11 et L. 525-12 et du présent article. L'inscription prévue à l'article L. 525-3 est alors prise au greffe du tribunal de commerce dans le ressort duquel est domicilié l'acquéreur du bien grevé, ou, s'il s'agit d'une personne immatriculée au répertoire des métiers, dans le ressort duquel est situé son fonds artisanal.
A défaut de paiement à l'échéance, le créancier bénéficiaire du privilège établi par le présent chapitre peut faire procéder à la vente publique du bien grevé conformément aux dispositions de l'article L. 521-3.
Les inscriptions sont rayées soit du consentement des parties intéressées, soit en vertu d'un jugement passé en force de chose jugée.
A défaut de jugement, la radiation totale ou partielle ne peut être opérée par le greffier que sur le dépôt d'un acte authentique de consentement donné par le créancier.
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Lorsque la radiation non consentie par le créancier est demandée par voie d'action principale, cette action est portée devant le tribunal de commerce du lieu où l'inscription a été prise.
La radiation est opérée au moyen d'une mention faite par le greffier en marge de l'inscription.
Il en est délivré certificat aux parties qui le demandent.
Article L525-17
Pour l'application des dispositions du présent chapitre, les greffiers sont assujettis aux diligences et responsabilités fixées par voie réglementaire pour la tenue du registre des inscriptions et la délivrance des états ou certificats requis.
Leurs émoluments sont établis comme il est prévu par les textes réglementaires en vigueur.
Article L525-18
Ne sont pas soumis à l'application des dispositions du présent chapitre :
1° Les véhicules automobiles visés par le décret n° 53-968 du 30 septembre 1953 ;
2° Les navires de mer, ainsi que les bateaux de navigation fluviale visés par les articles 78 et suivants du code du domaine public fluvial et de la navigation intérieure ;
3° Les aéronefs visés par les articles L. 110-1 et suivants du code de l'aviation civile.
Article L525-19
Est puni des peines prévues pour l'abus de confiance par les articles 314-1 et 314-10 du code pénal, le fait, pour tout acquéreur ou détenteur de biens nantis en application du présent chapitre, de les détruire ou tenter de les détruire, les détourner ou tenter de les détourner, ou enfin les altérer ou tenter de les altérer d'une manière quelconque en vue de faire échec aux droits du créancier.
Sont punies des mêmes peines toutes manoeuvres frauduleuses destinées à priver le créancier de son privilège sur les biens nantis ou à le diminuer.
Article L525-20
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Des décrets en Conseil d'Etat déterminent les conditions d'application des dispositions du présent chapitre.
Chapitre VI : De la protection de l'entrepreneur individuel et du conjoint.
Article L526-1
Par dérogation aux articles 2284 et 2285 du code civil, une personne physique immatriculée à un registre de publicité légale à caractère professionnel ou exerçant une activité professionnelle agricole ou indépendante peut déclarer insaisissables ses droits sur l'immeuble où est fixée sa résidence principale ainsi que sur tout bien foncier bâti ou non bâti qu'elle n'a pas affecté à son usage professionnel. Cette déclaration, publiée au bureau des hypothèques ou, dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle, au livre foncier, n'a d'effet qu'à l'égard des créanciers dont les droits naissent, postérieurement à la publication, à l'occasion de l'activité professionnelle du déclarant.
Lorsque le bien foncier n'est pas utilisé en totalité pour un usage professionnel, la partie non affectée à un usage professionnel ne peut faire l'objet de la déclaration que si elle est désignée dans un état descriptif de division. La domiciliation du déclarant dans son local d'habitation en application de l'article L. 123-10 ne fait pas obstacle à ce que ce local fasse l'objet de la déclaration, sans qu'un état descriptif de division soit nécessaire.
Article L526-2
La déclaration, reçue par notaire sous peine de nullité, contient la description détaillée des biens et l'indication de leur caractère propre, commun ou indivis. L'acte est publié au bureau des hypothèques ou, dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle, au livre foncier, de sa situation.
Lorsque la personne est immatriculée dans un registre de publicité légale à caractère professionnel, la déclaration doit y être mentionnée.
Lorsque la personne n'est pas tenue de s'immatriculer dans un registre de publicité légale, un extrait de la déclaration doit être publié dans un journal d'annonces légales du département dans lequel est exercée l'activité professionnelle pour que cette personne puisse se prévaloir du bénéfice du premier alinéa de l'article L. 526-1.
L'établissement de l'acte prévu au premier alinéa et l'accomplissement des formalités donnent lieu au versement aux notaires d'émoluments fixes dans le cadre d'un plafond déterminé par décret.
Article L526-3
En cas de cession des droits immobiliers désignés dans la déclaration initiale, le prix obtenu
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demeure insaisissable à l'égard des créanciers dont les droits sont nés postérieurement à la publication de cette déclaration à l'occasion de l'activité professionnelle du déclarant, sous la condition du remploi dans le délai d'un an des sommes à l'acquisition par le déclarant d'un immeuble où est fixée sa résidence principale.
Les droits sur la résidence principale nouvellement acquise restent insaisissables à la hauteur des sommes réemployées à l'égard des créanciers visés au premier alinéa lorsque l'acte d'acquisition contient une déclaration de remploi des fonds.
La déclaration de remploi des fonds est soumise aux conditions de validité et d'opposabilité prévues aux articles L. 526-1 et L. 526-2.
La déclaration peut, à tout moment, faire l'objet d'une renonciation soumise aux mêmes conditions de validité et d'opposabilité. La renonciation peut porter sur tout ou partie des biens ; elle peut être faite au bénéfice d'un ou plusieurs créanciers mentionnés à l'article L. 526-1 désignés par l'acte authentique de renonciation. Lorsque le bénéficiaire de cette renonciation cède sa créance, le cessionnaire peut se prévaloir de celle-ci.
Les effets de la déclaration subsistent après la dissolution du régime matrimonial lorsque le déclarant est attributaire du bien. Le décès du déclarant emporte révocation de la déclaration.
Article L526-4
Lors de sa demande d'immatriculation à un registre de publicité légale à caractère professionnel, la personne physique mariée sous un régime de communauté légale ou conventionnelle doit justifier que son conjoint a été informé des conséquences sur les biens communs des dettes contractées dans l'exercice de sa profession.
Un décret en Conseil d'Etat précise en tant que de besoin les modalités d'application du présent article.
Article L526-5
Les dispositions des articles L. 313-14 à L. 313-14-2 du code de la consommation sont applicables aux opérations de prêt consenties à toute personne physique immatriculée à un registre de publicité légale à caractère professionnel, à toute personne physique exerçant une activité professionnelle agricole ou indépendante ainsi qu'au gérant associé unique d'une société à responsabilité limitée, et garanties par une hypothèque rechargeable inscrite sur l'immeuble où l'intéressé a fixé sa résidence principale.
Chapitre VII : Du gage des stocks.
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Article L527-1
Tout crédit consenti par un établissement de crédit à une personne morale de droit privé ou à une personne physique dans l'exercice de son activité professionnelle peut être garanti par un gage sans dépossession des stocks détenus par cette personne.
Le gage des stocks est constitué par acte sous seing privé.
A peine de nullité, l'acte constitutif du gage doit comporter les mentions suivantes :
1° La dénomination : "acte de gage des stocks" ;
2° La désignation des parties ;
3° La mention que l'acte est soumis aux dispositions des articles L. 527-1 à L. 527-11 ;
4° Le nom de l'assureur qui garantit contre l'incendie et la destruction ;
5° La désignation de la créance garantie ;
6° Une description permettant d'identifier les biens présents ou futurs engagés, en nature, qualité, quantité et valeur ainsi que l'indication du lieu de leur conservation ;
7° La durée de l'engagement.
Les dispositions de l'article 2335 du code civil sont applicables.
Un gardien peut être désigné dans l'acte de gage.
Article L527-2
Est réputée non écrite toute clause prévoyant que le créancier deviendra propriétaire des stocks en cas de non-paiement de la dette exigible par le débiteur.
Article L527-3
Peuvent être donnés en gage, à l'exclusion des biens soumis à une clause de réserve de propriété, les stocks de matières premières et approvisionnements, les produits intermédiaires, résiduels et finis
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ainsi que les marchandises appartenant au débiteur et estimés en nature et en valeur à la date du dernier inventaire.
Article L527-4
Le gage des stocks ne produit effet que s'il est inscrit sur un registre public tenu au greffe du tribunal dans le ressort duquel le débiteur a son siège ou son domicile. L'inscription doit être prise, à peine de nullité du gage, dans le délai de quinze jours à compter de la formation de l'acte constitutif.
Le rang des créanciers gagistes entre eux est déterminé par la date de leur inscription. Les créanciers inscrits le même jour viennent en concurrence.
Article L527-5
Les stocks constituent, jusqu'au remboursement total des sommes avancées, la garantie de l'établissement de crédit.
Le privilège du créancier passe de plein droit des stocks aliénés à ceux qui leur sont substitués.
Le créancier peut, à tout moment et à ses frais, faire constater l'état des stocks engagés.
Article L527-6
Le débiteur est responsable de la conservation des stocks en quantité et en qualité dans les conditions prévues à l'article 1137 du code civil.
Il justifie que les stocks sont assurés contre les risques d'incendie et de destruction.
Article L527-7
Le débiteur tient à la disposition du créancier un état des stocks engagés ainsi que la comptabilité de toutes les opérations les concernant.
Il s'engage à ne pas diminuer de son fait la valeur des stocks.
Lorsque l'état des stocks fait apparaître une diminution de 20 % de leur valeur telle que mentionnée dans l'acte constitutif, le créancier peut mettre en demeure le débiteur, soit de rétablir la garantie, soit de rembourser une partie des sommes prêtées en proportion de la diminution constatée. S'il ne lui est pas donné satisfaction, le créancier peut exiger le remboursement total de la créance,
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considérée comme échue.
Article L527-8
Les parties peuvent convenir que la part des stocks engagés diminue à proportion du désintéressement du créancier.
Article L527-9
En cas de remboursement anticipé de la créance, le débiteur n'est pas tenu des intérêts restant à courir jusqu'à son échéance.
Si le créancier refuse les offres du débiteur, celui-ci peut, pour se libérer, consigner la somme offerte.
Article L527-10
En cas de non-paiement de la créance exigible, le créancier peut poursuivre la réalisation de son gage dans les conditions prévues aux articles 2346 et 2347 du code civil.
Article L527-11
Les conditions d'application des dispositions du présent chapitre sont fixées par décret en Conseil d'Etat.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
Article L610-1
Un décret en Conseil d'Etat détermine, dans chaque département, le tribunal ou les tribunaux appelés à connaître des procédures prévues par le présent livre, ainsi que le ressort dans lequel ces tribunaux exercent les attributions qui leur sont dévolues.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE Ier : De la prévention des difficultés des entreprises
Chapitre Ier : De la prévention des difficultés des entreprises, du mandat ad hoc et de la procédure de conciliation
Article L611-1
Toute personne immatriculée au registre du commerce et des sociétés ou au répertoire des métiers ainsi que toute personne morale de droit privé peut adhérer à un groupement de prévention agréé par arrêté du représentant de l'Etat dans la région.
Ce groupement a pour mission de fournir à ses adhérents, de façon confidentielle, une analyse des informations économiques, comptables et financières que ceux-ci s'engagent à lui transmettre régulièrement.
Lorsque le groupement relève des indices de difficultés, il en informe le chef d'entreprise et peut lui proposer l'intervention d'un expert.
A la diligence du représentant de l'Etat, les administrations compétentes prêtent leur concours aux groupements de prévention agréés. Les services de la Banque de France peuvent également, suivant des modalités prévues par convention, être appelés à formuler des avis sur la situation financière des entreprises adhérentes. Les groupements de prévention agréés peuvent aussi bénéficier d'aides des collectivités territoriales.
Les groupements de prévention agréés sont habilités à conclure, notamment avec les établissements de crédit et les entreprises d'assurance, des conventions au profit de leurs adhérents.
Article L611-2
I. - Lorsqu'il résulte de tout acte, document ou procédure qu'une société commerciale, un groupement d'intérêt économique, ou une entreprise individuelle, commerciale ou artisanale connaît des difficultés de nature à compromettre la continuité de l'exploitation, ses dirigeants peuvent être convoqués par le président du tribunal de commerce pour que soient envisagées les mesures propres à redresser la situation.
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A l'issue de cet entretien ou si les dirigeants ne se sont pas rendus à sa convocation, le président du tribunal peut, nonobstant toute disposition législative ou réglementaire contraire, obtenir communication, par les commissaires aux comptes, les membres et représentants du personnel, les administrations publiques, les organismes de sécurité et de prévoyance sociales ainsi que les services chargés de la centralisation des risques bancaires et des incidents de paiement, des renseignements de nature à lui donner une exacte information sur la situation économique et financière du débiteur.
II. - Lorsque les dirigeants d'une société commerciale ne procèdent pas au dépôt des comptes annuels dans les délais prévus par les textes applicables, le président du tribunal peut leur adresser une injonction de le faire à bref délai sous astreinte.
Si cette injonction n'est pas suivie d'effet dans un délai fixé par décret en Conseil d'Etat, le président du tribunal peut également faire application à leur égard des dispositions du deuxième alinéa du I.
Article L611-3
Le président du tribunal peut, à la demande d'un débiteur, désigner un mandataire ad hoc dont il détermine la mission. Le débiteur peut proposer le nom d'un mandataire ad hoc.
Le tribunal compétent est le tribunal de commerce si le débiteur exerce une activité commerciale ou artisanale et le tribunal de grande instance dans les autres cas.
Article L611-4
Il est institué, devant le tribunal de commerce, une procédure de conciliation dont peuvent bénéficier les personnes exerçant une activité commerciale ou artisanale qui éprouvent une difficulté juridique, économique ou financière, avérée ou prévisible, et ne se trouvent pas en cessation des paiements depuis plus de quarante-cinq jours.
Article L611-5
La procédure de conciliation est applicable, dans les mêmes conditions, aux personnes morales de droit privé et aux personnes physiques exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé. Pour l'application du présent article, le tribunal de grande instance est compétent et son président exerce les mêmes pouvoirs que ceux attribués au président du tribunal de commerce.
La procédure de conciliation n'est pas applicable aux agriculteurs qui bénéficient de la procédure prévue aux articles L. 351-1 à L. 351-7 du code rural.
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Article L611-6
Le président du tribunal est saisi par une requête du débiteur exposant sa situation économique, sociale et financière, ses besoins de financement ainsi que, le cas échéant, les moyens d'y faire face. Le débiteur peut proposer le nom d'un conciliateur.
La procédure de conciliation est ouverte par le président du tribunal, qui désigne un conciliateur pour une période n'excédant pas quatre mois mais qu'il peut, par une décision motivée, proroger d'un mois au plus à la demande de ce dernier. Si une demande d'homologation a été formée en application du II de l'article L. 611-8 avant l'expiration de cette période, la mission du conciliateur et la procédure sont prolongées jusqu'à la décision du tribunal.A défaut, elles prennent fin de plein droit et une nouvelle conciliation ne peut être ouverte dans les trois mois qui suivent.
La décision ouvrant la procédure de conciliation est communiquée au ministère public et, si le débiteur est soumis au contrôle légal de ses comptes, aux commissaires aux comptes. Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, la décision est également communiquée à l'ordre professionnel ou à l'autorité compétente dont, le cas échéant, il relève. Elle est susceptible d'appel de la part du ministère public.
Le débiteur peut récuser le conciliateur dans des conditions et délais fixés par décret en Conseil d'Etat.
Après ouverture de la procédure de conciliation, le président du tribunal dispose des pouvoirs qui lui sont attribués par le second alinéa du I de l'article L. 611-2. En outre, il peut charger un expert de son choix d'établir un rapport sur la situation économique, sociale et financière du débiteur et, nonobstant toute disposition législative et réglementaire contraire, obtenir des établissements bancaires ou financiers tout renseignement de nature à donner une exacte information sur la situation économique et financière de celui-ci.
Article L611-7
Le conciliateur a pour mission de favoriser la conclusion entre le débiteur et ses principaux créanciers ainsi que, le cas échéant, ses cocontractants habituels, d'un accord amiable destiné à mettre fin aux difficultés de l'entreprise. Il peut également présenter toute proposition se rapportant à la sauvegarde de l'entreprise, à la poursuite de l'activité économique et au maintien de l'emploi.
Le conciliateur peut, dans ce but, obtenir du débiteur tout renseignement utile. Le président du tribunal communique au conciliateur les renseignements dont il dispose et, le cas échéant, les résultats de l'expertise mentionnée au cinquième alinéa de l'article L. 611-6.
Les administrations financières, les organismes de sécurité sociale, les institutions gérant le régime d'assurance chômage prévu par les articles L. 351-3 et suivants du code du travail et les institutions régies par le livre IX du code de la sécurité sociale peuvent consentir des remises de dettes dans les conditions fixées à l'article L. 626-6 du présent code. Des cessions de rang de privilège ou d'hypothèque ou l'abandon de ces sûretés peuvent être consenties dans les mêmes conditions.
Le conciliateur rend compte au président du tribunal de l'état d'avancement de sa mission et formule toutes observations utiles sur les diligences du débiteur.
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Si, au cours de la procédure, le débiteur est mis en demeure ou poursuivi par un créancier, le juge qui a ouvert cette procédure peut, à la demande du débiteur et après avoir été éclairé par le conciliateur, faire application des articles 1244-1 à 1244-3 du code civil.
En cas d'impossibilité de parvenir à un accord, le conciliateur présente sans délai un rapport au président du tribunal. Celui-ci met fin à sa mission et à la procédure de conciliation. Sa décision est notifiée au débiteur.
Article L611-8
I. - Le président du tribunal, sur la requête conjointe des parties, constate leur accord et donne à celui-ci force exécutoire. Il statue au vu d'une déclaration certifiée du débiteur attestant qu'il ne se trouvait pas en cessation des paiements lors de la conclusion de l'accord, ou que ce dernier y met fin. La décision constatant l'accord n'est pas soumise à publication et n'est pas susceptible de recours. Elle met fin à la procédure de conciliation.
II. - Toutefois, à la demande du débiteur, le tribunal homologue l'accord obtenu si les conditions suivantes sont réunies :
1° Le débiteur n'est pas en cessation des paiements ou l'accord conclu y met fin ;
2° Les termes de l'accord sont de nature à assurer la pérennité de l'activité de l'entreprise ;
3° L'accord ne porte pas atteinte aux intérêts des créanciers non signataires.
Article L611-9
Le tribunal statue sur l'homologation après avoir entendu ou dûment appelé en chambre du conseil le débiteur, les créanciers parties à l'accord, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel, le conciliateur et le ministère public. L'ordre professionnel ou l'autorité compétente dont relève, le cas échéant, le débiteur qui exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, est entendu ou appelé dans les mêmes conditions.
Le tribunal peut entendre toute autre personne dont l'audition lui paraît utile.
Article L611-10
L'homologation de l'accord met fin à la procédure de conciliation.
Lorsque le débiteur est soumis au contrôle légal de ses comptes, l'accord homologué est transmis à son commissaire aux comptes. Le jugement d'homologation est déposé au greffe où tout intéressé peut en prendre connaissance et fait l'objet d'une mesure de publicité. Il est susceptible d'appel de la part du ministère public et, en cas de contestation relative au privilège mentionné à l'article L. 611-11, de la part des parties à l'accord. Il peut également être frappé de tierce opposition. Le
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jugement rejetant l'homologation ne fait pas l'objet d'une publication. Il est susceptible d'appel.
Article L611-10-1
Pendant la durée de son exécution, l'accord constaté ou homologué interrompt ou interdit toute action en justice et arrête ou interdit toute poursuite individuelle tant sur les meubles que les immeubles du débiteur dans le but d'obtenir le paiement des créances qui en font l'objet. Il interrompt, pour la même durée, les délais impartis aux créanciers parties à l'accord à peine de déchéance ou de résolution des droits afférents aux créances mentionnées par l'accord.
Article L611-10-2
Les personnes coobligées ou ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie peuvent se prévaloir des dispositions de l'accord constaté ou homologué.
L'accord homologué entraîne la levée de plein droit de toute interdiction d'émettre des chèques conformément à l'article L. 131-73 du code monétaire et financier, mise en œuvre à l'occasion du rejet d'un chèque émis avant l'ouverture de la procédure de conciliation.
Article L611-10-3
Saisi par l'une des parties à l'accord constaté, le président du tribunal, s'il constate l'inexécution des engagements résultant de cet accord, prononce la résolution de celui-ci.
Dans les mêmes conditions, le tribunal prononce la résolution de l'accord homologué.
Le président du tribunal ou le tribunal qui décide la résolution de l'accord peut aussi prononcer la déchéance de tout délai de paiement accordé en application du cinquième alinéa de l'article L. 611-7.
Article L611-11
En cas d'ouverture d'une procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire, les personnes qui avaient consenti, dans l'accord homologué mentionné au II de l'article L. 611-8, un nouvel apport en trésorerie au débiteur en vue d'assurer la poursuite d'activité de l'entreprise et sa pérennité, sont payées, pour le montant de cet apport, par privilège avant toutes les autres créances, selon le rang prévu au II de l'article L. 622-17 et au II de l'article L. 641-13. Les personnes qui fournissent, dans l'accord homologué, un nouveau bien ou service en vue d'assurer la poursuite d'activité de l'entreprise et sa pérennité bénéficient du même privilège pour le prix de ce bien ou de ce service.
Cette disposition ne s'applique pas aux apports consentis par les actionnaires et associés du débiteur dans le cadre d'une augmentation de capital.
Les créanciers signataires de l'accord ne peuvent bénéficier directement ou indirectement de cette disposition au titre de leurs concours antérieurs à l'ouverture de la conciliation.
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Article L611-12
L'ouverture d'une procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire met fin de plein droit à l'accord constaté ou homologué en application de l'article L. 611-8. En ce cas, les créanciers recouvrent l'intégralité de leurs créances et sûretés, déduction faite des sommes perçues, sans préjudice des dispositions prévues à l'article L. 611-11.
Article L611-13
Les missions de mandataire ad hoc ou de conciliateur ne peuvent être exercées par une personne ayant, au cours des vingt-quatre mois précédents, perçu, à quelque titre que ce soit, directement ou indirectement, une rémunération ou un paiement de la part du débiteur intéressé, de tout créancier du débiteur ou d'une personne qui en détient le contrôle ou est contrôlée par lui au sens de l'article L. 233-16, sauf s'il s'agit d'une rémunération perçue au titre d'un mandat ad hoc ou d'une mission de règlement amiable ou de conciliation réalisée pour le même débiteur ou le même créancier. La personne ainsi désignée doit attester sur l'honneur, lors de l'acceptation de son mandat, qu'elle se conforme à ces interdictions.
Les missions de mandataire ad hoc ou de conciliateur ne peuvent être confiées à un juge consulaire en fonction ou ayant quitté ses fonctions depuis moins de cinq ans.
Article L611-14
Après avoir recueilli l'accord du débiteur, le président du tribunal fixe les conditions de rémunération du mandataire ad hoc, du conciliateur et, le cas échéant, de l'expert, lors de la désignation de l'intéressé, en fonction des diligences nécessaires à l'accomplissement de sa mission. Sa rémunération est arrêtée par ordonnance du président du tribunal à l'issue de la mission.
Les recours contre la décision arrêtant la rémunération sont portés devant le premier président de la cour d'appel dans un délai fixé par décret en Conseil d'Etat.
Article L611-15
Toute personne qui est appelée à la procédure de conciliation ou à un mandat ad hoc ou qui, par ses fonctions, en a connaissance est tenue à la confidentialité.
Chapitre II : Des dispositions applicables aux personnes morales de droit privé non commerçantes ayant une activité économique
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Article L612-1
Les personnes morales de droit privé non commerçantes ayant une activité économique dont le nombre de salariés, le montant hors taxes du chiffre d'affaires ou les ressources et le total du bilan dépassent, pour deux de ces critères, des seuils fixés par décret en Conseil d'Etat, doivent établir chaque année un bilan, un compte de résultat et une annexe. Les modalités d'établissement de ces documents sont précisées par décret.
Ces personnes morales sont tenues de nommer au moins un commissaire aux comptes et un suppléant.
Pour les coopératives agricoles et les sociétés d'intérêt collectif agricole qui n'ont pas la forme commerciale et dont les titres financiers ne sont pas admis aux négociations sur un marché réglementé, cette obligation peut être satisfaite, dans les conditions définies à l'article L. 527-1-1 du code rural, par le recours au service d'une fédération agréée pour la révision mentionnée à l'article L. 527-1 du même code.
Les peines prévues par l'article L. 242-8 sont applicables aux dirigeants des personnes morales mentionnées au premier alinéa du présent article qui n'auront pas, chaque année, établi un bilan, un compte de résultat et une annexe.
Même si les seuils visés au premier alinéa ne sont pas atteints, les personnes morales de droit privé non commerçantes ayant une activité économique peuvent nommer un commissaire aux comptes et un suppléant dans les mêmes conditions que celles prévues au deuxième alinéa. Dans ce cas, le commissaire aux comptes et son suppléant sont soumis aux mêmes obligations, encourent les mêmes responsabilités civile et pénale et exercent les mêmes pouvoirs que s'ils avaient été désignés en application du premier alinéa.
Article L612-2
Les personnes morales de droit privé non commerçantes ayant une activité économique dont, soit le nombre de salariés, soit le montant hors taxes du chiffre d'affaires ou les ressources dépassent un seuil défini par décret en Conseil d'Etat, sont tenues d'établir une situation de l'actif réalisable et disponible, valeurs d'exploitation exclues, et du passif exigible, un compte de résultat prévisionnel, un tableau de financement et un plan de financement.
La périodicité, les délais et les modalités d'établissement de ces documents sont précisés par décret.
Ces documents sont analysés dans des rapports écrits sur l'évolution de la personne morale, établis par l'organe chargé de l'administration. Ces documents et rapports sont communiqués simultanément au commissaire aux comptes, au comité d'entreprise ou, à défaut, aux délégués du personnel et à l'organe chargé de la surveillance, lorsqu'il en existe.
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En cas de non-observation des dispositions prévues aux alinéas précédents ou si les informations données dans les rapports visés à l'alinéa précédent appellent des observations de sa part, le commissaire aux comptes le signale dans un rapport écrit qu'il communique à l'organe chargé de l'administration ou de la direction. Ce rapport est communiqué au comité d'entreprise ou, à défaut, aux délégués du personnel. Il est donné connaissance de ce rapport à la prochaine réunion de l'organe délibérant.
Article L612-3
Lorsque le commissaire aux comptes d'une personne morale visée aux articles L. 612-1 et L. 612-4 relève, à l'occasion de l'exercice de sa mission, des faits de nature à compromettre la continuité de l'exploitation de cette personne morale, il en informe les dirigeants de la personne morale dans des conditions fixées par décret en Conseil d'Etat.
A défaut de réponse dans un délai fixé par décret en Conseil d'Etat, ou si celle-ci ne permet pas d'être assuré de la continuité de l'exploitation, le commissaire aux comptes invite, par un écrit dont la copie est transmise au président du tribunal de grande instance, les dirigeants à faire délibérer l'organe collégial de la personne morale sur les faits relevés. Le commissaire aux comptes est convoqué à cette séance. La délibération de l'organe collégial est communiquée au comité d'entreprise ou, à défaut, aux délégués du personnel et au président du tribunal de grande instance.
En cas d'inobservation de ces dispositions, ou si le commissaire aux comptes constate qu'en dépit des décisions prises la continuité de l'exploitation demeure compromise, une assemblée générale est convoquée dans des conditions et délais fixés par décret en Conseil d'Etat. Le commissaire aux comptes établit un rapport spécial qui est présenté à cette assemblée. Ce rapport est communiqué au comité d'entreprise ou, à défaut, aux délégués du personnel.
Si, à l'issue de la réunion de l'assemblée générale, le commissaire aux comptes constate que les décisions prises ne permettent pas d'assurer la continuité de l'exploitation, il informe de ses démarches le président du tribunal et lui en communique les résultats.
Les dispositions du présent article ne sont pas applicables lorsqu'une procédure de conciliation ou de sauvegarde a été engagée par le débiteur en application des articles L. 611-6 et L. 620-1.
Article L612-4
Toute association ayant reçu annuellement des autorités administratives, au sens de l'article 1er de la loi du 12 avril 2000, ou des établissements publics à caractère industriel et commercial une ou plusieurs subventions dont le montant global dépasse un seuil fixé par décret, doit établir des comptes annuels comprenant un bilan, un compte de résultat et une annexe dont les modalités d'établissement sont fixées par décret. Ces associations doivent assurer, dans des conditions déterminées par décret en Conseil d'Etat, la publicité de leurs comptes annuels et du rapport du commissaire aux comptes.
Ces mêmes associations sont tenues de nommer au moins un commissaire aux comptes et un
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suppléant.
Article L612-5
Le représentant légal ou, s'il en existe un, le commissaire aux comptes d'une personne morale de droit privé non commerçante ayant une activité économique ou d'une association visée à l'article L. 612-4 présente à l'organe délibérant ou, en l'absence d'organe délibérant, joint aux documents communiqués aux adhérents un rapport sur les conventions passées directement ou par personne interposée entre la personne morale et l'un de ses administrateurs ou l'une des personnes assurant un rôle de mandataire social.
Il est de même des conventions passées entre cette personne morale et une autre personne morale dont un associé indéfiniment responsable, un gérant, un administrateur, le directeur général, un directeur général délégué, un membre du directoire ou du conseil de surveillance, un actionnaire disposant d'une fraction des droits de vote supérieure à 10 % est simultanément administrateur ou assure un rôle de mandataire social de ladite personne morale.
L'organe délibérant statue sur ce rapport.
Un décret en Conseil d'Etat précise les conditions dans lesquelles le rapport est établi.
Une convention non approuvée produit néanmoins ses effets. Les conséquences préjudiciables à la personne morale résultant d'une telle convention peuvent être mises à la charge, individuellement ou solidairement selon le cas, de l'administrateur ou de la personne assurant le rôle de mandataire social.
Les dispositions du présent article ne sont pas applicables aux conventions courantes conclues à des conditions normales qui, en raison de leur objet ou de leurs implications financières, ne sont significatives pour aucune des parties.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE II : De la sauvegarde
Article L620-1
Il est institué une procédure de sauvegarde ouverte sur demande d'un débiteur mentionné à l'article L. 620-2 qui, sans être en cessation des paiements, justifie de difficultés qu'il n'est pas en mesure de surmonter. Cette procédure est destinée à faciliter la réorganisation de l'entreprise afin de permettre la poursuite de l'activité économique, le maintien de l'emploi et l'apurement du passif.
La procédure de sauvegarde donne lieu à un plan arrêté par jugement à l'issue d'une période d'observation et, le cas échéant, à la constitution de deux comités de créanciers, conformément aux dispositions des articles L. 626-29 et L. 626-30.
Article L620-2
La procédure de sauvegarde est applicable à toute personne exerçant une activité commerciale ou artisanale, à tout agriculteur, à toute autre personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, ainsi qu'à toute personne morale de droit privé.
Il ne peut être ouvert de nouvelle procédure de sauvegarde à l'égard d'une personne déjà soumise à une telle procédure, ou à une procédure de redressement judiciaire ou de liquidation judiciaire, tant qu'il n'a pas été mis fin aux opérations du plan qui en résulte ou que la procédure de liquidation n'a pas été clôturée.
Chapitre Ier : De l'ouverture de la procédure.
Article L621-1
Le tribunal statue sur l'ouverture de la procédure, après avoir entendu ou dûment appelé en chambre du conseil le débiteur et les représentants du comité d'entreprise ou, à défaut, des délégués du personnel. Il peut également entendre toute personne dont l'audition lui paraît utile.
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En outre, lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, le tribunal statue après avoir entendu ou dûment appelé, dans les mêmes conditions, l'ordre professionnel ou l'autorité compétente dont, le cas échéant, il relève.
Le tribunal peut, avant de statuer, commettre un juge pour recueillir tous renseignements sur la situation financière, économique et sociale de l'entreprise. Ce juge peut faire application des dispositions prévues à l'article L. 623-2. Il peut se faire assister de tout expert de son choix.
L'ouverture d'une procédure de sauvegarde à l'égard d'un débiteur qui bénéficie ou a bénéficié d'un mandat ad hoc ou d'une procédure de conciliation dans les dix-huit mois qui précèdent doit être examinée en présence du ministère public.
Dans ce cas, le tribunal peut, d'office ou à la demande du ministère public, obtenir communication des pièces et actes relatifs au mandat ad hoc ou à la conciliation, nonobstant les dispositions de l'article L. 611-15.
Article L621-2
Le tribunal compétent est le tribunal de commerce si le débiteur exerce une activité commerciale ou artisanale. Le tribunal de grande instance est compétent dans les autres cas.
A la demande de l'administrateur, du mandataire judiciaire, du ministère public ou d'office, la procédure ouverte peut être étendue à une ou plusieurs autres personnes en cas de confusion de leur patrimoine avec celui du débiteur ou de fictivité de la personne morale.A cette fin, le tribunal ayant ouvert la procédure initiale reste compétent.
Article L621-3
Le jugement ouvre une période d'observation d'une durée maximale de six mois qui peut être renouvelée une fois par décision motivée à la demande de l'administrateur, du débiteur ou du ministère public. Elle peut en outre être exceptionnellement prolongée à la demande du procureur de la République par décision motivée du tribunal pour une durée fixée par décret en Conseil d'Etat.
Lorsqu'il s'agit d'une exploitation agricole, le tribunal peut proroger la durée de la période d'observation en fonction de l'année culturale en cours et des usages spécifiques aux productions de l'exploitation.
Article L621-4
Dans le jugement d'ouverture, le tribunal désigne le juge-commissaire dont les fonctions sont définies à l'article L. 621-9. Il peut, en cas de nécessité, en désigner plusieurs.
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Il invite le comité d'entreprise ou, à défaut, les délégués du personnel à désigner un représentant parmi les salariés de l'entreprise. En l'absence de comité d'entreprise et de délégués du personnel, les salariés élisent leur représentant, qui exerce les fonctions dévolues à ces institutions par les dispositions du présent titre. Les modalités de désignation ou d'élection du représentant des salariés sont précisées par décret en Conseil d'Etat. Lorsque aucun représentant des salariés ne peut être désigné ou élu, un procès-verbal de carence est établi par le débiteur.
Dans le même jugement, sans préjudice de la possibilité de nommer un ou plusieurs experts en vue d'une mission qu'il détermine, le tribunal désigne deux mandataires de justice qui sont le mandataire judiciaire et l'administrateur judiciaire, dont les fonctions sont respectivement définies à l'article L. 622-20 et à l'article L. 622-1. Il peut, à la demande du ministère public, désigner plusieurs mandataires judiciaires ou plusieurs administrateurs judiciaires.
Toutefois, le tribunal n'est pas tenu de désigner un administrateur judiciaire lorsque la procédure est ouverte au bénéfice d'une personne dont le nombre de salariés et le chiffre d'affaires hors taxes sont inférieurs à des seuils fixés par décret en Conseil d'Etat. Dans ce cas, les dispositions du chapitre VII du présent titre sont applicables. Jusqu'au jugement arrêtant le plan, le tribunal peut, à la demande du débiteur, du mandataire judiciaire ou du ministère public, décider de nommer un administrateur judiciaire.
Le débiteur peut proposer un administrateur à la désignation du tribunal. Il en est de même pour le ministère public, qui peut également soumettre le nom d'un mandataire judiciaire. Le rejet de la proposition du ministère public doit être spécialement motivé. Lorsque la procédure est ouverte à l'égard d'un débiteur qui bénéficie ou a bénéficié d'un mandat ad hoc ou d'une procédure de conciliation dans les dix-huit mois qui précèdent, le ministère public peut en outre s'opposer à ce que le mandataire ad hoc ou le conciliateur soit désigné en qualité d'administrateur ou de mandataire judiciaire.
Si le débiteur en fait la demande, le tribunal désigne, en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables, un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté aux fins de réaliser l'inventaire prévu à l'article L. 622-6. Dans le cas contraire, l'article L. 622-6-1 est applicable.
Article L621-5
Aucun parent ou allié, jusqu'au quatrième degré inclusivement, du débiteur personne physique ou des dirigeants, s'il s'agit d'une personne morale, ne peut être désigné à l'une des fonctions prévues à l'article L. 621-4 sauf dans les cas où cette disposition empêche la désignation d'un représentant des salariés.
Article L621-6
Le représentant des salariés ainsi que les salariés participant à sa désignation ne doivent avoir encouru aucune des condamnations prévues par l'article L. 6 du code électoral. Le représentant des salariés doit être âgé de dix-huit ans accomplis.
Les contestations relatives à la désignation du représentant des salariés sont de la compétence du
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tribunal d'instance qui statue en dernier ressort.
Article L621-7
Le tribunal peut, soit d'office, soit sur proposition du juge-commissaire ou à la demande du ministère public, procéder au remplacement de l'administrateur, de l'expert ou du mandataire judiciaire ou encore adjoindre un ou plusieurs administrateurs ou mandataires judiciaires à ceux déjà nommés. L'administrateur, le mandataire judiciaire ou un créancier nommé contrôleur peut demander au juge-commissaire de saisir à cette fin le tribunal. Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'ordre professionnel ou l'autorité compétente dont, le cas échéant, il relève peut saisir le ministère public à cette même fin. Le débiteur peut demander au juge-commissaire de saisir le tribunal aux fins de remplacer l'administrateur ou l'expert. Dans les mêmes conditions, tout créancier peut demander le remplacement du mandataire judiciaire. Par dérogation aux alinéas qui précèdent, lorsque l'administrateur ou le mandataire judiciaire demande son remplacement, le président du tribunal, saisi à cette fin par le juge-commissaire, est compétent pour y procéder. Il statue par ordonnance sur requête. Le comité d'entreprise ou, à défaut, les délégués du personnel ou, à défaut, les salariés de l'entreprise peuvent seuls procéder au remplacement du représentant des salariés.
Article L621-8
L'administrateur et le mandataire judiciaire tiennent informés le juge-commissaire et le ministère public du déroulement de la procédure. Ceux-ci peuvent à toute époque requérir communication de tous actes ou documents relatifs à la procédure.
Le ministère public communique au juge-commissaire sur la demande de celui-ci ou d'office, nonobstant toute disposition législative contraire, tous les renseignements qu'il détient et qui peuvent être utiles à la procédure.
Article L621-9
Le juge-commissaire est chargé de veiller au déroulement rapide de la procédure et à la protection des intérêts en présence.
Lorsque la désignation d'un technicien est nécessaire, seul le juge-commissaire peut y procéder en vue d'une mission qu'il détermine, sans préjudice de la faculté pour le tribunal prévue à l'article L. 621-4 de désigner un ou plusieurs experts. Les conditions de la rémunération de ce technicien sont fixées par un décret en Conseil d'Etat.
Le président du tribunal est compétent pour remplacer le juge-commissaire empêché ou ayant cessé ses fonctions.L'ordonnance par laquelle il est pourvu au remplacement est une mesure d'administration judiciaire.
Article L621-10
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Le juge-commissaire désigne un à cinq contrôleurs parmi les créanciers qui lui en font la demande. Lorsqu'il désigne plusieurs contrôleurs, il veille à ce qu'au moins l'un d'entre eux soit choisi parmi les créanciers titulaires de sûretés et qu'un autre soit choisi parmi les créanciers chirographaires.
Aucun parent ou allié jusqu'au quatrième degré inclusivement du débiteur personne physique ou des dirigeants de la personne morale, ni aucune personne détenant directement ou indirectement tout ou partie du capital de la personne morale débitrice ou dont le capital est détenu en tout ou partie par cette même personne, ne peut être nommé contrôleur ou représentant d'une personne morale désignée comme contrôleur.
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'ordre professionnel ou l'autorité compétente dont, le cas échéant, il relève est d'office contrôleur. Dans ce cas, le juge-commissaire ne peut désigner plus de quatre contrôleurs.
La responsabilité du contrôleur n'est engagée qu'en cas de faute lourde. Il peut se faire représenter par l'un de ses préposés ou par ministère d'avocat. Tout créancier nommé contrôleur peut être révoqué par le tribunal à la demande du ministère public.
Article L621-11
Les contrôleurs assistent le mandataire judiciaire dans ses fonctions et le juge-commissaire dans sa mission de surveillance de l'administration de l'entreprise. Ils peuvent prendre connaissance de tous les documents transmis à l'administrateur et au mandataire judiciaire. Ils sont tenus à la confidentialité. Les fonctions de contrôleur sont gratuites.
Article L621-12
S'il apparaît, après l'ouverture de la procédure, que le débiteur était déjà en cessation des paiements au moment du prononcé du jugement, le tribunal le constate et fixe la date de la cessation des paiements dans les conditions prévues à l'article L. 631-8. Il convertit la procédure de sauvegarde en une procédure de redressement judiciaire. Si nécessaire, il peut modifier la durée de la période d'observation restant à courir. Aux fins de réaliser la prisée des actifs du débiteur au vu de l'inventaire établi pendant la procédure de sauvegarde, il désigne, en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables, un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté.
Le tribunal est saisi par l'administrateur, le mandataire judiciaire ou le ministère public. Il peut également se saisir d'office. Il se prononce après avoir entendu ou dûment appelé le débiteur.
Chapitre II : De l'entreprise au cours de la période d'observation.
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Article L622-1
I.-L'administration de l'entreprise est assurée par son dirigeant.
II.-Lorsque le tribunal, en application des dispositions de l'article L. 621-4, désigne un ou plusieurs administrateurs, il les charge ensemble ou séparément de surveiller le débiteur dans sa gestion ou de l'assister pour tous les actes de gestion ou pour certains d'entre eux.
III.-Dans sa mission d'assistance, l'administrateur est tenu au respect des obligations légales et conventionnelles incombant au chef d'entreprise.
IV.-A tout moment, le tribunal peut modifier la mission de l'administrateur sur la demande de celui-ci, du mandataire judiciaire ou du ministère public.
V.-L'administrateur peut faire fonctionner sous sa signature les comptes bancaires ou postaux dont le débiteur est titulaire si ce dernier a fait l'objet des interdictions prévues aux articles 65-2 et 68, troisième alinéa, du décret du 30 octobre 1935 unifiant le droit en matière de chèques.
Article L622-3
Le débiteur continue à exercer sur son patrimoine les actes de disposition et d'administration, ainsi que les droits et actions qui ne sont pas compris dans la mission de l'administrateur.
En outre, sous réserve des dispositions des articles L. 622-7 et L. 622-13, les actes de gestion courante qu'accomplit seul le débiteur sont réputés valables à l'égard des tiers de bonne foi.
Article L622-4
Dès son entrée en fonction, l'administrateur est tenu de requérir du débiteur ou, selon le cas, de faire lui-même tous actes nécessaires à la conservation des droits de l'entreprise contre les débiteurs de celle-ci et à la préservation des capacités de production.
L'administrateur a qualité pour inscrire au nom de l'entreprise tous hypothèques, nantissements, gages ou privilèges que le débiteur aurait négligé de prendre ou de renouveler.
Article L622-5
Dès le jugement d'ouverture, tout tiers détenteur est tenu de remettre à l'administrateur ou, à défaut, au mandataire judiciaire, à la demande de celui-ci, les documents et livres comptables en vue de leur examen.
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Article L622-6
Dès l'ouverture de la procédure, il est dressé un inventaire du patrimoine du débiteur ainsi que des garanties qui le grèvent. Cet inventaire, remis à l'administrateur et au mandataire judiciaire, est complété par le débiteur par la mention des biens qu'il détient susceptibles d'être revendiqués par un tiers.
Le débiteur remet à l'administrateur et au mandataire judiciaire la liste de ses créanciers, du montant de ses dettes et des principaux contrats en cours. Il les informe des instances en cours auxquelles il est partie.
L'administrateur ou, s'il n'en a pas été nommé, le mandataire judiciaire peut, nonobstant toute disposition législative ou réglementaire contraire, obtenir communication par les administrations et organismes publics, les organismes de prévoyance et de sécurité sociale, les établissements de crédit ainsi que les services chargés de centraliser les risques bancaires et les incidents de paiement, des renseignements de nature à lui donner une exacte information sur la situation patrimoniale du débiteur.
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'inventaire est dressé en présence d'un représentant de l'ordre professionnel ou de l'autorité compétente dont, le cas échéant, il relève. En aucun cas l'inventaire ne peut porter atteinte au secret professionnel si le débiteur y est soumis.
L'absence d'inventaire ne fait pas obstacle à l'exercice des actions en revendication ou en restitution.
Un décret en Conseil d'Etat fixe les conditions d'application du présent article.
Article L622-6-1
Sauf s'il a été procédé, dans le jugement d'ouverture de la procédure, à la désignation d'un officier public chargé de dresser l'inventaire, celui-ci est établi par le débiteur et certifié par un commissaire aux comptes ou attesté par un expert-comptable. Les dispositions du quatrième alinéa de l'article L. 622-6 ne sont, en ce cas, pas applicables.
Si le débiteur n'engage pas les opérations d'inventaire dans un délai de huit jours à compter du jugement d'ouverture ou ne les achève pas dans un délai fixé par ce jugement, le juge-commissaire désigne pour y procéder ou les achever un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables. Il est saisi par l'administrateur, le mandataire judiciaire ou le ministère public. Il peut également se saisir d'office. Le délai fixé pour achever les opérations d'inventaire peut être prorogé par le juge-commissaire.
Article L622-7
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I.-Le jugement ouvrant la procédure emporte, de plein droit, interdiction de payer toute créance née antérieurement au jugement d'ouverture, à l'exception du paiement par compensation de créances connexes. Il emporte également, de plein droit, interdiction de payer toute créance née après le jugement d'ouverture, non mentionnée au I de l'article L. 622-17. Ces interdictions ne sont pas applicables au paiement des créances alimentaires.
De même, il emporte, de plein droit, inopposabilité du droit de rétention conféré par le 4° de l'article 2286 du code civil pendant la période d'observation et l'exécution du plan, sauf si le bien objet du gage est compris dans une cession d'activité décidée en application de l'article L. 626-1.
Il fait enfin obstacle à la conclusion et à la réalisation d'un pacte commissoire.
II.-Le juge-commissaire peut autoriser le débiteur à faire un acte de disposition étranger à la gestion courante de l'entreprise, à consentir une hypothèque, un gage ou un nantissement ou à compromettre ou transiger.
Le juge-commissaire peut aussi l'autoriser à payer des créances antérieures au jugement, pour retirer le gage ou une chose légitimement retenue ou encore pour obtenir le retour de biens et droits transférés à titre de garantie dans un patrimoine fiduciaire, lorsque ce retrait ou ce retour est justifié par la poursuite de l'activité. Ce paiement peut en outre être autorisé pour lever l'option d'achat d'un contrat de crédit-bail, lorsque cette levée d'option est justifiée par la poursuite de l'activité et que le paiement à intervenir est d'un montant inférieur à la valeur vénale du bien objet du contrat.
III.-Tout acte ou tout paiement passé en violation des dispositions du présent article est annulé à la demande de tout intéressé ou du ministère public, présentée dans un délai de trois ans à compter de la conclusion de l'acte ou du paiement de la créance. Lorsque l'acte est soumis à publicité, le délai court à compter de celle-ci.
Article L622-8
En cas de vente d'un bien grevé d'un privilège spécial, d'un gage, d'un nantissement ou d'une hypothèque, la quote-part du prix correspondant aux créances garanties par ces sûretés est versée en compte de dépôt à la Caisse des dépôts et consignations. Après l'adoption du plan, les créanciers bénéficiaires de ces sûretés ou titulaires d'un privilège général sont payés sur le prix suivant l'ordre de préférence existant entre eux et conformément à l'article L. 626-22 lorsqu'ils sont soumis aux délais du plan.
Le juge-commissaire peut ordonner le paiement provisionnel de tout ou partie de leur créance aux créanciers titulaires de sûretés sur le bien. Sauf décision spécialement motivée du juge-commissaire ou lorsqu'il intervient au bénéfice du Trésor ou des organismes sociaux ou organismes assimilés, ce paiement provisionnel est subordonné à la présentation par son bénéficiaire d'une garantie émanant d'un établissement de crédit.
Le débiteur peut proposer aux créanciers, la substitution aux garanties qu'ils détiennent de garanties équivalentes. En l'absence d'accord, le juge-commissaire peut ordonner cette substitution. Le recours contre cette ordonnance est porté devant la cour d'appel.
Article L622-9
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L'activité de l'entreprise est poursuivie pendant la période d'observation, sous réserve des dispositions des articles L. 622-10 à L. 622-16.
Article L622-10
A tout moment de la période d'observation, le tribunal, à la demande du débiteur peut ordonner la cessation partielle de l'activité.
Dans les mêmes conditions, à la demande du débiteur, de l'administrateur, du mandataire judiciaire, du ministère public ou d'office, il convertit la procédure en un redressement judiciaire, si les conditions de l'article L. 631-1 sont réunies, ou prononce la liquidation judiciaire, si les conditions de l'article L. 640-1 sont réunies. A la demande du débiteur, il décide également la conversion en redressement judiciaire si l'adoption d'un plan de sauvegarde est manifestement impossible et si la clôture de la procédure conduirait, de manière certaine et à bref délai, à la cessation des paiements.
Il statue après avoir entendu ou dûment appelé le débiteur, l'administrateur, le mandataire judiciaire, les contrôleurs et les représentants du comité d'entreprise ou, à défaut, des délégués du personnel, et avoir recueilli l'avis du ministère public.
Lorsqu'il convertit la procédure de sauvegarde en procédure de redressement judiciaire, le tribunal peut, si nécessaire, modifier la durée de la période d'observation restant à courir. Aux fins de réaliser la prisée des actifs du débiteur au vu de l'inventaire établi pendant la procédure de sauvegarde, il désigne, en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables, un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté.
Article L622-11
Lorsque le tribunal prononce la liquidation, il met fin à la période d'observation et, sous réserve des dispositions de l'article L. 641-10, à la mission de l'administrateur. Dans les conditions prévues au dernier alinéa de l'article L. 622-10, il désigne une personne chargée de réaliser la prisée des actifs du débiteur.
Article L622-12
Lorsque les difficultés qui ont justifié l'ouverture de la procédure ont disparu, le tribunal y met fin à la demande du débiteur. Il statue dans les conditions prévues au quatrième alinéa de l'article L. 622-10.
Article L622-13
I. - Nonobstant toute disposition légale ou toute clause contractuelle, aucune indivisibilité,
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résiliation ou résolution d'un contrat en cours ne peut résulter du seul fait de l'ouverture d'une procédure de sauvegarde. Le cocontractant doit remplir ses obligations malgré le défaut d'exécution par le débiteur d'engagements antérieurs au jugement d'ouverture. Le défaut d'exécution de ces engagements n'ouvre droit au profit des créanciers qu'à déclaration au passif. II. - L'administrateur a seul la faculté d'exiger l'exécution des contrats en cours en fournissant la prestation promise au cocontractant du débiteur. Lorsque la prestation porte sur le paiement d'une somme d'argent, celui-ci doit se faire au comptant, sauf pour l'administrateur à obtenir l'acceptation, par le cocontractant du débiteur, de délais de paiement. Au vu des documents prévisionnels dont il dispose, l'administrateur s'assure, au moment où il demande l'exécution, qu'il disposera des fonds nécessaires à cet effet.S'il s'agit d'un contrat à exécution ou paiement échelonnés dans le temps, l'administrateur y met fin s'il lui apparaît qu'il ne disposera pas des fonds nécessaires pour remplir les obligations du terme suivant. III. - Le contrat en cours est résilié de plein droit : 1° Après une mise en demeure de prendre parti sur la poursuite du contrat adressée par le cocontractant à l'administrateur et restée plus d'un mois sans réponse. Avant l'expiration de ce délai, le juge-commissaire peut impartir à l'administrateur un délai plus court ou lui accorder une prolongation, qui ne peut excéder deux mois, pour se prononcer ; 2° A défaut de paiement dans les conditions définies au II et d'accord du cocontractant pour poursuivre les relations contractuelles. En ce cas, le ministère public, l'administrateur, le mandataire judiciaire ou un contrôleur peut saisir le tribunal aux fins de mettre fin à la période d'observation. IV. - A la demande de l'administrateur, la résiliation est prononcée par le juge-commissaire si elle est nécessaire à la sauvegarde du débiteur et ne porte pas une atteinte excessive aux intérêts du cocontractant. V. - Si l'administrateur n'use pas de la faculté de poursuivre le contrat ou y met fin dans les conditions du II ou encore si la résiliation est prononcée en application du IV, l'inexécution peut donner lieu à des dommages et intérêts au profit du cocontractant, dont le montant doit être déclaré au passif. Le cocontractant peut néanmoins différer la restitution des sommes versées en excédent par le débiteur en exécution du contrat jusqu'à ce qu'il ait été statué sur les dommages et intérêts. VI. - Les dispositions du présent article ne concernent pas les contrats de travail. Elles ne concernent pas non plus le contrat de fiducie, à l'exception de la convention en exécution de laquelle le débiteur conserve l'usage ou la jouissance de biens ou droits transférés dans un patrimoine fiduciaire.
Article L622-14
Sans préjudice de l'application du I et du II de l'article L. 622-13, la résiliation du bail des immeubles donnés à bail au débiteur et affectés à l'activité de l'entreprise intervient dans les conditions suivantes : 1° Au jour où le bailleur est informé de la décision de l'administrateur de ne pas continuer le bail. Dans ce cas, l'inexécution peut donner lieu à des dommages et intérêts au profit du cocontractant, dont le montant doit être déclaré au passif. Le cocontractant peut néanmoins différer la restitution des sommes versées en excédent par le débiteur en exécution du contrat jusqu'à ce qu'il ait été statué sur les dommages et intérêts ;
2° Lorsque le bailleur demande la résiliation ou fait constater la résiliation du bail pour défaut de paiement des loyers et charges afférents à une occupation postérieure au jugement d'ouverture, le bailleur ne pouvant agir qu'au terme d'un délai de trois mois à compter dudit jugement.
Si le paiement des sommes dues intervient avant l'expiration de ce délai, il n'y a pas lieu à résiliation.
Nonobstant toute clause contraire, le défaut d'exploitation pendant la période d'observation dans un ou plusieurs immeubles loués par l'entreprise n'entraîne pas résiliation du bail.
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Article L622-15
En cas de cession du bail, toute clause imposant au cédant des dispositions solidaires avec le cessionnaire est réputée non écrite.
Article L622-16
En cas de procédure de sauvegarde, le bailleur n'a privilège que pour les deux dernières années de loyers avant le jugement d'ouverture de la procédure.
Si le bail est résilié, le bailleur a, en outre, privilège pour l'année courante, pour tout ce qui concerne l'exécution du bail et pour les dommages et intérêts qui pourront lui être alloués par les tribunaux.
Si le bail n'est pas résilié, le bailleur ne peut exiger le paiement des loyers à échoir lorsque les sûretés qui lui ont été données lors du contrat sont maintenues ou lorsque celles qui ont été fournies depuis le jugement d'ouverture sont jugées suffisantes.
Le juge-commissaire peut autoriser le débiteur ou l'administrateur, selon le cas, à vendre des meubles garnissant les lieux loués soumis à dépérissement prochain, à dépréciation imminente ou dispendieux à conserver, ou dont la réalisation ne met pas en cause, soit l'existence du fonds, soit le maintien de garanties suffisantes pour le bailleur.
Article L622-17
I.-Les créances nées régulièrement après le jugement d'ouverture pour les besoins du déroulement de la procédure ou de la période d'observation, ou en contrepartie d'une prestation fournie au débiteur pendant cette période, sont payées à leur échéance.
II.-Lorsqu'elles ne sont pas payées à l'échéance, ces créances sont payées par privilège avant toutes les autres créances, assorties ou non de privilèges ou sûretés, à l'exception de celles garanties par le privilège établi aux articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail, des frais de justice nés régulièrement après le jugement d'ouverture pour les besoins du déroulement de la procédure et de celles garanties par le privilège établi par l'article L. 611-11 du présent code.
III.-Leur paiement se fait dans l'ordre suivant :
1° Les créances de salaires dont le montant n'a pas été avancé en application des articles L. 143-11-1 à L. 143-11-3 du code du travail ;
2° Les prêts consentis ainsi que les créances résultant de l'exécution des contrats poursuivis conformément aux dispositions de l'article L. 622-13 et dont le cocontractant accepte de recevoir un paiement différé ; ces prêts et délais de paiement sont autorisés par le juge-commissaire dans la
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limite nécessaire à la poursuite de l'activité pendant la période d'observation et font l'objet d'une publicité. En cas de résiliation d'un contrat régulièrement poursuivi, les indemnités et pénalités sont exclues du bénéfice du présent article ;
3° Les autres créances, selon leur rang.
IV.-Les créances impayées perdent le privilège que leur confère le II du présent article si elles n'ont pas été portées à la connaissance de l'administrateur et, à défaut, du mandataire judiciaire ou, lorsque ces organes ont cessé leurs fonctions, du commissaire à l'exécution du plan ou du liquidateur, dans le délai d'un an à compter de la fin de la période d'observation.
Article L622-18
Toute somme perçue par l'administrateur ou le mandataire judiciaire qui n'est pas portée sur les comptes bancaires ou postaux du débiteur, pour les besoins de la poursuite d'activité, doit être versée immédiatement en compte de dépôt à la Caisse des dépôts et consignations.
En cas de retard, l'administrateur ou le mandataire judiciaire doit, pour les sommes qu'il n'a pas versées, un intérêt dont le taux est égal au taux de l'intérêt légal majoré de cinq points.
Article L622-19
Toute somme versée par l'association mentionnée à l'article L. 143-11-4 du code du travail en application des articles L. 143-11-1 à L. 143-11-3 du même code donne lieu à déclaration à l'administration fiscale.
Article L622-20
Le mandataire judiciaire désigné par le tribunal a seul qualité pour agir au nom et dans l'intérêt collectif des créanciers. Toutefois, en cas de carence du mandataire judiciaire, tout créancier nommé contrôleur peut agir dans cet intérêt dans des conditions fixées par décret en Conseil d'Etat.
Le mandataire judiciaire communique au juge-commissaire et au ministère public les observations qui lui sont transmises à tout moment de la procédure par les contrôleurs.
Les sommes recouvrées à l'issue des actions introduites par le mandataire judiciaire ou, à défaut, par le ou les créanciers nommés contrôleurs, entrent dans le patrimoine du débiteur et sont affectées en cas de continuation de l'entreprise selon les modalités prévues pour l'apurement du passif.
Article L622-21
I.-Le jugement d'ouverture interrompt ou interdit toute action en justice de la part de tous les
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créanciers dont la créance n'est pas mentionnée au I de l'article L. 622-17 et tendant :
1° A la condamnation du débiteur au paiement d'une somme d'argent ;
2° A la résolution d'un contrat pour défaut de paiement d'une somme d'argent.
II.-Il arrête ou interdit également toute procédure d'exécution de la part de ces créanciers tant sur les meubles que sur les immeubles ainsi que toute procédure de distribution n'ayant pas produit un effet attributif avant le jugement d'ouverture.
III.-Les délais impartis à peine de déchéance ou de résolution des droits sont en conséquence interrompus.
Article L622-22
Sous réserve des dispositions de l'article L. 625-3, les instances en cours sont interrompues jusqu'à ce que le créancier poursuivant ait procédé à la déclaration de sa créance. Elles sont alors reprises de plein droit, le mandataire judiciaire et, le cas échéant, l'administrateur ou le commissaire à l'exécution du plan nommé en application de l'article L. 626-25 dûment appelés, mais tendent uniquement à la constatation des créances et à la fixation de leur montant.
Article L622-23
Les actions en justice et les procédures d'exécution autres que celles visées à l'article L. 622-21 sont poursuivies au cours de la période d'observation à l'encontre du débiteur, après mise en cause du mandataire judiciaire et de l'administrateur lorsqu'il a une mission d'assistance ou après une reprise d'instance à leur initiative.
Article L622-23-1
Lorsque des biens ou droits présents dans un patrimoine fiduciaire font l'objet d'une convention en exécution de laquelle le débiteur constituant en conserve l'usage ou la jouissance, aucune cession ou aucun transfert de ces biens ou droits ne peut intervenir au profit du fiduciaire ou d'un tiers du seul fait de l'ouverture de la procédure, de l'arrêté du plan ou encore d'un défaut de paiement d'une créance née antérieurement au jugement d'ouverture. Cette interdiction est prévue à peine de nullité de la cession ou du transfert.
Article L622-24
A partir de la publication du jugement, tous les créanciers dont la créance est née antérieurement au jugement d'ouverture, à l'exception des salariés, adressent la déclaration de leurs créances au mandataire judiciaire dans des délais fixés par décret en Conseil d'Etat. Les créanciers titulaires d'une sûreté publiée ou liés au débiteur par un contrat publié sont avertis personnellement ou, s'il y a lieu, à domicile élu. Le délai de déclaration court à l'égard de ceux-ci à compter de la notification de
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cet avertissement.
La déclaration des créances peut être faite par le créancier ou par tout préposé ou mandataire de son choix.
La déclaration des créances doit être faite alors même qu'elles ne sont pas établies par un titre. Celles dont le montant n'est pas encore définitivement fixé sont déclarées sur la base d'une évaluation. Les créances du Trésor public et des organismes de prévoyance et de sécurité sociale ainsi que les créances recouvrées par les organismes visés à l'article L. 351-21 du code du travail qui n'ont pas fait l'objet d'un titre exécutoire au moment de leur déclaration sont admises à titre provisionnel pour leur montant déclaré. En tout état de cause, les déclarations du Trésor et de la sécurité sociale sont toujours faites sous réserve des impôts et autres créances non établis à la date de la déclaration. Sous réserve des procédures judiciaires ou administratives en cours, leur établissement définitif doit, à peine de forclusion, être effectué dans le délai prévu à l'article L. 624-1.
Les institutions mentionnées à l'article L. 143-11-4 du code du travail sont soumises aux dispositions du présent article pour les sommes qu'elles ont avancées et qui leur sont remboursées dans les conditions prévues pour les créances nées antérieurement au jugement ouvrant la procédure.
Les créances nées régulièrement après le jugement d'ouverture, autres que celles mentionnées au I de l'article L. 622-17 sont soumises aux dispositions du présent article. Les délais courent à compter de la date d'exigibilité de la créance. Toutefois, les créanciers dont les créances résultent d'un contrat à exécution successive déclarent l'intégralité des sommes qui leur sont dues dans des conditions prévues par décret en Conseil d'Etat.
Le délai de déclaration, par une partie civile, des créances nées d'une infraction pénale court dans les conditions prévues au premier alinéa ou à compter de la date de la décision définitive qui en fixe le montant, lorsque cette décision intervient après la publication du jugement d'ouverture.
Les créances alimentaires ne sont pas soumises aux dispositions du présent article.
Article L622-25
La déclaration porte le montant de la créance due au jour du jugement d'ouverture avec indication des sommes à échoir et de la date de leurs échéances. Elle précise la nature du privilège ou de la sûreté dont la créance est éventuellement assortie.
Lorsqu'il s'agit de créances en monnaie étrangère, la conversion en euros a lieu selon le cours du change à la date du jugement d'ouverture.
Sauf si elle résulte d'un titre exécutoire, la créance déclarée est certifiée sincère par le créancier. Le visa du commissaire aux comptes ou, à défaut, de l'expert-comptable sur la déclaration de créance peut être demandé par le juge-commissaire. Le refus de visa est motivé.
Article L622-26
A défaut de déclaration dans les délais prévus à l'article L. 622-24, les créanciers ne sont pas admis
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dans les répartitions et les dividendes à moins que le juge-commissaire ne les relève de leur forclusion s'ils établissent que leur défaillance n'est pas due à leur fait ou qu'elle est due à une omission volontaire du débiteur lors de l'établissement de la liste prévue au deuxième alinéa de l'article L. 622-6. Ils ne peuvent alors concourir que pour les distributions postérieures à leur demande.
Les créances non déclarées régulièrement dans ces délais sont inopposables au débiteur pendant l'exécution du plan et après cette exécution lorsque les engagements énoncés dans le plan ou décidés par le tribunal ont été tenus. Pendant l'exécution du plan, ell es sont également inopposables aux personnes physiques coobligées ou ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie.
L'action en relevé de forclusion ne peut être exercée que dans le délai de six mois. Ce délai court à compter de la publication du jugement d'ouverture ou, pour les institutions mentionnées à l'article L. 143-11-4 du code du travail, de l'expiration du délai pendant lequel les créances résultant du contrat de travail sont garanties par ces institutions. Pour les créanciers titulaires d'une sûreté publiée ou liés au débiteur par un contrat publié, il court à compter de la réception de l'avis qui leur est donné. Par exception, le délai est porté à un an pour les créanciers placés dans l'impossibilité de connaître l'existence de leur créance avant l'expiration du délai de six mois précité.
Article L622-27
S'il y a discussion sur tout ou partie d'une créance autre que celles mentionnées à l'article L. 653-1, le mandataire judiciaire en avise le créancier intéressé en l'invitant à faire connaître ses explications. Le défaut de réponse dans le délai de trente jours interdit toute contestation ultérieure de la proposition du mandataire judiciaire.
Article L622-28
Le jugement d'ouverture arrête le cours des intérêts légaux et conventionnels, ainsi que de tous intérêts de retard et majorations, à moins qu'il ne s'agisse des intérêts résultant de contrats de prêt conclus pour une durée égale ou supérieure à un an ou de contrats assortis d'un paiement différé d'un an ou plus. Les personnes physiques coobligées ou ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie peuvent se prévaloir des dispositions du présent alinéa.
Le jugement d'ouverture suspend jusqu'au jugement arrêtant le plan ou prononçant la liquidation toute action contre les personnes physiques coobligées ou ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie. Le tribunal peut ensuite leur accorder des délais ou un différé de paiement dans la limite de deux ans.
Les créanciers bénéficiaires de ces garanties peuvent prendre des mesures conservatoires.
Article L622-29
Le jugement d'ouverture ne rend pas exigibles les créances non échues à la date de son prononcé. Toute clause contraire est réputée non écrite.
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Article L622-30
Les hypothèques, gages, nantissements et privilèges ne peuvent plus être inscrits postérieurement au jugement d'ouverture. Il en va de même des actes et des décisions judiciaires translatifs ou constitutifs de droits réels, à moins que ces actes n'aient acquis date certaine ou que ces décisions ne soient devenues exécutoires avant le jugement d'ouverture.
Toutefois, le Trésor public conserve son privilège pour les créances qu'il n'était pas tenu d'inscrire à la date du jugement d'ouverture et pour les créances mises en recouvrement après cette date si ces créances sont déclarées dans les conditions prévues à l'article L. 622-24.
Le vendeur du fonds de commerce, par dérogation aux dispositions du premier alinéa, peut inscrire son privilège.
Article L622-31
Le créancier, porteur d'engagements souscrits, endossés ou garantis solidairement par deux ou plusieurs coobligés soumis à une procédure de sauvegarde, peut déclarer sa créance pour la valeur nominale de son titre, dans chaque procédure.
Article L622-32
Aucun recours pour les paiements effectués n'est ouvert aux coobligés soumis à une procédure de sauvegarde les uns contre les autres à moins que la réunion des sommes versées en vertu de chaque procédure n'excède le montant total de la créance, en principal et accessoire ; en ce cas, cet excédent est dévolu, suivant l'ordre des engagements, à ceux des coobligés qui auraient les autres pour garants.
Article L622-33
Si le créancier porteur d'engagements solidairement souscrits par le débiteur soumis à une procédure de sauvegarde et d'autres coobligés a reçu un acompte sur sa créance avant le jugement d'ouverture, il ne peut déclarer sa créance que sous déduction de cet acompte et conserve, sur ce qui lui reste dû, ses droits contre le coobligé ou la caution.
Le coobligé ou la caution qui a fait le paiement partiel peut déclarer sa créance pour tout ce qu'il a payé à la décharge du débiteur.
Chapitre III : De l'élaboration du bilan économique, social et
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environnemental.
Article L623-1
L'administrateur, avec le concours du débiteur et l'assistance éventuelle d'un ou plusieurs experts, est chargé de dresser dans un rapport le bilan économique et social de l'entreprise.
Le bilan économique et social précise l'origine, l'importance et la nature des difficultés de l'entreprise.
Dans le cas où l'entreprise exploite une ou des installations classées au sens du titre Ier du livre V du code de l'environnement, le bilan économique et social est complété par un bilan environnemental que l'administrateur fait réaliser dans des conditions prévues par décret en Conseil d'Etat.
Article L623-2
Le juge-commissaire peut, nonobstant toute disposition législative ou réglementaire contraire, obtenir communication par les commissaires aux comptes, les experts-comptables, les membres et représentants du personnel, par les administrations et organismes publics, les organismes de prévoyance et de sécurité sociales, les établissements de crédit, les établissements de paiement ainsi que les services chargés de centraliser les risques bancaires et les incidents de paiement des renseignements de nature à lui donner une exacte information sur la situation économique, financière, sociale et patrimoniale du débiteur.
Article L623-3
L'administrateur reçoit du juge-commissaire tous renseignements et documents utiles à l'accomplissement de sa mission et de celle des experts.
Lorsque la procédure est ouverte à l'égard d'une entreprise qui bénéficie de l'accord amiable homologué prévu à l'article L. 611-8 du présent code ou à l'article L. 351-6 du code rural, l'administrateur reçoit communication du rapport d'expertise mentionné à l'article L. 611-6 ou, le cas échéant, du rapport d'expertise et du compte rendu mentionnés aux articles L. 351-3 et L. 351-6 du code rural.
L'administrateur consulte et le mandataire judiciaire et entend toute personne susceptible de l'informer sur la situation et les perspectives de redressement de l'entreprise, les modalités de règlement du passif et conditions sociales de la poursuite de l'activité. Il en informe le débiteur et recueille ses observations.
Il informe de l'avancement de ses travaux le mandataire judiciaire ainsi que le comité d'entreprise
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ou, à défaut, les délégués du personnel.
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'administrateur consulte l'ordre professionnel ou l'autorité compétente dont, le cas échéant, relève le débiteur.
Chapitre IV : De la détermination du patrimoine du débiteur.
Section 1 : De la vérification et de l'admission des créances.
Article L624-1
Dans le délai fixé par le tribunal, le mandataire judiciaire établit, après avoir sollicité les observations du débiteur, la liste des créances déclarées avec ses propositions d'admission, de rejet ou de renvoi devant la juridiction compétente. Il transmet cette liste au juge-commissaire.
Le mandataire judiciaire ne peut être rémunéré au titre des créances déclarées ne figurant pas sur la liste établie dans le délai mentionné ci-dessus, sauf pour des créances déclarées après ce délai, en application des deux derniers alinéas de l'article L. 622-24.
Article L624-2
Au vu des propositions du mandataire judiciaire, le juge-commissaire décide de l'admission ou du rejet des créances ou constate soit qu'une instance est en cours, soit que la contestation ne relève pas de sa compétence.
Article L624-3
Le recours contre les décisions du juge commissaire prises en application de la présente section est ouvert au créancier, au débiteur ou au mandataire judiciaire.
Toutefois, le créancier dont la créance est discutée en tout ou en partie et qui n'a pas répondu au mandataire judiciaire dans le délai mentionné à l'article L. 622-27 ne peut pas exercer de recours contre la décision du juge-commissaire lorsque celle-ci confirme la proposition du mandataire judiciaire.
Les conditions et les formes du recours prévu au premier alinéa sont fixées par décret en Conseil d'Etat.
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Article L624-3-1
Les décisions d'admission ou de rejet des créances ou d'incompétence prononcées par le juge-commissaire sont portées sur un état qui est déposé au greffe du tribunal. Toute personne intéressée, à l'exclusion de celles mentionnées à l'article L. 624-3, peut former une réclamation devant le juge-commissaire dans des conditions fixées par décret en Conseil d'Etat.
Article L624-4
Le juge-commissaire statue en dernier ressort dans les cas prévus à la présente section lorsque la valeur de la créance en principal n'excède pas le taux de compétence en dernier ressort du tribunal qui a ouvert la procédure.
Section 2 : Des droits du conjoint.
Article L624-5
Le conjoint du débiteur soumis à une procédure de sauvegarde établit la consistance de ses biens personnels conformément aux règles des régimes matrimoniaux et dans les conditions prévues par les articles L. 624-9 et L. 624-10.
Article L624-6
Le mandataire judiciaire ou l'administrateur peut, en prouvant par tous les moyens que les biens acquis par le conjoint du débiteur l'ont été avec des valeurs fournies par celui-ci, demander que les acquisitions ainsi faites soient réunies à l'actif.
Article L624-7
Les reprises faites en application de l'article L. 624-5 ne sont exercées qu'à charge des dettes et hypothèques dont ces biens sont légalement grevés.
Article L624-8
Le conjoint du débiteur qui, lors de son mariage, dans l'année de celui-ci ou dans l'année suivante, était agriculteur ou exerçait une activité commerciale, artisanale ou toute autre activité
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professionnelle indépendante, ne peut exercer dans la procédure de sauvegarde aucune action à raison des avantages faits par l'un des époux à l'autre, dans le contrat de mariage ou pendant le mariage. Les créanciers ne peuvent, de leur côté, se prévaloir des avantages faits par l'un des époux à l'autre.
Section 3 : Des droits du vendeur de meubles, des revendications et des restitutions.
Article L624-9
La revendication des meubles ne peut être exercée que dans le délai de trois mois suivant la publication du jugement ouvrant la procédure.
Article L624-10
Le propriétaire d'un bien est dispensé de faire reconnaître son droit de propriété lorsque le contrat portant sur ce bien a fait l'objet d'une publicité. Il peut réclamer la restitution de son bien dans des conditions fixées par décret en Conseil d'Etat.
Article L624-10-1
Lorsque le droit à restitution a été reconnu dans les conditions prévues aux articles L. 624-9 ou L. 624-10 et que le bien fait l'objet d'un contrat en cours au jour de l'ouverture de la procédure, la restitution effective intervient au jour de la résiliation ou du terme du contrat.
Article L624-11
Le privilège et le droit de revendication établis par le 4° de l'article 2332 du code civil au profit du vendeur de meubles ainsi que l'action résolutoire ne peuvent être exercés que dans la limite des dispositions des articles L. 624-12 à L. 624-18 du présent code.
Article L624-12
Peuvent être revendiquées, si elles existent en nature, en tout ou partie, les marchandises dont la vente a été résolue antérieurement au jugement ouvrant la procédure soit par décision de justice, soit par le jeu d'une condition résolutoire acquise.
La revendication doit pareillement être admise bien que la résolution de la vente ait été prononcée
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ou constatée par décision de justice postérieurement au jugement ouvrant la procédure lorsque l'action en revendication ou en résolution a été intentée antérieurement au jugement d'ouverture par le vendeur pour une cause autre que le défaut de paiement du prix.
Article L624-13
Peuvent être revendiquées les marchandises expédiées au débiteur tant que la tradition n'en a point été effectuée dans ses magasins ou dans ceux du commissionnaire chargé de les vendre pour son compte.
Néanmoins, la revendication n'est pas recevable si, avant leur arrivée, les marchandises ont été revendues sans fraude, sur factures ou titres de transport réguliers.
Article L624-14
Peuvent être retenues par le vendeur les marchandises qui ne sont pas délivrées ou expédiées au débiteur ou à un tiers agissant pour son compte.
Article L624-15
Peuvent être revendiqués, s'ils se trouvent encore dans le portefeuille du débiteur, les effets de commerce ou autres titres non payés, remis par leur propriétaire pour être recouvrés ou pour être spécialement affectés à des paiements déterminés.
Article L624-16
Peuvent être revendiqués, à condition qu'ils se retrouvent en nature, les biens meubles remis à titre précaire au débiteur ou ceux transférés dans un patrimoine fiduciaire dont le débiteur conserve l'usage ou la jouissance en qualité de constituant.
Peuvent également être revendiqués, s'ils se retrouvent en nature au moment de l'ouverture de la procédure, les biens vendus avec une clause de réserve de propriété. Cette clause doit avoir été convenue entre les parties dans un écrit au plus tard au moment de la livraison. Elle peut l'être dans un écrit régissant un ensemble d'opérations commerciales convenues entre les parties.
La revendication en nature peut s'exercer dans les mêmes conditions sur les biens mobiliers incorporés dans un autre bien lorsque la séparation de ces biens peut être effectuée sans qu'ils en subissent un dommage. La revendication en nature peut également s'exercer sur des biens fongibles lorsque des biens de même nature et de même qualité se trouvent entre les mains du débiteur ou de toute personne les détenant pour son compte.
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Dans tous les cas, il n'y a pas lieu à revendication si, sur décision du juge-commissaire, le prix est payé immédiatement. Le juge-commissaire peut également, avec le consentement du créancier requérant, accorder un délai de règlement. Le paiement du prix est alors assimilé à celui des créances mentionnées au I de l'article L. 622-17.
Article L624-17
L'administrateur avec l'accord du débiteur ou à défaut le débiteur après accord du mandataire judiciaire peut acquiescer à la demande en revendication ou en restitution d'un bien visé à la présente section. A défaut d'accord ou en cas de contestation, la demande est portée devant le juge-commissaire qui statue sur le sort du contrat, au vu des observations du créancier, du débiteur et du mandataire de justice saisi.
Article L624-18
Peut être revendiqué le prix ou la partie du prix des biens visés à l'article L. 624-16 qui n'a été ni payé, ni réglé en valeur, ni compensé entre le débiteur et l'acheteur à la date du jugement ouvrant la procédure. Peut être revendiquée dans les mêmes conditions l'indemnité d'assurance subrogée au bien.
Chapitre V : Du règlement des créances résultant du contrat de travail.
Section 1 : De la vérification des créances.
Article L625-1
Après vérification, le mandataire judiciaire établit, dans les délais prévus à l'article L. 143-11-7 du code du travail, les relevés des créances résultant d'un contrat de travail, le débiteur entendu ou dûment appelé. Les relevés des créances sont soumis au représentant des salariés dans les conditions prévues à l'article L. 625-2. Ils sont visés par le juge-commissaire, déposés au greffe du tribunal et font l'objet d'une mesure de publicité dans des conditions fixées par décret en Conseil d'Etat.
Le salarié dont la créance ne figure pas en tout ou en partie sur un relevé peut saisir à peine de forclusion le conseil de prud'hommes dans un délai de deux mois à compter de l'accomplissement de la mesure de publicité mentionnée à l'alinéa précédent. Il peut demander au représentant des salariés de l'assister ou de le représenter devant la juridiction prud'homale.
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Le débiteur et l'administrateur lorsqu'il a une mission d'assistance sont mis en cause.
Article L625-2
Les relevés des créances résultant des contrats de travail sont soumis pour vérification par le mandataire judiciaire au représentant des salariés mentionné à l'article L. 621-4. Le mandataire judiciaire doit lui communiquer tous documents et informations utiles. En cas de difficultés, le représentant des salariés peut s'adresser à l'administrateur et, le cas échéant, saisir le juge-commissaire. Il est tenu à l'obligation de discrétion mentionnée à l'article L. 432-7 du code du travail. Le temps passé à l'exercice de sa mission tel qu'il est fixé par le juge-commissaire est considéré de plein droit comme temps de travail et payé à l'échéance normale.
Article L625-3
Les instances en cours devant la juridiction prud'homale à la date du jugement d'ouverture sont poursuivies en présence du mandataire judiciaire et de l'administrateur lorsqu'il a une mission d'assistance ou ceux-ci dûment appelés.
Le mandataire judiciaire informe dans les dix jours la juridiction saisie et les salariés parties à l'instance de l'ouverture de la procédure.
Article L625-4
Lorsque les institutions mentionnées à l'article L. 143-11-4 du code du travail refusent pour quelque cause que ce soit de régler une créance figurant sur un relevé des créances résultant d'un contrat de travail, elles font connaître leur refus au mandataire judiciaire qui en informe immédiatement le représentant des salariés et le salarié concerné.
Ce dernier peut saisir du litige le conseil de prud'hommes. Le mandataire judiciaire, le débiteur et l'administrateur lorsqu'il a une mission d'assistance sont mis en cause.
Le salarié peut demander au représentant des salariés de l'assister ou de le représenter devant la juridiction prud'homale.
Article L625-5
Les litiges soumis au conseil de prud'hommes en application des articles L. 625-1 et L. 625-4 sont portés directement devant le bureau de jugement.
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Article L625-6
Les relevés des créances résultant d'un contrat de travail, visés par le juge-commissaire, ainsi que les décisions rendues par la juridiction prud'homale sont portés sur l'état des créances déposé au greffe. Toute personne intéressée, à l'exclusion de celles visées aux articles L. 625-1, L. 625-3 et L. 625-4, peut former une réclamation ou une tierce opposition dans des conditions prévues par décret en Conseil d'Etat.
Section 2 : Du privilège des salariés.
Article L625-7
Les créances résultant d'un contrat de travail sont garanties en cas d'ouverture d'une procédure de sauvegarde :
1° Par le privilège établi par les articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail, pour les causes et montants définis auxdits articles ;
2° Par le privilège du 4° de l'article 2331 et du 2° de l'article 2104 du code civil.
Article L625-8
Nonobstant l'existence de toute autre créance, les créances que garantit le privilège établi aux articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail doivent, sur ordonnance du juge-commissaire, être payées dans les dix jours du prononcé du jugement ouvrant la procédure par le débiteur ou, lorsqu'il a une mission d'assistance, par l'administrateur, si le débiteur ou l'administrateur dispose des fonds nécessaires.
Toutefois, avant tout établissement du montant de ces créances, le débiteur ou l'administrateur s'il a une mission d'assistance doit, avec l'autorisation du juge-commissaire et dans la mesure des fonds disponibles, verser immédiatement aux salariés, à titre provisionnel, une somme égale à un mois de salaire impayé, sur la base du dernier bulletin de salaire, et sans pouvoir dépasser le plafond visé à l'article L. 143-10 du code du travail.
A défaut de disponibilités, les sommes dues en vertu des deux alinéas précédents doivent être acquittées sur les premières rentrées de fonds.
Section 3 : De la garantie du paiement des créances résultant du contrat de travail.
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Article L625-9
Sans préjudice des règles fixées aux articles L. 625-7 et L. 625-8, les créances résultant du contrat de travail ou du contrat d'apprentissage sont garanties dans les conditions fixées aux articles L. 3253-2 à L. 3253-4, L. 3253-6 à L. 3253-21 et L. 8252-3 du code du travail.
Chapitre VI : Du plan de sauvegarde.
Article L626-1
Lorsqu'il existe une possibilité sérieuse pour l'entreprise d'être sauvegardée, le tribunal arrête dans ce but un plan qui met fin à la période d'observation.
Ce plan de sauvegarde comporte, s'il y a lieu, l'arrêt, l'adjonction ou la cession d'une ou de plusieurs activités. Les cessions faites en application du présent article sont soumises aux dispositions de la section 1 du chapitre II du titre IV et à l'article L. 642-22. Le mandataire judiciaire exerce les missions confiées au liquidateur par ces dispositions.
Les droits de préemption institués par le code rural ou le code de l'urbanisme ne peuvent s'exercer sur un bien compris dans une cession d'une ou de plusieurs activités décidée en application du présent article.
Section 1 : De l'élaboration du projet de plan.
Article L626-2
Au vu du bilan économique, social et, le cas échéant, environnemental, le débiteur, avec le concours de l'administrateur, propose un plan, sans préjudice de l'application des dispositions de l'article L. 622-10.
Le projet de plan détermine les perspectives de redressement en fonction des possibilités et des modalités d'activités, de l'état du marché et des moyens de financement disponibles.
Il définit les modalités de règlement du passif et les garanties éventuelles que le débiteur doit souscrire pour en assurer l'exécution.
Ce projet expose et justifie le niveau et les perspectives d'emploi ainsi que les conditions sociales envisagées pour la poursuite d'activité. Lorsque le projet prévoit des licenciements pour motif économique, il rappelle les mesures déjà intervenues et définit les actions à entreprendre en vue de faciliter le reclassement et l'indemnisation des salariés dont l'emploi est menacé. Le projet tient compte des travaux recensés par le bilan environnemental.
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Il recense, annexe et analyse les offres d'acquisition portant sur une ou plusieurs activités, présentées par des tiers. Il indique la ou les activités dont sont proposés l'arrêt ou l'adjonction.
Article L626-3
Lorsque le projet de plan prévoit une modification du capital, l'assemblée générale extraordinaire ou l'assemblée des associés ainsi que, lorsque leur approbation est nécessaire, les assemblées spéciales mentionnées aux articles L. 225-99 et L. 228-35-6 ou les assemblées générales des masses visées à l'article L. 228-103 sont convoquées dans des conditions définies par décret en Conseil d'Etat.
Si, du fait des pertes constatées dans les documents comptables, les capitaux propres sont inférieurs à la moitié du capital social, l'assemblée est d'abord appelée à reconstituer ces capitaux à concurrence du montant proposé par l'administrateur et qui ne peut être inférieur à la moitié du capital social. Elle peut également être appelée à décider la réduction et l'augmentation du capital en faveur d'une ou plusieurs personnes qui s'engagent à exécuter le plan.
Les engagements pris par les actionnaires ou associés ou par de nouveaux souscripteurs sont subordonnés dans leur exécution à l'acceptation du plan par le tribunal.
Les clauses d'agrément sont réputées non écrites.
Article L626-5
Les propositions pour le règlement des dettes sont, au fur et à mesure de leur élaboration et sous surveillance du juge-commissaire, communiquées par l'administrateur au mandataire judiciaire, aux contrôleurs ainsi qu'au comité d'entreprise ou, à défaut, aux délégués du personnel.
Le mandataire judiciaire recueille individuellement ou collectivement l'accord de chaque créancier qui a déclaré sa créance conformément à l'article L. 622-24, sur les délais et remises qui lui sont proposés. En cas de consultation par écrit, le défaut de réponse, dans le délai de trente jours à compter de la réception de la lettre du mandataire judiciaire, vaut acceptation. Ces dispositions sont applicables aux institutions visées à l'article L. 143-11-4 du code du travail pour les sommes mentionnées au quatrième alinéa de l'article L. 622-24, même si leurs créances ne sont pas encore déclarées. Elles le sont également aux créanciers mentionnés au premier alinéa de l'article L. 626-6 lorsque la proposition qui leur est soumise porte exclusivement sur des délais de paiement.
Article L626-6
Les administrations financières, les organismes de sécurité sociale, les institutions gérant le régime d'assurance chômage prévu par les articles L. 351-3 et suivants du code du travail et les institutions régies par le livre IX du code de la sécurité sociale peuvent accepter de remettre tout ou partie de ses dettes au débiteur dans des conditions similaires à celles que lui octroierait, dans des conditions normales de marché, un opérateur économique privé placé dans la même situation.
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Dans ce cadre, les administrations financières peuvent remettre l'ensemble des impôts directs perçus au profit de l'Etat et des collectivités territoriales ainsi que des produits divers du budget de l'Etat dus par le débiteur.S'agissant des impôts indirects perçus au profit de l'Etat et des collectivités territoriales, seuls les intérêts de retard, majorations, pénalités ou amendes peuvent faire l'objet d'une remise.
Les conditions de la remise de la dette sont fixées par décret.
Les créanciers visés au premier alinéa peuvent également décider des cessions de rang de privilège ou d'hypothèque ou de l'abandon de ces sûretés.
Article L626-7
Le mandataire judiciaire dresse un état des réponses faites par les créanciers. Cet état est adressé au débiteur et à l'administrateur ainsi qu'aux contrôleurs.
Article L626-8
Le comité d'entreprise ou, à défaut, les délégués du personnel et le mandataire judiciaire sont informés et consultés sur les mesures que le débiteur envisage de proposer dans le projet de plan au vu des informations et offres reçues.
Ils le sont également, ainsi que le ou les contrôleurs, sur le bilan économique et social et sur le projet de plan, qui leur sont communiqués par l'administrateur et complétés, le cas échéant, de ses observations.
Les documents mentionnés au deuxième alinéa sont simultanément adressés à l'autorité administrative compétente en matière de droit du travail. Le procès-verbal de la réunion à l'ordre du jour de laquelle a été inscrite la consultation des représentants du personnel est transmis au tribunal ainsi qu'à l'autorité administrative mentionnée ci-dessus.
Le ministère public en reçoit communication.
Section 2 : Du jugement arrêtant le plan et de l'exécution du plan.
Article L626-9
Après avoir entendu ou dûment appelé le débiteur, l'administrateur, le mandataire judiciaire, les contrôleurs ainsi que les représentants du comité d'entreprise ou, à défaut, des délégués du personnel, le tribunal statue au vu des documents prévus à l'article L. 626-8, après avoir recueilli l'avis du ministère public. Lorsque la procédure est ouverte au bénéfice d'un débiteur qui emploie un nombre de salariés ou qui justifie d'un chiffre d'affaires hors taxes supérieurs à des seuils fixés
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par décret en Conseil d'Etat, les débats doivent avoir lieu en présence du ministère public.
Article L626-10
Le plan désigne les personnes tenues de l'exécuter et mentionne l'ensemble des engagements qui ont été souscrits par elles et qui sont nécessaires à la sauvegarde de l'entreprise. Ces engagements portent sur l'avenir de l'activité, les modalités du maintien et du financement de l'entreprise, le règlement du passif soumis à déclaration ainsi que, s'il y a lieu, les garanties fournies pour en assurer l'exécution.
Le plan expose et justifie le niveau et les perspectives d'emploi ainsi que les conditions sociales envisagés pour la poursuite d'activité.
Les personnes qui exécuteront le plan, même à titre d'associés, ne peuvent pas se voir imposer des charges autres que les engagements qu'elles ont souscrits au cours de sa préparation, sous réserve des dispositions prévues aux articles L. 626-3 et L. 626-16.
Article L626-11
Le jugement qui arrête le plan en rend les dispositions opposables à tous.
A l'exception des personnes morales, les coobligés et les personnes ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie peuvent s'en prévaloir.
Article L626-12
Sans préjudice de l'application des dispositions de l'article L. 626-18, la durée du plan est fixée par le tribunal. Elle ne peut excéder dix ans. Lorsque le débiteur est un agriculteur, elle ne peut excéder quinze ans.
Article L626-13
L'arrêt du plan par le tribunal entraîne la levée de plein droit de toute interdiction d'émettre des chèques conformément à l'article L. 131-73 du code monétaire et financier, mise en oeuvre à l'occasion du rejet d'un chèque émis avant le jugement d'ouverture de la procédure.
Article L626-14
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Dans le jugement arrêtant le plan ou le modifiant, le tribunal peut décider que les biens qu'il estime indispensables à la continuation de l'entreprise ne pourront être aliénés, pour une durée qu'il fixe, sans son autorisation. La durée de l'inaliénabilité ne peut excéder celle du plan.
Lorsque le tribunal est saisi d'une demande d'autorisation d'aliéner un bien rendu inaliénable en application du premier alinéa, il statue, à peine de nullité, après avoir recueilli l'avis du ministère public.
La publicité de l'inaliénabilité temporaire est assurée dans des conditions fixées par décret en Conseil d'Etat.
Tout acte passé en violation des dispositions du premier alinéa est annulé à la demande de tout intéressé ou du ministère public, présentée dans le délai de trois ans à compter de la conclusion de l'acte. Lorsque l'acte est soumis à publicité, le délai court à compter de celle-ci.
Article L626-15
Le plan mentionne les modifications des statuts nécessaires à la réorganisation de l'entreprise.
Article L626-16
En cas de nécessité, le jugement qui arrête le plan donne mandat à l'administrateur de convoquer, dans des conditions fixées par décret en Conseil d'Etat, l'assemblée compétente pour mettre en oeuvre les modifications prévues par le plan.
Article L626-17
Les associés ou actionnaires sont tenus de libérer le capital qu'ils souscrivent dans le délai fixé par le tribunal. En cas de libération immédiate, ils peuvent bénéficier de la compensation à concurrence du montant de leurs créances admises et dans la limite de la réduction dont elles sont l'objet dans le plan sous forme de remises ou de délais.
Article L626-18
Le tribunal donne acte des délais et remises acceptés par les créanciers dans les conditions prévues au deuxième alinéa de l'article L. 626-5 et à l'article L. 626-6. Ces délais et remises peuvent, le cas échéant, être réduits par le tribunal. Pour les autres créanciers, le tribunal impose des délais uniformes de paiement, sous réserve, en ce qui concerne les créances à terme, des délais supérieurs stipulés par les parties avant l'ouverture de la procédure qui peuvent excéder la durée du plan.
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Le premier paiement ne peut intervenir au-delà d'un délai d'un an.
Au-delà de la deuxième année, le montant de chacune des annuités prévues par le plan ne peut, sauf dans le cas d'une exploitation agricole, être inférieur à 5 % du passif admis.
Pour les contrats de crédit-bail, ces délais prennent fin si, avant leur expiration, le crédit preneur lève l'option d'achat. Celle-ci ne peut être levée si, sous déduction des remises acceptées, l'intégralité des sommes dues en vertu du contrat n'a pas été réglée.
Article L626-19
Le plan peut prévoir un choix pour les créanciers comportant un paiement dans des délais uniformes plus brefs mais assorti d'une réduction proportionnelle du montant de la créance.
La réduction de créance n'est définitivement acquise qu'après versement, au terme fixé, de la dernière échéance prévue par le plan pour son paiement.
Article L626-20
I. - Par dérogation aux dispositions des articles L. 626-18 et L. 626-19, ne peuvent faire l'objet de remises ou de délais :
1° Les créances garanties par le privilège établi aux articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail ;
2° Les créances résultant d'un contrat de travail garanties par les privilèges prévus au 4° de l'article 2101 et au 2° de l'article 2104 du code civil lorsque le montant de celles-ci n'a pas été avancé par les institutions mentionnées à l'article L. 143-11-4 du code du travail ou n'a pas fait l'objet d'une subrogation.
II. - Dans la limite de 5 % du passif estimé, les créances les plus faibles prises dans l'ordre croissant de leur montant et sans que chacune puisse excéder un montant fixé par décret, sont remboursées sans remise ni délai. Cette disposition ne s'applique pas lorsque le montant des créances détenues par une même personne excède un dixième du pourcentage ci-dessus fixé ou lorsqu'une subrogation a été consentie ou un paiement effectué pour autrui.
Article L626-21
L'inscription d'une créance au plan et l'octroi de délais ou remises par le créancier ne préjugent pas l'admission définitive de la créance au passif.
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Les sommes à répartir correspondant aux créances litigieuses ne sont versées qu'à compter de l'admission définitive de ces créances au passif. Toutefois, la juridiction saisie du litige peut décider que le créancier participera à titre provisionnel, en tout ou partie, aux répartitions faites avant l'admission définitive.
Sauf disposition législative contraire, les paiements prévus par le plan sont portables.
Le tribunal fixe les modalités du paiement des dividendes arrêtés par le plan. Les dividendes sont payés entre les mains du commissaire à l'exécution du plan, qui procède à leur répartition.
Article L626-22
En cas de vente d'un bien grevé d'un privilège spécial, d'un gage, d'un nantissement ou d'une hypothèque, la quote-part du prix correspondant aux créances garanties par ces sûretés est versée en compte de dépôt à la Caisse des dépôts et consignations et les créanciers bénéficiaires de ces sûretés ou titulaires d'un privilège général sont payés sur le prix après le paiement des créances garanties par le privilège établi aux articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail.
Ils reçoivent les dividendes à échoir d'après le plan, réduits en fonction du paiement anticipé, suivant l'ordre de préférence existant entre eux.
Si un bien est grevé d'un privilège, d'un gage, d'un nantissement ou d'une hypothèque, une autre garantie peut lui être substituée en cas de besoin, si elle présente des avantages équivalents. En l'absence d'accord, le tribunal peut ordonner cette substitution.
Article L626-23
En cas de cession partielle d'actifs, le prix est versé au débiteur sous réserve de l'application de l'article L. 626-22.
Article L626-24
Le tribunal peut charger l'administrateur d'effectuer les actes, nécessaires à la mise en oeuvre du plan, qu'il détermine.
Le mandataire judiciaire demeure en fonction pendant le temps nécessaire à la vérification et à l'établissement définitif de l'état des créances.
Lorsque la mission de l'administrateur et du mandataire judiciaire est achevée, il est mis fin à la procédure dans des conditions fixées par décret en Conseil d'Etat.
Article L626-25
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Le tribunal nomme, pour la durée fixée à l'article L. 626-12, l'administrateur ou le mandataire judiciaire en qualité de commissaire chargé de veiller à l'exécution du plan. Le tribunal peut, en cas de nécessité, nommer plusieurs commissaires.
Les actions introduites avant le jugement qui arrête le plan et auxquelles l'administrateur ou le mandataire judiciaire est partie sont poursuivies par le commissaire à l'exécution du plan ou, si celui-ci n'est plus en fonction, par un mandataire de justice désigné spécialement à cet effet par le tribunal.
Le commissaire à l'exécution du plan est également habilité à engager des actions dans l'intérêt collectif des créanciers.
Le commissaire à l'exécution du plan peut se faire communiquer tous les documents et informations utiles à sa mission.
Il rend compte au président du tribunal et au ministère public du défaut d'exécution du plan. Il en informe le comité d'entreprise ou, à défaut, les délégués du personnel.
Toute somme perçue par le commissaire à l'exécution du plan est immédiatement versée en compte de dépôt à la Caisse des dépôts et consignations. En cas de retard, le commissaire à l'exécution du plan doit, pour les sommes qu'il n'a pas versées, un intérêt dont le taux est égal au taux de l'intérêt légal majoré de cinq points.
Le commissaire à l'exécution du plan peut être remplacé par le tribunal, soit d'office, soit à la demande du ministère public. Lorsque le remplacement est demandé par le commissaire à l'exécution du plan, le président du tribunal statue par ordonnance.
Article L626-26
Une modification substantielle dans les objectifs ou les moyens du plan ne peut être décidée que par le tribunal, à la demande du débiteur et sur le rapport du commissaire à l'exécution du plan.
L'article L. 626-6 est applicable.
Le tribunal statue après avoir recueilli l'avis du ministère public et avoir entendu ou dûment appelé le débiteur, le commissaire à l'exécution du plan, les contrôleurs, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel et toute personne intéressée.
Article L626-27
I.-En cas de défaut de paiement des dividendes par le débiteur, le commissaire à l'exécution du plan procède à leur recouvrement conformément aux dispositions arrêtées. Il y est seul habilité. Le tribunal qui a arrêté le plan peut, après avis du ministère public, en décider la résolution si le débiteur n'exécute pas ses engagements dans les délais fixés par le plan. Lorsque la cessation des paiements du débiteur est constatée au cours de l'exécution du plan, le tribunal qui a arrêté ce dernier décide, après avis du ministère public, sa résolution et ouvre une procédure de redressement judiciaire ou, si le redressement est manifestement impossible, une procédure de liquidation judiciaire. Le jugement qui prononce la résolution du plan met fin aux opérations et à la procédure
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lorsque celle-ci est toujours en cours. Sous réserve des dispositions du deuxième alinéa de l'article L. 626-19, il fait recouvrer aux créanciers l'intégralité de leurs créances et sûretés, déduction faite des sommes perçues, et emporte déchéance de tout délai de paiement accordé.
II.-Dans les cas mentionnés aux deuxième et troisième alinéas du I, le tribunal est saisi par un créancier, le commissaire à l'exécution du plan ou le ministère public. Il peut également se saisir d'office.
III.-Après résolution du plan et ouverture de la nouvelle procédure, les créanciers soumis à ce plan sont dispensés de déclarer leurs créances et sûretés. Les créances inscrites à ce plan sont admises de plein droit, déduction faite des sommes déjà perçues.
Article L626-28
Quand il est établi que les engagements énoncés dans le plan ou décidés par le tribunal ont été tenus, celui-ci, à la requête du commissaire à l'exécution du plan, du débiteur ou de tout intéressé, constate que l'exécution du plan est achevée.
Section 3 : Des comités de créanciers.
Article L626-29
Les débiteurs dont les comptes ont été certifiés par un commissaire aux comptes ou établis par un expert-comptable et dont le nombre de salariés ou le chiffre d'affaires sont supérieurs à des seuils fixés par décret en Conseil d'Etat sont soumis aux dispositions de la présente section. Les autres dispositions du présent chapitre qui ne lui sont pas contraires sont également applicables.
A la demande du débiteur ou de l'administrateur, le juge-commissaire peut autoriser qu'il en soit également fait application en deçà de ce seuil.
Article L626-30
Les établissements de crédit et ceux assimilés, tels que définis par décret en Conseil d'Etat ainsi que les principaux fournisseurs de biens ou de services, sont constitués en deux comités de créanciers par l'administrateur judiciaire. La composition des comités est déterminée au vu des créances nées antérieurement au jugement d'ouverture de la procédure. Les établissements de crédit et ceux assimilés, ainsi que tous les titulaires d'une créance acquise auprès de ceux-ci ou d'un fournisseur de biens ou de services, sont membres de droit du comité des établissements de crédit. A l'exclusion des collectivités territoriales et de leurs établissements publics, chaque fournisseur de biens ou de services est membre de droit du comité des principaux fournisseurs lorsque sa créance représente plus de 3 % du total des créances des fournisseurs. Les autres fournisseurs, sollicités par l'administrateur, peuvent en être membres. Pour l'application des dispositions qui précèdent aux créanciers bénéficiaires d'une fiducie constituée à titre de garantie par le débiteur, sont seules prises en compte, lorsqu'elles existent, celles de leurs créances non assorties d'une telle sûreté.
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Article L626-30-1
L'obligation ou, le cas échéant, la faculté de faire partie d'un comité constitue un accessoire de la créance née antérieurement au jugement d'ouverture de la procédure et se transmet de plein droit à ses titulaires successifs nonobstant toute clause contraire.
L'appartenance au comité des établissements de crédit ou au comité des principaux fournisseurs de biens ou de services est déterminée conformément aux deuxième et troisième alinéas de l'article L. 626-30.
Le titulaire de la créance transférée n'est informé des propositions du débiteur et admis à exprimer un vote qu'à compter du jour où le transfert a été porté à la connaissance de l'administrateur selon des modalités prévues par décret en Conseil d'Etat.
Le créancier dont la créance est éteinte ou transmise perd la qualité de membre.
Article L626-30-2
Le débiteur, avec le concours de l'administrateur, présente aux comités de créanciers des propositions en vue d'élaborer le projet de plan mentionné à l'article L. 626-2. Tout créancier membre d'un comité peut également soumettre de telles propositions au débiteur et à l'administrateur.
Le projet de plan proposé aux comités n'est soumis ni aux dispositions de l'article L. 626-12 ni à celles des deuxième et troisième alinéas de l'article L. 626-18. Il peut notamment prévoir des délais de paiement, des remises et, lorsque le débiteur est une société par actions dont tous les actionnaires ne supportent les pertes qu'à concurrence de leurs apports, des conversions de créances en titres donnant ou pouvant donner accès au capital. Il peut établir un traitement différencié entre les créanciers si les différences de situation le justifient.
Après discussion avec le débiteur et l'administrateur, les comités se prononcent sur ce projet, le cas échéant modifié, dans un délai de vingt à trente jours suivant la transmission des propositions du débiteur.A la demande du débiteur ou de l'administrateur, le juge-commissaire peut augmenter ou réduire ce délai, qui ne peut toutefois être inférieur à quinze jours.
La décision est prise par chaque comité à la majorité des deux tiers du montant des créances détenues par les membres ayant exprimé un vote, tel qu'il a été indiqué par le débiteur et certifié par son ou ses commissaire aux comptes ou, lorsqu'il n'en a pas été désigné, établi par son expert-comptable. Pour les créanciers bénéficiaires d'une fiducie constituée à titre de garantie par le débiteur, sont seuls pris en compte les montants de leurs créances non assorties d'une telle sûreté.
Article L626-31
Lorsque le projet de plan a été adopté par chacun des comités conformément aux dispositions de l'article L. 626-30-2 et, le cas échéant, par l'assemblée des obligataires dans les conditions prévues
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par l'article L. 626-32, le tribunal s'assure que les intérêts de tous les créanciers sont suffisamment protégés et, s'il y a lieu, que l'approbation de l'assemblée ou des assemblées mentionnées à l'article L. 626-3 a été obtenue dans les conditions prévues audit article. Dans ce cas, le tribunal arrête le plan conformément au projet adopté et selon les modalités prévues à la section 2 du présent chapitre. Sa décision rend applicables à tous leurs membres les propositions acceptées par chacun des comités.
Par dérogation aux dispositions de l'article L. 626-26, une modification substantielle dans les objectifs ou les moyens du plan arrêté par le tribunal en application du premier alinéa ne peut intervenir que selon les modalités prévues par la présente section.
Article L626-32
Lorsqu'il existe des obligataires, une assemblée générale constituée de l'ensemble des créanciers titulaires d'obligations émises en France ou à l'étranger est convoquée dans des conditions définies par décret en Conseil d'Etat, afin de délibérer sur le projet de plan adopté par les comités de créanciers. La délibération peut notamment porter sur des délais de paiement, un abandon total ou partiel des créances obligataires et, lorsque le débiteur est une société par actions dont tous les actionnaires ne supportent les pertes qu'à concurrence de leurs apports, des conversions de créances en titres donnant ou pouvant donner accès au capital. Le projet de plan peut établir un traitement différencié entre les créanciers obligataires si les différences de situation le justifient. La décision est prise à la majorité des deux tiers du montant des créances obligataires détenues par les porteurs ayant exprimé leur vote, nonobstant toute clause contraire et indépendamment de la loi applicable au contrat d'émission.
Article L626-33
Les créanciers qui ne sont pas membres des comités institués en application de l'article L. 626-30, et pour leurs créances assorties de cette sûreté, les créanciers bénéficiaires d'une fiducie constituée à titre de garantie par le débiteur sont consultés selon les dispositions des articles L. 626-5 à L. 626-6.
Les dispositions du plan relatives aux créanciers qui ne sont pas membres des comités institués en application de l'article L. 626-30 sont arrêtées selon les dispositions des articles L. 626-12 et L. 626-18 à L. 626-20.
Article L626-34
Lorsque l'un ou l'autre des comités et, le cas échéant, l'assemblée des obligataires ne se sont pas prononcés sur un projet de plan dans un délai de six mois à compter du jugement d'ouverture de la procédure, que l'un d'eux a refusé les propositions faites par le débiteur ou que le tribunal n'a pas arrêté le plan en application de l'article L. 626-31, la procédure est reprise pour préparer un plan dans les conditions prévues aux articles L. 626-5 à L. 626-7 afin qu'il soit arrêté selon les dispositions des articles L. 626-12 et L. 626-18 à L. 626-20.
Article L626-34-1
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Le tribunal statue dans un même jugement sur les contestations relatives à l'application des articles L. 626-30 à L. 626-32 et sur l'arrêté ou la modification du plan.
Les créanciers ne peuvent former une contestation qu'à l'encontre de la décision du comité ou de l'assemblée dont ils sont membres.
Article L626-35
Un décret en Conseil d'Etat détermine les conditions d'application de la présente section.
Chapitre VII : Dispositions particulières en l'absence d'administrateur judiciaire.
Article L627-1
Les dispositions du présent chapitre sont applicables lorsqu'il n'a pas été désigné d'administrateur judiciaire en application du quatrième alinéa de l'article L. 621-4. Les autres dispositions du présent titre sont applicables dans la mesure où elles ne sont pas contraires à celles du présent chapitre.
Article L627-2
Le débiteur exerce, après avis conforme du mandataire judiciaire, la faculté ouverte à l'administrateur de poursuivre des contrats en cours et de demander la résiliation du bail en application des articles L. 622-13 et L. 622-14. En cas de désaccord, le juge-commissaire est saisi par tout intéressé.
Article L627-3
Pendant la période d'observation, le débiteur établit un projet de plan avec l'assistance éventuelle d'un expert nommé par le tribunal. Il n'est pas dressé de bilan économique, social et environnemental.
Le débiteur communique au mandataire judiciaire et au juge-commissaire les propositions de règlement du passif prévues à l'article L. 626-5 et procède aux informations, consultations et communications prévues à l'article L. 626-8.
Pour l'application de l'article L. 626-3, l'assemblée générale extraordinaire ou l'assemblée des associés ainsi que, lorsque leur approbation est nécessaire, les assemblées spéciales mentionnées
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aux articles L. 225-99 et L. 228-35-6 ou les assemblées générales des masses visées à l'article L. 228-103 sont convoquées dans des conditions fixées par décret en Conseil d'Etat. Le juge-commissaire fixe le montant de l'augmentation du capital proposée à l'assemblée pour reconstituer les capitaux propres.
Article L627-4
Après le dépôt au greffe du projet de plan par le débiteur, le tribunal statue au vu du rapport du juge-commissaire.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
Titre III : Du redressement judiciaire.
Chapitre Ier : De l'ouverture et du déroulement du redressement judiciaire.
Article L631-1
Il est institué une procédure de redressement judiciaire ouverte à tout débiteur mentionné aux articles L. 631-2 ou L. 631-3 qui, dans l'impossibilité de faire face au passif exigible avec son actif disponible, est en cessation des paiements. Le débiteur qui établit que les réserves de crédit ou les moratoires dont il bénéficie de la part de ses créanciers lui permettent de faire face au passif exigible avec son actif disponible n'est pas en cessation des paiements.
La procédure de redressement judiciaire est destinée à permettre la poursuite de l'activité de l'entreprise, le maintien de l'emploi et l'apurement du passif. Elle donne lieu à un plan arrêté par jugement à l'issue d'une période d'observation et, le cas échéant, à la constitution de deux comités de créanciers, conformément aux dispositions des articles L. 626-29 et L. 626-30.
Article L631-2
La procédure de redressement judiciaire est applicable à toute personne exerçant une activité commerciale ou artisanale, à tout agriculteur, à toute autre personne physique exerçant une activité professionnelle indépendante y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, ainsi qu'à toute personne morale de droit privé.
Il ne peut être ouvert de nouvelle procédure de redressement judiciaire à l'égard d'une personne soumise à une telle procédure, à une procédure de sauvegarde ou à une procédure de liquidation judiciaire, tant qu'il n'a pas été mis fin aux opérations du plan qui en résulte ou que la procédure de liquidation n'a pas été clôturée.
Article L631-3
La procédure de redressement judiciaire est également applicable aux personnes mentionnées au
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premier alinéa de l'article L. 631-2 après la cessation de leur activité professionnelle si tout ou partie de leur passif provient de cette dernière.
Lorsqu'une personne exerçant une activité commerciale ou artisanale, un agriculteur ou toute autre personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, est décédé en cessation des paiements, le tribunal peut être saisi, dans le délai d'un an à compter de la date du décès, sur l'assignation d'un créancier, quelle que soit la nature de sa créance, ou sur requête du ministère public. Le tribunal peut également se saisir d'office dans le même délai et peut être saisi sans condition de délai par tout héritier du débiteur.
Article L631-4
L'ouverture de cette procédure doit être demandée par le débiteur au plus tard dans les quarante-cinq jours qui suivent la cessation des paiements s'il n'a pas, dans ce délai, demandé l'ouverture d'une procédure de conciliation.
En cas d'échec de la procédure de conciliation, lorsqu'il ressort du rapport du conciliateur que le débiteur est en cessation des paiements, le tribunal, d'office, se saisit afin de statuer sur l'ouverture d'une procédure de redressement judiciaire.
Article L631-5
Lorsqu'il n'y a pas de procédure de conciliation en cours, le tribunal peut également se saisir d'office ou être saisi sur requête du ministère public aux fins d'ouverture de la procédure de redressement judiciaire.
Sous cette même réserve, la procédure peut aussi être ouverte sur l'assignation d'un créancier, quelle que soit la nature de sa créance. Toutefois, lorsque le débiteur a cessé son activité professionnelle, cette assignation doit intervenir dans le délai d'un an à compter de :
1° La radiation du registre du commerce et des sociétés.S'il s'agit d'une personne morale, le délai court à compter de la radiation consécutive à la publication de la clôture des opérations de liquidation ;
2° La cessation de l'activité, s'il s'agit d'une personne exerçant une activité artisanale, d'un agriculteur ou d'une personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé ;
3° La publication de l'achèvement de la liquidation, s'il s'agit d'une personne morale non soumise à l'immatriculation.
En outre, la procédure ne peut être ouverte à l'égard d'un débiteur exerçant une activité agricole qui n'est pas constitué sous la forme d'une société commerciale que si le président du tribunal de grande
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instance a été saisi, préalablement à l'assignation, d'une demande tendant à la désignation d'un conciliateur présentée en application de l'article L. 351-2 du code rural.
Article L631-6
Le comité d'entreprise ou, à défaut, les délégués du personnel peuvent communiquer au président du tribunal ou au ministère public tout fait révélant la cessation des paiements du débiteur.
Article L631-7
Les articles L. 621-1, L. 621-2 et L. 621-3 sont applicables à la procédure de redressement judiciaire.
Article L631-8
Le tribunal fixe la date de cessation des paiements.A défaut de détermination de cette date, la cessation des paiements est réputée être intervenue à la date du jugement d'ouverture de la procédure.
Elle peut être reportée une ou plusieurs fois, sans pouvoir être antérieure de plus de dix-huit mois à la date du jugement d'ouverture de la procédure. Sauf cas de fraude, elle ne peut être reportée à une date antérieure à la décision définitive ayant homologué un accord amiable en application du II de l'article L. 611-8.
Le tribunal est saisi par l'administrateur, le mandataire judiciaire ou le ministère public. Il se prononce après avoir entendu ou dûment appelé le débiteur.
La demande de modification de date doit être présentée au tribunal dans le délai d'un an à compter du jugement d'ouverture de la procédure. Lorsqu'il a été fait application de l'article L. 621-12, le jugement d'ouverture mentionné aux premier et deuxième alinéas est celui de la procédure de sauvegarde et le point de départ du délai mentionné au quatrième alinéa est le jour du jugement ayant converti la procédure de sauvegarde.
Article L631-9
L'article L. 621-4, à l'exception de la première phrase du cinquième alinéa et du sixième alinéa, ainsi que les articles L. 621-5 à L. 621-11 sont applicables à la procédure de redressement judiciaire. Le tribunal peut se saisir d'office aux fins mentionnées aux troisième et quatrième alinéas de l'article L. 621-4.
Le ministère public peut proposer des mandataires de justice à la désignation du tribunal. Le rejet de cette proposition doit être spécialement motivé.
Aux fins de réaliser l'inventaire prévu à l'article L. 622-6 et la prisée des actifs du débiteur, le
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tribunal désigne, en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables, un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté.
Article L631-10
A compter du jugement d'ouverture, les parts sociales, titres de capital ou valeurs mobilières donnant accès au capital de la personne morale qui a fait l'objet du jugement d'ouverture et qui sont détenus, directement ou indirectement par les dirigeants de droit ou de fait, rémunérés ou non, ne peuvent être cédés, à peine de nullité, que dans les conditions fixées par le tribunal.
Les titres de capital ou valeurs mobilières donnant accès au capital sont virés à un compte spécial bloqué, ouvert par l'administrateur au nom du titulaire et tenu par la société ou l'intermédiaire financier selon le cas. Aucun mouvement ne peut être effectué sur ce compte sans l'autorisation du juge-commissaire.
L'administrateur fait, le cas échéant, mentionner sur les registres de la personne morale l'incessibilité des parts détenues directement ou indirectement par les dirigeants.
Article L631-11
Le juge-commissaire fixe la rémunération afférente aux fonctions exercées par le débiteur s'il est une personne physique ou les dirigeants de la personne morale.
En l'absence de rémunération, les personnes mentionnées à l'alinéa précédent peuvent obtenir sur l'actif, pour eux et leur famille, des subsides fixés par le juge-commissaire.
Article L631-12
Outre les pouvoirs qui leur sont conférés par le présent titre, la mission du ou des administrateurs est fixée par le tribunal.
Ce dernier les charge ensemble ou séparément d'assister le débiteur pour tous les actes relatifs à la gestion ou certains d'entre eux, ou d'assurer seuls, entièrement ou en partie, l'administration de l'entreprise. Lorsque le ou les administrateurs sont chargés d'assurer seuls et entièrement l'administration de l'entreprise et que chacun des seuils mentionnés au quatrième alinéa de l'article L. 621-4 est atteint, le tribunal désigne un ou plusieurs experts aux fins de les assister dans leur mission de gestion. Dans les autres cas, il a la faculté de les désigner. Le président du tribunal arrête la rémunération de ces experts, mise à la charge de la procédure.
Dans sa mission, l'administrateur est tenu au respect des obligations légales et conventionnelles incombant au débiteur.
A tout moment, le tribunal peut modifier la mission de l'administrateur sur la demande de celui-ci, du mandataire judiciaire, du ministère public ou d'office.
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L'administrateur fait fonctionner, sous sa signature, les comptes bancaires ou postaux dont le débiteur est titulaire quand ce dernier a fait l'objet des interdictions prévues aux articles L. 131-72 ou L. 163-6 du code monétaire et financier.
Article L631-13
Dès l'ouverture de la procédure, les tiers sont admis à soumettre à l'administrateur des offres tendant au maintien de l'activité de l'entreprise, par une cession totale ou partielle de celle-ci selon les dispositions de la section 1 du chapitre II du titre IV.
Article L631-14
Les articles L. 622-3 à L. 622-9, à l'exception de l'article L. 622-6-1, et L. 622-13 à L. 622-33 sont applicables à la procédure de redressement judiciaire, sous réserve des dispositions qui suivent.
Il est réalisé une prisée des actifs du débiteur concomitamment à l'inventaire prévu à l'article L. 622-6.
Lorsque l'administrateur a une mission de représentation, il exerce les prérogatives conférées au débiteur par le II de l'article L. 622-7 et par le troisième alinéa de l'article L. 622-8. En cas de mission d'assistance, il les exerce concurremment avec le débiteur.
Lorsque la procédure de redressement judiciaire a été ouverte en application du troisième alinéa de l'article L. 626-27 et que le débiteur a transféré des biens ou droits dans un patrimoine fiduciaire avant l'ouverture de la procédure de sauvegarde ayant donné lieu au plan résolu, la convention en exécution de laquelle celui-ci conserve l'usage ou la jouissance de ces biens ou droits n'est pas soumise aux dispositions de l'article L. 622-13 et les dispositions de l'article L. 622-23-1 ne sont pas applicables.
Pour l'application de l'article L. 622-23, l'administrateur doit également être mis en cause lorsqu'il a une mission de représentation.
Les personnes coobligées ou ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie ne bénéficient pas de l'inopposabilité prévue au deuxième alinéa de l'article L. 622-26 et ne peuvent se prévaloir des dispositions prévues au premier alinéa de l'article L. 622-28.
Article L631-15
I.-Au plus tard au terme d'un délai de deux mois à compter du jugement d'ouverture, le tribunal ordonne la poursuite de la période d'observation s'il lui apparaît que le débiteur dispose à cette fin de capacités de financement suffisantes. Toutefois, lorsque le débiteur exerce une activité agricole, ce délai peut être modifié en fonction de l'année culturale en cours et des usages spécifiques aux productions de cette exploitation.
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Le tribunal se prononce au vu d'un rapport, établi par l'administrateur ou, lorsqu'il n'en a pas été désigné, par le débiteur.
II.-A tout moment de la période d'observation, le tribunal, à la demande du débiteur, de l'administrateur, du mandataire judiciaire, d'un contrôleur, du ministère public ou d'office, peut ordonner la cessation partielle de l'activité ou prononce la liquidation judiciaire si le redressement est manifestement impossible.
Il statue après avoir entendu ou dûment appelé le débiteur, l'administrateur, le mandataire judiciaire, les contrôleurs et les représentants du comité d'entreprise ou, à défaut, des délégués du personnel, et avoir recueilli l'avis du ministère public.
Lorsque le tribunal prononce la liquidation, il met fin à la période d'observation et, sous réserve des dispositions de l'article L. 641-10, à la mission de l'administrateur.
Article L631-16
S'il apparaît, au cours de la période d'observation, que le débiteur dispose des sommes suffisantes pour désintéresser les créanciers et acquitter les frais et les dettes afférents à la procédure, le tribunal peut mettre fin à celle-ci.
Il statue à la demande du débiteur, dans les conditions prévues au deuxième alinéa du II de l'article L. 631-15.
Article L631-17
Lorsque des licenciements pour motif économique présentent un caractère urgent, inévitable et indispensable pendant la période d'observation, l'administrateur peut être autorisé par le juge-commissaire à procéder à ces licenciements.
Préalablement à la saisine du juge-commissaire, l'administrateur consulte le comité d'entreprise ou, à défaut, les délégués du personnel dans les conditions prévues à l'article L. 321-9 du code du travail et informe l'autorité administrative compétente mentionnée à l'article L. 321-8 du même code. Il joint, à l'appui de la demande qu'il adresse au juge-commissaire, l'avis recueilli et les justifications de ses diligences en vue de faciliter l'indemnisation et le reclassement des salariés.
Article L631-18
Les dispositions des chapitres III, IV et V du titre II du présent livre sont applicables à la procédure de redressement judiciaire, sous réserve des dispositions qui suivent.
Pour l'application du quatrième alinéa de l'article L. 623-3, la consultation porte sur les mesures que l'administrateur envisage de proposer et le débiteur est également consulté.
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Le recours prévu au premier alinéa de l'article L. 624-3 est également ouvert à l'administrateur, lorsque celui-ci a pour mission d'assurer l'administration de l'entreprise.
Pour l'application de l'article L. 625-1, le mandataire judiciaire cité devant le conseil de prud'hommes ou, à défaut, le demandeur appelle devant la juridiction prud'homale les institutions mentionnées à l'article L. 3253-14 du code du travail.L'administrateur est seul mis en cause lorsqu'il a pour mission d'assurer l'administration de l'entreprise.
Pour l'application de l'article L. 625-3, les institutions mentionnées à l'article L. 3253-14 du code du travail sont mises en cause par le mandataire judiciaire ou, à défaut, par les salariés requérants, dans les dix jours du jugement d'ouverture de la procédure de redressement judiciaire ou du jugement convertissant une procédure de sauvegarde en procédure de redressement. Les instances en cours devant la juridiction prud'homale à la date du jugement d'ouverture sont poursuivies en présence du mandataire judiciaire et de l'administrateur ou ceux-ci dûment appelés.
Pour l'application de l'article L. 625-4, outre le mandataire judiciaire, l'administrateur est seul mis en cause lorsqu'il a pour mission d'assurer l'administration de l'entreprise.
L'administrateur est seul tenu des obligations prévues à l'article L. 625-8 lorsqu'il a pour mission d'assurer l'administration de l'entreprise.
Article L631-19
I.-Les dispositions du chapitre VI du titre II sont applicables au plan de redressement, sous réserve des dispositions qui suivent.
Il incombe à l'administrateur, avec le concours du débiteur, d'élaborer le projet de plan et, le cas échéant, de présenter aux comités de créanciers les propositions prévues au premier alinéa de l'article L. 626-30-2. Pour l'application du premier alinéa de l'article L. 626-8, l'information et la consultation portent sur les mesures que l'administrateur envisage de proposer.
II.-Lorsque le plan prévoit des licenciements pour motif économique, il ne peut être arrêté par le tribunal qu'après que le comité d'entreprise ou, à défaut, les délégués du personnel ont été consultés dans les conditions prévues à l'article L. 321-9 du code du travail et que l'autorité administrative compétente mentionnée à l'article L. 321-8 du même code a été informée.
Le plan précise notamment les licenciements qui doivent intervenir dans le délai d'un mois après le jugement. Dans ce délai, ces licenciements interviennent sur simple notification de l'administrateur, sous réserve des droits de préavis prévus par la loi, les conventions ou accords collectifs du travail.
Lorsque le licenciement concerne un salarié bénéficiant d'une protection particulière en matière de licenciement, ce délai d'un mois après le jugement est celui dans lequel l'intention de rompre doit être manifestée.
Article L631-19-1
Lorsque le redressement de l'entreprise le requiert, le tribunal, sur la demande du ministère public, peut subordonner l'adoption du plan au remplacement d'un ou plusieurs dirigeants de l'entreprise.
A cette fin et dans les mêmes conditions, le tribunal peut prononcer l'incessibilité des parts sociales,
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titres de capital ou valeurs mobilières donnant accès au capital, détenus par un ou plusieurs dirigeants de droit ou de fait et décider que le droit de vote y attaché sera exercé, pour une durée qu'il fixe, par un mandataire de justice désigné à cet effet. De même, il peut ordonner la cession de ces parts sociales, titres de capital ou valeurs mobilières donnant accès au capital détenu par ces mêmes personnes, le prix de cession étant fixé à dire d'expert.
Le tribunal statue après avoir entendu ou dûment appelé les dirigeants et les représentants du comité d'entreprise ou, à défaut, des délégués du personnel.
Les dispositions du présent article ne sont pas applicables lorsque le débiteur exerce une activité professionnelle libérale soumise à un statut législatif ou réglementaire.
Article L631-20
Par dérogation aux dispositions de l'article L. 626-11, les coobligés et les personnes ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie ne peuvent se prévaloir des dispositions du plan.
Article L631-20-1
Par dérogation aux dispositions du troisième alinéa de l'article L. 626-27, lorsque la cessation des paiements du débiteur est constatée au cours de l'exécution du plan, le tribunal qui a arrêté ce dernier décide, après avis du ministère public, sa résolution et ouvre une procédure de liquidation judiciaire.
Article L631-21
Les dispositions du chapitre VII du titre II sont applicables au plan de redressement.
Pendant la période d'observation, l'activité est poursuivie par le débiteur qui exerce les prérogatives dévolues à l'administrateur par l'article L. 631-17 et procède aux notifications prévues au second alinéa du II de l'article L. 631-19.
Le mandataire judiciaire exerce les fonctions dévolues à l'administrateur par les deuxième et troisième alinéas de l'article L. 631-10.
Article L631-21-1
Lorsque le tribunal estime que la cession totale ou partielle de l'entreprise est envisageable, il désigne un administrateur, s'il n'en a pas déjà été nommé un, aux fins de procéder à tous les actes nécessaires à la préparation de cette cession et, le cas échéant, à sa réalisation.
Article L631-22
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A la demande de l'administrateur, le tribunal peut ordonner la cession totale ou partielle de l'entreprise si le débiteur est dans l'impossibilité d'en assurer lui-même le redressement. Les dispositions de la section 1 du chapitre II du titre IV, à l'exception du I de l'article L. 642-2, et l'article L. 642-22 sont applicables à cette cession. Le mandataire judiciaire exerce les missions dévolues au liquidateur.
L'administrateur reste en fonction pour passer tous les actes nécessaires à la réalisation de la cession.
Lorsque la cession totale ou partielle a été ordonnée en application du premier alinéa, la procédure est poursuivie dans les limites prévues par l'article L. 621-3. Si l'arrêté d'un plan de redressement ne peut être obtenu, le tribunal prononce la liquidation judiciaire et met fin à la période d'observation ainsi qu'à la mission de l'administrateur, sous réserve des dispositions de l'article L. 641-10. Les biens non compris dans le plan de cession sont alors cédés dans les conditions de la section 2 du chapitre II du livre IV.
Chapitre II : De la nullité de certains actes.
Article L632-1
I. - Sont nuls, lorsqu'ils sont intervenus depuis la date de cessation des paiements, les actes suivants :
1° Tous les actes à titre gratuit translatifs de propriété mobilière ou immobilière ;
2° Tout contrat commutatif dans lequel les obligations du débiteur excèdent notablement celles de l'autre partie ;
3° Tout paiement, quel qu'en ait été le mode, pour dettes non échues au jour du paiement ;
4° Tout paiement pour dettes échues, fait autrement qu'en espèces, effets de commerce, virements, bordereaux de cession visés par la loi n° 81-1 du 2 janvier 1981 facilitant le crédit aux entreprises ou tout autre mode de paiement communément admis dans les relations d'affaires ;
5° Tout dépôt et toute consignation de sommes effectués en application de l'article 2075-1 du code civil (1), à défaut d'une décision de justice ayant acquis force de chose jugée ;
6° Toute hypothèque conventionnelle, toute hypothèque judiciaire ainsi que l'hypothèque légale des époux et tout droit de nantissement ou de gage constitués sur les biens du débiteur pour dettes antérieurement contractées ;
7° Toute mesure conservatoire, à moins que l'inscription ou l'acte de saisie ne soit antérieur à la date de cessation de paiement ;
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8° Toute autorisation et levée d'options définies aux articles L. 225-177 et suivants du présent code ;
9° Tout transfert de biens ou de droits dans un patrimoine fiduciaire, à moins que ce transfert ne soit intervenu à titre de garantie d'une dette concomitamment contractée ;
10° Tout avenant à un contrat de fiducie affectant des droits ou biens déjà transférés dans un patrimoine fiduciaire à la garantie de dettes contractées antérieurement à cet avenant.
II. - Le tribunal peut, en outre, annuler les actes à titre gratuit visés au 1° du I faits dans les six mois précédant la date de cessation des paiements.
Article L632-2
Les paiements pour dettes échues effectués à compter de la date de cessation des paiements et les actes à titre onéreux accomplis à compter de cette même date peuvent être annulés si ceux qui ont traité avec le débiteur ont eu connaissance de la cessation des paiements.
Tout avis à tiers détenteur, toute saisie attribution ou toute opposition peut également être annulé lorsqu'il a été délivré ou pratiqué par un créancier à compter de la date de cessation des paiements et en connaissance de celle-ci.
Article L632-3
Les dispositions des articles L. 632-1 et L. 632-2 ne portent pas atteinte à la validité du paiement d'une lettre de change, d'un billet à ordre ou d'un chèque.
Toutefois, l'administrateur ou le mandataire judiciaire peut exercer une action en rapport contre le tireur de la lettre de change ou, dans le cas de tirage pour compte, contre le donneur d'ordre, ainsi que contre le bénéficiaire d'un chèque et le premier endosseur d'un billet à ordre, s'il est établi qu'ils avaient connaissance de la cessation des paiements.
Article L632-4
L'action en nullité est exercée par l'administrateur, le mandataire judiciaire, le commissaire à l'exécution du plan ou le ministère public. Elle a pour effet de reconstituer l'actif du débiteur.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE IV : De la liquidation judiciaire.
Chapitre préliminaire : Des conditions d'ouverture de la liquidation judiciaire.
Article L640-1
Il est institué une procédure de liquidation judiciaire ouverte à tout débiteur mentionné à l'article L. 640-2 en cessation des paiements et dont le redressement est manifestement impossible.
La procédure de liquidation judiciaire est destinée à mettre fin à l'activité de l'entreprise ou à réaliser le patrimoine du débiteur par une cession globale ou séparée de ses droits et de ses biens.
Article L640-2
La procédure de liquidation judiciaire est applicable à toute personne exerçant une activité commerciale ou artisanale, à tout agriculteur, à toute autre personne physique exerçant une activité professionnelle indépendante y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, ainsi qu'à toute personne morale de droit privé.
Il ne peut être ouvert de nouvelle procédure de liquidation judiciaire à l'égard d'une personne soumise à une telle procédure tant que celle-ci n'a pas été clôturée ou à une procédure de sauvegarde ou de redressement judiciaire, tant qu'il n'a pas été mis fin aux opérations du plan qui en résulte.
Article L640-3
La procédure de liquidation judiciaire est également ouverte aux personnes mentionnées au premier alinéa de l'article L. 640-2 après la cessation de leur activité professionnelle, si tout ou partie de leur passif provient de cette dernière.
Lorsqu'une personne exerçant une activité commerciale ou artisanale, un agriculteur ou toute autre personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, est décédé en cessation des paiements, le tribunal peut être saisi, dans le délai d'un an à compter de la date du
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décès, sur l'assignation d'un créancier, quelle que soit la nature de sa créance, ou sur requête du ministère public. Le tribunal peut également se saisir d'office dans le même délai. Il peut être saisi sans condition de délai par tout héritier du débiteur.
Article L640-4
L'ouverture de cette procédure doit être demandée par le débiteur au plus tard dans les quarante-cinq jours qui suivent la cessation des paiements, s'il n'a pas dans ce délai demandé l'ouverture d'une procédure de conciliation.
En cas d'échec de la procédure de conciliation, si le tribunal, statuant en application du second alinéa de l'article L. 631-4, constate que les conditions mentionnées à l'article L. 640-1 sont réunies, il ouvre une procédure de liquidation judiciaire.
Article L640-5
Lorsqu'il n'y a pas de procédure de conciliation en cours, le tribunal peut également se saisir d'office ou être saisi sur requête du ministère public aux fins d'ouverture de la procédure de liquidation judiciaire.
Sous cette même réserve, la procédure peut aussi être ouverte sur l'assignation d'un créancier, quelle que soit la nature de sa créance. Toutefois, lorsque le débiteur a cessé son activité professionnelle, cette assignation doit intervenir dans le délai d'un an à compter de :
1° La radiation du registre du commerce et des sociétés. S'il s'agit d'une personne morale, le délai court à compter de la radiation consécutive à la publication de la clôture des opérations de liquidation ;
2° La cessation de l'activité, s'il s'agit d'une personne exerçant une activité artisanale, d'un agriculteur ou d'une personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé ;
3° La publication de l'achèvement de la liquidation, s'il s'agit d'une personne morale non soumise à l'immatriculation.
En outre, la procédure ne peut être ouverte à l'égard d'un débiteur exerçant une activité agricole qui n'est pas constitué sous la forme d'une société commerciale que si le président du tribunal de grande instance a été saisi, préalablement à l'assignation, d'une demande tendant à la désignation d'un conciliateur présentée en application de l'article L. 351-2 du code rural.
Article L640-6
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Le comité d'entreprise ou, à défaut, les délégués du personnel peuvent communiquer au président du tribunal ou au ministère public tout fait révélant la cessation des paiements du débiteur.
Chapitre Ier : Du jugement de liquidation judiciaire.
Article L641-1
I.-Les articles L. 621-1 et L. 621-2 sont applicables à la procédure de liquidation judiciaire.
II.-Dans le jugement qui ouvre la liquidation judiciaire, le tribunal désigne le juge-commissaire. Il peut, en cas de nécessité, en désigner plusieurs. Dans le même jugement, sans préjudice de la possibilité de nommer un ou plusieurs experts en vue d'une mission qu'il détermine, le tribunal désigne, en qualité de liquidateur, un mandataire judiciaire inscrit ou une personne choisie sur le fondement du premier alinéa du II de l'article L. 812-2. Il peut, à la demande du ministère public ou d'office, en désigner plusieurs. Le ministère public peut proposer un liquidateur à la désignation du tribunal. Le rejet de cette proposition doit être spécialement motivé. Lorsque la procédure est ouverte à l'égard d'un débiteur qui bénéficie ou a bénéficié d'un mandat ad hoc ou d'une procédure de conciliation dans les dix-huit mois qui précèdent, le ministère public peut en outre s'opposer à ce que le mandataire ad hoc ou le conciliateur soit désigné en qualité de liquidateur. Un représentant des salariés est désigné dans les conditions prévues au deuxième alinéa de l'article L. 621-4 et à l'article L. 621-6. Il exerce la mission prévue à l'article L. 625-2. Les contrôleurs sont désignés et exercent leurs attributions dans les mêmes conditions que celles prévues au titre II. Aux fins de réaliser l'inventaire prévu par l'article L. 622-6 et la prisée de l'actif du débiteur, le tribunal désigne, en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables, un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté.
III.-Lorsque la liquidation judiciaire est prononcée au cours de la période d'observation d'une procédure de sauvegarde ou de redressement judiciaire, le tribunal nomme le mandataire judiciaire en qualité de liquidateur. Toutefois, le tribunal peut, par décision motivée, à la demande de l'administrateur, d'un créancier, du débiteur ou du ministère public, désigner en qualité de liquidateur une autre personne dans les conditions prévues à l'article L. 812-2.
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, la demande peut aussi être faite au tribunal par l'ordre professionnel ou l'autorité compétente dont, le cas échéant, il relève.
IV.-La date de cessation des paiements est fixée dans les conditions prévues à l'article L. 631-8.
Article L641-1-1
Le tribunal peut, soit d'office, soit sur proposition du juge-commissaire ou à la demande du ministère public, procéder au remplacement du liquidateur, de l'expert ou de l'administrateur s'il en a été désigné en application de l'article L. 641-10 ou encore adjoindre un ou plusieurs liquidateurs ou administrateurs à ceux déjà nommés.
Le liquidateur, l'administrateur ou un créancier nommé contrôleur peut demander au
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juge-commissaire de saisir à cette fin le tribunal.
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'ordre professionnel ou l'autorité compétente dont, le cas échéant, il relève peut saisir le ministère public à cette même fin.
Le débiteur peut demander au juge-commissaire de saisir le tribunal aux fins de remplacer l'expert. Dans les mêmes conditions, tout créancier peut demander le remplacement du liquidateur.
Par dérogation aux alinéas qui précèdent, lorsque le liquidateur ou l'administrateur demande son remplacement, le président du tribunal, saisi à cette fin par le juge-commissaire, est compétent pour y procéder. Il statue par ordonnance.
Le comité d'entreprise ou, à défaut, les délégués du personnel ou, à défaut, les salariés de l'entreprise peuvent seuls procéder au remplacement du représentant des salariés.
Article L641-2
Il est fait application de la procédure simplifiée prévue au chapitre IV du présent titre si l'actif du débiteur ne comprend pas de bien immobilier et si le nombre de ses salariés au cours des six mois précédant l'ouverture de la procédure ainsi que son chiffre d'affaires hors taxes sont égaux ou inférieurs à des seuils fixés par décret.
Si le tribunal dispose des éléments lui permettant de vérifier que les conditions mentionnées au premier alinéa sont réunies, il statue sur cette application dans le jugement de liquidation judiciaire. Dans le cas contraire, le président du tribunal statue au vu d'un rapport sur la situation du débiteur établi par le liquidateur dans le mois de sa désignation.
Article L641-2-1
En l'absence de bien immobilier et si le nombre des salariés du débiteur ainsi que son chiffre d'affaires hors taxes sont supérieurs aux seuils fixés en application de l'article L. 641-2 sans excéder des seuils fixés par décret, la procédure simplifiée prévue au chapitre IV du présent titre peut être ordonnée.
Si la liquidation judiciaire est prononcée au cours d'une période d'observation, le tribunal statue sur cette application dans le jugement de liquidation judiciaire. Dans le cas contraire, la décision est prise par le président du tribunal au vu d'un rapport sur la situation du débiteur établi par le liquidateur dans le mois de sa désignation.
Article L641-3
Le jugement qui ouvre la liquidation judiciaire a les mêmes effets que ceux qui sont prévus en cas de sauvegarde par les premier et troisième alinéas du I et par le III de l'article L. 622-7, par les
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articles L. 622-21 et L. 622-22, par la première phrase de l'article L. 622-28 et par l'article L. 622-30.
Le juge-commissaire peut autoriser le liquidateur ou l'administrateur lorsqu'il en a été désigné à payer des créances antérieures au jugement, pour retirer le gage ou la chose légitimement retenue ou encore, lorsque le paiement à intervenir est d'un montant inférieur à la valeur vénale du bien objet du contrat, pour lever l'option d'achat d'un contrat de crédit-bail.
Lorsque la liquidation judiciaire est ouverte ou prononcée à l'égard d'une personne morale, les dispositions prévues en matière d'arrêté et d'approbation des comptes annuels ne sont plus applicables sauf, le cas échéant, pendant le maintien provisoire de l'activité autorisé par le tribunal.
Les créanciers déclarent leurs créances au liquidateur selon les modalités prévues aux articles L. 622-24 à L. 622-27 et L. 622-31 à L. 622-33.
Article L641-4
Le liquidateur procède aux opérations de liquidation en même temps qu'à la vérification des créances. Il peut introduire ou poursuivre les actions qui relèvent de la compétence du mandataire judiciaire.
Il n'est pas procédé à la vérification des créances chirographaires s'il apparaît que le produit de la réalisation de l'actif sera entièrement absorbé par les frais de justice et les créances privilégiées, à moins que, s'agissant d'une personne morale, il n'y ait lieu de mettre à la charge des dirigeants sociaux de droit ou de fait tout ou partie du passif conformément à l'article L. 651-2.
Le liquidateur exerce les missions dévolues à l'administrateur et au mandataire judiciaire par les articles L. 622-6, L. 622-20, L. 622-22, L. 622-23, L. 624-17, L. 625-3, L. 625-4 et L. 625-8.
Les licenciements auxquels procède le liquidateur en application de la décision ouvrant ou prononçant la liquidation, le cas échéant au terme du maintien provisoire de l'activité autorisé par le tribunal, sont soumis aux dispositions des articles L. 321-8 et L. 321-9 du code du travail.
Article L641-5
Lorsque la liquidation judiciaire est prononcée au cours de la période d'observation d'une procédure de sauvegarde ou de redressement judiciaire, le liquidateur procède aux opérations de liquidation en même temps qu'il achève éventuellement la vérification des créances et qu'il établit l'ordre des créanciers. Il poursuit les actions introduites avant le jugement de liquidation, soit par l'administrateur, soit par le mandataire judiciaire, et peut introduire les actions qui relèvent de la compétence du mandataire judiciaire.
Article L641-6
Aucun conjoint ou partenaire lié par un pacte civil de solidarité, aucun parent ou allié jusqu'au
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quatrième degré inclusivement, du débiteur personne physique ou des dirigeants, s'il s'agit d'une personne morale, ne peut être désigné à l'une des fonctions prévues à l'article L. 641-1 ou L. 641-10, sauf dans les cas où cette disposition empêche la désignation d'un représentant des salariés.
Article L641-7
Le liquidateur tient informés, au moins tous les trois mois, le juge-commissaire, le débiteur et le ministère public du déroulement des opérations.
Le juge-commissaire et le ministère public peuvent à toute époque requérir communication de tous actes ou documents relatifs à la procédure.
Article L641-8
Toute somme reçue par le liquidateur dans l'exercice de ses fonctions est immédiatement versée en compte de dépôt à la Caisse des dépôts et consignations. En cas de retard, le liquidateur doit, pour les sommes qu'il n'a pas versées, un intérêt dont le taux est égal au taux de l'intérêt légal majoré de cinq points.
Toute somme versée par l'association mentionnée à l'article L. 3253-14 du code du travail en application des articles L. 3253-8 à L. 3253-13 du même code donne lieu à déclaration à l'administration fiscale par le liquidateur.
Article L641-9
I. - Le jugement qui ouvre ou prononce la liquidation judiciaire emporte de plein droit, à partir de sa date, dessaisissement pour le débiteur de l'administration et de la disposition de ses biens même de ceux qu'il a acquis à quelque titre que ce soit tant que la liquidation judiciaire n'est pas clôturée. Les droits et actions du débiteur concernant son patrimoine sont exercés pendant toute la durée de la liquidation judiciaire par le liquidateur.
Toutefois, le débiteur peut se constituer partie civile dans le but d'établir la culpabilité de l'auteur d'un crime ou d'un délit dont il serait victime.
Le débiteur accomplit également les actes et exerce les droits et actions qui ne sont pas compris dans la mission du liquidateur ou de l'administrateur lorsqu'il en a été désigné.
II. - Lorsque le débiteur est une personne morale, les dirigeants sociaux en fonction lors du prononcé du jugement de liquidation judiciaire le demeurent, sauf disposition contraire des statuts ou décision de l'assemblée générale. En cas de nécessité, un mandataire peut être désigné en leur lieu et place par ordonnance du président du tribunal sur requête de tout intéressé, du liquidateur ou du ministère public.
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Le siège social est réputé fixé au domicile du représentant légal de l'entreprise ou du mandataire désigné.
III. - Lorsque le débiteur est une personne physique, il ne peut exercer, au cours de la liquidation judiciaire, aucune des activités mentionnées au premier alinéa de l'article L. 640-2.
Article L641-10
Si la cession totale ou partielle de l'entreprise est envisageable ou si l'intérêt public ou celui des créanciers l'exige, le maintien de l'activité peut être autorisé par le tribunal pour une durée maximale fixée par décret en Conseil d'Etat. Elle peut être prolongée à la demande du ministère public pour une durée fixée par la même voie. Lorsqu'il s'agit d'une exploitation agricole, ce délai est fixé par le tribunal en fonction de l'année culturale en cours et des usages spécifiques aux productions concernées.
Le liquidateur administre l'entreprise.
Dans les conditions prévues à l'article L. 631-17, il peut procéder aux licenciements.
Le cas échéant, il prépare un plan de cession, passe les actes nécessaires à sa réalisation, en reçoit et en distribue le prix.
Toutefois, lorsque le nombre des salariés ou le chiffre d'affaires est supérieur ou égal à des seuils fixés par décret en Conseil d'Etat ou, en cas de nécessité, le tribunal désigne un administrateur judiciaire pour administrer l'entreprise. Dans ce cas, l'administrateur exerce les prérogatives conférées au liquidateur par les articles L. 641-11-1 et L. 641-12. Il prépare le plan de cession, passe les actes nécessaires à sa réalisation et, dans les conditions prévues à l'article L. 631-17, peut procéder aux licenciements.
Lorsque l'administrateur ne dispose pas des sommes nécessaires à la poursuite de l'activité, il peut, sur autorisation du juge-commissaire, se les faire remettre par le liquidateur.
Le liquidateur ou l'administrateur, lorsqu'il en a été désigné, exerce les fonctions conférées, selon le cas, à l'administrateur ou au mandataire judiciaire par les articles L. 622-4 et L. 624-6.
L'arrêté d'un plan de cession totale ou l'expiration du délai fixé en application du premier alinéa met fin au maintien de l'activité. Le tribunal peut également décider d'y mettre fin à tout moment si celui-ci n'est plus justifié.
Article L641-11
Le juge-commissaire exerce les compétences qui lui sont dévolues par les articles L. 621-9, L. 623-2 et L. 631-11 et par le quatrième alinéa de l'article L. 622-16. Lorsqu'il est empêché ou a cessé ses fonctions, il est remplacé dans les conditions prévues au troisième alinéa de l'article L. 621-9.
Les renseignements détenus par le ministère public lui sont communiqués selon les règles prévues au deuxième alinéa de l'article L. 621-8.
Le liquidateur et l'administrateur, lorsqu'il en a été désigné, reçoivent du juge-commissaire tous les
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renseignements utiles à l'accomplissement de leur mission.
Article L641-11-1
I. - Nonobstant toute disposition légale ou toute clause contractuelle, aucune indivisibilité, résiliation ou résolution d'un contrat en cours ne peut résulter du seul fait de l'ouverture ou du prononcé d'une liquidation judiciaire.
Le cocontractant doit remplir ses obligations malgré le défaut d'exécution par le débiteur d'engagements antérieurs au jugement d'ouverture. Le défaut d'exécution de ces engagements n'ouvre droit au profit des créanciers qu'à déclaration au passif.
II. - Le liquidateur a seul la faculté d'exiger l'exécution des contrats en cours en fournissant la prestation promise au cocontractant du débiteur.
Lorsque la prestation porte sur le paiement d'une somme d'argent, celui-ci doit se faire au comptant, sauf pour le liquidateur à obtenir l'acceptation, par le cocontractant du débiteur, de délais de paiement. Au vu des documents prévisionnels dont il dispose, le liquidateur s'assure, au moment où il demande l'exécution, qu'il disposera des fonds nécessaires à cet effet.S'il s'agit d'un contrat à exécution ou paiement échelonnés dans le temps, le liquidateur y met fin s'il lui apparaît qu'il ne disposera pas des fonds nécessaires pour remplir les obligations du terme suivant.
III. - Le contrat en cours est résilié de plein droit :
1° Après une mise en demeure de prendre parti sur la poursuite du contrat adressée par le cocontractant au liquidateur et restée plus d'un mois sans réponse. Avant l'expiration de ce délai, le juge-commissaire peut impartir au liquidateur un délai plus court ou lui accorder une prolongation, qui ne peut excéder deux mois, pour se prononcer ;
2° A défaut de paiement dans les conditions définies au II et d'accord du cocontractant pour poursuivre les relations contractuelles ;
3° Lorsque la prestation du débiteur porte sur le paiement d'une somme d'argent, au jour où le cocontractant est informé de la décision du liquidateur de ne pas poursuivre le contrat.
IV. - A la demande du liquidateur, lorsque la prestation du débiteur ne porte pas sur le paiement d'une somme d'argent, la résiliation est prononcée par le juge-commissaire si elle est nécessaire aux opérations de liquidation et ne porte pas une atteinte excessive aux intérêts du cocontractant.
V. - Si le liquidateur n'use pas de la faculté de poursuivre le contrat ou y met fin dans les conditions du II ou encore si la résiliation du contrat est prononcée en application du IV, l'inexécution peut donner lieu à des dommages et intérêts au profit du cocontractant, dont le montant doit être déclaré au passif. Le cocontractant peut néanmoins différer la restitution des sommes versées en excédent par le débiteur en exécution du contrat jusqu'à ce qu'il ait été statué sur les dommages et intérêts.
VI. - Les dispositions du présent article ne concernent pas les contrats de travail. Elles sont également inapplicables au contrat de fiducie et à la convention en exécution de laquelle le débiteur constituant conserve l'usage ou la jouissance de biens ou droits transférés dans un patrimoine fiduciaire.
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Article L641-12
Sans préjudice de l'application du I et du II de l'article L. 641-11-1, la résiliation du bail des immeubles affectés à l'activité de l'entreprise intervient dans les conditions suivantes : 1° Au jour où le bailleur est informé de la décision du liquidateur de ne pas continuer le bail ; 2° Lorsque le bailleur demande la résiliation judiciaire ou fait constater la résiliation de plein droit du bail pour des causes antérieures au jugement de liquidation judiciaire ou, lorsque ce dernier a été prononcé après une procédure de sauvegarde ou de redressement judiciaire, au jugement d'ouverture de la procédure qui l'a précédée. Il doit, s'il ne l'a déjà fait, introduire sa demande dans les trois mois de la publication du jugement de liquidation judiciaire ; 3° Le bailleur peut également demander la résiliation judiciaire ou faire constater la résiliation de plein droit du bail pour défaut de paiement des loyers et charges afférents à une occupation postérieure au jugement de liquidation judiciaire, dans les conditions prévues aux troisième à cinquième alinéas de l'article L. 622-14. Le liquidateur peut céder le bail dans les conditions prévues au contrat conclu avec le bailleur avec tous les droits et obligations qui s'y rattachent. En ce cas, toute clause imposant au cédant des dispositions solidaires avec le cessionnaire est réputée non écrite. Le privilège du bailleur est déterminé conformément aux trois premiers alinéas de l'article L. 622-16.
Article L641-12-1
Si le débiteur est constituant et seul bénéficiaire d'un contrat de fiducie, l'ouverture ou le prononcé d'une liquidation judiciaire à son égard entraîne la résiliation de plein droit de ce contrat et le retour dans son patrimoine des droits, biens ou sûretés présents dans le patrimoine fiduciaire.
Article L641-13
I.-Sont payées à leur échéance les créances nées régulièrement après le jugement qui ouvre ou prononce la liquidation judiciaire pour les besoins du déroulement de la procédure ou du maintien provisoire de l'activité autorisé en application de l'article L. 641-10 ou en contrepartie d'une prestation fournie au débiteur pendant ce maintien de l'activité. En cas de prononcé de la liquidation judiciaire, sont également payées à leur échéance, les créances nées régulièrement après le jugement d'ouverture de la procédure de sauvegarde ou de redressement judiciaire mentionnées au I de l'article L. 622-17.
II.-Lorsqu'elles ne sont pas payées à l'échéance, ces créances sont payées par privilège avant toutes les autres créances à l'exception de celles qui sont garanties par le privilège établi aux articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail, des frais de justice nés régulièrement après le jugement d'ouverture pour les besoins du déroulement de la procédure, de celles qui sont garanties par le privilège établi par l'article L. 611-11 du présent code et de celles qui sont garanties par des sûretés immobilières ou par des sûretés mobilières spéciales assorties d'un droit de rétention ou constituées en application du chapitre V du titre II du livre V.
III.-Leur paiement se fait dans l'ordre suivant :
1° Les créances de salaires dont le montant n'a pas été avancé en application des articles L. 143-11-1 à L. 143-11-3 du code du travail ;
2° Les prêts consentis ainsi que les créances résultant de la poursuite d'exécution des contrats en
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cours conformément aux dispositions de l'article L. 622-13 du présent code et dont le cocontractant accepte de recevoir un paiement différé ; ces prêts et délais de paiement sont autorisés par le juge-commissaire dans la limite nécessaire à la poursuite de l'activité et font l'objet d'une publicité. En cas de résiliation d'un contrat régulièrement poursuivi, les indemnités et pénalités sont exclues du bénéfice du présent article ;
3° Les sommes dont le montant a été avancé en application du 3° de l'article L. 143-11-1 du code du travail ;
4° Les autres créances, selon leur rang.
IV.-Les créances impayées perdent le privilège que leur confère le II du présent article si elles n'ont pas été portées à la connaissance du mandataire judiciaire, de l'administrateur lorsqu'il en est désigné ou du liquidateur au plus tard, dans le délai de six mois à compter de la publication du jugement ouvrant ou prononçant la liquidation ou, à défaut, dans le délai d'un an à compter de celle du jugement arrêtant le plan de cession.
Article L641-14
Les dispositions des chapitres IV et V du titre II du présent livre relatives à la détermination du patrimoine du débiteur et au règlement des créances résultant du contrat de travail ainsi que les dispositions du chapitre II du titre III du présent livre relatives aux nullités de certains actes s'appliquent à la procédure de liquidation judiciaire.
Toutefois, pour l'application de l'article L. 625-1, le liquidateur cité devant le conseil de prud'hommes ou, à défaut, le demandeur appelle devant la juridiction prud'homale les institutions visées à l'article L. 143-11-4 du code du travail.
Pour l'application de l'article L. 625-3 du présent code, les institutions mentionnées à l'article L. 143-11-4 du code du travail sont mises en cause par le liquidateur ou, à défaut, par les salariés requérants, dans les dix jours du jugement d'ouverture de la procédure de liquidation judiciaire ou du jugement la prononçant.
Article L641-15
Pendant la procédure de liquidation judiciaire, le juge-commissaire peut ordonner que le liquidateur ou l'administrateur, lorsqu'il en a été désigné, soit le destinataire du courrier adressé au débiteur.
Le débiteur, préalablement informé, peut assister à l'ouverture du courrier. Toutefois, une convocation devant une juridiction, une notification de décisions ou tout autre courrier ayant un caractère personnel doit être immédiatement remis ou restitué au débiteur.
Le juge-commissaire peut autoriser l'accès du liquidateur et de l'administrateur, lorsqu'il en a été désigné, au courrier électronique reçu par le débiteur dans des conditions déterminées par décret en Conseil d'Etat.
Lorsque le débiteur exerce une activité pour laquelle il est soumis au secret professionnel, les
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dispositions du présent article ne sont pas applicables.
Chapitre II : De la réalisation de l'actif.
Section 1 : De la cession de l'entreprise.
Article L642-1
La cession de l'entreprise a pour but d'assurer le maintien d'activités susceptibles d'exploitation autonome, de tout ou partie des emplois qui y sont attachés et d'apurer le passif.
Elle peut être totale ou partielle. Dans ce dernier cas, elle porte sur un ensemble d'éléments d'exploitation qui forment une ou plusieurs branches complètes et autonomes d'activités.
Lorsqu'un ensemble est essentiellement constitué du droit à un bail rural, le tribunal peut, sous réserve des droits à indemnité du preneur sortant et nonobstant les autres dispositions du statut du fermage, soit autoriser le bailleur, son conjoint ou l'un de ses descendants à reprendre le fonds pour l'exploiter, soit attribuer le bail rural à un autre preneur proposé par le bailleur ou, à défaut, à tout repreneur dont l'offre a été recueillie dans les conditions fixées aux articles L. 642-2, L. 642-4 et L. 642-5. Les dispositions relatives au contrôle des structures des exploitations agricoles ne sont pas applicables. Toutefois, lorsque plusieurs offres ont été recueillies, le tribunal tient compte des dispositions des 1° à 4° et 6° à 9° de l'article L. 331-3 du code rural.
Lorsque le débiteur est un officier public ou ministériel, le liquidateur peut exercer le droit du débiteur de présenter son successeur au garde des sceaux, ministre de la justice.
Article L642-2
I. - Lorsque le tribunal estime que la cession totale ou partielle de l'entreprise est envisageable, il autorise la poursuite de l'activité et il fixe le délai dans lequel les offres de reprise doivent parvenir au liquidateur et à l'administrateur lorsqu'il en a été désigné.
Toutefois, si les offres reçues en application de l'article L. 631-13 remplissent les conditions prévues au II du présent article et sont satisfaisantes, le tribunal peut décider de ne pas faire application de l'alinéa précédent.
II. - Toute offre doit être écrite et comporter l'indication :
1° De la désignation précise des biens, des droits et des contrats inclus dans l'offre ;
2° Des prévisions d'activité et de financement ;
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3° Du prix offert, des modalités de règlement, de la qualité des apporteurs de capitaux et, le cas échéant, de leurs garants. Si l'offre propose un recours à l'emprunt, elle doit en préciser les conditions, en particulier de durée ;
4° De la date de réalisation de la cession ;
5° Du niveau et des perspectives d'emploi justifiés par l'activité considérée ;
6° Des garanties souscrites en vue d'assurer l'exécution de l'offre ;
7° Des prévisions de cession d'actifs au cours des deux années suivant la cession ;
8° De la durée de chacun des engagements pris par l'auteur de l'offre.
III. - Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'offre doit en outre comporter l'indication de la qualification professionnelle du cessionnaire.
IV. - Le liquidateur ou l'administrateur lorsqu'il en a été désigné informe le débiteur, le représentant des salariés et les contrôleurs du contenu des offres reçues. Il les dépose au greffe où tout intéressé peut en prendre connaissance.
Elles sont notifiées, le cas échéant, à l'ordre professionnel ou à l'autorité compétente dont le débiteur relève.
V. - L'offre ne peut être ni modifiée, sauf dans un sens plus favorable aux objectifs mentionnés au premier alinéa de l'article L. 642-1, ni retirée. Elle lie son auteur jusqu'à la décision du tribunal arrêtant le plan.
En cas d'appel de la décision arrêtant le plan, seul le cessionnaire reste lié par son offre.
Article L642-3
Ni le débiteur, ni les dirigeants de droit ou de fait de la personne morale en liquidation judiciaire, ni les parents ou alliés jusqu'au deuxième degré inclusivement de ces dirigeants ou du débiteur personne physique, ni les personnes ayant ou ayant eu la qualité de contrôleur au cours de la procédure ne sont admis, directement ou par personne interposée, à présenter une offre. De même, il est fait interdiction à ces personnes d'acquérir, dans les cinq années suivant la cession, tout ou partie des biens compris dans cette cession, directement ou indirectement, ainsi que d'acquérir des parts ou titres de capital de toute société ayant dans son patrimoine, directement ou indirectement, tout ou partie de ces biens, ainsi que des valeurs mobilières donnant accès, dans le même délai, au capital de cette société.
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Toutefois, lorsqu'il s'agit d'une exploitation agricole, le tribunal peut déroger à ces interdictions et autoriser la cession à l'une des personnes visées au premier alinéa, à l'exception des contrôleurs. Dans les autres cas, le tribunal, sur requête du ministère public, peut autoriser la cession à l'une des personnes visées au premier alinéa, à l'exception des contrôleurs, par un jugement spécialement motivé, après avoir demandé l'avis des contrôleurs.
Tout acte passé en violation du présent article est annulé à la demande de tout intéressé ou du ministère public, présentée dans un délai de trois ans à compter de la conclusion de l'acte. Lorsque l'acte est soumis à publicité, le délai court à compter de celle-ci.
Article L642-4
Le liquidateur ou l'administrateur lorsqu'il en a été désigné donne au tribunal tous éléments permettant de vérifier le caractère sérieux de l'offre ainsi que la qualité de tiers de son auteur au sens des dispositions de l'article L. 642-3.
Il donne également au tribunal tous éléments permettant d'apprécier les conditions d'apurement du passif, notamment au regard du prix offert, des actifs résiduels à recouvrer ou à réaliser, des dettes de la période de poursuite d'activité et, le cas échéant, des autres dettes restant à la charge du débiteur.
Article L642-5
Après avoir recueilli l'avis du ministère public et entendu ou dûment appelé le débiteur, le liquidateur, l'administrateur lorsqu'il en a été désigné, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel et les contrôleurs, le tribunal retient l'offre qui permet dans les meilleures conditions d'assurer le plus durablement l'emploi attaché à l'ensemble cédé, le paiement des créanciers et qui présente les meilleures garanties d'exécution. Il arrête un ou plusieurs plans de cession.
Les débats doivent avoir lieu en présence du ministère public lorsque la procédure est ouverte au bénéfice de personnes physiques ou morales dont le nombre de salariés ou le chiffre d'affaires hors taxes est supérieur à un seuil fixé par décret en Conseil d'Etat.
Le jugement qui arrête le plan en rend les dispositions applicables à tous.
Les droits de préemption institués par le code rural ou le code de l'urbanisme ne peuvent s'exercer sur un bien compris dans ce plan.
Lorsque le plan prévoit des licenciements pour motif économique, il ne peut être arrêté par le tribunal qu'après que le comité d'entreprise ou, à défaut, les délégués du personnel ont été consultés dans les conditions prévues à l'article L. 321-9 du code du travail et l'autorité administrative compétente informée dans les conditions prévues à l'article L. 321-8 du même code. Le plan précise
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notamment les licenciements qui doivent intervenir dans le délai d'un mois après le jugement. Dans ce délai, ces licenciements interviennent sur simple notification du liquidateur, ou de l'administrateur lorsqu'il en a été désigné, sous réserve des droits de préavis prévus par la loi, les conventions ou les accords collectifs du travail.
Lorsque le licenciement concerne un salarié bénéficiant d'une protection particulière en matière de licenciement, ce délai d'un mois après le jugement est celui dans lequel l'intention de rompre le contrat de travail doit être manifestée.
Article L642-6
Une modification substantielle dans les objectifs et les moyens du plan ne peut être décidée que par le tribunal, à la demande du cessionnaire.
Le tribunal statue après avoir entendu ou dûment appelé le liquidateur, l'administrateur judiciaire lorsqu'il en a été désigné, les contrôleurs, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel et toute personne intéressée et après avoir recueilli l'avis du ministère public.
Toutefois, le montant du prix de cession tel qu'il a été fixé dans le jugement arrêtant le plan ne peut être modifié.
Article L642-7
Le tribunal détermine les contrats de crédit-bail, de location ou de fourniture de biens ou services nécessaires au maintien de l'activité au vu des observations des cocontractants du débiteur transmises au liquidateur ou à l'administrateur lorsqu'il en a été désigné.
Le jugement qui arrête le plan emporte cession de ces contrats, même lorsque la cession est précédée de la location-gérance prévue à l'article L. 642-13.
Ces contrats doivent être exécutés aux conditions en vigueur au jour de l'ouverture de la procédure, nonobstant toute clause contraire.
En cas de cession d'un contrat de crédit-bail, le crédit-preneur ne peut lever l'option d'achat qu'en cas de paiement des sommes restant dues dans la limite de la valeur du bien fixée d'un commun accord entre les parties ou, à défaut, par le tribunal à la date de la cession.
La convention en exécution de laquelle le débiteur constituant conserve l'usage ou la jouissance de biens ou droits transférés à titre de garantie dans un patrimoine fiduciaire ne peut être cédée au cessionnaire, sauf accord des bénéficiaires du contrat de fiducie.
Article L642-8
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En exécution du plan arrêté par le tribunal, le liquidateur ou l'administrateur lorsqu'il en a été désigné passe tous les actes nécessaires à la réalisation de la cession. Dans l'attente de l'accomplissement de ces actes et sur justification de la consignation du prix de cession ou d'une garantie équivalente, le tribunal peut confier au cessionnaire, à sa demande et sous sa responsabilité, la gestion de l'entreprise cédée.
Lorsque la cession comprend un fonds de commerce, aucune surenchère n'est admise.
Article L642-9
Tant que le prix de cession n'est pas intégralement payé, le cessionnaire ne peut, à l'exception des stocks, aliéner ou donner en location-gérance les biens corporels ou incorporels qu'il a acquis.
Toutefois, leur aliénation totale ou partielle, leur affectation à titre de sûreté, leur location ou leur location-gérance peut être autorisée par le tribunal après rapport du liquidateur qui doit préalablement consulter le comité d'entreprise ou, à défaut, les délégués du personnel. Le tribunal doit tenir compte des garanties offertes par le cessionnaire.
Toute substitution de cessionnaire doit être autorisée par le tribunal dans le jugement arrêtant le plan de cession, sans préjudice de la mise en oeuvre des dispositions de l'article L. 642-6. L'auteur de l'offre retenue par le tribunal reste garant solidairement de l'exécution des engagements qu'il a souscrits.
Tout acte passé en violation des alinéas qui précèdent est annulé à la demande de tout intéressé ou du ministère public, présentée dans le délai de trois ans à compter de la conclusion de l'acte. Lorsque l'acte est soumis à publicité, le délai court à compter de celle-ci.
Article L642-10
Le tribunal peut prévoir dans le jugement arrêtant le plan de cession que tout ou partie des biens cédés ne pourront être aliénés, pour une durée qu'il fixe, sans son autorisation. La publicité de l'inaliénabilité temporaire est assurée dans des conditions fixées par un décret en Conseil d'Etat. Lorsque le tribunal est saisi d'une demande d'autorisation d'aliéner un bien rendu inaliénable en application du premier alinéa, il statue, à peine de nullité, après avoir recueilli l'avis du ministère public.
Tout acte passé en violation des dispositions du premier alinéa est annulé à la demande de tout intéressé ou du ministère public, présentée dans le délai de trois ans à compter de la conclusion de l'acte. Lorsque l'acte est soumis à publicité, le délai court à compter de celle-ci.
Article L642-11
Le cessionnaire rend compte au liquidateur de l'application des dispositions prévues par le plan de
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cession.
Si le cessionnaire n'exécute pas ses engagements, le tribunal peut, à la demande du ministère public d'une part, du liquidateur, d'un créancier, de tout intéressé ou d'office, après avoir recueilli l'avis du ministère public, d'autre part, prononcer la résolution du plan sans préjudice de dommages et intérêts.
Le tribunal peut prononcer la résolution ou la résiliation des actes passés en exécution du plan résolu. Le prix payé par le cessionnaire reste acquis.
Article L642-12
Lorsque la cession porte sur des biens grevés d'un privilège spécial, d'un gage, d'un nantissement ou d'une hypothèque, une quote-part du prix est affectée par le tribunal à chacun de ces biens pour la répartition du prix et l'exercice du droit de préférence.
Le paiement du prix de cession fait obstacle à l'exercice à l'encontre du cessionnaire des droits des créanciers inscrits sur ces biens.
Jusqu'au paiement complet du prix qui emporte purge des inscriptions grevant les biens compris dans la cession, les créanciers bénéficiant d'un droit de suite ne peuvent l'exercer qu'en cas d'aliénation du bien cédé par le cessionnaire.
Toutefois, la charge des sûretés immobilières et mobilières spéciales garantissant le remboursement d'un crédit consenti à l'entreprise pour lui permettre le financement d'un bien sur lequel portent ces sûretés est transmise au cessionnaire. Celui-ci est alors tenu d'acquitter entre les mains du créancier les échéances convenues avec lui et qui restent dues à compter du transfert de la propriété ou, en cas de location-gérance, de la jouissance du bien sur lequel porte la garantie. Il peut être dérogé aux dispositions du présent alinéa par accord entre le cessionnaire et les créanciers titulaires des sûretés.
Les dispositions du présent article n'affectent pas le droit de rétention acquis par un créancier sur des biens compris dans la cession.
Article L642-13
Par le jugement qui arrête le plan de cession, le tribunal peut autoriser la conclusion d'un contrat de location-gérance, même en présence de toute clause contraire, notamment dans le bail de l'immeuble, au profit de la personne qui a présenté l'offre d'acquisition permettant dans les meilleures conditions d'assurer le plus durablement l'emploi et le paiement des créanciers.
Le tribunal statue après avoir entendu ou dûment appelé le liquidateur, l'administrateur judiciaire lorsqu'il en a été désigné, les contrôleurs, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel et toute personne intéressée et après avoir recueilli l'avis du ministère public.
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Article L642-14
Les dispositions des articles L. 144-3, L. 144-4 et L. 144-7 sur la location-gérance ne sont pas applicables.
Article L642-15
En cas de location-gérance, l'entreprise doit être effectivement cédée dans les deux ans du jugement qui arrête le plan.
Article L642-16
Le liquidateur peut se faire communiquer par le locataire-gérant tous les documents et informations utiles à sa mission. Il rend compte au tribunal de toute atteinte aux éléments pris en location-gérance ainsi que de l'inexécution des obligations incombant au locataire-gérant.
Le tribunal, d'office ou à la demande du liquidateur ou du ministère public, peut ordonner la résiliation du contrat de location-gérance et la résolution du plan.
Article L642-17
Si le locataire-gérant n'exécute pas son obligation d'acquérir dans les conditions et délais fixés par le plan, le tribunal, d'office ou à la demande du liquidateur ou du ministère public, ordonne la résiliation du contrat de location-gérance et la résolution du plan sans préjudice de tous dommages et intérêts.
Toutefois, lorsque le locataire-gérant justifie qu'il ne peut acquérir aux conditions initialement prévues pour une cause qui ne lui est pas imputable, il peut demander au tribunal de modifier ces conditions, sauf en ce qui concerne le montant du prix et le délai prévu à l'article L. 642-15. Le tribunal statue avant l'expiration du contrat de location et après avoir recueilli l'avis du ministère public et entendu ou dûment appelé le liquidateur, l'administrateur lorsqu'il en est désigné, les contrôleurs, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel et toute personne intéressée.
Section 2 : De la cession des actifs du débiteur.
Article L642-18
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Les ventes d'immeubles ont lieu conformément aux articles 2204 à 2212 du code civil, à l'exception des articles 2206 et 2211, sous réserve que ces dispositions ne soient pas contraires à celles du présent code. Le juge-commissaire fixe la mise à prix et les conditions essentielles de la vente.
Lorsqu'une procédure de saisie immobilière engagée avant l'ouverture de la procédure de sauvegarde, de redressement ou de liquidation judiciaires a été suspendue par l'effet de cette dernière, le liquidateur peut être subrogé dans les droits du créancier saisissant pour les actes que celui-ci a effectués, lesquels sont réputés accomplis pour le compte du liquidateur qui procède à la vente des immeubles. La saisie immobilière peut alors reprendre son cours au stade où le jugement d'ouverture l'avait suspendue.
Le juge-commissaire peut, si la consistance des biens, leur emplacement ou les offres reçues sont de nature à permettre une cession amiable dans de meilleures conditions, ordonner la vente par adjudication amiable sur la mise à prix qu'il fixe ou autoriser la vente de gré à gré aux prix et conditions qu'il détermine. En cas d'adjudication amiable, les articles 2205, 2207 à 2209 et 2212 du code civil sont applicables, sous la réserve prévue au premier alinéa, et il peut toujours être fait surenchère.
Pour les adjudications réalisées en application des alinéas qui précèdent, le paiement du prix au liquidateur et des frais de la vente emportent purge des hypothèques et de tout privilège du chef du débiteur.L'adjudicataire ne peut, avant d'avoir procédé à ces paiements, accomplir un acte de disposition sur le bien à l'exception de la constitution d'une hypothèque accessoire à un contrat de prêt destiné à l'acquisition de ce bien.
Le liquidateur répartit le produit des ventes et règle l'ordre entre les créanciers, sous réserve des contestations qui sont portées devant le juge de l'exécution.
En cas de liquidation judiciaire d'un agriculteur, le tribunal peut, en considération de la situation personnelle et familiale du débiteur, lui accorder des délais de grâce dont il détermine la durée pour quitter sa maison d'habitation principale.
Les modalités d'application du présent article sont fixées par décret en Conseil d'Etat.
Article L642-19
Le juge-commissaire soit ordonne la vente aux enchères publiques, soit autorise, aux prix et conditions qu'il détermine, la vente de gré à gré des autres biens du débiteur. Lorsque la vente a lieu aux enchères publiques, il y est procédé dans les conditions prévues, selon le cas, au second alinéa de l'article L. 322-2 ou aux articles L. 322-4 ou L. 322-7.
Le juge-commissaire peut demander que le projet de vente amiable lui soit soumis afin de vérifier si les conditions qu'il a fixées ont été respectées.
Article L642-19-1
Les conditions et formes du recours contre les décisions du juge-commissaire prises en application des articles L. 642-18 et L. 642-19 sont fixées par décret en Conseil d'Etat.
Article L642-20
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Les dispositions de l'article L. 642-3 sont applicables aux cessions d'actifs réalisées en application des articles L. 642-18 et L. 642-19. Dans ce cas, les pouvoirs du tribunal sont exercés par le juge-commissaire.
Toutefois, lorsque un actif mobilier est nécessaire aux besoins de la vie courante et de faible valeur, le juge-commissaire peut, par une ordonnance spécialement motivée, autoriser l'une des personnes mentionnées au premier alinéa de l'article L. 642-3 à s'en porter acquéreur, à l'exception des contrôleurs. Il statue après avoir recueilli l'avis du ministère public.
Article L642-20-1
A défaut de retrait du gage ou de la chose légitimement retenue dans les conditions prévues par le deuxième alinéa de l'article L. 641-3, le liquidateur doit, dans les six mois du jugement de liquidation judiciaire, demander au juge-commissaire l'autorisation de procéder à la réalisation. Le liquidateur notifie l'autorisation au créancier quinze jours avant la réalisation.
Le créancier gagiste, même s'il n'est pas encore admis, peut demander au juge-commissaire, avant la réalisation, l'attribution judiciaire. Si la créance est rejetée en tout ou en partie, il restitue au liquidateur le bien ou sa valeur, sous réserve du montant admis de sa créance.
En cas de vente par le liquidateur, le droit de rétention est de plein droit reporté sur le prix.L'inscription éventuellement prise pour la conservation du gage est radiée à la diligence du liquidateur.
Section 3 : Dispositions communes.
Article L642-22
Toute cession d'entreprise et toute réalisation d'actif doivent être précédées d'une publicité dont les modalités sont déterminées par un décret en Conseil d'Etat en fonction de la taille de l'entreprise et de la nature des actifs à vendre.
Article L642-23
Avant toute vente ou toute destruction des archives du débiteur, le liquidateur en informe l'autorité administrative compétente pour la conservation des archives. Cette autorité dispose d'un droit de préemption.
La destination des archives du débiteur soumis au secret professionnel est déterminée par le liquidateur en accord avec l'ordre professionnel ou l'autorité compétente dont il relève.
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Article L642-24
Le liquidateur peut, avec l'autorisation du juge-commissaire et le débiteur entendu ou dûment appelé, compromettre et transiger sur toutes les contestations qui intéressent collectivement les créanciers même sur celles qui sont relatives à des droits et actions immobiliers.
Si l'objet du compromis ou de la transaction est d'une valeur indéterminée ou excède la compétence en dernier ressort du tribunal, le compromis ou la transaction est soumis à l'homologation du tribunal.
Chapitre III : De l'apurement du passif.
Section 1 : Du règlement des créanciers.
Article L643-1
Le jugement qui ouvre ou prononce la liquidation judiciaire rend exigibles les créances non échues. Toutefois, lorsque le tribunal autorise la poursuite de l'activité au motif que la cession totale ou partielle de l'entreprise est envisageable, les créances non échues sont exigibles à la date du jugement statuant sur la cession ou, à défaut, à la date à laquelle le maintien de l'activité prend fin .
Lorsque ces créances sont exprimées dans une monnaie autre que celle du lieu où a été prononcée la liquidation judiciaire, elles sont converties en la monnaie de ce lieu, selon le cours du change à la date du jugement.
Article L643-2
Les créanciers titulaires d'un privilège spécial, d'un gage, d'un nantissement ou d'une hypothèque et le Trésor public pour ses créances privilégiées peuvent, dès lors qu'ils ont déclaré leurs créances même s'ils ne sont pas encore admis, exercer leur droit de poursuite individuelle si le liquidateur n'a pas entrepris la liquidation des biens grevés dans le délai de trois mois à compter du jugement qui ouvre ou prononce la liquidation judiciaire.
Lorsque le tribunal a fixé un délai en application de l'article L. 642-2, ces créanciers peuvent exercer leur droit de poursuite individuelle à l'expiration de ce délai, si aucune offre incluant ce bien n'a été présentée.
En cas de vente d'immeubles, les dispositions des premier, troisième et cinquième alinéas de l'article L. 642-18 sont applicables. Lorsqu'une procédure de saisie immobilière a été engagée avant le jugement d'ouverture, le créancier titulaire d'une hypothèque est dispensé, lors de la reprise des
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poursuites individuelles, des actes et formalités effectués avant ce jugement.
Article L643-3
Le juge-commissaire peut, d'office ou à la demande du liquidateur ou d'un créancier, ordonner le paiement à titre provisionnel d'une quote-part d'une créance définitivement admise.
Ce paiement provisionnel peut être subordonné à la présentation par son bénéficiaire d'une garantie émanant d'un établissement de crédit.
Dans le cas où la demande de provision porte sur une créance privilégiée des administrations financières, des organismes de sécurité sociale, des institutions gérant le régime d'assurance chômage prévu par les articles L. 351-3 et suivants du code du travail et des institutions régies par le livre IX du code de la sécurité sociale, la garantie prévue au deuxième alinéa n'est pas due.
Article L643-4
Si une ou plusieurs distributions de sommes précèdent la répartition du prix des immeubles, les créanciers privilégiés et hypothécaires admis concourent aux répartitions dans la proportion de leurs créances totales.
Après la vente des immeubles et le règlement définitif de l'ordre entre les créanciers hypothécaires et privilégiés, ceux d'entre eux qui viennent en rang utile sur le prix des immeubles pour la totalité de leur créance ne perçoivent le montant de leur collocation hypothécaire que sous la déduction des sommes par eux reçues.
Les sommes ainsi déduites profitent aux créanciers chirographaires.
Article L643-5
Les droits des créanciers hypothécaires qui sont colloqués partiellement sur la distribution du prix des immeubles sont réglés d'après le montant qui leur reste dû après la collocation immobilière. L'excédent des dividendes qu'ils ont touchés dans des distributions antérieures par rapport au dividende calculé après collocation est retenu sur le montant de leur collocation hypothécaire et est inclus dans les sommes à répartir aux créanciers chirographaires.
Article L643-6
Les créanciers privilégiés ou hypothécaires, non remplis sur le prix des immeubles, concourent avec les créanciers chirographaires pour ce qui leur reste dû.
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Article L643-7
Sous réserve du deuxième alinéa de l'article L. 642-20-1, les dispositions des articles L. 643-4 à L. 643-6s'appliquent aux créanciers bénéficiaires d'une sûreté mobilière spéciale.
Article L643-8
Le montant de l'actif, distraction faite des frais et dépens de la liquidation judiciaire, des subsides accordés au débiteur personne physique ou aux dirigeants ou à leur famille et des sommes payées aux créanciers privilégiés, est réparti entre tous les créanciers au marc le franc de leurs créances admises.
La part correspondant aux créances sur l'admission desquelles il n'aurait pas été statué définitivement et, notamment, les rémunérations des dirigeants sociaux tant qu'il n'aura pas été statué sur leur cas, est mise en réserve.
Section 2 : De la clôture des opérations de liquidation judiciaire.
Article L643-9
Dans le jugement qui ouvre ou prononce la liquidation judiciaire, le tribunal fixe le délai au terme duquel la clôture de la procédure devra être examinée. Si la clôture ne peut être prononcée au terme de ce délai, le tribunal peut proroger le terme par une décision motivée.
Lorsqu'il n'existe plus de passif exigible ou que le liquidateur dispose de sommes suffisantes pour désintéresser les créanciers, ou lorsque la poursuite des opérations de liquidation judiciaire est rendue impossible en raison de l'insuffisance de l'actif, la clôture de la liquidation judiciaire est prononcée par le tribunal, le débiteur entendu ou dûment appelé.
Le tribunal est saisi à tout moment par le liquidateur, le débiteur ou le ministère public. Il peut se saisir d'office. A l'expiration d'un délai de deux ans à compter du jugement de liquidation judiciaire, tout créancier peut également saisir le tribunal aux fins de clôture de la procédure.
En cas de plan de cession, le tribunal ne prononce la clôture de la procédure qu'après avoir constaté le respect de ses obligations par le cessionnaire.
Article L643-10
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Le liquidateur procède à la reddition des comptes. Il est responsable des documents qui lui ont été remis au cours de la procédure pendant cinq ans à compter de cette reddition.
Article L643-11
I. - Le jugement de clôture de liquidation judiciaire pour insuffisance d'actif ne fait pas recouvrer aux créanciers l'exercice individuel de leurs actions contre le débiteur, sauf si la créance résulte :
1° D'une condamnation pénale du débiteur ;
2° De droits attachés à la personne du créancier.
II. - Toutefois, la caution ou le coobligé qui a payé au lieu et place du débiteur peut poursuivre celui-ci.
III. - Les créanciers recouvrent leur droit de poursuite individuelle dans les cas suivants :
1° La faillite personnelle du débiteur a été prononcée ;
2° Le débiteur a été reconnu coupable de banqueroute ;
3° Le débiteur ou une personne morale dont il a été le dirigeant a été soumis à une procédure de liquidation judiciaire antérieure clôturée pour insuffisance d'actif moins de cinq ans avant l'ouverture de celle à laquelle il est soumis ;
4° La procédure a été ouverte en tant que procédure territoriale au sens du paragraphe 2 de l'article 3 du règlement (CE) n° 1346/2000 du Conseil du 29 mai 2000 relatif aux procédures d'insolvabilité.
IV. - En outre, en cas de fraude à l'égard d'un ou de plusieurs créanciers, le tribunal autorise la reprise des actions individuelles de tout créancier à l'encontre du débiteur. Le tribunal statue lors de la clôture de la procédure après avoir entendu ou dûment appelé le débiteur, le liquidateur et les contrôleurs. Il peut statuer postérieurement à celle-ci, à la demande de tout intéressé, dans les mêmes conditions.
V. - Les créanciers qui recouvrent leur droit de poursuite individuelle et dont les créances ont été admises ne peuvent exercer ce droit sans avoir obtenu un titre exécutoire ou, lorsqu'ils disposent déjà d'un tel titre, sans avoir fait constater qu'ils remplissent les conditions prévues au présent article. Le président du tribunal, saisi à cette fin, statue par ordonnance. Les créanciers qui recouvrent l'exercice individuel de leurs actions et dont les créances n'ont pas été vérifiées peuvent le mettre en œuvre dans les conditions du droit commun.
Article L643-12
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La clôture de la liquidation judiciaire suspend les effets de la mesure d'interdiction d'émettre des chèques, dont le débiteur fait l'objet au titre de l'article 65-3 du décret du 30 octobre 1935 unifiant le droit en matière de chèques et relatif aux cartes de paiement, mise en oeuvre à l'occasion du rejet d'un chèque émis avant le jugement d'ouverture de la procédure.
Si les créanciers recouvrent leur droit de poursuite individuelle, la mesure d'interdiction reprend effet, à compter de la délivrance du titre exécutoire mentionné au V de l'article L. 643-11.
Article L643-13
Si la clôture de la liquidation judiciaire est prononcée pour insuffisance d'actif et qu'il apparaît que des actifs n'ont pas été réalisés ou que des actions dans l'intérêt des créanciers n'ont pas été engagées pendant le cours de la procédure, celle-ci peut être reprise.
Le tribunal est saisi par le liquidateur précédemment désigné, par le ministère public ou par tout créancier intéressé. Il peut également se saisir d'office. S'il est saisi par un créancier, ce dernier doit justifier avoir consigné au greffe du tribunal les fonds nécessaires aux frais des opérations. Le montant des frais consignés lui est remboursé par priorité sur les sommes recouvrées à la suite de la reprise de la procédure.
Si les actifs du débiteur consistent en une somme d'argent, la procédure prévue au chapitre IV du présent titre est de droit applicable.
Chapitre IV : De la liquidation judiciaire simplifiée.
Article L644-1
La procédure de liquidation judiciaire simplifiée est soumise aux règles de la liquidation judiciaire, sous réserve des dispositions du présent chapitre.
Article L644-2
Par dérogation aux dispositions de l'article L. 642-19, lorsque la procédure simplifiée est décidée en application de l'article L. 641-2, le liquidateur procède à la vente des biens mobiliers de gré à gré ou aux enchères publiques dans les trois mois suivant le jugement de liquidation judiciaire.
A l'issue de cette période, il est procédé à la vente aux enchères publiques des biens subsistants.
Lorsque la procédure simplifiée est décidée en application de l'article L. 641-2-1, le tribunal ou le
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président du tribunal, selon le cas, détermine les biens du débiteur pouvant faire l'objet d'une vente de gré à gré dans les trois mois de sa décision. Sous cette réserve, les biens sont vendus aux enchères publiques.
Article L644-3
Par dérogation aux dispositions de l'article L. 641-4, il est procédé à la vérification des seules créances susceptibles de venir en rang utile dans les répartitions et des créances résultant d'un contrat de travail.
Article L644-4
A l'issue de la procédure de vérification et d'admission des créances telle que prévue à l'article L. 644-3 et de la réalisation des biens, le liquidateur fait figurer ses propositions de répartition sur l'état des créances. Cet état ainsi complété est déposé au greffe et fait l'objet d'une mesure de publicité. Tout intéressé peut en prendre connaissance et, à l'exclusion du liquidateur, former réclamation devant le juge-commissaire dans des conditions fixées par décret en Conseil d'Etat. Les réclamations du débiteur ne peuvent concerner que les propositions de répartition. Celles des créanciers ne peuvent pas être formées contre les décisions du juge-commissaire portées sur l'état des créances auxquelles ils ont été partie. Le juge-commissaire statue sur les contestations par une décision qui peut faire l'objet d'un recours dans un délai fixé par décret en Conseil d'Etat. Le liquidateur procède à la répartition conformément à ses propositions ou à la décision rendue.
Article L644-5
Au plus tard dans le délai d'un an à compter de la décision ayant ordonné ou décidé l'application de la procédure simplifiée, le tribunal prononce la clôture de la liquidation judiciaire, le débiteur entendu ou dûment appelé.
Il peut, par un jugement spécialement motivé, proroger la procédure pour une durée qui ne peut excéder trois mois.
Article L644-6
A tout moment, le tribunal peut décider, par un jugement spécialement motivé, de ne plus faire application des dérogations prévues au présent chapitre.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE V : Des responsabilités et des sanctions.
Article L650-1
Lorsqu'une procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire est ouverte, les créanciers ne peuvent être tenus pour responsables des préjudices subis du fait des concours consentis, sauf les cas de fraude, d'immixtion caractérisée dans la gestion du débiteur ou si les garanties prises en contrepartie de ces concours sont disproportionnées à ceux-ci.
Pour le cas où la responsabilité d'un créancier est reconnue, les garanties prises en contrepartie de ses concours peuvent être annulées ou réduites par le juge.
Chapitre Ier : De la responsabilité pour insuffisance d'actif.
Article L651-1
Les dispositions du présent chapitre sont applicables aux dirigeants d'une personne morale de droit privé soumise à une procédure collective, ainsi qu'aux personnes physiques représentants permanents de ces dirigeants personnes morales.
Article L651-2
Lorsque la liquidation judiciaire d'une personne morale fait apparaître une insuffisance d'actif, le tribunal peut, en cas de faute de gestion ayant contribué à cette insuffisance d'actif, décider que le montant de cette insuffisance d'actif sera supporté, en tout ou en partie, par tous les dirigeants de droit ou de fait, ou par certains d'entre eux, ayant contribué à la faute de gestion. En cas de pluralité de dirigeants, le tribunal peut, par décision motivée, les déclarer solidairement responsables.
L'action se prescrit par trois ans à compter du jugement qui prononce la liquidation judiciaire.
Les sommes versées par les dirigeants entrent dans le patrimoine du débiteur. Elles sont réparties au marc le franc entre tous les créanciers. Les dirigeants ne peuvent pas participer aux répartitions à concurrence des sommes au versement desquelles ils ont été condamnés.
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Article L651-3
Dans le cas prévu à l'article L. 651-2, le tribunal est saisi par le liquidateur ou le ministère public.
Dans l'intérêt collectif des créanciers, le tribunal peut également être saisi par la majorité des créanciers nommés contrôleurs lorsque le liquidateur n'a pas engagé l'action prévue au même article, après une mise en demeure restée sans suite dans un délai et des conditions fixés par décret en Conseil d'Etat.
Le juge-commissaire ne peut ni siéger dans la formation de jugement, ni participer au délibéré.
Les dépens et frais irrépétibles auxquels a été condamné le dirigeant sont payés par priorité sur les sommes versées pour combler le passif.
Article L651-4
Pour l'application des dispositions de l'article L. 651-2, d'office ou à la demande de l'une des personnes mentionnées à l'article L. 651-3, le président du tribunal peut charger le juge-commissaire ou, à défaut, un membre de la juridiction qu'il désigne d'obtenir, nonobstant toute disposition législative contraire, communication de tout document ou information sur la situation patrimoniale des dirigeants et des représentants permanents des dirigeants personnes morales mentionnées à l'article L. 651-1 de la part des administrations et organismes publics, des organismes de prévoyance et de sécurité sociale, des établissements de paiement et des établissements de crédit.
Le président du tribunal peut, dans les mêmes conditions, ordonner toute mesure conservatoire utile à l'égard des biens des dirigeants ou de leurs représentants visés à l'alinéa qui précède.
Les dispositions du présent article sont également applicables aux personnes membres ou associées de la personne morale en procédure de sauvegarde, de redressement ou de liquidation judiciaire, lorsqu'elles sont responsables indéfiniment et solidairement de ses dettes.
Chapitre III : De la faillite personnelle et des autres mesures d'interdiction.
Article L653-1
I. - Lorsqu'une procédure de redressement judiciaire ou de liquidation judiciaire est ouverte, les dispositions du présent chapitre sont applicables :
1° Aux personnes physiques exerçant une activité commerciale ou artisanale, aux agriculteurs et à toute autre personne physique exerçant une activité professionnelle indépendante y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé ;
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2° Aux personnes physiques, dirigeants de droit ou de fait de personnes morales ;
3° Aux personnes physiques, représentants permanents de personnes morales, dirigeants des personnes morales définies au 2°.
Ces mêmes dispositions ne sont pas applicables aux personnes physiques ou dirigeants de personne morale, exerçant une activité professionnelle indépendante et, à ce titre, soumises à des règles disciplinaires.
II. - Les actions prévues par le présent chapitre se prescrivent par trois ans à compter du jugement qui prononce l'ouverture de la procédure mentionnée au I.
Article L653-2
La faillite personnelle emporte interdiction de diriger, gérer, administrer ou contrôler, directement ou indirectement, toute entreprise commerciale ou artisanale, toute exploitation agricole ou toute entreprise ayant toute autre activité indépendante et toute personne morale.
Article L653-3
Le tribunal peut prononcer la faillite personnelle de toute personne mentionnée au 1° du I de l'article L. 653-1, sous réserve des exceptions prévues au dernier alinéa du I du même article, contre laquelle a été relevé l'un des faits ci-après :
1° Avoir poursuivi abusivement une exploitation déficitaire qui ne pouvait conduire qu'à la cessation des paiements ;
2° Abrogé.
3° Avoir détourné ou dissimulé tout ou partie de son actif ou frauduleusement augmenté son passif.
Article L653-4
Le tribunal peut prononcer la faillite personnelle de tout dirigeant, de droit ou de fait, d'une personne morale, contre lequel a été relevé l'un des faits ci-après :
1° Avoir disposé des biens de la personne morale comme des siens propres ;
2° Sous le couvert de la personne morale masquant ses agissements, avoir fait des actes de commerce dans un intérêt personnel ;
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3° Avoir fait des biens ou du crédit de la personne morale un usage contraire à l'intérêt de celle-ci à des fins personnelles ou pour favoriser une autre personne morale ou entreprise dans laquelle il était intéressé directement ou indirectement ;
4° Avoir poursuivi abusivement, dans un intérêt personnel, une exploitation déficitaire qui ne pouvait conduire qu'à la cessation des paiements de la personne morale ;
5° Avoir détourné ou dissimulé tout ou partie de l'actif ou frauduleusement augmenté le passif de la personne morale.
Article L653-5
Le tribunal peut prononcer la faillite personnelle de toute personne mentionnée à l'article L. 653-1 contre laquelle a été relevé l'un des faits ci-après :
1° Avoir exercé une activité commerciale, artisanale ou agricole ou une fonction de direction ou d'administration d'une personne morale contrairement à une interdiction prévue par la loi ;
2° Avoir, dans l'intention d'éviter ou de retarder l'ouverture de la procédure de redressement judiciaire ou de liquidation judiciaire, fait des achats en vue d'une revente au-dessous du cours ou employé des moyens ruineux pour se procurer des fonds ;
3° Avoir souscrit, pour le compte d'autrui, sans contrepartie, des engagements jugés trop importants au moment de leur conclusion, eu égard à la situation de l'entreprise ou de la personne morale ;
4° Avoir payé ou fait payer, après cessation des paiements et en connaissance de cause de celle-ci, un créancier au préjudice des autres créanciers ;
5° Avoir, en s'abstenant volontairement de coopérer avec les organes de la procédure, fait obstacle à son bon déroulement ;
6° Avoir fait disparaître des documents comptables, ne pas avoir tenu de comptabilité lorsque les textes applicables en font obligation, ou avoir tenu une comptabilité fictive, manifestement incomplète ou irrégulière au regard des dispositions applicables.
Article L653-6
Le tribunal peut prononcer la faillite personnelle du dirigeant de la personne morale qui n'a pas acquitté les dettes de celle-ci mises à sa charge.
Article L653-7
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Dans les cas prévus aux articles L. 653-3 à L. 653-6 et L. 653-8, le tribunal est saisi par le mandataire judiciaire, le liquidateur ou le ministère public.
Dans l'intérêt collectif des créanciers, le tribunal peut également être saisi à toute époque de la procédure par la majorité des créanciers nommés contrôleurs lorsque le mandataire de justice ayant qualité pour agir n'a pas engagé les actions prévues aux mêmes articles, après une mise en demeure restée sans suite dans un délai et des conditions fixés par décret en Conseil d'Etat.
Le juge-commissaire ne peut ni siéger dans la formation de jugement, ni participer au délibéré.
Article L653-8
Dans les cas prévus aux articles L. 653-3 à L. 653-6, le tribunal peut prononcer, à la place de la faillite personnelle, l'interdiction de diriger, gérer, administrer ou contrôler, directement ou indirectement, soit toute entreprise commerciale ou artisanale, toute exploitation agricole et toute personne morale, soit une ou plusieurs de celles-ci.
L'interdiction mentionnée au premier alinéa peut également être prononcée à l'encontre de toute personne mentionnée à l'article L. 653-1 qui, de mauvaise foi, n'aura pas remis au mandataire judiciaire, à l'administrateur ou au liquidateur les renseignements qu'il est tenu de lui communiquer en application de l'article L. 622-6 dans le mois suivant le jugement d'ouverture.
Elle peut également être prononcée à l'encontre de toute personne mentionnée à l'article L. 653-1 qui a omis de demander l'ouverture d'une procédure de redressement ou de liquidation judiciaire dans le délai de quarante-cinq jours à compter de la cessation des paiements, sans avoir, par ailleurs, demandé l'ouverture d'une procédure de conciliation.
Article L653-9
Le droit de vote des dirigeants frappés de la faillite personnelle ou de l'interdiction prévue à l'article L. 653-8 est exercé dans les assemblées des personnes morales soumises à une procédure de redressement judiciaire ou de liquidation judiciaire par un mandataire désigné par le tribunal à cet effet, à la requête de l'administrateur, du liquidateur ou du commissaire à l'exécution du plan.
Le tribunal peut enjoindre à ces dirigeants ou à certains d'entre eux, de céder leurs actions ou parts sociales dans la personne morale ou ordonner leur cession forcée par les soins d'un mandataire de justice, au besoin après expertise. Le produit de la vente est affecté au paiement de la part des dettes sociales dans le cas où ces dettes ont été mises à la charge des dirigeants.
Article L653-10
Le tribunal qui prononce la faillite personnelle peut prononcer l'incapacité d'exercer une fonction publique élective. L'incapacité est prononcée pour une durée égale à celle de la faillite personnelle,
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dans la limite de cinq ans. Lorsque la décision est devenue définitive, le ministère public notifie à l'intéressé l'incapacité, qui produit effet à compter de la date de cette notification.
Article L653-11
Lorsque le tribunal prononce la faillite personnelle ou l'interdiction prévue à l'article L. 653-8, il fixe la durée de la mesure, qui ne peut être supérieure à quinze ans. Il peut ordonner l'exécution provisoire de sa décision. Les déchéances, les interdictions et l'incapacité d'exercer une fonction publique élective cessent de plein droit au terme fixé, sans qu'il y ait lieu au prononcé d'un jugement.
Le jugement de clôture pour extinction du passif, y compris après exécution d'une condamnation prononcée à son encontre en application de l'article L. 651-2, rétablit le débiteur personne physique ou les dirigeants de la personne morale dans tous leurs droits. Il les dispense ou relève de toutes les déchéances, interdictions et incapacité d'exercer une fonction publique élective.
L'intéressé peut demander au tribunal de le relever, en tout ou partie, des déchéances et interdictions et de l'incapacité d'exercer une fonction publique élective s'il a apporté une contribution suffisante au paiement du passif.
Lorsqu'il a fait l'objet de l'interdiction prévue à l'article L. 653-8, il peut en être relevé s'il présente toutes garanties démontrant sa capacité à diriger ou contrôler l'une ou plusieurs des entreprises ou personnes visées par le même article.
Lorsqu'il y a relèvement total des déchéances et interdictions et de l'incapacité, la décision du tribunal emporte réhabilitation.
Chapitre IV : De la banqueroute et des autres infractions.
Section 1 : De la banqueroute.
Article L654-1
Les dispositions de la présente section sont applicables :
1° A toute personne exerçant une activité commerciale ou artisanale, à tout agriculteur et à toute personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé ;
2° A toute personne qui a, directement ou indirectement, en droit ou en fait, dirigé ou liquidé une
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personne morale de droit privé ;
3° Aux personnes physiques représentants permanents de personnes morales dirigeants des personnes morales définies au 2° ci-dessus.
Article L654-2
En cas d'ouverture d'une procédure de redressement judiciaire ou de liquidation judiciaire, sont coupables de banqueroute les personnes mentionnées à l'article L. 654-1 contre lesquelles a été relevé l'un des faits ci-après :
1° Avoir, dans l'intention d'éviter ou de retarder l'ouverture de la procédure de redressement judiciaire ou de liquidation judiciaire, soit fait des achats en vue d'une revente au-dessous du cours, soit employé des moyens ruineux pour se procurer des fonds ;
2° Avoir détourné ou dissimulé tout ou partie de l'actif du débiteur ;
3° Avoir frauduleusement augmenté le passif du débiteur ;
4° Avoir tenu une comptabilité fictive ou fait disparaître des documents comptables de l'entreprise ou de la personne morale ou s'être abstenu de tenir toute comptabilité lorsque les textes applicables en font obligation ;
5° Avoir tenu une comptabilité manifestement incomplète ou irrégulière au regard des dispositions légales.
Article L654-3
La banqueroute est punie de cinq ans d'emprisonnement et de 75000 euros d'amende.
Article L654-4
Lorsque l'auteur ou le complice de banqueroute est un dirigeant d'une entreprise prestataire de services d'investissement, les peines sont portées à sept ans d'emprisonnement et 100 000 euros d'amende.
Article L654-5
Les personnes physiques coupables des infractions prévues par les articles L. 654-3 et L. 654-4 encourent également les peines complémentaires suivantes :
1° L'interdiction des droits civiques, civils et de famille, suivant les modalités de l'article 131-26 du code pénal ;
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2° L'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, soit d'exercer une fonction publique ou d'exercer l'activité professionnelle ou sociale dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise, soit d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour son propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale. Ces interdictions d'exercice peuvent être prononcées cumulativement ;
3° L'exclusion des marchés publics pour une durée de cinq ans au plus ;
4° L'interdiction, pour une durée de cinq ans au plus, d'émettre des chèques autres que ceux qui permettent le retrait de fonds par le tireur auprès du tiré ou ceux qui sont certifiés ;
5° L'affichage ou la diffusion de la décision prononcée dans les conditions prévues par l'article 131-35 du code pénal.
Article L654-6
La juridiction répressive qui reconnaît l'une des personnes mentionnées à l'article L. 654-1 coupable de banqueroute peut, en outre, dans les conditions prévues au premier alinéa de l'article L. 653-11, prononcer soit la faillite personnelle de celle-ci, soit l'interdiction prévue à l'article L. 653-8, à moins qu'une juridiction civile ou commerciale ait déjà prononcé une telle mesure par une décision définitive prise à l'occasion des mêmes faits.
Article L654-7
Les personnes morales déclarées responsables pénalement des infractions prévues par les articles L. 654-3 et L. 654-4 encourent les peines suivantes :
1° L'amende, suivant les modalités prévues par l'article 131-38 du code pénal ;
2° Les peines mentionnées à l'article 131-39 du code pénal.
L'interdiction mentionnée au 2° de l'article 131-39 du code pénal porte sur l'activité dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise.
Section 2 : Des autres infractions.
Article L654-8
Est passible d'un emprisonnement de deux ans et d'une amende de 30 000 euros le fait :
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1° Pour toute personne mentionnée à l'article L. 654-1, de passer un acte ou d'effectuer un paiement en violation des dispositions de l'article L. 622-7 ;
2° Pour toute personne mentionnée à l'article L. 654-1, d'effectuer un paiement en violation des modalités de règlement du passif prévues au plan de sauvegarde ou au plan de redressement ou de faire un acte de disposition sans l'autorisation prévue par l'article L. 626-14 ;
3° Pour toute personne, pendant la période d'observation ou celle d'exécution du plan de sauvegarde ou du plan de redressement, en connaissance de la situation du débiteur, de passer avec celui-ci l'un des actes mentionnés aux 1° et 2° ou d'en recevoir un paiement irrégulier ;
4° Pour toute personne, de procéder à la cession d'un bien rendu inaliénable en application de l'article L. 642-10.
Article L654-9
Est puni des peines prévues par les articles L. 654-3 à L. 654-5 le fait :
1° Dans l'intérêt des personnes mentionnées à l'article L. 654-1, de soustraire, receler ou dissimuler tout ou partie des biens, meubles ou immeubles de celles-ci, le tout sans préjudice de l'application de l'article 121-7 du code pénal ;
2° Pour toute personne, de déclarer frauduleusement dans la procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire, soit en son nom, soit par interposition de personne, des créances supposées ;
3° Pour toute personne exerçant une activité commerciale, artisanale, agricole ou toute autre activité indépendante, sous le nom d'autrui ou sous un nom supposé, de se rendre coupable d'un des faits prévus à l'article L. 654-14.
Article L654-10
Le fait, pour le conjoint, les descendants ou les ascendants ou les collatéraux ou les alliés des personnes mentionnées à l'article L. 654-1, de détourner, divertir ou receler des effets dépendant de l'actif du débiteur soumis à une procédure de redressement judiciaire ou de liquidation judiciaire, est puni des peines prévues par l'article 314-1 du code pénal.
Article L654-11
Dans les cas prévus par les articles précédents, la juridiction saisie statue, lors même qu'il y aurait relaxe :
1° D'office, sur la réintégration dans le patrimoine du débiteur de tous les biens, droits ou actions qui ont été frauduleusement soustraits ;
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2° Sur les dommages et intérêts qui seraient demandés.
Article L654-12
I. - Est puni des peines prévues par l'article 314-2 du code pénal le fait, pour tout administrateur, mandataire judiciaire, liquidateur ou commissaire à l'exécution du plan :
1° De porter volontairement atteinte aux intérêts des créanciers ou du débiteur soit en utilisant à son profit des sommes perçues dans l'accomplissement de sa mission, soit en se faisant attribuer des avantages qu'il savait n'être pas dus ;
2° De faire, dans son intérêt, des pouvoirs dont il disposait, un usage qu'il savait contraire aux intérêts des créanciers ou du débiteur.
II. - Est puni des mêmes peines le fait, pour tout administrateur, mandataire judiciaire, liquidateur, commissaire à l'exécution du plan ou toute autre personne, à l'exception des représentants des salariés, de se rendre acquéreur pour son compte, directement ou indirectement, de biens du débiteur ou de les utiliser à son profit, ayant participé à un titre quelconque à la procédure. La juridiction saisie prononce la nullité de l'acquisition et statue sur les dommages et intérêts qui seraient demandés.
Article L654-13
Le fait, pour le créancier, après le jugement ouvrant la procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire, de passer une convention comportant un avantage particulier à la charge du débiteur est puni des peines prévues par l'article 314-1 du code pénal.
La juridiction saisie prononce la nullité de cette convention.
Article L654-14
Est puni des peines prévues aux articles L. 654-3 à L. 654-5 le fait, pour les personnes mentionnées aux 2° et 3° de l'article L. 654-1, de mauvaise foi, en vue de soustraire tout ou partie de leur patrimoine aux poursuites de la personne morale qui a fait l'objet d'un jugement d'ouverture de sauvegarde, de redressement judiciaire ou de liquidation judiciaire ou à celles des associés ou des créanciers de la personne morale, de détourner ou de dissimuler, ou de tenter de détourner ou de dissimuler, tout ou partie de leurs biens, ou de se faire frauduleusement reconnaître débitrice de sommes qu'elles ne devaient pas.
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Article L654-15
Le fait, pour toute personne, d'exercer une activité professionnelle ou des fonctions en violation des interdictions, déchéances ou incapacité prévues par les articles L. 653-2 et L. 653-8, est puni d'un emprisonnement de deux ans et d'une amende de 375 000 euros.
Section 3 : Des règles de procédures.
Article L654-16
Pour l'application des dispositions des sections 1 et 2 du présent chapitre, la prescription de l'action publique ne court que du jour du jugement ouvrant la procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire lorsque les faits incriminés sont apparus avant cette date.
Article L654-17
La juridiction répressive est saisie soit sur la poursuite du ministère public, soit sur constitution de partie civile de l'administrateur, du mandataire judiciaire, du représentant des salariés, du commissaire à l'exécution du plan, du liquidateur ou de la majorité des créanciers nommés contrôleurs agissant dans l'intérêt collectif des créanciers lorsque le mandataire de justice ayant qualité pour agir n'a pas agi, après une mise en demeure restée sans suite dans un délai et des conditions fixés par décret en Conseil d'Etat.
Article L654-18
Le ministère public peut requérir de l'administrateur ou du liquidateur la remise de tous les actes et documents détenus par ces derniers.
Article L654-19
Les frais de la poursuite intentée par l'administrateur, le mandataire judiciaire, le représentant des salariés, le commissaire à l'exécution du plan ou le liquidateur sont supportés par le Trésor public, en cas de relaxe.
En cas de condamnation, le Trésor public ne peut exercer son recours contre le débiteur qu'après la clôture des opérations de liquidation judiciaire.
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Article L654-20
Les jugements et arrêts de condamnation rendus en application du présent chapitre sont publiés aux frais du condamné.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE VI : Des dispositions générales de procédure.
Chapitre Ier : Des voies de recours.
Article L661-1
I.-Sont susceptibles d'appel ou de pourvoi en cassation : 1° Les décisions statuant sur l'ouverture des procédures de sauvegarde ou de redressement judiciaire de la part du débiteur, du créancier poursuivant et du ministère public ; 2° Les décisions statuant sur l'ouverture de la liquidation judiciaire de la part du débiteur, du créancier poursuivant, du comité d'entreprise ou, à défaut, des délégués du personnel et du ministère public ; 3° Les décisions statuant sur l'extension d'une procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire de la part du débiteur soumis à la procédure, du débiteur visé par l'extension, du mandataire judiciaire ou du liquidateur, de l'administrateur et du ministère public ; 4° Les décisions statuant sur la conversion de la procédure de sauvegarde en redressement judiciaire de la part du débiteur, de l'administrateur, du mandataire judiciaire et du ministère public ; 5° Les décisions statuant sur le prononcé de la liquidation judiciaire au cours d'une période d'observation de la part du débiteur, de l'administrateur, du mandataire judiciaire, du comité d'entreprise ou, à défaut, des délégués du personnel et du ministère public ; 6° Les décisions statuant sur l'arrêté du plan de sauvegarde ou du plan de redressement de la part du débiteur, de l'administrateur, du mandataire judiciaire, du comité d'entreprise ou, à défaut, des délégués du personnel et du ministère public, ainsi que de la part du créancier ayant formé une contestation en application de l'article L. 626-34-1 ; 7° Les décisions statuant sur la modification du plan de sauvegarde ou du plan de redressement de la part du débiteur, du commissaire à l'exécution du plan, du comité d'entreprise ou, à défaut, des délégués du personnel et du ministère public, ainsi que de la part du créancier ayant formé une contestation en application de l'article L. 626-34-1 ; 8° Les décisions statuant sur la résolution du plan de sauvegarde ou du plan de redressement de la part du débiteur, du commissaire à l'exécution du plan, du comité d'entreprise ou, à défaut des délégués du personnel, du créancier poursuivant et du ministère public.
II.-L'appel du ministère public est suspensif, à l'exception de celui portant sur les décisions statuant sur l'ouverture de la procédure de sauvegarde ou de redressement judiciaire.
III.-En l'absence de comité d'entreprise ou de délégué du personnel, le représentant des salariés exerce les voies de recours ouvertes à ces institutions par le présent article.
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Article L661-2
Les décisions mentionnées aux 1° à 5° du I de l'article L. 661-1, à l'exception du 4°, sont susceptibles de tierce opposition. Le jugement statuant sur la tierce opposition est susceptible d'appel et de pourvoi en cassation de la part du tiers opposant.
Article L661-3
Les décisions arrêtant ou modifiant le plan de sauvegarde ou de redressement ou rejetant la résolution de ce plan sont susceptibles de tierce opposition.
Le jugement statuant sur la tierce opposition est susceptible d'appel et de pourvoi en cassation de la part du tiers opposant.
Il ne peut être exercé de tierce opposition contre les décisions rejetant l'arrêté ou la modification du plan de sauvegarde ou de redressement ou prononçant la résolution de ce plan.
Article L661-4
Les jugements ou ordonnances relatifs à la nomination ou au remplacement du juge-commissaire ne sont pas susceptibles de recours.
Article L661-6
I.-Ne sont susceptibles que d'un appel de la part du ministère public : 1° Les jugements ou ordonnances relatifs à la nomination ou au remplacement de l'administrateur, du mandataire judiciaire, du commissaire à l'exécution du plan, du liquidateur, des contrôleurs, du ou des experts ; 2° Les jugements statuant sur la durée de la période d'observation, sur la poursuite ou la cessation de l'activité. II.-Ne sont susceptibles que d'un appel de la part du débiteur ou du ministère public, les jugements relatifs à la modification de la mission de l'administrateur. III.-Ne sont susceptibles que d'un appel de la part soit du débiteur, soit du ministère public, soit du cessionnaire ou du cocontractant mentionné à l'article L. 642-7 les jugements qui arrêtent ou rejettent le plan de cession de l'entreprise. Le cessionnaire ne peut interjeter appel du jugement arrêtant le plan de cession que si ce dernier lui impose des charges autres que les engagements qu'il a souscrits au cours de la préparation du plan. Le cocontractant mentionné à l'article L. 642-7 ne peut interjeter appel que de la partie du jugement qui emporte cession du contrat. IV.-Ne sont susceptibles que d'un appel de la part du ministère public ou du cessionnaire, dans les limites mentionnées à l'alinéa précédent, les jugements modifiant le plan de cession. V.-Ne sont susceptibles que d'un appel de la part du débiteur, de l'administrateur, du liquidateur, du cessionnaire et du ministère public les jugements statuant sur la résolution du plan de cession. VI.-L'appel du ministère public est suspensif.
Article L661-7
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Il ne peut être exercé de tierce opposition ou de recours en cassation ni contre les jugements mentionnés à l'article L. 661-6, ni contre les arrêts rendus en application des I et II du même article.
Le pourvoi en cassation n'est ouvert qu'au ministère public à l'encontre des arrêts rendus en application du III, IV et V de l'article L. 661-6.
Article L661-8
Lorsque le ministère public doit avoir communication des procédures de sauvegarde, de redressement judiciaire ou de liquidation judiciaire et des causes relatives à la responsabilité des dirigeants sociaux, le pourvoi en cassation pour défaut de communication n'est ouvert qu'à lui seul.
Article L661-9
En cas d'infirmation du jugement imposant de renvoyer l'affaire devant le tribunal, la cour d'appel peut ouvrir une nouvelle période d'observation. Cette période est d'une durée maximale de trois mois.
En cas d'appel du jugement statuant sur la liquidation judiciaire au cours de la période d'observation ou arrêtant ou rejetant le plan de sauvegarde ou le plan de redressement judiciaire et lorsque l'exécution provisoire est arrêtée, la période d'observation est prolongée jusqu'à l'arrêt de la cour d'appel.
Article L661-10
Pour l'application du présent titre, les membres du comité d'entreprise ou les délégués du personnel désignent parmi eux la personne habilitée à exercer en leur nom les voies de recours.
Article L661-11
Les décisions rendues en application des chapitres Ier, II et III du titre V sont susceptibles d'appel de la part du ministère public .
L'appel du ministère public est suspensif.
Article L661-12
Les recours du ministère public prévus par le présent chapitre lui sont ouverts même s'il n'a pas agi
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comme partie principale.
Chapitre II : Autres dispositions.
Article L662-1
Aucune opposition ou procédure d'exécution de quelque nature qu'elle soit sur les sommes versées à la Caisse des dépôts et consignations n'est recevable.
Article L662-2
Lorsque les intérêts en présence le justifient, la cour d'appel peut décider de renvoyer l'affaire devant une autre juridiction de même nature, compétente dans le ressort de la cour, pour connaître du mandat ad hoc, de la procédure de conciliation ou des procédures de sauvegarde, de redressement judiciaire ou de liquidation judiciaire, dans des conditions fixées par décret. La Cour de cassation, saisie dans les mêmes conditions, peut renvoyer l'affaire devant une juridiction du ressort d'une autre cour d'appel.
Article L662-3
Les débats devant le tribunal de commerce et le tribunal de grande instance ont lieu en chambre du conseil. Néanmoins, la publicité des débats est de droit après l'ouverture de la procédure si le débiteur, le mandataire judiciaire, l'administrateur, le liquidateur, le représentant des salariés ou le ministère public en font la demande. Le président du tribunal peut décider qu'ils auront lieu ou se poursuivront en chambre du conseil s'il survient des désordres de nature à troubler la sérénité de la justice.
Par dérogation aux dispositions du premier alinéa, les débats relatifs aux mesures prises en application des chapitres Ier et III du titre V ont lieu en audience publique. Le président du tribunal peut décider qu'ils ont lieu en chambre du conseil si l'une des personnes mises en cause le demande avant leur ouverture.
Article L662-4
Tout licenciement envisagé par l'administrateur, l'employeur ou le liquidateur, selon le cas, du représentant des salariés mentionné aux articles L. 621-4 et L. 641-1 est obligatoirement soumis au comité d'entreprise, qui donne un avis sur le projet de licenciement.
Le licenciement ne peut intervenir que sur autorisation de l'inspecteur du travail dont dépend l'établissement. Lorsqu'il n'existe pas de comité d'entreprise dans l'établissement, l'inspecteur du travail est saisi directement.
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Toutefois, en cas de faute grave, l'administrateur, l'employeur ou le liquidateur, selon le cas, a la faculté de prononcer la mise à pied immédiate de l'intéressé en attendant la décision définitive. En cas de refus de licenciement, la mise à pied est annulée et ses effets supprimés de plein droit.
La protection instituée en faveur du représentant des salariés pour l'exercice de sa mission fixée à l'article L. 625-2 cesse lorsque toutes les sommes versées au mandataire judiciaire par les institutions mentionnées à l'article L. 143-11-4 du code du travail, en application du dixième alinéa de l'article L. 143-11-7 dudit code, ont été reversées par ce dernier aux salariés.
Lorsque le représentant des salariés exerce les fonctions du comité d'entreprise ou, à défaut, des délégués du personnel, la protection cesse au terme de la dernière audition ou consultation prévue par la procédure de redressement judiciaire.
Article L662-5
Les fonds détenus par les syndics au titre des procédures de règlement judiciaire ou de liquidation des biens régies par la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes sont immédiatement versés en compte de dépôt à la Caisse des dépôts et consignations. En cas de retard, le syndic doit, pour les sommes qu'il n'a pas versées, un intérêt dont le taux est égal au taux de l'intérêt légal majoré de cinq points.
Article L662-6
Le greffe du tribunal de commerce et celui du tribunal de grande instance établissent au terme de chaque semestre la liste des administrateurs judiciaires et des mandataires judiciaires désignés par la juridiction et des autres personnes auxquelles un mandat afférent aux procédures régies par le présent livre a été confié par ladite juridiction, pendant cette période. Ils y font figurer, pour chacun des intéressés, l'ensemble des dossiers qui lui ont été attribués et les informations relatives aux débiteurs concernés prévues par décret en Conseil d'Etat.
Ces informations sont portées à la connaissance du garde des sceaux, ministre de la justice, du ministère public du ressort concerné et des autorités chargées du contrôle et de l'inspection des administrateurs et des mandataires judiciaires, selon des modalités déterminées par un décret en Conseil d'Etat.
Chapitre III : Des frais de procédure.
Article L663-1
I.-Lorsque les fonds disponibles du débiteur n'y peuvent suffire immédiatement, le Trésor public, sur ordonnance motivée du juge-commissaire, fait l'avance des droits, taxes, redevances ou
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émoluments perçus par les greffes des juridictions, des débours tarifés et des émoluments dus aux avoués et des rémunérations des avocats dans la mesure où elles sont réglementées, des frais de signification et de publicité et de la rémunération des techniciens désignés par la juridiction après accord du ministère public, afférents :
1° Aux décisions qui interviennent au cours de la procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire rendues dans l'intérêt collectif des créanciers ou du débiteur ;
2° A l'exercice des actions tendant à conserver ou à reconstituer le patrimoine du débiteur ou exercées dans l'intérêt collectif des créanciers ;
3° Et à l'exercice des actions visées aux articles L. 653-3 à L. 653-6.
L'accord du ministère public n'est pas nécessaire pour l'avance de la rémunération des officiers publics désignés par le tribunal en application des articles L. 621-4, L. 621-12, L. 622-6-1, L. 622-10, L. 631-9 ou L. 641-1 pour réaliser l'inventaire prévu à l'article L. 622-6 et, le cas échéant, la prisée des actifs du débiteur.
II.-Le Trésor public sur ordonnance motivée du président du tribunal, fait également l'avance des mêmes frais afférents à l'exercice de l'action en résolution et en modification du plan.
III.-Ces dispositions sont applicables aux procédures d'appel ou de cassation de toutes les décisions mentionnées ci-dessus.
IV.-Pour le remboursement de ses avances, le Trésor public est garanti par le privilège des frais de justice.
Article L663-2
Un décret en Conseil d'Etat fixe les modalités de rémunération des administrateurs judiciaires, des mandataires judiciaires, des commissaires à l'exécution du plan et des liquidateurs. Cette rémunération est exclusive de toute autre rémunération ou remboursement de frais au titre de la même procédure ou au titre d'une mission subséquente qui n'en serait que le prolongement.
Article L663-3
Lorsque le produit de la réalisation des actifs de l'entreprise ne permet pas au liquidateur ou au mandataire judiciaire d'obtenir, au titre de la rémunération qui lui est due en application des dispositions de l'article L. 663-2, une somme au moins égale à un seuil fixé par décret en Conseil d'Etat, le dossier est déclaré impécunieux par décision du tribunal, sur proposition du juge-commissaire et au vu des justificatifs présentés par le liquidateur ou le mandataire judiciaire.
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La même décision fixe la somme correspondant à la différence entre la rémunération effectivement perçue par le liquidateur ou le mandataire judiciaire et le seuil visé au premier alinéa.
La somme versée au mandataire judiciaire ou au liquidateur est prélevée sur une quote-part des intérêts servis par la Caisse des dépôts et consignations sur les fonds déposés en application des articles L. 622-18, L. 626-25 et L. 641-8. Cette quote-part est spécialement affectée à un fonds géré par la Caisse des dépôts et consignations sous le contrôle d'un comité d'administration. Les conditions d'application du présent alinéa sont fixées par un décret en Conseil d'Etat.
Article L663-4
Le juge-commissaire a droit, sur l'actif du débiteur, au remboursement de ses frais de déplacement.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE VII : Dispositions dérogatoires particulières aux départements de la Moselle, du Bas-Rhin et du Haut-Rhin.
Article L670-1
Les dispositions du présent titre sont applicables aux personnes physiques, domiciliées dans les départements de la Moselle, du Bas-Rhin et du Haut-Rhin, et à leur succession, qui ne sont ni des agriculteurs, ni des personnes exerçant une activité commerciale, artisanale ou toute autre activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire, lorsqu'elles sont de bonne foi et en état d'insolvabilité notoire. Les dispositions des titres II à VI du présent livre s'appliquent dans la mesure où elles ne sont pas contraires à celles du présent titre.
Avant qu'il ne soit statué sur l'ouverture de la procédure, le tribunal commet, s'il l'estime utile, une personne compétente choisie dans la liste des organismes agréés, pour recueillir tous renseignements sur la situation économique et sociale du débiteur.
Les déchéances et interdictions qui résultent de la faillite personnelle ne sont pas applicables à ces personnes.
Les modalités d'application du présent article sont fixées par décret.
Article L670-2
Le juge-commissaire peut ordonner la dispense de l'inventaire des biens des personnes visées à l'article L. 670-1.
Article L670-3
Il n'est pas procédé, en cas de liquidation judiciaire, à la vérification des créances s'il apparaît que le produit de la réalisation de l'actif sera entièrement absorbé par les frais de justice, sauf décision contraire du juge-commissaire.
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Article L670-4
Lors de la clôture des opérations de liquidation judiciaire, le tribunal peut, à titre exceptionnel, imposer au débiteur une contribution destinée à l'apurement du passif dans les proportions qu'il détermine. Le tribunal désigne dans ce jugement un commissaire chargé de veiller à l'exécution de la contribution.
Pour fixer les proportions de la contribution, le tribunal prend en compte les facultés contributives du débiteur déterminées au regard de ses ressources et charges incompressibles. Le tribunal réduit le montant de la contribution en cas de diminution des ressources ou d'augmentation des charges du contributeur.
Son paiement doit être effectué dans un délai de deux ans.
Les modalités d'application du présent article sont fixées par décret.
Article L670-5
Outre les cas prévus à l'article L. 643-11, les créanciers recouvrent également leur droit de poursuite individuelle à l'encontre du débiteur lorsque le tribunal constate, d'office ou à la demande du commissaire, l'inexécution de la contribution visée à l'article L. 670-4.
Article L670-6
Le jugement prononçant la liquidation judiciaire est mentionné pour une durée de huit ans au fichier prévu à l'article L. 333-4 du code de la consommation et ne fait plus l'objet d'une mention au casier judiciaire de l'intéressé.
Article L670-7
L'assiette et la liquidation de la taxe sur les frais de justice en matière de redressement ou de liquidation judiciaire sont provisoirement réglées conformément aux dispositions des lois locales.
Article L670-8
Les dispositions de l'article 1er de la loi n° 75-1256 du 27 décembre 1975 relative à certaines ventes de biens immeubles dans les départements du Haut-Rhin, du Bas-Rhin et de la Moselle cessent
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d'être applicables aux ventes forcées d'immeubles compris dans le patrimoine d'un débiteur ayant fait l'objet d'une procédure de redressement judiciaire ouverte postérieurement au 1er janvier 1986.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE Ier : Du réseau des chambres de commerce et d'industrie.
Article L710-1
Le réseau des chambres de commerce et d'industrie se compose des chambres de commerce et d'industrie, des chambres régionales de commerce et d'industrie, des groupements interconsulaires que peuvent former plusieurs chambres entre elles et de l'assemblée des chambres françaises de commerce et d'industrie. Il contribue au développement économique des territoires, des entreprises et de leurs associations en remplissant en faveur des acteurs économiques, dans des conditions fixées par décret, des missions de service public, des missions d'intérêt général et, à son initiative, des missions d'intérêt collectif. Les établissements qui le composent ont, dans le respect de leurs compétences respectives, auprès des pouvoirs publics, une fonction de représentation des intérêts de l'industrie, du commerce et des services, sans préjudice des missions de représentation conférées aux organisations professionnelles ou interprofessionnelles par les dispositions législatives ou réglementaires.
Ces établissements sont des établissements publics placés sous la tutelle de l'Etat et administrés par des dirigeants d'entreprise élus. Leurs ressources proviennent des impositions qui leur sont affectées, de la vente ou de la rémunération de leurs activités ou des services qu'ils gèrent, des dividendes et autres produits des participations qu'ils détiennent dans leurs filiales, des subventions, dons et legs qui leur sont consentis et de toute autre ressource légale entrant dans leur spécialité.
Dans des conditions définies par décret, ils peuvent transiger et compromettre. Ils sont soumis, pour leurs dettes, aux dispositions de la loi n° 68-1250 du 31 décembre 1968 relative à la prescription des créances sur l'Etat, les départements, les communes et les établissements publics.
Ils peuvent, avec l'accord de l'autorité de tutelle, participer à la création et au capital de sociétés civiles et de sociétés par actions dont l'objet social entre dans le champ de leurs compétences.
Chapitre Ier : De l'organisation et des missions du réseau des chambres de commerce et d'industrie.
Section 1 : Les chambres de commerce et d'industrie.
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Article L711-1
Les chambres de commerce et d'industrie sont créées par un décret qui fixe notamment leur circonscription et leur siège. Toute modification est opérée dans les mêmes formes.
Article L711-2
Les chambres de commerce et d'industrie représentent auprès des pouvoirs publics les intérêts de l'industrie, du commerce et des services de leur circonscription.
A ce titre :
1° Elles sont consultées par l'Etat sur les règlements relatifs aux usages commerciaux ;
2° Elles peuvent être consultées par les collectivités territoriales et leurs établissements publics sur leurs projets de développement économique, de création d'infrastructures et de dispositifs d'assistance aux entreprises et sur leurs projets en matière de formation professionnelle ;
3° Elles peuvent également être consultées par l'Etat, les collectivités territoriales et leurs établissements publics sur toute question relative à l'industrie, au commerce, aux services, au développement économique, à la formation professionnelle, à l'aménagement du territoire et à l'environnement intéressant leur circonscription. Elles peuvent, de leur propre initiative, émettre des avis et des voeux sur ces mêmes questions ;
4° Dans les conditions précisées à l'article L. 121-4 du code de l'urbanisme, elles sont associées à l'élaboration des schémas de cohérence territoriale et des plans locaux d'urbanisme et peuvent, à leur initiative, réaliser les documents nécessaires à la préparation des documents prévisionnels d'organisation commerciale.
Article L711-3
Les chambres de commerce et d'industrie ont une mission de service aux entreprises industrielles, commerciales et de services de leur circonscription.
Pour l'exercice de cette mission, elles créent et gèrent des centres de formalités des entreprises et apportent à celles-ci toutes informations et tous conseils utiles pour leur développement.
Elles peuvent également créer et assurer directement d'autres dispositifs de conseil et d'assistance aux entreprises, dans le respect du droit de la concurrence et sous réserve de la tenue d'une comptabilité analytique.
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Article L711-4
Les chambres de commerce et d'industrie contribuent au développement économique du territoire.
A ce titre :
1° Elles peuvent, pour des considérations d'intérêt général ou en cas de carence de l'initiative privée, assurer la maîtrise d'ouvrage ou la maîtrise d'oeuvre de tout projet d'infrastructure ou d'équipement et gérer tout service concourant à l'exercice de leurs missions ;
2° Elles peuvent également recevoir délégation de l'Etat, des collectivités territoriales et de leurs établissements publics pour créer ou gérer tout équipement, infrastructure ou service qui intéresse l'exercice de leurs missions. Elles peuvent notamment se voir confier, dans ce cadre, des délégations de service public en matière d'aéroports, de ports maritimes et de voies navigables.
Sauf, le cas échéant, pour les services correspondant à une délégation de service public, ces missions sont exercées dans le cadre de structures juridiques distinctes dans des conditions définies par décret.
Pour la réalisation d'équipements commerciaux, les chambres de commerce et d'industrie peuvent se voir déléguer le droit de préemption urbain et être titulaires ou délégataires du droit de préemption institué dans les zones d'aménagement différé.
Article L711-5
Les chambres de commerce et d'industrie peuvent créer et administrer, à titre principal ou en association avec d'autres partenaires, tout établissement de formation professionnelle, initiale ou continue, dans les conditions prévues aux articles L. 443-1 et L. 753-1 du code de l'éducation et, pour la formation continue, dans le respect du droit de la concurrence et sous réserve de la tenue d'une comptabilité analytique.
Elles peuvent, en liaison avec les organisations professionnelles, créer des fonds d'assurance-formation dans les conditions prévues par l'article L. 961-10 du code du travail.
Section 2 : Les chambres régionales de commerce et d'industrie
Article L711-6
Les chambres régionales de commerce et d'industrie sont créées par un décret qui fixe notamment leur circonscription et leur siège. Toute modification est opérée dans les mêmes formes.
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Article L711-7
Les chambres régionales de commerce et d'industrie représentent auprès des pouvoirs publics les intérêts de l'industrie, du commerce et des services pour toute question dont la portée excède le ressort d'une des chambres de leur circonscription.
A ce titre :
1° Elles sont consultées par le conseil régional sur le schéma régional de développement économique et, plus généralement, sur tout dispositif d'assistance aux entreprises dont la région envisage la création ;
2° Elles peuvent également être consultées par l'Etat, par les organes de la région et par les autres collectivités territoriales ou par leurs établissements publics sur toute question relative à l'industrie, au commerce, aux services, au développement économique, à la formation professionnelle, à l'aménagement du territoire et à l'environnement dans leur région, dès lors que la portée de cette question excède le ressort d'une des chambres de leur circonscription ; elles peuvent, de leur propre initiative, émettre des avis et des voeux sur ces mêmes questions ;
3° Elles sont associées à l'élaboration du schéma régional d'aménagement et de développement du territoire et du plan régional de développement des formations professionnelles.
Article L711-8
Les chambres régionales de commerce et d'industrie ont une mission d'animation du réseau des chambres de commerce et d'industrie de leur circonscription.
A ce titre :
1° Elles veillent à la cohérence des actions et des avis des chambres de commerce et d'industrie dans leur circonscription ;
2° Elles établissent, dans des conditions définies par décret en Conseil d'Etat, un schéma directeur qui définit le réseau consulaire dans leur circonscription en prenant en compte la viabilité économique, la justification opérationnelle et la proximité des électeurs ;
3° Elles élaborent des schémas sectoriels dans des domaines définis par décret.
Article L711-9
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Les chambres régionales de commerce et d'industrie veillent à la mise à disposition des ressortissants des chambres de commerce et d'industrie de leur circonscription, de services et prestations dont la nature et les modalités sont fixées par décret.
Elles peuvent également créer, assurer directement ou coordonner des dispositifs de conseil et d'assistance aux entreprises et des actions de formation professionnelle dont l'objet excède le ressort d'une des chambres de commerce et d'industrie de leur circonscription ou d'un groupement de plusieurs d'entre elles.
Article L711-10
Les chambres régionales de commerce et d'industrie contribuent à l'animation économique du territoire régional.
A ce titre :
1° Elles peuvent assurer au titre de leurs missions propres, pour des considérations d'intérêt général ou en cas de carence de l'initiative privée, la mise en oeuvre de tout projet de développement économique. Elles le peuvent également par délégation de l'Etat, agissant en son nom propre ou au nom de l'Union européenne, de la région et d'autres collectivités territoriales et de leurs établissements publics ;
2° Elles peuvent également recevoir délégation de l'Etat, agissant en son nom propre ou au nom de l'Union européenne, de la région et d'autres collectivités territoriales et de leurs établissements publics, pour créer ou gérer des équipements, des infrastructures ou des services. Elles peuvent notamment se voir confier dans ce cadre des délégations de service public en matière d'aéroports, de ports maritimes et de voies navigables.
Sauf, le cas échéant, pour les services correspondant à une délégation de service public, ces missions sont exercées dans le cadre de structures juridiques distinctes, dans des conditions définies par décret.
Section 3 : L'assemblée des chambres françaises de commerce et d'industrie.
Article L711-11
L'assemblée des chambres françaises de commerce et d'industrie représente, auprès de l'Etat et de l'Union européenne ainsi qu'au plan international, les intérêts nationaux de l'industrie, du commerce et des services.
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A ce titre, elle donne des avis soit à la demande des pouvoirs publics, soit de sa propre initiative sur toutes les questions relatives à l'industrie, au commerce, aux services, au développement économique, à la formation professionnelle, à l'aménagement du territoire et à l'environnement.
Article L711-12
L'assemblée des chambres françaises de commerce et d'industrie assure l'animation de l'ensemble du réseau des chambres de commerce et d'industrie.
A ce titre :
1° Elle définit, sous forme de cahier des charges, des normes d'intervention pour les établissements membres du réseau et s'assure du respect de ces normes ;
2° Elle apporte au réseau son appui dans les domaines technique, juridique et financier ;
3° Elle définit la politique générale du réseau en matière de gestion des personnels des chambres et négocie et signe les accords nationaux en matière sociale applicables aux personnels des chambres ;
4° Elle coordonne les actions du réseau avec celles des chambres de commerce et d'industrie françaises à l'étranger.
Chapitre II : De l'administration des établissements du réseau des chambres de commerce et d'industrie
Article L712-1
Dans chaque établissement public du réseau, l'assemblée générale des membres élus détermine les orientations et le programme d'action de l'établissement. A cette fin, elle délibère sur toutes les affaires relatives à l'objet de celui-ci, notamment le budget, les comptes et le règlement intérieur. Elle peut déléguer aux autres instances de l'établissement des compétences relatives à son administration et à son fonctionnement courant.
Le président est le représentant légal de l'établissement. Il en est l'ordonnateur et est responsable de sa gestion. Il en préside l'assemblée générale et les autres instances délibérantes. Un décret en Conseil d'Etat détermine les conditions dans lesquelles lui sont appliquées les dispositions de l'article 7 de la loi n° 84-834 du 13 septembre 1984 relative à la limite d'âge dans la fonction publique et le secteur public. Les fonctions de trésorier sont exercées par un membre de l'assemblée générale.
Article L712-2
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Il est pourvu aux dépenses ordinaires des chambres de commerce et d'industrie au moyen d'une taxe additionnelle à la taxe professionnelle.
Article L712-3
Les chambres de commerce peuvent affecter tout ou partie des excédents de recettes, provenant de la gestion de leur service ordinaire, à la constitution d'un fonds de réserve en vue de faire face aux dépenses urgentes et imprévues. Le montant de ce fonds de réserve, qui est mentionné dans les comptes et budgets de ce service à un article spécial, ne peut, en aucun cas, être supérieur à la moitié de la totalité des ressources annuelles dudit budget.
Article L712-4
Un établissement public du réseau des chambres de commerce et d'industrie de la région qui n'a pas délibéré favorablement pour mettre en oeuvre le schéma directeur prévu à l'article L. 711-8 ou dont l'autorité compétente constate qu'il n'a pas respecté les dispositions prévues audit schéma ne peut contracter d'emprunts.
Article L712-5
Une chambre régionale de commerce et d'industrie peut, dans des conditions définies par décret, abonder le budget d'une chambre de commerce et d'industrie de sa circonscription pour subvenir à des dépenses exceptionnelles ou faire face à des circonstances particulières.
Article L712-6
Les établissements de réseau sont tenus de nommer au moins un commissaire aux comptes et un suppléant choisis sur la liste mentionnée à l'article L. 822-1, qui exercent leurs fonctions dans les conditions prévues par les dispositions du livre II sous réserve des règles qui leur sont propres.
Les peines prévues par l'article L. 242-8 sont applicables aux dirigeants qui n'auront pas, chaque année, établi un bilan, un compte de résultat et une annexe.
Article L712-7
L'autorité compétente veille au fonctionnement régulier des établissements du réseau. Elle assiste de droit à leurs instances délibérantes. Certaines délibérations, notamment celles mentionnées au 2° de
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l'article L. 711-8, sont soumises à son approbation dans des conditions fixées par voie réglementaire.
Article L712-8
Lorsque le budget prévisionnel d'un établissement ou le budget exécuté au cours de l'exercice écoulé fait apparaître un déficit non couvert par les excédents disponibles, que des dépenses obligatoires n'ont pas été inscrites au budget ou n'ont pas été mandatées, ou que des dysfonctionnements graves, mettant en péril l'équilibre financier de l'établissement, sont constatés, l'autorité compétente, après application d'une procédure contradictoire, arrête le budget et peut confier au trésorier-payeur général les fonctions de trésorier.
Article L712-9
Tout membre élu d'un établissement public du réseau peut être suspendu ou déclaré démissionnaire d'office par l'autorité compétente, après procédure contradictoire, en cas de faute grave dans l'exercice de ses fonctions.
Lorsque les circonstances compromettent le fonctionnement d'un établissement, l'autorité compétente peut prononcer la suspension de ses instances et nommer une commission provisoire.
Au besoin, il est recouru à la dissolution des instances de l'établissement par décision de l'autorité compétente.
Article L712-10
Un décret en Conseil d'Etat précise les conditions d'application du présent chapitre, en particulier les règles de fonctionnement administratif et financier des établissements du réseau ainsi que les modalités de la tutelle exercée par l'Etat.
Chapitre III : De l'élection des membres des chambres de commerce et d'industrie et des délégués consulaires.
Section 1 : De l'élection des membres des chambres de commerce et d'industrie.
Article L713-1
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I.-Les membres des chambres de commerce et d'industrie sont élus pour cinq ans.
Un membre d'une chambre de commerce et d'industrie ou d'une chambre régionale de commerce et d'industrie ne peut exercer plus de trois mandats de président de cette chambre, quelle que soit la durée effective de ces mandats.
II.-Sont électeurs aux élections des membres des chambres de commerce et d'industrie :
1° A titre personnel :
a) Les commerçants immatriculés au registre du commerce et des sociétés dans la circonscription de la chambre de commerce et d'industrie, sous réserve, pour les associés en nom collectif et les associés commandités, des dispositions du III de l'article L. 713-2 ;
b) Les chefs d'entreprise inscrits au répertoire des métiers et immatriculés au registre du commerce et des sociétés dans la circonscription ;
c) Les conjoints des personnes énumérées au a ou au b ci-dessus ayant déclaré au registre du commerce et des sociétés qu'ils collaborent à l'activité de leur époux sans autre activité professionnelle ;
2° Par l'intermédiaire d'un représentant :
a) Les sociétés commerciales au sens du deuxième alinéa de l'article L. 210-1 du présent code et les établissements publics à caractère industriel et commercial dont le siège est situé dans la circonscription ;
b) Au titre d'un établissement faisant l'objet dans la circonscription d'une inscription complémentaire ou d'une immatriculation secondaire, à moins qu'il en soit dispensé par les lois et règlements en vigueur, les personnes physiques mentionnées aux a et b du 1° et les personnes morales mentionnées au a du présent 2°, quelle que soit la circonscription où ces personnes exercent leur propre droit de vote ;
c) Les sociétés à caractère commercial dont le siège est situé hors du territoire national et qui disposent dans la circonscription d'un établissement immatriculé au registre du commerce et des sociétés.
Article L713-2
I.-Au titre de leur siège social et de l'ensemble de leurs établissements situés dans la circonscription de la chambre de commerce et d'industrie, les personnes physiques ou morales mentionnées aux 1° et 2° du II de l'article L. 713-1 disposent :
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1° D'un représentant supplémentaire, lorsqu'elles emploient dans la circonscription de la chambre de commerce et d'industrie de dix à quarante-neuf salariés ;
2° De deux représentants supplémentaires, lorsqu'elles emploient dans la circonscription de cinquante à cent quatre-vingt-dix-neuf salariés ;
3° De trois représentants supplémentaires, lorsqu'elles emploient dans la circonscription de deux cents à quatre cent quatre-vingt-dix-neuf salariés ;
4° De quatre représentants supplémentaires, lorsqu'elles emploient dans la circonscription de cinq cents à mille neuf cent quatre-vingt-dix-neuf salariés ;
5° De cinq représentants supplémentaires, lorsqu'elles emploient dans la circonscription deux mille salariés ou plus.
II.-Toutefois, les personnes physiques énumérées aux a et b du 1° du II de l'article L. 713-1 dont le conjoint bénéficie des dispositions du c du 1° du II du même article ne désignent aucun représentant supplémentaire si elles emploient moins de cinquante salariés dans la circonscription de la chambre de commerce et d'industrie.
III.-Les sociétés en nom collectif et les sociétés en commandite désignent par délibération expresse conformément aux dispositions statutaires un représentant unique au titre des associés et de la société, sans préjudice de la possibilité de désigner des représentants supplémentaires en application du I ci-dessus.
Article L713-3
I.-Les représentants mentionnés aux articles L. 713-1 et L. 713-2 doivent exercer dans l'entreprise soit des fonctions de président-directeur général, de président ou de membre du conseil d'administration, de directeur général, de président ou de membre du directoire, de président du conseil de surveillance, de gérant, de président ou de membre du conseil d'administration ou de directeur d'un établissement public à caractère industriel et commercial, soit, à défaut et pour les représenter à titre de mandataire, des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
II.-Les électeurs à titre personnel mentionnés au 1° du II de l'article L. 713-1 et les représentants des personnes physiques ou morales mentionnées au 2° du II du même article doivent être ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen.
Ils doivent, en outre, pour prendre part au vote :
1° Remplir les conditions fixées à l'article L. 2 du code électoral, à l'exception de la nationalité ;
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2° Ne pas avoir fait l'objet de l'interdiction visée à l'article L. 6 du code électoral ;
3° N'avoir pas été frappés depuis moins de quinze ans à compter du jour où la décision les ayant prononcées est devenue définitive, de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance telles que prévues au livre VI du présent code, à la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou à la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ;
4° Ne pas être frappé d'une peine d'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour son propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale ;
5° Ne pas avoir été condamnés à des peines, déchéances ou sanctions prononcées en vertu de législations en vigueur dans les Etats membres de la Communauté européenne ou dans les Etats parties à l'accord sur l'Espace économique européen équivalentes à celles visées aux 2°, 3° et 4°.
Article L713-4
I. - Sont éligibles aux fonctions de membre d'une chambre de commerce et d'industrie, sous réserve d'être âgés de dix-huit ans accomplis et de satisfaire aux conditions fixées au II de l'article L. 713-3 :
1° Les électeurs à titre personnel mentionnés au 1° du II de l'article L. 713-1 inscrits sur la liste électorale de la circonscription correspondante et justifiant qu'ils sont immatriculés depuis deux ans au moins au registre du commerce et des sociétés ;
2° Les électeurs inscrits en qualité de représentant, mentionnés au 2° du II de l'article L. 713-1 et à l'article L. 713-2, inscrits sur la liste électorale de la circonscription et justifiant que l'entreprise qu'ils représentent exerce son activité depuis deux ans au moins.
II. - Tout membre d'une chambre de commerce et d'industrie qui cesse de remplir les conditions d'éligibilité fixées au I ci-dessus présente sa démission au préfet. A défaut, le préfet le déclare démissionnaire d'office.
Toutefois, une cessation d'activité inférieure à six mois n'entraîne pas la démission, sauf dans les cas mentionnés aux 2°, 3°, 4° et 5° du II de l'article L. 713-3.
Article L713-5
I. - En cas de dissolution d'une chambre de commerce et d'industrie, il est procédé à son renouvellement dans un délai de six mois.
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Toutefois, si cette dissolution est prononcée moins d'un an avant un renouvellement général, il n'est pas procédé au renouvellement.
II. - Lorsque le nombre de membres d'une chambre de commerce et d'industrie se trouve réduit à moins de la moitié du nombre initial, le préfet constate la situation par arrêté et organise de nouvelles élections pour la totalité des sièges dans un délai de six mois.
Toutefois, si cette situation est constatée moins d'un an avant un renouvellement général, il n'est pas procédé au renouvellement.
III. - Les membres élus en application du présent article demeurent en fonction pour la durée restant à courir du mandat du titulaire initial.
Section 2 : De l'élection des délégués consulaires.
Article L713-6
Les délégués consulaires sont élus pour cinq ans dans la circonscription de chaque chambre de commerce et d'industrie.
Toutefois, aucun délégué consulaire n'est élu dans la circonscription ou partie de circonscription située dans le ressort d'un tribunal compétent en matière commerciale ne comprenant aucun juge élu.
Article L713-7
Sont électeurs aux élections des délégués consulaires :
1° A titre personnel :
a) Les commerçants immatriculés au registre du commerce et des sociétés dans la circonscription de la chambre de commerce et d'industrie, sous réserve, pour les associés en nom collectif et les associés commandités, des dispositions du III de l'article L. 713-2 ;
b) Les chefs d'entreprise inscrits au répertoire des métiers et immatriculés au registre du commerce et des sociétés dans la circonscription ;
c) Les conjoints des personnes énumérées au a ou au b ci-dessus ayant déclaré au registre du commerce et des sociétés qu'ils collaborent à l'activité de leur époux sans autre activité professionnelle ;
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d) Les capitaines au long cours ou capitaines de la marine marchande exerçant le commandement d'un navire immatriculé en France dont le port d'attache est situé dans la circonscription, les pilotes maritimes exerçant leurs fonctions dans un port situé dans la circonscription, les pilotes de l'aéronautique civile domiciliés dans la circonscription et exerçant le commandement d'un aéronef immatriculé en France ;
e) Les membres en exercice des tribunaux de commerce, ainsi que les anciens membres de ces tribunaux ayant demandé à être inscrits sur la liste électorale ;
2° Par l'intermédiaire d'un représentant :
a) Les sociétés à caractère commercial au sens de l'article L. 210-1 et les établissements publics à caractère industriel et commercial dont le siège social est situé dans la circonscription ;
b) Au titre d'un établissement faisant l'objet dans la circonscription d'une inscription complémentaire ou d'une immatriculation secondaire, à moins qu'il en soit dispensé par les lois et règlements en vigueur, les personnes physiques mentionnées aux a et b du 1° et les personnes morales mentionnées au a du présent 2°, quelle que soit la circonscription où ces personnes exercent leur propre droit de vote ;
c) Les sociétés à caractère commercial dont le siège est situé hors du territoire national et qui disposent dans la circonscription d'un établissement immatriculé au registre du commerce et des sociétés ;
3° Les cadres qui, employés dans la circonscription par les électeurs mentionnés aux 1° ou 2°, exercent des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
Article L713-8
Les représentants mentionnés au 2° de l'article L. 713-7 doivent exercer dans l'entreprise soit des fonctions de président-directeur général, de président ou de membre du conseil d'administration, de directeur général, de président ou de membre du directoire, de président du conseil de surveillance, de gérant, de président ou de membre du conseil d'administration ou de directeur d'un établissement public à caractère industriel et commercial, soit, à défaut et pour les représenter à titre de mandataire, des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
Article L713-9
Les électeurs à titre personnel et les cadres mentionnés aux 1° et 3° de l'article L. 713-7 ainsi que les représentants des personnes physiques ou morales mentionnées au 2° du même article sont
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ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen.
Ils doivent en outre :
1° Remplir les conditions fixées à l'article L. 2 du code électoral sous réserve des dispositions du premier alinéa ci-dessus ;
2° N'avoir pas été l'auteur de faits ayant donné lieu à une condamnation pénale pour agissements contraires à l'honneur, à la probité ou aux bonnes moeurs ;
3° N'avoir pas été frappés depuis moins de quinze ans à compter du jour où la décision les ayant prononcées est devenue définitive, de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance telles que prévues au livre VI du présent code, à la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou à la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ;
4° Ne pas être frappé d'une peine d'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour son propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale ;
5° Ne pas avoir été condamnés à des peines, déchéances ou sanctions prononcées en vertu de législations en vigueur dans les Etats membres de la Communauté européenne ou dans les Etats parties à l'accord sur l'Espace économique européen équivalentes à celles visées aux 2°, 3° et 4°.
Article L713-10
Sont éligibles aux fonctions de délégué consulaire les personnes appartenant au collège des électeurs tel qu'il est défini à l'article L. 713-7.
Section 3 : Dispositions communes.
Article L713-11
Les électeurs des délégués consulaires et des membres des chambres de commerce et d'industrie sont répartis dans chaque circonscription administrative entre trois catégories professionnelles correspondant respectivement aux activités commerciales, industrielles ou de services.
Au sein de ces trois catégories, les électeurs peuvent éventuellement être répartis en sous-catégories
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professionnelles définies en fonction soit de la taille des entreprises, soit de leurs activités spécifiques.
Article L713-12
Le nombre des sièges des délégués consulaires, qui ne peut être inférieur à soixante ni supérieur à six cents, est déterminé compte tenu de l'importance du corps électoral consulaire de la circonscription, du nombre de membres élus de la chambre de commerce et d'industrie et du nombre des tribunaux de commerce compris dans la circonscription de cette chambre.
Le nombre de sièges d'une chambre de commerce et d'industrie est de vingt-quatre à soixante pour les chambres de commerce et d'industrie dont la circonscription compte moins de 30 000 électeurs, de trente-huit à soixante-dix pour celles dont la circonscription comporte 30 000 à 100 000 électeurs et de soixante-quatre à cent pour celles dont la circonscription compte plus de 100 000 électeurs.
Article L713-13
La répartition des sièges entre catégories et sous-catégories professionnelles est faite en tenant compte des bases d'imposition des ressortissants, du nombre de ceux-ci et du nombre de salariés qu'ils emploient.
Aucune des catégories professionnelles ne peut disposer d'une représentation supérieure à la moitié du nombre des sièges.
Article L713-14
Les listes électorales sont dressées dans le ressort du tribunal de commerce par une commission présidée par le juge commis à la surveillance du registre du commerce et des sociétés et sont soumises aux prescriptions du premier alinéa de l'article L. 25 et des articles L. 27, L. 34 et L. 35 du code électoral.
Article L713-15
Pour l'élection des membres des chambres de commerce et d'industrie, chaque électeur dispose d'autant de voix qu'il a de qualités à être électeur par application de l'article L. 713-1.
Pour l'élection des délégués consulaires, chaque électeur ne dispose que d'une seule voix.
Le droit de vote aux élections des membres des chambres de commerce et d'industrie et aux élections des délégués consulaires est exercé par correspondance ou par voie électronique.
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Article L713-16
Les délégués consulaires et les membres des chambres de commerce et d'industrie sont élus au scrutin majoritaire plurinominal à un tour. Si plusieurs candidats obtiennent le même nombre de suffrages, le plus âgé est proclamé élu.
Article L713-17
Les opérations pour l'élection des délégués consulaires et pour l'élection des membres des chambres de commerce et d'industrie sont organisées à la même date, par l'autorité administrative et, sous son contrôle, par les chambres de commerce et d'industrie. Elles sont soumises aux prescriptions des articles L. 49, L. 50, L. 58 à L. 67 du code électoral. La méconnaissance de ces dispositions est passible des peines prévues aux articles L. 86 à L. 117-1 du même code.
Une commission présidée par le préfet ou son représentant est chargée de veiller à la régularité du scrutin et de proclamer les résultats.
Les recours contre les élections des délégués consulaires et des membres des chambres de commerce et d'industrie sont portés devant le tribunal administratif comme en matière d'élections municipales.
Article L713-18
Un décret en Conseil d'Etat détermine les modalités d'application des articles L. 713-1 à L. 713-14. Ce décret fixe notamment les conditions dans lesquelles sont répartis les sièges de délégués consulaires et de membres d'une chambre de commerce et d'industrie entre les catégories et sous-catégories professionnelles.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE II : Du tribunal de commerce.
Chapitre Ier : De l'institution de la compétence.
Article L721-1
Les tribunaux de commerce sont des juridictions du premier degré, composées de juges élus et d'un greffier. Leur compétence est déterminée par le présent code et les codes et lois particuliers.
Les tribunaux de commerce sont soumis aux dispositions, communes à toutes les juridictions, du livre Ier du code de l'organisation judiciaire.
Article L721-2
Dans les circonscriptions où il n'est pas établi de tribunal de commerce, le tribunal de grande instance connaît des matières attribuées aux tribunaux de commerce.
Article L721-3
Les tribunaux de commerce connaissent :
1° Des contestations relatives aux engagements entre commerçants, entre établissements de crédit ou entre eux ;
2° De celles relatives aux sociétés commerciales ;
3° De celles relatives aux actes de commerce entre toutes personnes.
Toutefois, les parties peuvent, au moment où elles contractent, convenir de soumettre à l'arbitrage
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les contestations ci-dessus énumérées.
Article L721-4
Le tribunal de commerce connaît des billets à ordre portant en même temps des signatures de commerçants et de non-commerçants.
Toutefois, il est tenu de renvoyer au tribunal de grande instance s'il en est requis par le défendeur lorsque les billets à ordre ne portent que des signatures de non-commerçants et n'ont pas pour occasion des opérations de commerce, trafic, change, banque ou courtage.
Article L721-5
Par dérogation au 2° de l'article L. 721-3 et sous réserve des compétences des juridictions disciplinaires et nonobstant toute disposition contraire, les tribunaux civils sont seuls compétents pour connaître des actions en justice dans lesquelles l'une des parties est une société constituée conformément à la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé, ainsi que des contestations survenant entre associés d'une telle société.
Néanmoins, les associés peuvent convenir, dans les statuts, de soumettre à des arbitres les contestations qui surviendraient entre eux pour raison de leur société.
Article L721-6
Ne sont pas de la compétence des tribunaux de commerce les actions intentées contre un propriétaire, cultivateur ou vigneron, pour vente de denrées provenant de son cru, ni les actions intentées contre un commerçant, pour paiement de denrées et marchandises achetées pour son usage particulier.
Néanmoins, les billets souscrits par un commerçant sont censés faits pour son commerce.
Chapitre II : De l'organisation et du fonctionnement.
Section 1 : De l'organisation et du fonctionnement du tribunal de commerce.
Article L722-1
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Sauf dispositions qui prévoient un juge unique, les jugements des tribunaux de commerce sont rendus par des juges statuant en formation collégiale.
Article L722-2
Lorsque le tribunal de commerce statue en matière de sauvegarde, de redressement ou de liquidation judiciaires, de règlement judiciaire ou de liquidation de biens, la formation de jugement comprend, sous réserve de l'application des dispositions de l'article L. 722-15, une majorité de juges ayant exercé des fonctions judiciaires pendant plus de deux ans.
Article L722-3
La formation de jugement est présidée par le président du tribunal de commerce ou par un juge de ce tribunal ayant exercé des fonctions judiciaires pendant au moins trois ans, sous réserve de l'application des dispositions de l'article L. 722-15.
Article L722-4
Lorsqu'un tribunal de commerce ne peut se constituer ou statuer, la cour d'appel, saisie sur requête du procureur général, désigne, s'il n'a pas été fait application des dispositions des articles L. 722-13 et L. 722-15, le tribunal de grande instance situé dans le ressort de la cour d'appel appelé à connaître des affaires inscrites au rôle du tribunal de commerce et de celles dont il aurait été saisi ultérieurement. Si le renvoi résulte de l'impossibilité de respecter les prescriptions de l'article L. 722-2, le tribunal de grande instance n'est saisi que des affaires de sauvegarde, redressement et de liquidation judiciaires.
Le greffier du tribunal de commerce n'est pas dessaisi de ses attributions et continue d'exercer ses fonctions auprès du tribunal de renvoi.
Article L722-5
Lorsque l'empêchement qui avait motivé le renvoi a cessé, la cour d'appel, saisie sur requête du procureur général, fixe la date à partir de laquelle le tribunal de commerce connaît à nouveau des affaires de sa compétence. A cette date, les affaires sont transmises, en l'état, au tribunal de commerce. Le tribunal de renvoi reste toutefois saisi des affaires de conciliation et, lorsqu'il est statué au fond, des affaires autres que celles de sauvegarde, de redressement, de liquidation judiciaires, de règlement judiciaire et de liquidation de biens.
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Section 2 : Du mandat des juges des tribunaux de commerce.
Article L722-6
Sous réserve des dispositions relatives aux élections complémentaires prévues au second alinéa de l'article L. 723-11, les juges des tribunaux de commerce sont élus pour deux ans lors de leur première élection. Ils peuvent, à l'issue d'un premier mandat, être réélus par période de quatre ans, dans le même tribunal ou dans tout autre tribunal de commerce, sans que puisse être dépassé le nombre maximal de mandats prévu à l'article L. 723-7.
Lorsque le mandat des juges des tribunaux de commerce vient à expiration avant le commencement de la période fixée pour l'installation de leurs successeurs, ils restent en fonctions jusqu'à cette installation, sans que cette prorogation puisse dépasser une période de trois mois.
Article L722-7
Avant d'entrer en fonctions, les juges des tribunaux de commerce prêtent serment.
Le serment est le suivant : Je jure de bien et fidèlement remplir mes fonctions, de garder religieusement le secret des délibérations et de me conduire en tout comme un juge digne et loyal.
Il est reçu par la cour d'appel, lorsque le tribunal de commerce est établi au siège de la cour d'appel et, dans les autres cas, par le tribunal de grande instance dans le ressort duquel le tribunal de commerce a son siège.
Article L722-8
La cessation des fonctions de juge d'un tribunal de commerce résulte :
1° De l'expiration du mandat électoral, sous réserve des dispositions du deuxième alinéa de l'article L. 722-6 et du troisième alinéa de l'article L. 722-11 ;
2° De la suppression du tribunal ;
3° De la démission ;
4° De la déchéance.
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Article L722-9
Lorsqu'une procédure de sauvegarde, de redressement ou de liquidation judiciaires est ouverte à l'égard d'un juge d'un tribunal de commerce, l'intéressé cesse ses fonctions à compter de la date du jugement d'ouverture. Il est réputé démissionnaire.
Les mêmes dispositions s'appliquent à un juge du tribunal de commerce qui a une des qualités mentionnées au premier alinéa de l'article L. 713-3, lorsque la société ou l'établissement public auquel il appartient fait l'objet d'une procédure de sauvegarde, de redressement ou de liquidation judiciaires.
Article L722-10
Lorsqu'un tribunal de grande instance a été désigné dans les conditions prévues à l'article L. 722-4, le mandat des juges du tribunal de commerce dessaisi n'est pas interrompu pendant la période de dessaisissement.
Article L722-11
Le président du tribunal de commerce est choisi parmi les juges du tribunal qui ont exercé des fonctions dans un tribunal de commerce pendant six ans au moins, sous réserve des dispositions de l'article L. 722-13.
Le président est élu pour quatre ans au scrutin secret par les juges du tribunal de commerce réunis en assemblée générale sous la présidence du président sortant ou, à défaut, du doyen d'âge. L'élection a lieu à la majorité absolue aux deux premiers tours de scrutin et à la majorité relative au troisième tour. En cas d'égalité de voix au troisième tour, le candidat ayant la plus grande ancienneté dans les fonctions judiciaires est proclamé élu ; en cas d'égalité d'ancienneté, le plus âgé est proclamé élu.
Le président reste en fonctions jusqu'à l'installation de son successeur sans que cette prorogation puisse dépasser une période de trois mois.
Article L722-12
Lorsque, pour quelque cause que ce soit, le président du tribunal de commerce cesse ses fonctions en cours de mandat, le nouveau président est élu dans un délai de trois mois pour la période restant à courir du mandat de son prédécesseur.
En cas d'empêchement, le président est suppléé dans ses fonctions par le juge qu'il a désigné. A
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défaut de désignation ou en cas d'empêchement du juge désigné, le président est remplacé par le juge ayant la plus grande ancienneté dans les fonctions judiciaires.
Article L722-13
Lorsque aucun des candidats ne remplit la condition d'ancienneté requise pour être président du tribunal de commerce, le premier président de la cour d'appel, saisi par requête du procureur général, peut décider, par ordonnance, que l'ancienneté requise n'est pas exigée.
Article L722-14
Sous réserve de l'application des dispositions de l'article L. 722-15, nul ne peut être désigné pour exercer les fonctions de juge-commissaire dans les conditions prévues par le livre VI s'il n'a exercé pendant deux ans au moins des fonctions judiciaires dans un tribunal de commerce.
Le président du tribunal de commerce dresse, au début de chaque année judiciaire, par ordonnance prise après avis de l'assemblée générale du tribunal, la liste des juges pouvant exercer les fonctions de juge-commissaire.
Article L722-15
Lorsque aucun des juges du tribunal de commerce ne remplit les conditions d'ancienneté requises soit pour statuer en matière de sauvegarde, de redressement ou de liquidation judiciaires, de règlement judiciaire ou de liquidation de biens, conformément aux dispositions de l'article L. 722-2, soit pour présider une formation de jugement dans les conditions prévues par l'article L. 722-3, soit pour remplir les fonctions de juge-commissaire dans les conditions prévues par l'article L. 722-14, le premier président de la cour d'appel, saisi par requête du procureur général, peut décider, par ordonnance, que l'ancienneté requise n'est pas exigée.
Article L722-16
Le mandat des juges élus des tribunaux de commerce est gratuit.
Chapitre III : De l'élection des juges des tribunaux de commerce.
Section 1 : De l'électorat.
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Article L723-1
Les juges d'un tribunal de commerce sont élus dans le ressort de la juridiction par un collège composé :
1° Des délégués consulaires élus dans le ressort de la juridiction ;
2° Des juges du tribunal de commerce ainsi que des anciens membres du tribunal ayant demandé à être inscrits sur la liste électorale.
Article L723-2
Les personnes mentionnées à l'article L. 723-1 ne peuvent faire partie du collège électoral qu'à la condition :
1° De ne pas avoir été déchues de leurs fonctions ;
2° De ne pas avoir été condamnées pénalement pour des agissements contraires à l'honneur, à la probité ou aux bonnes moeurs ;
3° De n'avoir pas été frappées depuis moins de quinze ans à compter du jour où la décision les ayant prononcées est devenue définitive, de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance telles que prévues au livre VI du présent code, à la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou à la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ;
4° Ne pas être frappé d'une peine d'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour son propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale.
Les délégués consulaires sont désignés dans les conditions prévues aux articles L. 713-6 à L. 713-18.
Article L723-3
La liste électorale pour les élections aux tribunaux de commerce est établie par une commission présidée par le juge commis à la surveillance du registre du commerce et des sociétés. En cas de création d'un tribunal de commerce, le premier président de la cour d'appel désigne comme président de la commission un magistrat de l'ordre judiciaire.
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Les dispositions du premier alinéa de l'article L. 25 et des articles L. 27, L. 34 et L. 35 du code électoral sont applicables en cas de contestation portant sur la liste électorale.
Section 2 : De l'éligibilité.
Article L723-4
Sont éligibles aux fonctions de juge d'un tribunal de commerce les personnes âgées de trente ans au moins :
1° Inscrites sur la liste électorale dressée en application de l'article L. 713-7 dans le ressort du tribunal de commerce ou dans le ressort des tribunaux de commerce limitrophes ;
2° Qui remplissent la condition de nationalité prévue à l'article L. 2 du code électoral ;
3° A l'égard desquelles une procédure de sauvegarde, de redressement ou de liquidation judiciaires n'a pas été ouverte ;
4° Qui, s'agissant des personnes mentionnées au 1° ou au 2° de l'article L. 713-7, n'appartiennent pas à une société ou à un établissement public ayant fait l'objet d'une procédure de sauvegarde, redressement ou de liquidation judiciaires ;
5° Et qui justifient soit d'une immatriculation pendant les cinq dernières années au moins au registre du commerce et des sociétés, soit de l'exercice, pendant une durée totale cumulée de cinq ans, de l'une des qualités énumérées à l'article L. 713-8 ou de l'une des professions énumérées au d du 1° de l'article L. 713-7.
Article L723-5
Toute personne ayant été déchue de ses fonctions de juge d'un tribunal de commerce est inéligible à cette fonction pour une durée de dix ans.
Article L723-6
Peut être déclarée inéligible pour une période d'une durée de dix ans par la Commission nationale de discipline toute personne ayant présenté sa démission de juge d'un tribunal de commerce au cours de la procédure disciplinaire diligentée à son encontre.
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Article L723-7
Les juges des tribunaux de commerce élus pour quatre mandats successifs dans un même tribunal de commerce ne sont plus éligibles dans ce tribunal pendant un an.
Toutefois, le président sortant à l'issue de quatre mandats successifs de membre ou de président peut être réélu pour un nouveau mandat, en qualité de membre du même tribunal de commerce. A la fin de ce mandat, il n'est plus éligible à aucun mandat pendant un an.
Article L723-8
Un juge d'un tribunal de commerce ne peut être simultanément membre d'un conseil de prud'hommes ou juge d'un autre tribunal de commerce.
Section 3 : Du scrutin et des opérations électorales.
Article L723-9
Chaque électeur ne dispose que d'une voix dans le ressort d'un même tribunal de commerce.
Le droit de vote peut être exercé par correspondance ou par voie électronique.
Article L723-10
Les élections des juges des tribunaux de commerce ont lieu au scrutin plurinominal majoritaire à deux tours.
Sont déclarés élus au premier tour les candidats ayant obtenu un nombre de voix au moins égal à la majorité des suffrages exprimés et au quart des électeurs inscrits. Si aucun candidat n'est élu ou s'il reste des sièges à pourvoir, l'élection est acquise au second tour à la majorité relative des suffrages exprimés. Si plusieurs candidats obtiennent le même nombre de voix au second tour, le plus âgé est proclamé élu.
Article L723-11
Des élections ont lieu tous les ans dans chaque tribunal de commerce où il y a des sièges à pourvoir pour quelque cause que ce soit.
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Si, en cours d'année, le nombre des vacances dépasse le tiers des effectifs d'un tribunal, le préfet peut décider qu'il sera procédé à des élections complémentaires. Dans ce cas, le mandat des juges élus expire à la fin de l'année judiciaire.
Article L723-12
Les dispositions des articles L. 49, L. 50, L. 58 à L. 67 et L. 86 à L. 117 du code électoral s'appliquent aux opérations électorales organisées en vue de la désignation des juges des tribunaux de commerce.
Article L723-13
Une commission présidée par un magistrat de l'ordre judiciaire désigné par le premier président de la cour d'appel est chargée de veiller à la régularité du scrutin et de proclamer les résultats.
Article L723-14
Un décret en Conseil d'Etat détermine les modalités d'application du présent chapitre.
Chapitre IV : De la discipline des juges des tribunaux de commerce.
Article L724-1
Tout manquement d'un juge d'un tribunal de commerce à l'honneur, à la probité, à la dignité et aux devoirs de sa charge constitue une faute disciplinaire.
Article L724-2
Le pouvoir disciplinaire est exercé par une commission nationale de discipline qui est présidée par un président de chambre à la Cour de cassation, désigné par le premier président de la Cour de cassation, et qui comprend :
1° Un membre du Conseil d'Etat désigné par le vice-président du Conseil d'Etat ;
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2° Deux magistrats du siège des cours d'appel désignés par le premier président de la Cour de cassation sur une liste établie par les premiers présidents des cours d'appel, chacun d'eux arrêtant le nom d'un magistrat du siège de sa cour d'appel après avis de l'assemblée générale des magistrats du siège de la cour d'appel ;
3° Quatre juges des tribunaux de commerce élus par l'ensemble des présidents des tribunaux de commerce.
Des suppléants en nombre égal sont désignés dans les mêmes conditions. Les membres de la commission nationale de discipline sont désignés pour quatre ans.
Article L724-3
Après audition de l'intéressé par le président du tribunal auquel il appartient, la commission nationale de discipline peut être saisie par le garde des sceaux, ministre de la justice.
Elle peut prononcer soit le blâme, soit la déchéance.
Article L724-4
Sur proposition du garde des sceaux, ministre de la justice, le président de la commission nationale de discipline peut suspendre un juge d'un tribunal de commerce pour une durée qui ne peut excéder six mois, lorsqu'il existe contre l'intéressé, qui aura été préalablement entendu par le président du tribunal auquel il appartient, des faits de nature à entraîner une sanction disciplinaire. La suspension peut être renouvelée une fois par la commission nationale pour une durée qui ne peut excéder six mois. Si le juge du tribunal de commerce fait l'objet de poursuites pénales, la suspension peut être ordonnée par le président de la commission nationale jusqu'à l'intervention de la décision pénale définitive.
Article L724-5
La commission nationale de discipline ne peut délibérer que si quatre de ses membres au moins, y compris le président, sont présents. En cas de partage égal des voix, celle du président est prépondérante.
Article L724-6
Les décisions de la commission nationale de discipline et celles de son président sont motivées. Elles ne sont susceptibles de recours que devant la Cour de cassation.
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Article L724-7
Indépendamment des décisions qui pourraient intervenir en application des articles L. 724-3 et L. 724-4, lorsqu'il apparaît, postérieurement à son élection, qu'un juge du tribunal de commerce a encouru, avant ou après son installation, une des condamnations, déchéances ou incapacités mentionnées à l'article L. 723-2, il est déchu de plein droit de ses fonctions.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE III : Des juridictions commerciales particulières.
Chapitre Ier : Des dispositions applicables aux départements du Bas-Rhin, du Haut-Rhin et de la Moselle.
Article L731-1
Des chambres commerciales du tribunal de grande instance sont instituées dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle.
Article L731-2
La compétence de la chambre commerciale est celle des tribunaux de commerce, à l'exception des affaires qui relèvent de la compétence du tribunal d'instance en application des dispositions du chapitre III du titre II du livre II du code de l'organisation judiciaire.
Article L731-3
La chambre commerciale est composée d'un membre du tribunal de grande instance, président, de deux assesseurs élus et d'un greffier. Les assesseurs sont élus dans les conditions fixées aux articles L. 723-1 à L. 723-14.
Article L731-4
Les autres dispositions du titre II du livre VII relatives aux tribunaux de commerce sont applicables à la chambre commerciale, à l'exception des articles L. 721-1, L. 721-2, L. 722-3, L. 722-11 à L. 722-13 et du second alinéa de l'article L. 723-7.
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Toutefois, par dérogation aux dispositions de l'article L. 722-14, les fonctions de juges-commissaires peuvent aussi être exercées par un juge du siège dans les conditions prévues au second alinéa de l'article L. 215-1 du code de l'organisation judiciaire.
Chapitre II : Des dispositions applicables aux départements et régions d'outre-mer.
Article L732-1
Des tribunaux mixtes de commerce sont institués dans les départements et régions d'outre-mer.
Article L732-2
La compétence des tribunaux mixtes de commerce est déterminée par le présent code et les lois particulières.
Article L732-3
Les tribunaux mixtes de commerce sont des juridictions du premier degré composées du président du tribunal de grande instance, président, de juges élus, sous réserve des dispositions de l'article L. 732-7, et d'un greffier. Les juges sont élus dans les conditions fixées aux articles L. 723-1 à L. 723-13.
Article L732-4
Dans les circonscriptions où il n'est pas établi de tribunal mixte de commerce, le tribunal de grande instance connaît des matières attribuées aux tribunaux mixtes de commerce.
Article L732-5
Les jugements des tribunaux mixtes de commerce sont rendus, sauf dispositions qui prévoient un juge unique, par une formation collégiale comprenant, outre le président, trois juges élus ou désignés dans les conditions prévues par l'article L. 732-7. En cas de partage égal des voix, celle du président est prépondérante.
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Article L732-6
Les dispositions du titre II du livre VII relatives aux tribunaux de commerce sont applicables au tribunal mixte de commerce, à l'exception des articles L. 721-1, L. 722-1, L. 722-3, L. 722-11 à L. 722-13 et du second alinéa de l'article L. 723-7.
Article L732-7
A la liste des candidats déclarés élus, la commission prévue par l'article L. 723-13 annexe une liste complémentaire comprenant les nom, qualité et domicile des candidats non élus en mentionnant le nombre de voix qu'ils ont obtenues. Le premier président de la cour d'appel, après avis du président du tribunal mixte de commerce, établit à partir de cette liste complémentaire une liste de quinze personnes au plus qui, ayant leur résidence dans la ville, sont en mesure de compléter le tribunal mixte. Si le nombre des juges se révèle insuffisant en cours d'année à l'occasion d'une audience, le président du tribunal mixte procède au tirage au sort en séance publique entre tous les noms de la liste arrêtée par le premier président. Les personnes dont le nom a été tiré au sort prêtent serment devant le président du tribunal mixte.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE IV : Du greffe du tribunal de commerce.
Chapitre Ier : De l'institution et des missions.
Article L741-1
Les greffiers des tribunaux de commerce sont des officiers publics et ministériels.
Article L741-2
La profession de greffier des tribunaux de commerce est représentée auprès des pouvoirs publics par un Conseil national des greffiers des tribunaux de commerce, doté de la personnalité morale et chargé d'assurer la défense de ses intérêts collectifs.
Les modes d'élection et de fonctionnement du Conseil national sont fixés par décret en Conseil d'Etat.
Le conseil national fixe son budget.
Il peut assurer le financement de services d'intérêt collectif dans les domaines fixés par décret.
A cette fin, le conseil national appelle une cotisation versée annuellement par chaque titulaire d'un office de greffier de tribunal de commerce. Le montant de cette cotisation résulte d'un barème progressif fixé par décret après avis du conseil national, en fonction de l'activité de l'office et, le cas échéant, du nombre d'associés.
Le produit de cette cotisation ne peut excéder une quotité déterminée par le conseil national, dans la limite de 2 % du total des produits hors taxes comptabilisés par l'ensemble des offices au titre de l'année précédente.
A défaut de paiement de cette cotisation dans un délai d'un mois à compter d'une mise en demeure,
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le conseil national délivre, à l'encontre du redevable, un acte assimilé à une décision au sens du 6° de l'article 3 de la loi n° 91-650 du 9 juillet 1991 portant réforme des procédures civiles d'exécution.
Chapitre II : Des conditions d'accès à la profession et aux autres professions judiciaires et juridiques.
Article L742-1
Les règles d'accès à la profession des greffiers des tribunaux de commerce sont fixées par décret en Conseil d'Etat.
Article L742-2
Les règles permettant aux greffiers des tribunaux de commerce d'accéder aux autres professions juridiques et judiciaires sont fixées par décret en Conseil d'Etat.
Chapitre III : Des conditions d'exercice.
Section 1 : De l'inspection et de la discipline.
Sous-section 1 : De l'inspection.
Article L743-1
Les greffiers des tribunaux de commerce sont soumis, dans leur activité professionnelle, à des inspections sous l'autorité du garde des sceaux, ministre de la justice, dans des conditions prévues par décret en Conseil d'Etat. Au cours de ces inspections, ils sont tenus de fournir tous renseignements et documents utiles sans pouvoir opposer le secret professionnel.
Sous-section 2 : De la discipline.
Article L743-2
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Tout manquement d'un greffier de tribunal de commerce à l'honneur, à la probité, à la dignité et aux devoirs de sa charge constitue une faute disciplinaire.
L'acceptation de la démission d'un greffier ne fait pas obstacle au prononcé d'une sanction disciplinaire, si les faits qui lui ont été reprochés ont été commis pendant l'exercice de ses fonctions.
Article L743-3
Les sanctions disciplinaires sont :
1° Le rappel à l'ordre ;
2° L'avertissement ;
3° Le blâme ;
4° L'interdiction temporaire ;
5° La destitution ou le retrait de l'honorariat.
Les sanctions mentionnées aux 1° à 4° peuvent être assorties de la sanction complémentaire de l'inéligibilité temporaire au Conseil national des greffiers des tribunaux de commerce. La durée maximale de cette sanction complémentaire est de cinq ans pour les sanctions mentionnées aux 1° à 3° et de dix ans à compter de la cessation de la mesure d'interdiction pour la sanction mentionnée au 4°.
Article L743-4
L'action disciplinaire à l'encontre du greffier d'un tribunal de commerce est exercée soit devant la formation disciplinaire du Conseil national des greffiers des tribunaux de commerce, soit devant le tribunal de grande instance dans le ressort duquel le tribunal de commerce a son siège ou, si le greffier est titulaire de plusieurs greffes, devant le tribunal de grande instance désigné par le premier président de la cour d'appel, dans les conditions prévues par le présent chapitre.
L'action disciplinaire se prescrit par dix ans.
Article L743-5
La formation disciplinaire du Conseil national des greffiers des tribunaux de commerce comprend cinq membres désignés par le conseil national en son sein ; cinq suppléants sont désignés dans les
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mêmes conditions. Elle élit son président.
Le président du conseil national ne peut pas être membre de la formation disciplinaire.
La formation disciplinaire du conseil national ne peut prononcer que l'une des sanctions mentionnées aux 1° à 3° de l'article L. 743-3.
Article L743-6
L'action disciplinaire est exercée par le procureur de la République. Elle peut également être exercée par le président du Conseil national des greffiers des tribunaux de commerce. Dans ce cas, notification en est faite au procureur de la République, qui peut citer le greffier devant le tribunal de grande instance statuant disciplinairement. Notification de la citation est faite au président de la formation disciplinaire du conseil national.
La formation disciplinaire du conseil national est dessaisie à compter de la notification effectuée par le procureur de la République.
Article L743-7
Le greffier du tribunal de commerce qui fait l'objet d'une poursuite pénale ou disciplinaire peut être suspendu provisoirement de l'exercice de ses fonctions par le tribunal de grande instance, saisi à la requête du procureur de la République.
En cas d'urgence, la suspension provisoire peut être prononcée par le tribunal de grande instance avant même l'exercice de poursuites pénales ou disciplinaires.
Le tribunal de grande instance peut mettre fin à la suspension provisoire à la requête du procureur de la République ou du greffier.
La suspension cesse de plein droit dès que les actions pénale ou disciplinaire sont éteintes. Elle cesse également de plein droit, dans le cas prévu au deuxième alinéa, si, à l'expiration d'un délai d'un mois à compter de son prononcé, aucune poursuite pénale ou disciplinaire n'a été engagée.
Article L743-8
Les décisions de la formation disciplinaire du Conseil national des greffiers des tribunaux de commerce peuvent être déférées à la cour d'appel de Paris par le procureur de la République compétent pour exercer l'action disciplinaire, par le président du conseil national lorsque les poursuites ont été engagées à son initiative, ou par le greffier.
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Les décisions du tribunal de grande instance statuant en matière disciplinaire peuvent être déférées à la cour d'appel territorialement compétente par le procureur de la République, par le président du Conseil national des greffiers des tribunaux de commerce lorsque les poursuites ont été engagées à son initiative, ou par le greffier.
Article L743-9
Le greffier suspendu, interdit ou destitué s'abstient de tout acte professionnel. Les actes accomplis au mépris de cette prohibition peuvent être déclarés nuls, à la requête de tout intéressé ou du procureur de la République, par le tribunal de grande instance. La décision est exécutoire à l'égard de toute personne.
Toute infraction aux dispositions du premier alinéa est punie des peines prévues à l'article 433-17 du code pénal.
Article L743-10
Le tribunal de grande instance qui prononce la suspension, l'interdiction ou la destitution nomme un ou plusieurs administrateurs provisoires.
Article L743-11
Un décret en Conseil d'Etat fixe les conditions d'application du présent chapitre.
Section 2 : Des modes d'exercice.
Article L743-12
Les greffiers des tribunaux de commerce peuvent exercer leur profession à titre individuel, sous forme de sociétés civiles professionnelles ou sous forme de sociétés d'exercice libéral telles que prévues par la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé. Ils peuvent aussi être membres d'un groupement d'intérêt économique ou d'un groupement européen d'intérêt économique ou associés d'une société en participation régie par le titre II de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé.
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Section 3 : De la tarification des greffiers des tribunaux de commerce.
Article L743-13
Les émoluments des greffiers des tribunaux de commerce sont fixés par décret en Conseil d'Etat.
Section 4 : De la comptabilité.
Article L743-14
Les sommes détenues par les greffiers des tribunaux de commerce pour le compte de tiers et relevant de catégories fixées par décret en Conseil d'Etat sont déposées sur un compte spécialement affecté ouvert à cet effet auprès de la Caisse des dépôts et consignations. Le même décret détermine les conditions du dépôt des fonds.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE V : De l'aménagement commercial.
Article L750-1
Les implantations, extensions, transferts d'activités existantes et changements de secteur d'activité d'entreprises commerciales et artisanales doivent répondre aux exigences d'aménagement du territoire, de la protection de l'environnement et de la qualité de l'urbanisme. Ils doivent en particulier contribuer au maintien des activités dans les zones rurales et de montagne ainsi qu'au rééquilibrage des agglomérations par le développement des activités en centre-ville et dans les zones de dynamisation urbaine.
Dans le cadre d'une concurrence loyale, ils doivent également contribuer à la modernisation des équipements commerciaux, à leur adaptation à l'évolution des modes de consommation et des techniques de commercialisation, au confort d'achat du consommateur et à l'amélioration des conditions de travail des salariés.
Article L750-1-1
Dans le respect des orientations définies à l'article L. 750-1, le Gouvernement veille au développement de la concurrence dans le secteur du commerce au moyen de la modernisation des commerces de proximité, en lui apportant les concours prévus à l'article 4 de la loi n° 89-1008 du 31 décembre 1989 relative au développement des entreprises commerciales et artisanales et à l'amélioration de leur environnement économique, juridique et social, y compris en cas de circonstances exceptionnelles susceptibles de provoquer une atteinte grave au tissu commercial.
Les opérations éligibles à ces concours sont destinées à favoriser la création, le maintien, la modernisation, l'adaptation ou la transmission des entreprises de proximité, pour conforter le commerce sédentaire et non sédentaire, notamment en milieu rural, dans les zones de montagne, dans les halles et marchés ainsi que dans les quartiers prioritaires de la politique de la ville. Elles sont également destinées à faciliter le retour à une activité normale des commerces de proximité après l'exécution de travaux publics réduisant l'accès de la clientèle à ces commerces.
Le fonds d'intervention pour les services, l'artisanat et le commerce assure le versement d'aides financières pour la mise en œuvre des alinéas précédents. Il prend en charge, dans des conditions fixées par décret en Conseil d'Etat, les intérêts des emprunts contractés par les communes pour l'acquisition, en application de l'article L. 214-1 du code de l'urbanisme, de fonds artisanaux, de fonds de commerce, de baux commerciaux ou de terrains destinés à l'aménagement commercial. Il finance notamment les études nécessaires à l'élaboration d'un cahier des charges qui permet aux communes d'engager dans les meilleures conditions un projet de revitalisation de leur centre-ville,
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la formation de médiateurs du commerce et les investissements nécessaires pour un meilleur accès des personnes handicapées aux magasins. Les crédits du fonds d'intervention pour les services, l'artisanat et le commerce peuvent financer des projets d'une durée supérieure à trois ans.
II.-Les ressources du fonds d'intervention pour les services, l'artisanat et le commerce consistent, dans la limite d'un plafond de 100 millions d'euros, en une fraction de 15 % de la taxe instituée par l'article 3 de la loi n° 72-657 du 13 juillet 1972 instituant des mesures en faveur de certaines catégories de commerçants et artisans âgés.
Un conseil stratégique, composé pour moitié de représentants de l'Etat et pour moitié de représentants de l'Assemblée nationale et du Sénat, des collectivités territoriales et de personnalités qualifiées, fixe les principes et examine la mise en œuvre de la politique de soutien aux activités de proximité.
Le président du conseil stratégique est nommé par décret sur proposition de celui-ci.
Une commission d'orientation adresse annuellement au conseil stratégique des recommandations relatives aux améliorations à apporter à la politique de soutien aux activités de proximité.
Chapitre Ier : Des commissions d'aménagement commercial.
Section 1 : Des commissions départementales d'aménagement commercial.
Article L751-1
Une commission départementale d'aménagement commercial statue sur les demandes d'autorisation qui lui sont présentées en vertu des dispositions des articles L. 752-1, L. 752-3 et L. 752-15.
Cette commission est également compétente, dans la composition spéciale précisée au IV de l'article L. 751-2, pour statuer sur les projets d'aménagement cinématographique qui lui sont présentés en vertu des articles L. 212-7 et L. 212-8 du code du cinéma et de l'image animée.
Article L751-2
I.-La commission départementale d'aménagement commercial est présidée par le préfet.
II.-Dans les départements autres que Paris, elle est composée :
1° Des cinq élus suivants :
a) Le maire de la commune d'implantation ;
b) Le président de l'établissement public de coopération intercommunale compétent en matière d'aménagement de l'espace et de développement dont est membre la commune d'implantation ou, à défaut, le conseiller général du canton d'implantation ;
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c) Le maire de la commune la plus peuplée de l'arrondissement, autre que la commune d'implantation ; en dehors des départements des Hauts-de-Seine, de la Seine-Saint-Denis, du Val-de-Marne et des communes de l'Essonne, du Val-d'Oise, des Yvelines et de Seine-et-Marne appartenant à l'agglomération parisienne, dans le cas où la commune d'implantation appartient à une agglomération multicommunale comportant au moins cinq communes, le maire de la commune la plus peuplée est choisi parmi les maires des communes de ladite agglomération ;
d) Le président du conseil général ou son représentant ;
e) Le président du syndicat mixte ou de l'établissement public de coopération intercommunale chargé du schéma de cohérence territoriale auquel adhère la commune d'implantation ou son représentant ou, à défaut, un adjoint au maire de la commune d'implantation.
Lorsque l'un des élus détient plusieurs des mandats mentionnés ci-dessus, le préfet désigne pour le remplacer un ou plusieurs maires de communes situées dans la zone de chalandise concernée ;
2° De trois personnalités qualifiées en matière de consommation, de développement durable et d'aménagement du territoire.
Lorsque la zone de chalandise du projet dépasse les limites du département, le préfet complète la composition de la commission en désignant au moins un élu et une personnalité qualifiée de chaque autre département concerné.
Pour éclairer sa décision, la commission entend toute personne dont l'avis présente un intérêt.
III.-A Paris, elle est composée :
1° Des cinq élus suivants :
a) Le maire de Paris ou son représentant ;
b) Le maire de l'arrondissement du lieu d'implantation ou son représentant ;
c) Un conseiller d'arrondissement désigné par le conseil de Paris ;
d) Un adjoint au maire de Paris ;
e) Un conseiller régional désigné par le conseil régional ;
2° De trois personnalités qualifiées en matière de consommation, de développement durable et d'aménagement du territoire.
Pour éclairer sa décision, la commission entend toute personne dont l'avis présente un intérêt.
IV.-Lorsqu'elle se réunit pour examiner les projets d'aménagement cinématographique, la commission comprend, parmi les personnalités qualifiées désignées par le préfet, un expert proposé par le président du Centre national du cinéma et de l'image animée et choisi sur une liste établie par lui.
Article L751-3
Tout membre de la commission départementale d'aménagement commercial informe le préfet des intérêts qu'il détient et de la fonction qu'il exerce dans une activité économique.
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Aucun membre de la commission départementale ne peut délibérer dans une affaire où il a un intérêt personnel ou s'il représente ou a représenté une ou des parties.
Article L751-4
Les conditions de désignation des membres de la commission et les modalités de son fonctionnement sont fixées par décret en Conseil d'Etat.
Section 2 : De la Commission nationale d'aménagement commercial.
Article L751-5
La Commission nationale d'aménagement commercial comprend huit membres nommés, pour une durée de six ans non renouvelable, par décret pris sur le rapport du ministre chargé du commerce. La commission est renouvelée par moitié tous les trois ans.
Article L751-6
I.- La Commission nationale d'aménagement commercial se compose de :
1° Un membre du Conseil d'Etat désigné par le vice-président du Conseil d'Etat, président ;
2° Un membre de la Cour des comptes désigné par le premier président de la Cour des comptes ;
3° Un membre de l'inspection générale des finances désigné par le chef de ce service ;
4° Un membre du corps des inspecteurs généraux de l'équipement désigné par le vice-président du Conseil général des ponts et chaussées ;
5° Quatre personnalités désignées pour leur compétence en matière de distribution, de consommation, d'urbanisme, de développement durable, d'aménagement du territoire ou d'emploi à raison d'une par le président de l'Assemblée nationale, une par le président du Sénat, une par le ministre chargé du commerce et une par le ministre chargé de l'urbanisme et de l'environnement.
II.- Lorsque la commission nationale est saisie de recours contre les décisions des commissions départementales statuant sur les projets d'aménagement cinématographique, le membre mentionné au 4° du I est remplacé par un membre du corps des inspecteurs généraux du ministère chargé de la culture ; celle des personnalités mentionnée au 5° du I, désignée par le ministre chargé du commerce, est remplacée par une personnalité compétente en matière de distribution cinématographique désignée par le ministre chargé de la culture. En outre, la commission est complétée par une personnalité qualifiée nommée par le ministre chargé de la culture sur proposition du président du Centre national du cinéma et de l'image animée. Un suppléant est
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nommé dans les mêmes conditions.
Article L751-7
Tout membre de la commission nationale informe le président des intérêts qu'il détient et de la fonction qu'il exerce dans une activité économique.
Aucun membre de la commission nationale ne peut délibérer dans une affaire où il a un intérêt personnel et direct ou s'il représente ou a représenté une des parties intéressées.
Article L751-8
Les conditions de désignation des membres de la commission nationale et de son président, ainsi que les modalités de son fonctionnement, sont fixées par décret en Conseil d'Etat.
Section 3 : Des observatoires départementaux d'équipement commercial.
Article L751-9
L'observatoire départemental d'équipement commercial collecte les éléments nécessaires à la connaissance du territoire en matière commerciale, dans le respect des orientations définies à l'article L. 750-1. Il met ces données à disposition des collectivités locales et de leurs groupements qui élaborent un schéma de développement commercial.
Chapitre II : De l'autorisation commerciale.
Section 1 : Des projets soumis à autorisation.
Article L752-1
I.-Sont soumis à une autorisation d'exploitation commerciale les projets ayant pour objet :
1° La création d'un magasin de commerce de détail d'une surface de vente supérieure à 1 000 mètres carrés, résultant soit d'une construction nouvelle, soit de la transformation d'un immeuble existant ;
2° L'extension de la surface de vente d'un magasin de commerce de détail ayant déjà atteint le seuil des 1 000 mètres carrés ou devant le dépasser par la réalisation du projet. Est considérée comme une extension l'utilisation supplémentaire de tout espace couvert ou non, fixe ou mobile, et qui
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n'entrerait pas dans le cadre de l'article L. 310-2 ;
3° Tout changement de secteur d'activité d'un commerce d'une surface de vente supérieure à 2 000 mètres carrés. Ce seuil est ramené à 1 000 mètres carrés lorsque l'activité nouvelle du magasin est à prédominance alimentaire ;
4° La création d'un ensemble commercial tel que défini à l'article L. 752-3 et dont la surface de vente totale est supérieure à 1 000 mètres carrés ;
5° L'extension de la surface de vente d'un ensemble commercial ayant déjà atteint le seuil des 1 000 mètres carrés ou devant le dépasser par la réalisation du projet ;
6° La réouverture au public, sur le même emplacement, d'un magasin de commerce de détail d'une surface de vente supérieure à 1 000 mètres carrés dont les locaux ont cessé d'être exploités pendant trois ans, ce délai ne courant, en cas de procédure de redressement judiciaire de l'exploitant, que du jour où le propriétaire a recouvré la pleine et entière disposition des locaux.
II.-Les schémas prévus au chapitre II du titre II du livre Ier du code de l'urbanisme peuvent définir des zones d'aménagement commercial.
Ces zones sont définies en considération des exigences d'aménagement du territoire, de protection de l'environnement ou de qualité de l'urbanisme spécifiques à certaines parties du territoire couvert par le schéma. Leur délimitation ne peut reposer sur l'analyse de l'offre commerciale existante ni sur une mesure de l'impact sur cette dernière de nouveaux projets de commerces.
La définition des zones figure dans un document d'aménagement commercial qui est intégré au schéma de cohérence territoriale par délibération de l'établissement public prévu à l'article L. 122-4 du code de l'urbanisme.A peine de caducité, ce document d'aménagement commercial doit faire l'objet, dans un délai d'un an à compter de la délibération l'adoptant, d'une enquête publique.
En l'absence de schéma de cohérence territoriale, l'établissement public compétent pour son élaboration peut adopter avant le 1er juillet 2009 un document provisoire d'aménagement commercial, dans les conditions définies à l'alinéa précédent. Ce document provisoire est valable deux ans.L'approbation du schéma de cohérence territoriale dans ce délai lui confère un caractère définitif.
Dans la région d'Ile-de-France, dans les régions d'outre-mer et en Corse, en l'absence de schéma de cohérence territoriale, un document d'aménagement commercial peut être intégré au plan local d'urbanisme.
Le document d'aménagement commercial est communiqué dès son adoption au préfet.
Article L752-2
I.-Les regroupements de surfaces de vente de magasins voisins, sans création de surfaces supplémentaires, n'excédant pas 2 500 mètres carrés, ou 1 000 mètres carrés lorsque l'activité nouvelle est à prédominance alimentaire, ne sont pas soumis à une autorisation d'exploitation commerciale.
II.-Les pharmacies et les commerces de véhicules automobiles ou de motocycles ne sont pas soumis à l'autorisation d'exploitation commerciale prévue à l'article L. 752-1.
III.-Les halles et marchés d'approvisionnement au détail, couverts ou non, établis sur les
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dépendances du domaine public et dont la création est décidée par le conseil municipal, les magasins accessibles aux seuls voyageurs munis de billets et situés dans l'enceinte des aéroports ainsi que les parties du domaine public affecté aux gares ferroviaires situées en centre-ville d'une surface maximum de 2 500 mètres carrés, ne sont pas soumis à une autorisation d'exploitation commerciale.
Article L752-3
I. - Sont regardés comme faisant partie d'un même ensemble commercial, qu'ils soient ou non situés dans des bâtiments distincts et qu'une même personne en soit ou non le propriétaire ou l'exploitant, les magasins qui sont réunis sur un même site et qui :
1° Soit ont été conçus dans le cadre d'une même opération d'aménagement foncier, que celle-ci soit réalisée en une ou en plusieurs tranches ;
2° Soit bénéficient d'aménagements conçus pour permettre à une même clientèle l'accès des divers établissements ;
3° Soit font l'objet d'une gestion commune de certains éléments de leur exploitation, notamment par la création de services collectifs ou l'utilisation habituelle de pratiques et de publicités commerciales communes ;
4° Soit sont réunis par une structure juridique commune, contrôlée directement ou indirectement par au moins un associé, exerçant sur elle une influence au sens de l'article L. 233-16 ou ayant un dirigeant de droit ou de fait commun.
II. - Toutefois, les dispositions du présent article ne sont pas applicables aux zones d'aménagement concerté créées dans un centre urbain, en vertu de l'article L. 311-1 du code de l'urbanisme.
Article L752-3-1
Les projets d'aménagement cinématographique ne sont soumis à l'examen de la commission qu'à la condition d'être accompagnés de l'indication de la personne qui sera titulaire de l'autorisation d'exercice délivrée en application de l'article 14 du code de l'industrie cinématographique.
Article L752-4
Dans les communes de moins de 20 000 habitants, le maire ou le président de l'établissement public de coopération intercommunale compétent en matière d'urbanisme peut, lorsqu'il est saisi d'une demande de permis de construire un équipement commercial dont la surface est comprise entre 300 et 1 000 mètres carrés, proposer au conseil municipal ou à l'organe délibérant de cet établissement de saisir la commission départementale d'aménagement commercial afin qu'elle statue sur la conformité du projet aux critères énoncés à l'article L. 752-6.
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Dans ces communes, lorsque le maire ou le président de l'établissement public compétent en matière d'urbanisme est saisi d'une demande de permis de construire un équipement commercial visé à l'alinéa précédent, il notifie cette demande dans les huit jours au président de l'établissement public de coopération intercommunale ou du syndicat mixte visé à l'article L. 122-4 du code de l'urbanisme sur le territoire duquel est projetée l'implantation. Celui-ci peut proposer à l'organe délibérant de saisir la commission départementale d'aménagement commercial afin qu'elle statue sur la conformité du projet aux critères énoncés à l'article L. 752-6.
La délibération du conseil municipal ou de l'organe délibérant de l'établissement public de coopération intercommunale est motivée. Elle est transmise au pétitionnaire sous un délai de trois jours.
En cas d'avis défavorable de la commission départementale d'aménagement commercial ou, le cas échéant, de la Commission nationale d'aménagement commercial, le permis de construire ne peut être délivré.
La commission départementale d'aménagement commercial se prononce dans un délai d'un mois.
En cas d'avis négatif, le promoteur peut saisir la Commission nationale d'aménagement commercial qui se prononce dans un délai d'un mois. Le silence de la commission nationale vaut confirmation de l'avis de la commission départementale.
Article L752-5
En cas d'exploitation abusive d'une position dominante ou d'un état de dépendance économique de la part d'une entreprise ou d'un groupe d'entreprises exploitant un ou plusieurs magasins de commerce de détail, le maire peut saisir l'Autorité de la concurrence afin que celle-ci procède aux injonctions et aux sanctions pécuniaires prévues à l'article L. 464-2.
Section 2 : De la décision de la commission départementale.
Article L752-6
Lorsqu'elle statue sur l'autorisation d'exploitation commerciale visée à l'article L. 752-1, la commission départementale d'aménagement commercial se prononce sur les effets du projet en matière d'aménagement du territoire, de développement durable et de protection des consommateurs. Les critères d'évaluation sont :
1° En matière d'aménagement du territoire :
a) L'effet sur l'animation de la vie urbaine, rurale et de montagne ;
b) L'effet du projet sur les flux de transport ;
c) Les effets découlant des procédures prévues aux articles L. 303-1 du code de la construction et de l'habitation et L. 123-11 du code de l'urbanisme ;
2° En matière de développement durable : a) La qualité environnementale du projet ; b) Son insertion dans les réseaux de transports collectifs.
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Article L752-7
Lorsqu'elle statue sur l'autorisation prévue par les articles L. 212-7 et L. 212-8 du code du cinéma et de l'image animée, la commission se prononce au vu des critères énoncés à l'article L. 212-9 du même code.
Article L752-12
L'instruction des demandes d'autorisation est faite par les services déconcentrés de l'Etat.
Article L752-14
La commission départementale d'aménagement commercial autorise les projets par un vote à la majorité absolue des membres présents. Le procès-verbal indique le sens du vote émis par chacun de ces membres.
Le préfet, qui préside la commission départementale, ne prend pas part au vote.
Les autorisations sollicitées en matière d'aménagement cinématographique sont accordées par place de spectateur.
L'autorisation d'aménagement cinématographique requise n'est ni cessible ni transmissible tant que la mise en exploitation de l'établissement de spectacles cinématographiques n'est pas intervenue.
II. - La commission départementale d'aménagement commercial se prononce dans un délai de deux mois à compter de sa saisine. Passé ce délai, la décision est réputée favorable. Les membres de la commission ont connaissance des demandes déposées au moins dix jours avant d'avoir à statuer. Cette décision est notifiée dans les dix jours au maire et au pétitionnaire. Elle est également notifiée au médiateur du cinéma lorsqu'elle concerne l'aménagement cinématographique.
Article L752-15
L'autorisation d'exploitation commerciale est délivrée préalablement à l'octroi du permis de construire s'il y a lieu, ou avant la réalisation du projet si le permis de construire n'est pas exigé.
L'autorisation est accordée par mètre carré de surface de vente.
Une nouvelle demande est nécessaire lorsque le projet, en cours d'instruction ou dans sa réalisation, subit des modifications substantielles dans la nature du commerce ou des surfaces de vente. Il en est de même en cas de modification de la ou des enseignes désignées par le pétitionnaire.
L'autorisation préalable requise pour la création de magasins de commerce de détail n'est ni cessible
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ni transmissible.
Section 3 : Du recours contre la décision de la commission départementale.
Article L752-17
A l'initiative du préfet, du maire de la commune d'implantation, du président de l'établissement public de coopération intercommunale visé au b du 1° du II de l'article L. 751-2, de celui visé au e du même 1° du même article ou du président du syndicat mixte visé au même e et de toute personne ayant intérêt à agir, la décision de la commission départementale d'aménagement commercial peut, dans un délai d'un mois, faire l'objet d'un recours devant la Commission nationale d'aménagement commercial. La commission nationale se prononce dans un délai de quatre mois à compter de sa saisine. La saisine de la commission nationale est un préalable obligatoire à un recours contentieux à peine d'irrecevabilité de ce dernier. Ce recours est également ouvert au médiateur du cinéma lorsque la commission départementale statue en matière d'aménagement cinématographique.
Article L752-18
Avant l'expiration du délai de recours ou, en cas de recours, avant la décision de la commission nationale, le permis de construire ne peut être accordé ni la réalisation entreprise et aucune nouvelle demande ne peut être déposée pour le même terrain d'assiette auprès de la commission départementale d'aménagement commercial.
Article L752-19
Le maire de la commune d'implantation membre de la commission départementale dont la décision fait l'objet du recours est entendu à sa demande par la commission nationale.
Un commissaire du Gouvernement nommé par le ministre chargé du commerce ou par le ministre chargé de la culture lorsque la commission se prononce en matière d'aménagement cinématographique assiste aux séances de la commission. Il rapporte les dossiers.
Article L752-20
Le président de la commission nationale a voix prépondérante en cas de partage égal des voix.
Article L752-21
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En cas de rejet pour un motif de fond de la demande d'autorisation par la commission nationale susmentionnée, il ne peut être déposé de nouvelle demande par le même pétitionnaire, pour un même projet, sur le même terrain pendant une période d'un an à compter de la date de la décision de la commission nationale.
Article L752-22
Les commissions autorisent ou refusent les projets dans leur totalité.
Lorsque les autorisations des commissions statuant en matière d'aménagement cinématographique s'appuient notamment sur le projet de programmation présenté par le demandeur, ce projet fait l'objet d'un engagement de programmation contracté en application de l'article 90 de la loi n° 82-652 du 29 juillet 1982 sur la communication audiovisuelle.
Article L752-23
Les agents habilités à rechercher et constater les infractions aux articles L. 752-1 à L. 752-3 en vertu de l'article 9 de la loi n° 89-1008 du 31 décembre 1989 relative au développement des entreprises commerciales et artisanales et à l'amélioration de leur environnement économique, juridique et social, constatant l'exploitation illicite d'une surface de vente, au regard du présent titre, établissent un rapport qu'ils transmettent au préfet du département d'implantation du magasin.
Le préfet peut mettre en demeure l'exploitant concerné de ramener sa surface commerciale à l'autorisation d'exploitation commerciale accordée par la commission d'aménagement commercial compétente, dans un délai d'un mois. Sans préjudice de l'application de sanctions pénales, il peut, à défaut, prendre un arrêté ordonnant, dans le délai de quinze jours, la fermeture au public des surfaces de vente exploitées illicitement, jusqu'à régularisation effective. Ces mesures sont assorties d'une astreinte journalière de 150 euros par mètre carré exploité illicitement.
Est puni d'une amende de 15 000 euros le fait de ne pas exécuter les mesures prises par le préfet et prévues au deuxième alinéa.
Les modalités d'application du présent article sont déterminées par décret en Conseil d'Etat.
Article L752-24
Un décret en Conseil d'Etat fixe les modalités d'application du présent chapitre.
Article L752-25
Tous les contrats d'un montant supérieur à un seuil défini par décret, passés par des personnes publiques ou privées à l'occasion de la réalisation d'un projet relevant du présent titre et dans une période de deux ans après l'achèvement dudit projet, sont communiqués, selon des modalités fixées par décret, par chaque partie contractante au préfet et à la chambre régionale des comptes. Cette
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obligation s'étend également aux contrats antérieurs à l'autorisation ou, à défaut, au permis de construire et portant sur la maîtrise ou l'aménagement des terrains sur lesquels est réalisée l'implantation d'établissements ayant bénéficié de l'autorisation.
Elle concerne les contrats de tout type, y compris ceux prévoyant des cessions à titre gratuit, des prestations en nature et des contreparties immatérielles.
Cette communication intervient dans les deux mois suivant la conclusion des contrats ou, s'il s'agit de contrats antérieurs à l'autorisation ou, à défaut, au permis de construire, dans un délai de deux mois à compter de l'autorisation. Toute infraction au présent article est punie d'une amende de 75 000 euros.
Article L752-26
En cas d'exploitation abusive d'une position dominante ou d'un état de dépendance économique de la part d'une entreprise ou d'un groupe d'entreprises exploitant un ou plusieurs magasins de commerce de détail, l'Autorité de la concurrence peut procéder aux injonctions et aux sanctions pécuniaires prévues à l'article L. 464-2.
Si les injonctions prononcées et les sanctions pécuniaires appliquées n'ont pas permis de mettre fin à l'abus de position dominante ou à l'état de dépendance économique, l'Autorité de la concurrence peut, par une décision motivée prise après réception des observations de l'entreprise ou du groupe d'entreprises en cause, lui enjoindre de modifier, de compléter ou de résilier, dans un délai déterminé, tous accords et tous actes par lesquels s'est constituée la puissance économique qui a permis ces abus. Elle peut, dans les mêmes conditions, lui enjoindre de procéder à la cession de surfaces, si cette cession constitue le seul moyen permettant de garantir une concurrence effective dans la zone de chalandise considérée.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE VI : Des marchés d'intérêt national et des manifestations commerciales.
Chapitre Ier : Des marchés d'intérêt national.
Article L761-1
Les marchés d'intérêt national sont des services publics de gestion de marchés, dont l'accès est réservé aux producteurs et aux commerçants, qui contribuent à l'organisation et à la productivité des circuits de distribution des produits agricoles et alimentaires, à l'animation de la concurrence dans ces secteurs économiques et à la sécurité alimentaire des populations.
Le classement de marchés de produits agricoles et alimentaires comme marchés d'intérêt national ou la création de tels marchés est prononcé sur proposition des conseils régionaux par décret.
Ces marchés peuvent être implantés sur le domaine public ou le domaine privé d'une ou plusieurs personnes morales de droit public ou sur des immeubles appartenant à des personnes privées.
Le déclassement d'un marché d'intérêt national peut être prononcé par arrêté du ministre chargé du commerce et du ministre chargé de l'agriculture sur proposition du conseil régional si l'activité du marché ne permet plus de répondre aux missions définies au premier alinéa ou à l'organisation générale déterminée dans les conditions fixées à l'article L. 761-10.
Article L761-2
La liste des marchés d'intérêt national dont l'Etat entend organiser l'aménagement et la gestion est fixée par décret.
Pour les autres marchés d'intérêt national, les communes sur le territoire desquelles ils sont implantés, ou les groupements de communes intéressés, en assurent l'aménagement et la gestion, en régie ou par la désignation d'une personne morale publique ou privée. Dans ce dernier cas, cette personne morale est désignée après mise en concurrence dans les conditions fixées par l'article L. 1411-1 du code général des collectivités territoriales.
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Ces communes, ou leurs groupements, peuvent toutefois confier ce pouvoir de désignation à la région ou, en Corse, à la collectivité territoriale de Corse.
Article L761-3
Le tarif des redevances perçues auprès des titulaires d'autorisation d'occupation ou des autres formes de contribution des usagers du marché à son fonctionnement est établi par le gestionnaire et approuvé par le préfet.
Le gestionnaire du marché présente un compte de résultat prévisionnel permettant de faire face à l'ensemble de ses obligations sociales, financières et sanitaires établies ou prévisibles.
Si l'exploitation financière d'un marché présente ou laisse prévoir un déséquilibre grave, les ministres de tutelle peuvent, après avoir conseillé le gestionnaire et, le cas échéant, les collectivités publiques qui ont garanti les emprunts, relever d'office les redevances existantes, créer des recettes nouvelles, réduire les dépenses et, d'une manière générale, prendre toutes dispositions propres à rétablir l'équilibre.
Article L761-4
Un périmètre de référence peut être institué autour du marché d'intérêt national par décret en Conseil d'Etat.
Le périmètre de référence comporte l'application des interdictions prévues à l'article L. 761-5.
Les interdictions prévues s'appliquent aux ventes et aux opérations accessoires à la vente de ceux des produits dont les listes sont fixées dans chaque cas par arrêté des ministres de tutelle.
Le décret mentionné au premier alinéa détermine l'implantation du marché d'intérêt national.
La suppression anticipée de tout ou partie du périmètre, l'extension de l'implantation du marché ou son transfert à l'intérieur du périmètre peuvent être déterminés par décision de l'autorité administrative compétente.
Article L761-5
Le décret instituant le périmètre de référence interdit, à l'intérieur de celui-ci, l'extension, le déplacement ou la création de tout établissement dans lequel une personne physique ou morale pratique, à titre autre que de détail, soit des ventes portant sur les produits, soit sur des opérations accessoires à ces ventes, dont les listes sont fixées par arrêté interministériel comme il est prévu au
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troisième alinéa de l'article L. 761-4.
Cette interdiction ne s'applique pas aux producteurs et groupements de producteurs pour les produits qui proviennent d'exploitations sises à l'intérieur du périmètre de référence.
N'est pas considéré comme une création d'établissement le changement de titulaire du fonds de commerce.
L'extension d'établissement s'entend soit de la création de nouvelles activités, soit de l'agrandissement des locaux commerciaux.
Les conditions d'application des dispositions du présent article sont fixées par décret en Conseil d'Etat.
Article L761-6
Lorsque le périmètre de référence d'un marché d'intérêt national englobe l'enceinte d'un port, les ventes autres que de détail portant sur des produits inscrits sur les listes mentionnées à l'article L. 761-4 obéissent dans cette enceinte aux dispositions suivantes.
Les interdictions prévues à l'article L. 761-5 ne sont pas applicables aux ventes qui concernent les produits acheminés directement par voie maritime dans ce port ou à partir de ce port et portent sur des lots dont l'importance dépasse les limites fixées par arrêté conjoint des ministres chargés de la tutelle des marchés d'intérêt national et du ministre chargé des ports.
Le décret instituant le périmètre de référence peut soit interdire dans l'enceinte du port les ventes à l'importation de produits acheminés par une voie autre que maritime, soit les autoriser seulement pour les lots d'une importance excédant certaines limites et dans les conditions qu'il détermine.
Article L761-7
A titre exceptionnel, l'autorité administrative compétente peut accorder des dérogations aux interdictions prévues aux articles L. 761-5 et L. 761-6, dans des conditions fixées par décret en Conseil d'Etat.
Article L761-8
Les infractions aux interdictions des articles L. 761-5 et L. 761-6 ainsi qu'aux dispositions prises en application de ces articles sont constatées et poursuivies dans les conditions fixées par le premier alinéa de l'article L. 450-1 et les articles L. 450-2 et L. 450-3 et sanctionnées d'une peine d'amende de 15 000 euros. Les articles L. 470-1 et L. 470-4 sont applicables.
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Article L761-9
Le droit d'occupation privative d'emplacement dont dispose un commerçant établi dans l'enceinte d'un marché d'intérêt national est susceptible d'être compris dans le nantissement de son fonds de commerce.
Article L761-10
Les dispositions législatives et réglementaires relatives à la tenue et à l'exploitation des marchés de produits agricoles et alimentaires ne sont pas applicables aux marchés d'intérêt national.
L'organisation générale des marchés d'intérêt national est déterminée par décret en Conseil d'Etat.
La modification de l'enceinte des marchés d'intérêt national dépourvus de périmètre de référence ainsi que leur transfert s'exercent librement.
Article L761-11
Le préfet exerce les pouvoirs de police dans l'enceinte du marché d'intérêt national. Dans l'étendue du périmètre de référence, il veille à l'application des lois et règlements intéressant le marché et dénonce, à cet effet, au procureur de la République les infractions commises. Lorsque le marché avec son périmètre de référence s'étend sur plusieurs départements, les pouvoirs ci-dessus appartiennent au préfet désigné par le ministre de l'intérieur.
Chapitre II : Des manifestations commerciales.
Article L762-1
Un parc d'exposition est un ensemble immobilier clos indépendant, doté d'installations et d'équipements appropriés ayant un caractère permanent et non soumis à l'autorisation prévue à l'article L. 752-1, qui accueille, pendant tout ou partie de l'année, des manifestations commerciales ou autres, à caractère temporaire.
Le parc d'exposition est enregistré auprès de l'autorité administrative compétente. Le programme des manifestations commerciales qu'il accueille fait chaque année l'objet d'une déclaration préalable auprès de l'autorité administrative compétente.
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Article L762-2
Un salon professionnel est une manifestation commerciale consacrée à la promotion d'un ensemble d'activités professionnelles réservée à des visiteurs justifiant d'un titre d'accès payant ou gratuit. Il ne propose à la vente sur place que des marchandises destinées à l'usage personnel de l'acquéreur, dont la valeur n'excède pas un plafond fixé par décret.
Tout salon professionnel fait l'objet d'une déclaration préalable auprès de l'autorité administrative compétente.
Article L762-3
Les conditions d'application du présent chapitre sont déterminées par un décret en Conseil d'Etat.
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Partie législative
LIVRE VIII : De quelques professions réglementées.
TITRE Ier : Des administrateurs judiciaires, mandataires judiciaires et experts en diagnostic d'entreprise.
Chapitre Ier : Des administrateurs judiciaires.
Section 1 : De la mission, des conditions d'accès et d'exercice et des incompatibilités.
Sous-section 1 : Des missions.
Article L811-1
Les administrateurs judiciaires sont les mandataires, personnes physiques ou morales, chargés par décision de justice d'administrer les biens d'autrui ou d'exercer des fonctions d'assistance ou de surveillance dans la gestion de ces biens.
Les tâches que comporte l'exécution de leur mandat leur incombent personnellement. Ils peuvent toutefois, lorsque le bon déroulement de la procédure le requiert et sur autorisation motivée du président du tribunal, confier sous leur responsabilité à des tiers une partie de ces tâches.
Lorsque les administrateurs judiciaires confient à des tiers des tâches qui relèvent de la mission que leur a confiée le tribunal, ils les rétribuent sur la rémunération qu'ils perçoivent .
Sous-section 2 : Des conditions d'accès à la profession.
Article L811-2
Nul ne peut être désigné en justice pour exercer ces fonctions, sous réserve des dispositions particulières à certaines matières, notamment celles relatives aux mineurs et aux majeurs protégés, ou sous réserve des missions occasionnelles qui peuvent être confiées aux membres des professions
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judiciaires et juridiques en matière civile, s'il n'est inscrit sur la liste établie par une commission nationale instituée à cet effet.
Toutefois, le tribunal peut, après avis du procureur de la République, désigner comme administrateur judiciaire une personne physique justifiant d'une expérience ou d'une qualification particulière au regard de la nature de l'affaire et remplissant les conditions définies aux 1° à 4° de l'article L. 811-5. Il motive spécialement sa décision au regard de cette expérience ou de cette qualification particulière.
Les personnes visées à l'alinéa précédent ne doivent pas, au cours des cinq années précédentes, avoir perçu à quelque titre que ce soit, directement ou indirectement, une rétribution ou un paiement de la part de la personne physique ou morale faisant l'objet d'une mesure d'administration, d'assistance ou de surveillance, d'une personne qui détient le contrôle de cette personne morale ou de l'une des sociétés contrôlées par elle au sens des II et III de l'article L. 233-16, ni s'être trouvées en situation de conseil de la personne physique ou morale concernée ou de subordination par rapport à elle. Elles doivent, en outre, n'avoir aucun intérêt dans le mandat qui leur est donné et n'être pas au nombre des anciens administrateurs ou mandataires judiciaires ayant fait l'objet d'une décision de radiation ou de retrait des listes en application des articles L. 811-6, L. 811-12 et L. 812-4. Elles sont tenues d'exécuter les mandats qui leur sont confiés en se conformant, dans l'accomplissement de leurs diligences professionnelles, aux mêmes obligations que celles qui s'imposent aux administrateurs judiciaires inscrits sur la liste. Elles ne peuvent exercer les fonctions d'administrateur judiciaire à titre habituel.
Les personnes désignées en application du deuxième alinéa doivent, lors de l'acceptation de leur mandat, attester sur l'honneur qu'elles remplissent les conditions fixées aux 1° à 4° de l'article L. 811-5 qu'elles se conforment aux obligations énumérées à l'alinéa précédent et qu'elles ne font pas l'objet d'une interdiction d'exercice en application de l'avant-dernier alinéa de l'article L. 814-10.
Lorsque le tribunal nomme une personne morale, il désigne en son sein une ou plusieurs personnes physiques pour la représenter dans l'accomplissement du mandat qui lui est confié.
Article L811-3
La liste nationale est divisée en sections correspondant au ressort de chaque cour d'appel.
Article L811-4
La commission nationale prévue à l'article L. 811-2 est composée ainsi qu'il suit :
- un conseiller à la Cour de cassation, président, désigné par le premier président de la Cour de cassation ;
- un magistrat de la Cour des comptes, désigné par le premier président de la Cour des comptes ;
- un membre de l'inspection générale des finances, désigné par le ministre chargé de l'économie et des finances ;
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- un magistrat du siège d'une cour d'appel, désigné par le premier président de la Cour de cassation ;
- un membre d'une juridiction commerciale du premier degré, désigné par le premier président de la Cour de cassation ;
- un professeur de droit, de sciences économiques ou de gestion, désigné par le ministre chargé des universités ;
- un représentant du Conseil d'Etat, désigné par le vice-président du Conseil d'Etat ;
- deux personnes qualifiées en matière économique ou sociale, désignées par le garde des sceaux, ministre de la justice ;
- trois administrateurs judiciaires, inscrits sur la liste, élus par leurs pairs dans des conditions déterminées par décret en Conseil d'Etat.
En cas d'égalité des voix, celle du président est prépondérante.
Le président et les membres de la commission ainsi que leurs suppléants, en nombre égal et choisis dans les mêmes catégories, sont désignés pour un mandat de trois ans renouvelable une fois.
Un magistrat du parquet et son suppléant sont désignés pour exercer les fonctions de commissaire du Gouvernement auprès de la commission nationale et assurer notamment l'instruction des demandes d'inscription.
Les frais de fonctionnement de la commission sont à la charge de l'Etat.
Article L811-5
Nul ne peut être inscrit sur la liste par la commission s'il ne remplit les conditions suivantes :
1° Etre français ou ressortissant d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen ;
2° N'avoir pas été l'auteur de faits contraires à l'honneur ou à la probité ayant donné lieu à une condamnation pénale ;
3° N'avoir pas été l'auteur de faits de même nature ayant donné lieu à une sanction disciplinaire ou administrative de destitution, de radiation, de révocation, de retrait d'agrément ou de retrait d'autorisation ;
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4° N'avoir pas été frappé de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance prévues au chapitre V du titre II du livre VI du présent code, au titre VI de la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou, dans le régime antérieur à cette loi, au titre II de la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ;
5° Avoir subi avec succès l'examen d'accès au stage professionnel, accompli ce stage et subi avec succès l'examen d'aptitude aux fonctions d'administrateur judiciaire.
Ne peuvent être admises à se présenter à l'examen d'accès au stage professionnel que les personnes titulaires des titres ou diplômes déterminés par décret.
Par dérogation aux dispositions qui précèdent, les personnes remplissant des conditions de compétence et d'expérience professionnelle fixées par décret en Conseil d'Etat sont dispensées de l'examen d'accès au stage professionnel. La commission peut, en outre, dispenser ces personnes, dans des conditions fixées par décret en Conseil d'Etat, d'une partie du stage professionnel et de tout ou partie de l'examen d'aptitude aux fonctions d'administrateur judiciaire.
Les personnes morales inscrites ne peuvent exercer les fonctions d'administrateur judiciaire que par l'intermédiaire d'un de leurs membres lui-même inscrit sur la liste.
Sont dispensées de conditions de diplôme, de stage et d'examen professionnel prévues aux sixième et septième alinéas les personnes qui justifient avoir acquis, dans un Etat membre des Communautés européennes autre que la France ou un autre Etat partie à l'accord sur l'Espace économique européen, une qualification suffisante pour l'exercice de la profession d'administrateur judiciaire, sous réserve d'avoir subi, dans des conditions fixées par décret en Conseil d'Etat, un examen de contrôle des connaissances. La liste des candidats admis à se présenter à l'examen est arrêtée par la commission.
Sous-section 3 : Des conditions d'exercice.
Article L811-6
La commission nationale, de sa propre initiative ou saisie sur requête du garde des sceaux, ministre de la justice, du président du Conseil national des administrateurs judiciaires et des mandataires judiciaires, du commissaire du Gouvernement ou du procureur de la République du ressort de la juridiction dans lequel est établi l'administrateur judiciaire, peut, par décision motivée et après avoir mis l'intéressé en demeure de présenter ses observations, retirer de la liste mentionnée à l'article L. 811-2 l'administrateur judiciaire qui, en raison de son état physique ou mental, est empêché d'assurer l'exercice normal de ses fonctions ou l'administrateur judiciaire qui a révélé son inaptitude à assurer l'exercice normal de ses fonctions.
Le retrait de la liste ne fait pas obstacle à l'exercice de poursuites disciplinaires contre l'administrateur judiciaire si les faits qui lui sont reprochés ont été commis pendant l'exercice de ses fonctions.
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Article L811-7
Les administrateurs judiciaires peuvent constituer entre eux, pour l'exercice en commun de leur profession, des sociétés civiles professionnelles régies par la loi n° 66-879 du 29 novembre 1966 relative aux sociétés civiles professionnelles. Ils peuvent également exercer leur profession sous forme de sociétés d'exercice libéral telles que prévues par la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé. Ils peuvent aussi être membres d'un groupement d'intérêt économique ou d'un groupement européen d'intérêt économique ou associés d'une société en participation régie par le titre II de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé.
Article L811-8
Les dossiers suivis par l'administrateur judiciaire qui quitte ses fonctions, pour quelque motif que ce soit, sont répartis par la juridiction entre les autres administrateurs dans un délai de trois mois à compter de la cessation de fonctions.
Toutefois, dans l'intérêt d'une bonne administration de la justice, la juridiction peut autoriser l'ancien administrateur judiciaire à poursuivre le traitement d'un ou de plusieurs dossiers en cours, sauf si une radiation est la cause de l'abandon de ses fonctions. Cet administrateur judiciaire demeure soumis aux dispositions des articles L. 811-10 à L. 811-16, L. 814-1 et L. 814-5.
Article L811-9
Les personnes inscrites sur la liste ont vocation à exercer leurs fonctions sur l'ensemble du territoire.
Sous-section 4 : Des incompatibilités.
Article L811-10
La qualité d'administrateur judiciaire inscrit sur la liste est incompatible avec l'exercice de toute autre profession, à l'exception de celle d'avocat.
Elle est, par ailleurs, incompatible avec :
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1° Toutes les activités à caractère commercial, qu'elles soient exercées directement ou par personne interposée ;
2° La qualité d'associé dans une société en nom collectif, d'associé commandité dans une société en commandite simple ou par actions, de gérant d'une société à responsabilité limitée, de président du conseil d'administration, membre du directoire, directeur général ou directeur général délégué d'une société anonyme, de président ou de dirigeant d'une société par actions simplifiée, de membre du conseil de surveillance ou d'administrateur d'une société commerciale, de gérant d'une société civile, à moins que ces sociétés n'aient pour objet l'exercice de la profession d'administrateur judiciaire ou l'acquisition de locaux pour cet exercice. Un administrateur judiciaire peut en outre exercer les fonctions de gérant d'une société civile dont l'objet exclusif est la gestion d'intérêts à caractère familial.
La qualité d'administrateur judiciaire inscrit sur la liste ne fait pas obstacle à l'exercice d'une activité de consultation dans les matières relevant de la qualification de l'intéressé, ni à l'accomplissement des mandats de mandataire ad hoc et de conciliateur prévus aux articles L. 611-3 et L. 611-6 du présent code et par l'article L. 351-4 du code rural, de commissaire à l'exécution du plan, d'administrateur ou de liquidateur amiable, d'expert judiciaire et de séquestre amiable ou judiciaire. Cette activité et ces mandats, à l'exception des mandats de mandataire ad hoc, de conciliateur et de commissaire à l'exécution du plan, ne peuvent être exercés qu'à titre accessoire.
Les conditions du présent article sont, à l'exception du quatrième alinéa, applicables aux personnes morales inscrites.
Section 2 : De la surveillance, de l'inspection et de la discipline.
Sous-section 1 : De la surveillance et de l'inspection.
Article L811-11
Les administrateurs judiciaires sont placés sous la surveillance du ministère public. Ils sont soumis, dans leur activité professionnelle, à des inspections confiées à l'autorité publique et à l'occasion desquelles ils sont tenus de fournir tous renseignements ou documents utiles sans pouvoir opposer le secret professionnel.
L'organisation et les modalités de ces inspections sont déterminées par décret en Conseil d'Etat.
Dans le cadre du contrôle dont est chargé le conseil national mentionné à l'article L. 814-2, les administrateurs judiciaires sont tenus, sans pouvoir opposer le secret professionnel, de déférer aux demandes des personnes chargées du contrôle tendant à la communication de tous renseignements ou documents utiles.
Le commissaire aux comptes de l'administrateur judiciaire soumis à un contrôle ou à une inspection
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est tenu, sans pouvoir opposer le secret professionnel, de déférer aux demandes des personnes chargées du contrôle ou de l'inspection tendant à la communication de tout renseignement recueilli ou de tout document établi dans le cadre de l'exécution de sa mission.
La Caisse des dépôts et consignations est tenue, sans pouvoir opposer le secret professionnel, de déférer aux demandes des personnes chargées de l'inspection ainsi qu'à celles du conseil national mentionné à l'article L. 814-2 pour l'exercice du contrôle dont il est chargé, tendant à la communication de tout renseignement ou document utiles à la connaissance des mouvements de fonds intervenus sur les comptes ouverts dans ses livres au nom de chaque administrateur judiciaire et de sommes qui y sont déposées au titre des mandats sur lesquels porte l'inspection ou le contrôle.
Article L811-11-1
Les administrateurs judiciaires sont tenus de désigner un commissaire aux comptes qui assure le contrôle de leur comptabilité spéciale et exerce, à ce titre, une mission permanente de contrôle de l'ensemble des fonds, effets, titres et autres valeurs appartenant à autrui, dont les administrateurs judiciaires sont seuls détenteurs en vertu d'un mandat reçu dans l'exercice de leurs fonctions.
Ce contrôle porte également sur les comptes bancaires ou postaux ouverts pour les besoins de l'activité au nom des débiteurs faisant l'objet de l'une des procédures prévues au titre II du livre VI et qui fonctionnent sous la seule signature de l'administrateur ou de ses délégués dûment habilités.
Les commissaires aux comptes peuvent en outre, aux fins de contrôle, avoir accès à la comptabilité générale de l'étude, aux procédures confiées à l'administrateur et se faire communiquer par lui ou par les tiers détenteurs des fonds, nonobstant toute disposition contraire, tous renseignements utiles à leur mission de contrôle.
Article L811-11-2
Les commissaires aux comptes informent, dans des conditions fixées par décret en Conseil d'Etat, les autorités auxquelles sont confiées la surveillance, les inspections et le contrôle des administrateurs judiciaires, des résultats de leur mission et signalent les anomalies ou irrégularités dont ils ont connaissance au cours de l'exécution de leur mission.
Article L811-11-3
Le commissaire aux comptes du débiteur soumis à une procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire ne peut opposer le secret professionnel aux demandes du commissaire aux comptes de l'administrateur judiciaire tendant à la communication de tous renseignements ou documents relatifs au fonctionnement, à compter de la désignation de cet administrateur, des comptes bancaires ou postaux ouverts au nom du débiteur.
Sous-section 2 : De la discipline.
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Article L811-12 A
Toute contravention aux lois et règlements, toute infraction aux règles professionnelles, tout manquement à la probité ou à l'honneur, même se rapportant à des faits commis en dehors de l'exercice professionnel, expose l'administrateur judiciaire qui en est l'auteur à des poursuites disciplinaires.
Article L811-12
L'action disciplinaire est engagée par le garde des sceaux, ministre de la justice, le procureur général près la cour d'appel dans le ressort de laquelle ont été commis les faits, le commissaire du Gouvernement ou le président du Conseil national des administrateurs judiciaires et des mandataires judiciaires. L'acceptation de la démission d'une personne inscrite sur la liste des administrateurs judiciaires ne fait pas obstacle aux poursuites disciplinaires si les faits qui lui sont reprochés ont été commis pendant l'exercice de ses fonctions.
I. - La commission nationale d'inscription siège comme chambre de discipline. Le commissaire du Gouvernement y exerce les fonctions du ministère public. Elle peut prononcer les peines disciplinaires suivantes :
1° L'avertissement ;
2° Le blâme ;
3° L'interdiction temporaire pour une durée n'excédant pas trois ans ;
4° La radiation de la liste des administrateurs judiciaires.
II. - L'avertissement et le blâme peuvent être accompagnés, pendant un délai d'un an, de mesures de contrôle soumettant l'administrateur judiciaire à des obligations particulières déterminées par la commission. Ces obligations peuvent également être prescrites par la commission lorsque l'administrateur judiciaire interdit temporairement reprend ses fonctions.
III. - Lorsqu'elle prononce une peine disciplinaire, la commission peut décider, eu égard à la gravité des faits commis, de mettre à la charge de l'administrateur judiciaire tout ou partie des frais occasionnés par la présence d'un commissaire aux comptes ou d'un expert lors des contrôles ou des inspections ayant permis la constatation de ces faits.
Article L811-13
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Tout administrateur judiciaire qui fait l'objet d'une poursuite pénale ou disciplinaire peut être suspendu provisoirement de l'exercice de ses fonctions par le tribunal de grande instance du lieu où il est établi.
En cas d'urgence, la suspension provisoire peut être prononcée même avant l'exercice des poursuites pénales ou disciplinaires si des inspections ou vérifications ont laissé apparaître des risques pour les sommes perçues par l'administrateur judiciaire, à raison de ses fonctions.
Le tribunal peut, à tout moment, à la requête soit du commissaire du Gouvernement, soit de l'administrateur judiciaire, mettre fin à la suspension provisoire.
La suspension cesse de plein droit dès que les actions pénales ou disciplinaires sont éteintes. Elle cesse également de plein droit, dans le cas prévu au deuxième alinéa, si, à l'expiration d'un délai d'un mois à compter de son prononcé, aucune poursuite pénale ou disciplinaire n'a été engagée.
Article L811-14
L'action disciplinaire se prescrit par dix ans.
Article L811-15
L'administrateur judiciaire interdit, radié ou suspendu doit s'abstenir de tout acte professionnel.
Les actes accomplis au mépris de cette prohibition peuvent être déclarés nuls, à la requête de tout intéressé ou du ministère public, par le tribunal statuant en chambre du conseil. La décision est exécutoire à l'égard de toute personne.
Toute infraction aux dispositions qui précèdent est punie des peines encourues pour le délit d'usurpation de titre prévu par l'article 433-17 du code pénal.
Article L811-16
Nul ne peut faire état du titre d'administrateur judiciaire, en dehors de la mission qui lui a été confiée, en vertu du deuxième alinéa de l'article L. 811-2 ou du second alinéa de l'article L. 811-8 s'il n'est inscrit sur la liste des administrateurs judiciaires.
Toute infraction à cette disposition est punie des peines encourues pour le délit d'usurpation de titre prévu par l'article 433-17 du code pénal.
Est puni des mêmes peines celui qui aura fait usage d'une dénomination présentant une ressemblance de nature à causer une méprise dans l'esprit du public avec le titre d'administrateur
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judiciaire.
Chapitre II : Des mandataires judiciaires.
Section 1 : Des missions, des conditions d'accès et d'exercice et des incompatibilités.
Sous-section 1 : Des missions.
Article L812-1
Les mandataires judiciaires sont les mandataires, personnes physiques ou morales, chargés par décision de justice de représenter les créanciers et de procéder à la liquidation d'une entreprise dans les conditions définies par le titre II du livre VI.
Les tâches que comporte l'exécution de leur mandat leur incombent personnellement. Ils peuvent toutefois, lorsque le bon déroulement de la procédure le requiert et sur autorisation motivée du président du tribunal, confier sous leur responsabilité à des tiers une partie de ces tâches.
Lorsque les mandataires judiciaires confient à des tiers des tâches qui relèvent de la mission que leur a confiée le tribunal, ils les rétribuent sur la rémunération qu'ils perçoivent .
Sous-section 2 : Des conditions d'accès à la profession.
Article L812-2
I.-Nul ne peut être désigné en justice pour exercer les fonctions de mandataire judiciaire s'il n'est inscrit sur la liste établie à cet effet par une commission nationale.
II.-Toutefois, le tribunal peut, après avis du procureur de la République, désigner comme mandataire judiciaire une personne physique justifiant d'une expérience ou d'une qualification particulière au regard de la nature de l'affaire et remplissant les conditions définies aux 1° à 4° de l'article L. 812-3. Il motive spécialement sa décision au regard de cette expérience ou de cette qualification particulière.
Les personnes visées à l'alinéa précédent ne doivent pas, au cours des cinq années précédentes, avoir perçu à quelque titre que ce soit, directement ou indirectement, une rétribution ou un paiement de la part de la personne physique ou morale faisant l'objet d'une mesure de redressement ou de liquidation judiciaires, d'une personne qui détient le contrôle de cette personne morale ou de l'une des sociétés contrôlées par elle au sens des II et III de l'article L. 233-16, ni s'être trouvées en
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situation de conseil de la personne physique ou morale concernée ou de subordination par rapport à elle. Elles doivent, en outre, n'avoir aucun intérêt dans le mandat qui leur est donné et n'être pas au nombre des anciens administrateurs ou mandataires judiciaires ayant fait l'objet d'une décision de radiation ou de retrait des listes en application des articles L. 811-6, L. 811-12, L. 812-4 et L. 812-9. Elles sont tenues d'exécuter les mandats qui leur sont confiés en se conformant, dans l'accomplissement de leurs diligences professionnelles, aux mêmes obligations que celles qui s'imposent aux mandataires judiciaires inscrits sur la liste. Elles ne peuvent exercer les fonctions de mandataire judiciaire à titre habituel.
Les personnes désignées en application du premier alinéa du présent II doivent, lors de l'acceptation de leur mandat, attester sur l'honneur qu'elles remplissent les conditions fixées aux 1° à 4° de l'article L. 812-3, qu'elles se conforment aux obligations énumérées à l'alinéa précédent et qu'elles ne font pas l'objet d'une interdiction d'exercice en application de l'avant-dernier alinéa de l'article L. 814-10.
III.-Lorsque le tribunal nomme une personne morale, il désigne en son sein une ou plusieurs personnes physiques pour la représenter dans l'accomplissement du mandat qui lui est confié.
Article L812-2-1
La liste mentionnée à l'article L. 812-2 est divisée en sections correspondant au ressort de chaque cour d'appel.
Article L812-2-2
La commission nationale prévue à l'article L. 812-2 est composée ainsi qu'il suit :
- un conseiller à la Cour de cassation, président, désigné par le premier président de la Cour de cassation ;
- un magistrat de la Cour des comptes, désigné par le premier président de la Cour des comptes ;
- un membre de l'inspection générale des finances, désigné par le ministre chargé de l'économie et des finances ;
- un magistrat du siège d'une cour d'appel, désigné par le premier président de la Cour de cassation ;
- un membre d'une juridiction commerciale du premier degré, désigné par le premier président de la Cour de cassation ;
- un professeur de droit, de sciences économiques ou de gestion, désigné par le ministre chargé des universités ;
- un représentant du Conseil d'Etat, désigné par le vice-président du Conseil d'Etat ;
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- deux personnes qualifiées en matière économique ou sociale, désignées par le garde des sceaux, ministre de la justice ;
- trois mandataires judiciaires, inscrits sur la liste, élus par leurs pairs dans des conditions déterminées par décret en Conseil d'Etat. L'un d'eux est remplacé par une personne inscrite sur la liste des experts en diagnostic d'entreprise lorsque la commission donne, en application des dispositions du dernier alinéa de l'article L. 813-1, un avis sur l'inscription d'un expert de cette spécialité, sur sa radiation ou sur son retrait de la liste.
En cas d'égalité des voix, celle du président est prépondérante.
Le président et les membres de la commission ainsi que leurs suppléants, en nombre égal et choisis dans les mêmes catégories, sont désignés pour un mandat de trois ans renouvelable une fois.
Un magistrat du parquet et son suppléant sont désignés pour exercer les fonctions de commissaire du Gouvernement auprès de la commission nationale et assurer notamment l'instruction des demandes d'inscription.
Les frais de fonctionnement de la commission sont à la charge de l'Etat.
Article L812-3
Nul ne peut être inscrit sur la liste par la commission s'il ne remplit les conditions suivantes :
1° Etre français ou ressortissant d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen ;
2° N'avoir pas été l'auteur de faits contraires à l'honneur ou à la probité ayant donné lieu à une condamnation pénale ;
3° N'avoir pas été l'auteur de faits de même nature ayant donné lieu à une sanction disciplinaire ou administrative de destitution, de radiation, de révocation, de retrait d'agrément ou de retrait d'autorisation ;
4° N'avoir pas été frappé de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance prévues au chapitre V du titre II du livre VI du présent code, au titre VI de la loi n° 85-98 du 25 janvier 1985 précitée ou, dans le régime antérieur à cette loi, au titre II de la loi n° 67-563 du 13 juillet 1967 précitée ;
5° Avoir subi avec succès l'examen d'accès au stage professionnel, accompli ce stage et subi avec succès l'examen d'aptitude aux fonctions de mandataire judiciaire.
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Ne peuvent être admises à se présenter à l'examen d'accès au stage professionnel que les personnes titulaires des titres ou diplômes déterminés par décret.
Par dérogation aux dispositions qui précèdent, les personnes remplissant des conditions de compétence et d'expérience professionnelle fixées par décret en Conseil d'Etat sont dispensées de l'examen d'accès au stage professionnel. La commission peut, en outre, dispenser ces personnes, dans des conditions fixées par décret en Conseil d'Etat, d'une partie du stage professionnel et de tout ou partie de l'examen d'aptitude aux fonctions de mandataire judiciaire.
Les personnes morales inscrites ne peuvent exercer les fonctions de mandataire judiciaire que par l'intermédiaire d'un de leurs membres lui-même inscrit sur la liste.
Sont dispensées des conditions de diplôme, de stage et d'examen professionnel prévues aux sixième et septième alinéas les personnes qui justifient avoir acquis, dans un Etat membre des communautés européennes autre que la France ou un autre Etat partie à l'accord sur l'Espace économique européen, une qualification suffisante pour l'exercice de la profession de mandataire judiciaire, sous réserve d'avoir subi, dans des conditions fixées par décret en Conseil d'Etat, un examen de contrôle des connaissances. La liste des candidats admis à se présenter à l'examen est arrêtée par la commission.
Sous-section 3 : Des conditions d'exercice.
Article L812-4
La commission nationale, de sa propre initiative ou saisie sur requête du garde des sceaux, ministre de la justice, du président du Conseil national des administrateurs judiciaires et des mandataires judiciaires, du commissaire du Gouvernement ou du procureur de la République du ressort de la juridiction dans lequel est établi le mandataire judiciaire, peut, par décision motivée et après avoir mis l'intéressé en demeure de présenter ses observations, retirer de la liste mentionnée à l'article L. 812-2 le mandataire judiciaire qui, en raison de son état physique ou mental, est empêché d'assurer l'exercice normal de ses fonctions ou le mandataire judiciaire qui a révélé son inaptitude à assurer l'exercice normal de ses fonctions.
Le retrait de la liste ne fait pas obstacle à l'exercice de poursuites disciplinaires contre le mandataire judiciaire si les faits qui lui sont reprochés ont été commis pendant l'exercice de ses fonctions.
Article L812-5
Les mandataires judiciaires peuvent constituer entre eux, pour l'exercice en commun de leur profession, des sociétés civiles professionnelles régies par la loi n° 66-879 du 29 novembre 1966 précitée. Ils peuvent également exercer leur profession sous forme de sociétés d'exercice libéral telles que prévues par la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est
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protégé. Ils peuvent aussi être membres d'un groupement d'intérêt économique ou d'un groupement européen d'intérêt économique ou associés d'une société en participation régie par le titre II de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé.
Article L812-6
Les dossiers suivis par le mandataire judiciaire qui quitte ses fonctions, pour quelque motif que ce soit, sont répartis par la juridiction entre les autres mandataires dans un délai de trois mois à compter de la cessation de fonctions.
Toutefois, dans l'intérêt d'une bonne administration de la justice, la juridiction peut autoriser l'ancien mandataire à poursuivre le traitement d'un ou de plusieurs dossiers en cours, sauf si une radiation est la cause de l'abandon de ses fonctions. Ce mandataire demeure soumis aux dispositions des articles L. 812-8 à L. 812-10, L. 814-1 et L. 814-5.
Article L812-7
Les personnes inscrites sur la liste ont vocation à exercer leurs fonctions sur l'ensemble du territoire.
Sous-section 4 : Des incompatibilités.
Article L812-8
La qualité de mandataire judiciaire inscrit sur la liste est incompatible avec l'exercice de toute autre profession.
Elle est, par ailleurs, incompatible avec :
1° Toutes les activités à caractère commercial, qu'elles soient exercées directement ou par personne interposée ;
2° La qualité d'associé dans une société en nom collectif, d'associé commandité dans une société en commandite simple ou par actions, de gérant d'une société à responsabilité limitée, de président du conseil d'administration, membre du directoire, directeur général ou directeur général délégué d'une société anonyme, de président ou de dirigeant d'une société par actions simplifiée, de membre du conseil de surveillance ou d'administrateur d'une société commerciale, de gérant d'une société civile, à moins que ces sociétés n'aient pour objet l'exercice de la profession de mandataire judiciaire ou l'acquisition de locaux pour cet exercice. Un mandataire peut en outre exercer les fonctions de gérant d'une société civile dont l'objet exclusif est la gestion d'intérêts à caractère
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familial.
La qualité de mandataire judiciaire inscrit sur la liste ne fait pas obstacle à l'exercice d'une activité de consultation dans les matières relevant de la qualification de l'intéressé, ni à l'accomplissement des mandats de mandataire ad hoc et de conciliateur prévus aux articles L. 611-3 et L. 611-6 du présent code et par l'article L. 351-4 du code rural, de commissaire à l'exécution du plan ou de liquidateur amiable des biens d'une personne physique ou morale, d'expert judiciaire et de séquestre judiciaire. Cette activité et ces mandats, à l'exception des mandats de mandataire ad hoc, de conciliateur et de commissaire à l'exécution du plan, ne peuvent être exercés qu'à titre accessoire. La même personne ne peut exercer successivement les fonctions de conciliateur puis de mandataire judiciaire avant l'expiration d'un délai d'un an lorsqu'il s'agit d'une même entreprise.
Les conditions du présent article sont, à l'exception du quatrième alinéa, applicables aux personnes morales inscrites.
Section 2 : De la surveillance, de l'inspection et de la discipline.
Article L812-9
Les dispositions relatives à la surveillance, à l'inspection et à la discipline des administrateurs judiciaires prévues par les articles L. 811-11 à L. 811-15 sont applicables aux mandataires judiciaires.
La commission nationale d'inscription siège comme chambre de discipline. Le commissaire du Gouvernement y exerce les fonctions du ministère public.
Article L812-10
Nul ne peut faire état du titre de mandataire judiciaire, en dehors de la mission qui lui a été confiée en vertu du premier alinéa du II de l'article L. 812-2 et du second alinéa de l'article L. 812-6, s'il n'est inscrit sur la liste des mandataires judiciaires.
Toute infraction à cette disposition est punie des peines encourues pour le délit d'usurpation de titre prévu par l'article 433-17 du code pénal.
Est puni des mêmes peines celui qui aura fait usage d'une dénomination présentant une ressemblance de nature à causer une méprise dans l'esprit du public avec le titre prévu au premier alinéa.
Chapitre III : Des experts en diagnostic d'entreprise.
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Article L813-1
Les experts en diagnostic d'entreprise sont désignés en justice pour établir un rapport sur la situation économique et financière d'une entreprise en cas de procédure de conciliation ou de procédure de sauvegarde ou de redressement judiciaire, ou concourir à l'élaboration d'un tel rapport en cas de procédure de sauvegarde ou de redressement judiciaire.
Ces experts ne doivent pas, au cours des cinq années précédentes, avoir perçu à quelque titre que ce soit, directement ou indirectement, une rétribution ou un paiement de la part de la personne physique ou morale faisant l'objet d'une mesure d'administration, d'assistance ou de surveillance ou de la part d'une personne qui détient le contrôle de cette personne morale, ni s'être trouvés en situation de subordination par rapport à la personne physique ou morale concernée. Ils doivent, en outre, n'avoir aucun intérêt dans le mandat qui leur est donné.
Les experts ainsi désignés doivent attester sur l'honneur, lors de l'acceptation de leur mandat, qu'ils se conforment aux obligations énumérées à l'alinéa précédent.
Ces experts peuvent être choisis parmi les experts de cette spécialité inscrits sur les listes dressées, pour l'information des juges, en application de l'article 2 de la loi n° 71-498 du 29 juin 1971 relative aux experts judiciaires.
Chaque cour d'appel procède à l'inscription des experts de cette spécialité selon les dispositions de l'article 2 de la loi n° 71-498 du 29 juin 1971 relative aux experts judiciaires. Leur inscription sur la liste nationale des experts judiciaires est faite après avis de la commission nationale créée à l'article L. 812-2.
Chapitre IV : Dispositions communes.
Section 1 : Des recours contre les décisions des commissions d'inscription et de la représentation auprès des pouvoirs publics.
Sous-section 1 : Des recours contre les décisions des commissions d'inscription.
Article L814-1
Les recours contre les décisions prises, tant en matière d'inscription ou de retrait que de discipline, par les commissions nationales sont portés devant la cour d'appel de Paris.
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Ces recours ont un caractère suspensif.
Sous-section 2 : De la représentation des professions auprès des pouvoirs publics.
Article L814-2
Les professions d'administrateur judiciaire et de mandataire judiciaire sont représentées auprès des pouvoirs publics par un Conseil national des administrateurs judiciaires et des mandataires judiciaires, établissement d'utilité publique doté de la personnalité morale, chargé d'assurer la défense des intérêts collectifs de ces professions. Il incombe, en outre, au conseil national de veiller au respect de leurs obligations par les mandataires de justice, d'organiser leur formation professionnelle, de s'assurer qu'ils se conforment à leur obligation d'entretien et de perfectionnement des connaissances, de contrôler leurs études et de rendre compte de l'accomplissement de ces missions dans un rapport qu'il adresse chaque année au garde des sceaux, ministre de la justice.
Les modes d'élection et de fonctionnement du conseil national, qui comprend en nombre égal un collège représentant les administrateurs judiciaires et un collège représentant les mandataires judiciaires, sont fixés par décret en Conseil d'Etat.
Section 2 : De la garantie de la représentation des fonds, de la responsabilité civile professionnelle et de la rémunération.
Sous-section 1 : De la garantie de la représentation des fonds et de la responsabilité civile professionnelle.
Article L814-3
Une caisse dotée de la personnalité civile et gérée par les cotisants a pour objet de garantir le remboursement des fonds, effets ou valeurs reçus ou gérés par chaque administrateur judiciaire et par chaque mandataire judiciaire inscrits sur les listes, à l'occasion des opérations dont ils sont chargés à raison de leurs fonctions. Deux magistrats du parquet sont désignés pour exercer, l'un en qualité de titulaire, l'autre de suppléant, les fonctions de commissaire du Gouvernement auprès de la caisse.
L'adhésion à cette caisse est obligatoire pour chaque administrateur judiciaire et pour chaque mandataire judiciaire inscrits sur les listes.
Les ressources de la caisse sont constituées par le produit d'une cotisation spéciale annuelle payée
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par chaque administrateur judiciaire et par chaque mandataire judiciaire inscrits sur les listes.
Les cotisations payées par les administrateurs judiciaires et par les mandataires judiciaires sont affectées à la garantie des seuls administrateurs judiciaires et mandataires judiciaires inscrits sur les listes.
Au cas où les ressources de la caisse s'avèrent insuffisantes pour exécuter ses obligations, elle procède à un appel de fonds complémentaire auprès des professionnels inscrits sur les listes.
La garantie de la caisse joue sans que puisse être opposé aux créanciers le bénéfice de discussion prévu à l'article 2298 du code civil et sur la seule justification de l'exigibilité de la créance et de la non-représentation des fonds par l'administrateur judiciaire ou le mandataire judiciaire inscrits sur les listes.
La caisse est tenue de s'assurer contre les risques résultant pour elle de l'application du présent code.
Les recours contre les décisions de la caisse sont portés devant le tribunal de grande instance de Paris.
Article L814-4
Il doit être justifié par chaque administrateur judiciaire ainsi que par chaque mandataire judiciaire inscrits sur les listes d'une assurance souscrite par l'intermédiaire de la caisse de garantie. Cette assurance couvre les conséquences pécuniaires de la responsabilité civile encourue par les administrateurs judiciaires et les mandataires judiciaires, du fait de leurs négligences ou de leurs fautes ou de celles de leurs préposés, commises dans l'exercice de leurs mandats.
Article L814-5
L'administrateur judiciaire non inscrit sur la liste nationale, désigné dans les conditions prévues par le deuxième alinéa de l'article L. 811-2, le mandataire judiciaire non inscrit sur la liste nationale, désigné dans les conditions prévues par le premier alinéa du II de l'article L. 812-2, doit justifier, lorsqu'il accepte sa mission, d'une garantie affectée au remboursement des fonds, effets ou valeurs ainsi que d'une assurance souscrite le cas échéant auprès de la caisse de garantie. Cette assurance couvre les conséquences pécuniaires de la responsabilité civile encourue par cet administrateur judiciaire ou ce mandataire judiciaire, du fait de ses négligences ou de ses fautes ou de celles de ses préposés, commises dans l'exercice de son mandat.
Section 3 : Dispositions diverses.
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Article L814-8
Lorsqu'un administrateur judiciaire ou un mandataire judiciaire inscrit sur les listes et désigné par une juridiction pour accomplir à l'égard d'une entreprise les missions prévues par les dispositions du livre VI est déjà intervenu pour le compte de celle-ci à titre de conseil ou au titre des missions prévues aux avant-derniers alinéas des articles L. 811-10 et L. 812-8, il informe la juridiction de la nature et de l'importance des diligences accomplies au cours des cinq années précédentes.
Le non-respect des dispositions de l'alinéa précédent est passible de poursuites disciplinaires.
Article L814-9
Les administrateurs judiciaires et les mandataires judiciaires inscrits sur les listes sont tenus de suivre une formation continue leur permettant d'entretenir et de perfectionner leurs connaissances. Cette formation est organisée par le conseil national mentionné à l'article L. 814-2.
Article L814-10
Les administrateurs judiciaires et les mandataires judiciaires non inscrits sur les listes nationales, désignés dans les conditions prévues au deuxième alinéa de l'article L. 811-2 ou au premier alinéa du II de l'article L. 812-2, sont placés sous la surveillance du ministère public et sont soumis, dans leur activité professionnelle, à des inspections de l'autorité publique à l'occasion desquelles ils sont tenus de fournir tous renseignements ou documents utiles sans pouvoir opposer le secret professionnel.
Les commissaires aux comptes des administrateurs ou mandataires judiciaires non inscrits et qui font l'objet d'une inspection sont tenus, sans pouvoir opposer le secret professionnel, de déférer aux demandes des personnes chargées de l'inspection tendant à la communication de tout renseignement recueilli ou de tout document établi dans le cadre de leur mission.
Le procureur de la République peut, dans le cas où ces mandataires de justice se verraient reprocher d'avoir commis un acte constitutif de la contravention, de l'infraction ou du manquement visés à l'article L. 811-12 A, demander au tribunal de grande instance de leur interdire d'exercer les fonctions d'administrateur ou de mandataire judiciaires.
Les mesures d'interdiction prononcées en application de l'alinéa précédent sont communiquées au garde des sceaux, ministre de la justice, pour être diffusées auprès des procureurs généraux.
Article L814-11
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Toute somme détenue par un administrateur judiciaire ou un mandataire judiciaire au titre d'un mandat amiable est versée, dès sa réception, en compte de dépôt à la Caisse des dépôts et consignations, sauf décision expresse du mandant de désigner un autre établissement financier. En cas de retard, l'administrateur judiciaire ou le mandataire judiciaire doit, pour les sommes qu'il n'a pas versées, un intérêt dont le taux est égal au taux de l'intérêt légal majoré de cinq points.
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Partie législative
LIVRE VIII : De quelques professions réglementées.
TITRE II : Des commissaires aux comptes.
Chapitre préliminaire : Dispositions générales.
Article L820-1
Nonobstant toute disposition contraire, les dispositions du présent titre sont applicables aux commissaires aux comptes nommés dans toutes les personnes et entités quelle que soit la nature de la certification prévue dans leur mission. Elles sont également applicables à ces personnes et entités, sous réserve des règles propres à celles-ci, quel que soit leur statut juridique.
Pour l'application du présent titre, le terme : "entité" désigne les fonds mentionnés aux articles L. 214-20 et L. 214-43 du code monétaire et financier.
Article L820-2
Nul ne peut se prévaloir du titre de commissaire aux comptes s'il ne remplit pas les conditions visées aux dispositions du présent titre.
Article L820-3
En vue de sa désignation, le commissaire aux comptes informe par écrit la personne ou l'entité dont il se propose de certifier les comptes de son affiliation à un réseau, national ou international, qui n'a pas pour activité exclusive le contrôle légal des comptes et dont les membres ont un intérêt économique commun. Le cas échéant, il l'informe également du montant global des honoraires perçus par ce réseau au titre des prestations qui ne sont pas directement liées à la mission du commissaire aux comptes, fournies par ce réseau à une personne ou entité contrôlée ou qui contrôle, au sens des I et II de l'article L. 233-3, la personne ou l'entité dont ledit commissaire aux comptes se propose de certifier les comptes. Ces informations sont intégrées aux documents mis à la disposition des actionnaires en application de l'article L. 225-108. Actualisées chaque année par le commissaire aux comptes, elles sont mises à la disposition, au siège de la personne dont il certifie les comptes, des associés et actionnaires et, pour les associations, des adhérents et donateurs.
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L'information sur le montant des honoraires versés à chacun des commissaires aux comptes est mise, au siège de la personne ou de l'entité contrôlée, à la disposition des associés et actionnaires et, pour les associations, des adhérents et donateurs.
Article L820-3-1
Les délibérations de l'organe mentionné au premier alinéa de l'article L. 823-1 prises à défaut de désignation régulière de commissaires aux comptes ou sur le rapport de commissaires aux comptes nommés ou demeurés en fonctions contrairement aux dispositions du présent titre ou à d'autres dispositions applicables à la personne ou à l'entité en cause sont nulles.
L'action en nullité est éteinte si ces délibérations sont expressément confirmées par l'organe compétent sur le rapport de commissaires aux comptes régulièrement désignés.
Article L820-4
Nonobstant toute disposition contraire :
1° Est puni d'un emprisonnement de deux ans et d'une amende de 30000 euros le fait, pour tout dirigeant de personne ou de l'entité tenue d'avoir un commissaire aux comptes, de ne pas en provoquer la désignation ou de ne pas le convoquer à toute assemblée générale ;
2° Est puni d'un emprisonnement de cinq ans et d'une amende de 75000 euros le fait, pour les dirigeants d'une personne morale ou toute personne ou entité au service d'une personne ou entité tenue d'avoir un commissaire aux comptes, de mettre obstacle aux vérifications ou contrôles des commissaires aux comptes ou des experts nommés en exécution des articles L. 223-37 et L. 225-231, ou de leur refuser la communication sur place de toutes les pièces utiles à l'exercice de leur mission et, notamment, de tous contrats, livres, documents comptables et registres de procès-verbaux.
Article L820-5
Est puni d'un an d'emprisonnement et de 15000 euros d'amende le fait, pour toute personne :
1° De faire usage du titre de commissaire aux comptes ou de titres quelconques tendant à créer une similitude ou une confusion avec celui-ci, sans être régulièrement inscrite sur la liste prévue au I de l'article L. 822-1 et avoir prêté serment dans les conditions prévues à l'article L. 822-10 ;
2° D'exercer illégalement la profession de commissaire aux comptes, en violation des dispositions du I de l'article L. 822-1 et de l'article L. 822-10 ou d'une mesure d'interdiction ou de suspension temporaire ;
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Les articles 226-13 et 226-14 du code pénal relatifs au secret professionnel sont applicables aux commissaires aux comptes.
Article L820-6
Est puni d'un emprisonnement de six mois et d'une amende de 7500 euros le fait, pour toute personne d'accepter, d'exercer ou de conserver les fonctions de commissaire aux comptes, nonobstant les incompatibilités légales, soit en son nom personnel, soit au titre d'associé dans une société de commissaires aux comptes.
Article L820-7
Est puni d'un emprisonnement de cinq ans et d'une amende de 75000 euros le fait, pour toute personne, de donner ou confirmer soit en son nom personnel, soit au titre d'associé dans une société de commissaires aux comptes des informations mensongères sur la situation de la personne morale ou de ne pas révéler au procureur de la République les faits délictueux dont il a eu connaissance.
Chapitre Ier : De l'organisation et du contrôle de la profession.
Article L821-1
Il est institué auprès du garde des sceaux, ministre de la justice, une autorité publique indépendante dotée de la personnalité morale, dénommée Haut Conseil du commissariat aux comptes, ayant pour mission :
-d'assurer la surveillance de la profession avec le concours de la Compagnie nationale des commissaires aux comptes instituée par l'article L. 821-6 ;
-de veiller au respect de la déontologie et de l'indépendance des commissaires aux comptes.
Pour l'accomplissement de cette mission, le Haut Conseil du commissariat aux comptes est en particulier chargé :
-d'identifier et de promouvoir les bonnes pratiques professionnelles ;
-d'émettre un avis sur les normes d'exercice professionnel élaborées par la Compagnie nationale des commissaires aux comptes avant leur homologation par arrêté du garde des sceaux, ministre de la justice ;
-d'assurer, comme instance d'appel des décisions des commissions régionales mentionnées à l'article L. 822-2, l'inscription des commissaires aux comptes ;
-d'assurer, comme instance d'appel des décisions prises par les chambres régionales mentionnées à
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l'article L. 822-6, la discipline des commissaires aux comptes ;
-de définir le cadre et les orientations des contrôles périodiques prévus au b de l'article L. 821-7 qu'il met en œuvre soit directement, soit en en déléguant l'exercice à la Compagnie nationale des commissaires aux comptes et aux compagnies régionales, ou qui sont réalisés par la Compagnie nationale et les compagnies régionales, selon les modalités prévues à l'article L. 821-9 ;
-de superviser les contrôles prévus au b et au c de l'article L. 821-7 et d'émettre des recommandations dans le cadre de leur suivi ;
-de veiller à la bonne exécution des contrôles prévus au b de l'article L. 821-7 et, lorsqu'ils sont effectués à sa demande, au c du même article ;
-d'établir des relations avec les autorités d'autres Etats exerçant des compétences analogues.
Les missions définies aux dixième et onzième alinéas du présent article sont exercées dans des conditions fixées par décret en Conseil d'Etat garantissant l'indépendance des fonctions de contrôle et de sanction.
Article L821-2
L'avis mentionné au sixième alinéa de l'article L. 821-1 est recueilli par le garde des sceaux, ministre de la justice, après consultation de l'Autorité des marchés financiers et de l'Autorité de contrôle prudentiel, dès lors qu'il intéresse leurs compétences respectives.
Article L821-3
Le Haut Conseil du commissariat aux comptes comprend :
1° Trois magistrats, dont un membre ou ancien membre de la Cour de cassation, président, un second magistrat de l'ordre judiciaire et un magistrat de la Cour des comptes ;
2° Le président de l'Autorité des marchés financiers ou son représentant, un représentant du ministre chargé de l'économie et un professeur des universités spécialisé en matière juridique, économique ou financière ;
3° Trois personnes qualifiées dans les matières économique et financière ; deux de celles-ci sont choisies pour leurs compétences dans les domaines des offres au public et des sociétés dont les titres financiers sont admis aux négociations sur un marché réglementé ; la troisième est choisie pour ses compétences dans le domaine des petites et moyennes entreprises, des personnes morales de droit privé ayant une activité économique ou des associations ;
4° Trois commissaires aux comptes, dont deux ayant une expérience du contrôle des comptes des personnes ou des entités qui procèdent à des offres au public ou qui font appel à la générosité publique.
Le président exerce ses fonctions à plein temps. En cas d'empêchement, il est suppléé par le second magistrat de l'ordre judiciaire.
Les décisions sont prises à la majorité des voix. En cas de partage égal des voix, la voix du président est prépondérante.
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Le président et les membres du Haut Conseil du commissariat aux comptes sont nommés par décret pour six ans renouvelables. Le Haut Conseil du commissariat aux comptes est renouvelé par moitié tous les trois ans.
Le Haut Conseil constitue des commissions consultatives spécialisées en son sein pour préparer ses décisions et avis. Celles-ci peuvent s'adjoindre, le cas échéant, des experts.
Article L821-3-1
Le personnel des services du Haut Conseil du commissariat aux comptes est composé d'agents publics détachés ou mis à sa disposition dans des conditions fixées par décret en Conseil d'Etat, d'agents contractuels de droit public et de salariés de droit privé. Ces personnes sont soumises au secret professionnel dans l'exercice de leurs missions.
Le secret professionnel n'est pas opposable au haut conseil et à ses services dans l'exercice de leurs missions, sauf par les auxiliaires de justice.
Article L821-4
Un commissaire du Gouvernement auprès du Haut Conseil du commissariat aux comptes est désigné par le garde des sceaux, ministre de la justice. Il siège avec voix consultative. En matière disciplinaire, le commissaire du Gouvernement n'assiste pas aux délibérations. Il peut, sauf en matière disciplinaire, demander une seconde délibération dans des conditions fixées par décret en Conseil d'Etat.
Article L821-5
I.-Le Haut Conseil du commissariat aux comptes dispose de l'autonomie financière. Il arrête son budget sur proposition du secrétaire général. Le haut conseil n'est pas soumis au contrôle financier exercé au sein des administrations de l'Etat. II.-Le haut conseil perçoit le produit des contribution et droit mentionnés aux III et IV. III.-Les personnes inscrites sur la liste de l'article L. 822-1 sont assujetties à une contribution annuelle, dont le montant est fixé à 10 euros. IV.-Il est institué un droit fixe sur chaque rapport de certification des comptes signé par les personnes inscrites sur la liste de l'article L. 822-1 dont le montant est fixé à : 1 000 euros pour les rapports de certification signés dans le cadre de missions conduites auprès de personnes ou d'entités admises à la négociation sur un marché réglementé ; 500 euros pour les rapports de certification signés dans le cadre de missions conduites auprès de personnes ou d'entités dont les titres financiers sont offerts au public sur un système multilatéral de négociation autre qu'un marché réglementé ; 20 euros pour les autres rapports de certification. V.-Les droit et contribution mentionnés aux III et IV sont recouvrés par la Compagnie nationale des commissaires aux comptes dans les mêmes formes que la cotisation mentionnée à l'article L. 821-6 et reversés au haut conseil avant le 31 mars de chaque année. Les conditions d'application du présent V sont déterminées par décret en Conseil d'Etat. VI.-Les biens immobiliers appartenant au haut conseil sont soumis aux dispositions du code général de la propriété des personnes publiques applicables aux établissements publics de l'Etat. VII.-Un décret en Conseil d'Etat fixe le régime comptable du haut conseil, ainsi que le régime indemnitaire de ses membres, de son président, de son secrétaire général et de son secrétaire général adjoint.
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Article L821-5-1
Aux fins mentionnées à l'avant-dernier alinéa de l'article L. 821-1, le Haut Conseil du commissariat aux comptes communique, à leur demande, les informations ou les documents qu'il détient ou qu'il recueille aux autorités des Etats membres de la Communauté européenne exerçant des compétences analogues aux siennes.
Il peut demander au garde des sceaux, ministre de la justice, de faire diligenter une inspection, conformément aux dispositions de l'article L. 821-8, ou faire diligenter par les contrôleurs mentionnés à l'article L. 821-9 les opérations de contrôle qu'il détermine, afin de répondre aux demandes d'assistance des autorités mentionnées au premier alinéa.
Lorsque l'une de ces autorités le demande, le garde des sceaux, ministre de la justice, peut autoriser les agents de cette autorité à assister aux opérations de contrôle mentionnées au deuxième alinéa.
Un décret en Conseil d'Etat détermine les conditions d'application du présent article.
Article L821-5-2
Aux fins mentionnées à l'avant-dernier alinéa de l'article L. 821-1, le Haut Conseil du commissariat aux comptes peut communiquer des informations ou des documents qu'il détient ou qu'il recueille aux autorités d'Etats non membres de la Communauté européenne exerçant des compétences analogues aux siennes sous réserve de réciprocité et à la condition que l'autorité concernée soit soumise au secret professionnel avec les mêmes garanties qu'en France.
Il peut, sous les mêmes réserve et condition, demander au garde des sceaux, ministre de la justice, de faire diligenter une inspection, conformément aux dispositions de l'article L. 821-8, ou faire diligenter par les contrôleurs mentionnés à l'article L. 821-9 les opérations de contrôle qu'il détermine afin de répondre aux demandes d'assistance des autorités mentionnées au premier alinéa.
Un décret en Conseil d'Etat détermine les conditions d'application du présent article, notamment les modalités de la coopération du Haut Conseil avec ces autorités et les conditions dans lesquelles ces modalités sont précisées par des conventions passées par le Haut Conseil avec ces autorités.
Article L821-5-3
Aux fins mentionnées aux deux articles précédents, le haut conseil est dispensé de l'application des dispositions de la loi n° 68-678 du 26 juillet 1968 relative à la communication de documents et renseignements d'ordre économique, commercial, industriel, financier ou technique à des personnes physiques ou morales étrangères.
Article L821-6
Il est institué auprès du garde des sceaux, ministre de la justice, une Compagnie nationale des
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commissaires aux comptes, établissement d'utilité publique doté de la personnalité morale, chargée de représenter la profession de commissaire aux comptes auprès des pouvoirs publics.
Elle concourt au bon exercice de la profession, à sa surveillance ainsi qu'à la défense de l'honneur et de l'indépendance de ses membres.
Il est institué une compagnie régionale des commissaires aux comptes, dotée de la personnalité morale, par ressort de cour d'appel. Toutefois, le garde des sceaux, ministre de la justice, peut procéder à des regroupements, sur proposition de la compagnie nationale et après consultation, par cette dernière, des compagnies régionales intéressées.
Les ressources de la compagnie nationale et des compagnies régionales sont constituées notamment par une cotisation annuelle à la charge des commissaires aux comptes.
Article L821-7
Les commissaires aux comptes sont soumis, dans leur activité professionnelle :
a) Aux inspections mentionnées à l'article L. 821-8 ;
b) A des contrôles périodiques organisés selon des modalités définies par le Haut Conseil ;
c) A des contrôles occasionnels décidés par la compagnie nationale ou les compagnies régionales, ou effectués à la demande du Haut Conseil.
Les personnes participant aux contrôles et inspections mentionnés au présent article sont soumises au secret professionnel.
Article L821-8
Le garde des sceaux, ministre de la justice, peut faire diligenter des inspections et demander, à cet effet, le concours de l'Autorité des marchés financiers, de la Compagnie nationale des commissaires aux comptes, et de l'Autorité de contrôle prudentiel.
L'Autorité des marchés financiers peut faire diligenter toute inspection d'un commissaire aux comptes d'une personne dont les titres financiers sont admis aux négociations sur un marché réglementé ou offerts au public sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations ou d'un organisme de placements collectifs et demander, à cet effet, le concours de la Compagnie nationale des commissaires aux comptes et, le cas échéant, des personnes et autorités énumérées au 2° de l'article L. 621-9-2 du code monétaire et financier. Le président de l'Autorité des marchés financiers ou son représentant ne siège pas au Haut Conseil lors de l'instance disciplinaire faisant, le cas échéant, suite à une telle inspection.
Article L821-9
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Les contrôles prévus au b de l'article L. 821-7 sont effectués, dans les conditions et selon les modalités définies par le Haut Conseil du commissariat aux comptes, par des contrôleurs n'exerçant pas de fonctions de contrôle légal des comptes ou par la Compagnie nationale des commissaires aux comptes ou les compagnies régionales.
Lorsque ces contrôles sont relatifs à des commissaires aux comptes nommés auprès de personnes dont les titres financiers sont admis aux négociations sur un marché réglementé ou offerts au public sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations ou d'organismes de placements collectifs, ils sont effectués avec le concours de l'Autorité des marchés financiers.
Les contrôles prévus au c de l'article L. 821-7 sont effectués par la Compagnie nationale ou les compagnies régionales, à leur initiative ou à la demande du Haut Conseil.
Article L821-10
Lorsque des faits d'une particulière gravité apparaissent de nature à justifier des sanctions pénales ou disciplinaires, le garde des sceaux, ministre de la justice, peut, dès l'engagement des poursuites, lorsque l'urgence et l'intérêt public le justifient, et après que l'intéressé a été mis en mesure de présenter ses observations, prononcer la suspension provisoire d'un commissaire aux comptes, personne physique. Le président de l'Autorité des marchés financiers et le président de la Compagnie nationale des commissaires aux comptes peuvent le saisir à cet effet.
Le garde des sceaux, ministre de la justice, peut à tout moment mettre fin à la suspension provisoire de sa propre initiative, à la demande de l'intéressé ou des autorités mentionnées au premier alinéa.
La suspension provisoire cesse de plein droit dès que les actions pénale et disciplinaire sont éteintes.
Article L821-11
Les conditions d'application des articles L. 821-3 et L. 821-6 à L. 821-10 sont fixées par décret en Conseil d'Etat.
Article L821-12
Les commissaires aux comptes sont tenus de fournir tous les renseignements et documents qui leur sont demandés à l'occasion des inspections et contrôles, sans pouvoir opposer le secret professionnel.
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Article L821-12-1
Lorsqu'elles constatent des faits susceptibles d'être liés au blanchiment de capitaux ou au financement du terrorisme, les personnes réalisant les contrôles et inspections prévus aux articles L. 821-7 et L. 821-8 en informent le service mentionné à l'article L. 561-23 du code monétaire et financier.
Article L821-13
Les commissaires aux comptes exercent leur mission conformément aux normes internationales d'audit adoptées par la Commission européenne dans les conditions définies par la directive 2006/43/CE du 17 mai 2006. En l'absence de norme internationale d'audit adoptée par la Commission, ils se conforment aux normes d'exercice professionnel élaborées par la Compagnie nationale des commissaires aux comptes et homologuées par le garde des sceaux, ministre de la justice, après avis du Haut Conseil du commissariat aux comptes.
Lorsqu'une norme internationale d'audit a été adoptée par la Commission européenne dans les conditions définies à l'alinéa précédent, le garde des sceaux, ministre de la justice, peut, d'office, après avis de la Compagnie nationale des commissaires aux comptes et du Haut Conseil du commissariat aux comptes, ou sur proposition de la Compagnie nationale et après avis du Haut Conseil, imposer des diligences ou des procédures complémentaires ou, à titre exceptionnel, écarter certains éléments de la norme afin de tenir compte de spécificités de la loi française. Les procédures et diligences complémentaires sont communiquées à la Commission européenne et aux autres Etats membres préalablement à la publication. Lorsqu'il écarte certains éléments d'une norme internationale, le garde des sceaux, ministre de la justice, en informe la Commission européenne et les autres Etats membres, en précisant les motifs de sa décision, six mois au moins avant la publication de l'acte qui le décide ou, lorsque ces spécificités existent déjà au moment de l'adoption de la norme internationale par la Commission européenne, trois mois au moins à compter de sa publication au Journal officiel des Communautés européennes.
Chapitre II : Du statut des commissaires aux comptes.
Section 1 : De l'inscription et de la discipline.
Sous-section 1 : De l'inscription.
Article L822-1
Nul ne peut exercer les fonctions de commissaire aux comptes s'il n'est préalablement inscrit sur une liste établie à cet effet.
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Article L822-1-1
Nul ne peut être inscrit sur la liste des commissaires aux comptes s'il ne remplit les conditions suivantes :
1° Etre français, ressortissant d'un Etat membre de la Communauté européenne, d'un Etat partie à l'accord sur l'Espace économique européen ou d'un autre Etat étranger lorsque celui-ci admet les nationaux français à exercer le contrôle légal des comptes ;
2° N'avoir pas été l'auteur de faits contraires à l'honneur ou à la probité ayant donné lieu à condamnation pénale ;
3° N'avoir pas été l'auteur de faits de même nature ayant donné lieu à une sanction disciplinaire de radiation ;
4° N'avoir pas été frappé de faillite personnelle ou de l'une des mesures d'interdiction ou de déchéance prévues au livre VI ;
5° Avoir accompli un stage professionnel, jugé satisfaisant, d'une durée fixée par voie réglementaire, chez une personne agréée par un Etat membre de la Communauté européenne pour exercer le contrôle légal des comptes ;
6° Avoir subi avec succès les épreuves du certificat d'aptitude aux fonctions de commissaire aux comptes ou être titulaire du diplôme d'expertise comptable.
Les conditions d'accomplissement du stage professionnel prévu au 5°, ainsi que les diplômes et conditions de formation permettant de se présenter aux épreuves du certificat d'aptitude aux fonctions de commissaire aux comptes mentionné au 6° sont déterminés par décret en Conseil d'Etat.
Article L822-1-2
Par dérogation aux dispositions de l'article L. 822-1-1, les personnes remplissant des conditions de compétence et d'expérience professionnelle fixées par décret en Conseil d'Etat peuvent être dispensées de tout ou partie du stage professionnel visé au 5° du même article, sur décision du garde des sceaux, ministre de la justice.
Sont dispensées, dans des conditions déterminées par décret en Conseil d'Etat, des conditions de diplôme, de stage et d'examen prévues aux 5° et 6° de l'article L. 822-1-1, les personnes qui justifient avoir acquis, dans un Etat membre de la Communauté européenne ou dans un autre Etat admettant les nationaux français à exercer le contrôle légal des comptes, une qualification suffisante pour l'exercice du contrôle légal des comptes, sous réserve de subir un examen d'aptitude.
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Article L822-1-3
Sauf lorsqu'ils interviennent auprès de personnes ou d'entités qui émettent uniquement des titres de créances admis à la négociation sur un marché réglementé en France dont la valeur nominale unitaire est au moins égale à 50 000 € ou, pour des titres de créances libellés dans une devise autre que l'euro, dont la valeur nominale unitaire est équivalente à 50 000 € au moins à la date d'émission, les commissaires aux comptes et sociétés de commissaires aux comptes agréés dans un Etat non membre de la Communauté européenne ou non partie à l'accord sur l'Espace économique européen qui certifient les comptes annuels ou les comptes consolidés de personnes ou d'entités n'ayant pas leur siège dans un Etat membre de la Communauté européenne ou dans un autre Etat partie à l'accord sur l'Espace économique européen mais émettant des titres admis à la négociation sur un marché réglementé en France s'inscrivent sur la liste prévue à l'article L. 822-1.
Sous réserve de réciprocité, peuvent être exemptés de l'obligation d'inscription les commissaires aux comptes et sociétés de commissaires aux comptes agréés dans un Etat non membre de la Communauté européenne ou non partie à l'Espace économique européen qui bénéficient d'une dispense délivrée par arrêté du garde des sceaux, ministre de la justice.
La dispense d'inscription peut être délivrée lorsque :
a) Les commissaires aux comptes et sociétés de commissaires aux comptes sont agréés par les autorités compétentes d'un Etat au sujet duquel la Commission européenne, sur le fondement de l'article 46 de la directive 2006 / 43 / CE du Parlement européen et du Conseil du 17 mai 2006, a pris une décision par laquelle elle reconnaît qu'est satisfaite l'exigence d'équivalence que pose cet article en ce qui concerne le système de supervision publique, d'assurance qualité, d'enquête et de sanctions ;
b) En l'absence de décision de la Commission européenne, le système de supervision publique, d'assurance qualité, d'enquête et de sanctions de l'Etat dans lequel les commissaires aux comptes et sociétés de commissaires aux comptes sont agréés répond à des exigences équivalentes à celles requises par les articles L. 820-1 et suivants ou ce système a été précédemment évalué par un autre Etat membre et reconnu équivalent.
Les commissaires aux comptes et sociétés de commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 en application du présent article sont soumis aux dispositions du chapitre Ier et de la section 1 du chapitre II du présent livre, pour ce qui concerne les missions mentionnées au premier alinéa.
L'inscription ou la dispense d'inscription conditionne la validité en France des rapports de certification signés par ces professionnels, sans conférer à leur titulaire le droit de conduire des missions de contrôle légal des comptes auprès de personnes ou d'entités dont le siège est situé sur le territoire français.
Les conditions d'application du présent article sont déterminées par décret en Conseil d'Etat.
Article L822-2
Une commission régionale d'inscription est établie au siège de chaque cour d'appel. Elle dresse et révise la liste mentionnée à l'article L. 822-1.
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Chaque commission régionale d'inscription est composée de :
1° Un magistrat de l'ordre judiciaire qui en assure la présidence ;
2° Un magistrat de la chambre régionale des comptes ;
3° Un professeur des universités spécialisé en matière juridique, économique ou financière ;
4° Deux personnes qualifiées en matière juridique, économique ou financière ;
5° Un représentant du ministre chargé de l'économie ;
6° Un membre de la compagnie régionale des commissaires aux comptes.
Le président et les membres de la commission régionale d'inscription et leurs suppléants sont nommés par arrêté du garde des sceaux, ministre de la justice, pour une durée de trois ans renouvelable.
Les décisions sont prises à la majorité des voix. En cas de partage égal des voix, la voix du président est prépondérante.
Les recours contre les décisions des commissions régionales d'inscription sont portés devant le Haut Conseil du commissariat aux comptes.
Article L822-3
Tout commissaire aux comptes doit prêter, devant la cour d'appel dont il relève, le serment de remplir les devoirs de sa profession avec honneur, probité et indépendance, respecter et faire respecter les lois.
Article L822-4
Toute personne inscrite sur la liste de l'article L. 822-1 qui n'a pas exercé des fonctions de commissaire aux comptes pendant trois ans est tenue de suivre une formation continue particulière avant d'accepter une mission de certification.
Article L822-5
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Les conditions d'application de la présente sous-section sont déterminées par décret en Conseil d'Etat.
Sous-section 2 : De la discipline.
Article L822-6
La commission régionale d'inscription, constituée en chambre régionale de discipline, connaît de l'action disciplinaire intentée contre un commissaire aux comptes membre d'une compagnie régionale, quel que soit le lieu où les faits qui lui sont reprochés ont été commis.
Article L822-7
La chambre régionale de discipline peut être saisie par le garde des sceaux, ministre de la justice, le procureur de la République, le président de la Compagnie nationale des commissaires aux comptes ou le président de la compagnie régionale.
Outre les personnes déterminées par décret en Conseil d'Etat, le président de l'Autorité des marchés financiers peut saisir le procureur général aux fins d'exercice de l'action disciplinaire. Lorsqu'il a exercé cette faculté, il ne peut siéger dans la formation disciplinaire du Haut Conseil saisi de la même procédure.
Les décisions de la chambre régionale de discipline sont susceptibles de recours devant le Haut Conseil du commissariat aux comptes, à l'initiative des autorités mentionnées au présent article ainsi que du professionnel intéressé.
Un magistrat de l'ordre judiciaire, désigné par le garde des sceaux, ministre de la justice, appartenant au parquet général ou au parquet, exerce les fonctions de ministère public auprès de chaque chambre régionale et auprès du Haut Conseil statuant en matière disciplinaire.
Les conditions d'application du présent article sont déterminées par décret en Conseil d'Etat.
Article L822-8
- Les sanctions disciplinaires sont :
1° L'avertissement ;
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2° Le blâme ;
3° L'interdiction temporaire pour une durée n'excédant pas cinq ans ;
4° La radiation de la liste.
Il peut être aussi procédé au retrait de l'honorariat.
L'avertissement, le blâme ainsi que l'interdiction temporaire peuvent être assortis de la sanction complémentaire de l'inéligibilité aux organismes professionnels pendant dix ans au plus.
La sanction de l'interdiction temporaire peut être assortie du sursis. La suspension de la peine ne s'étend pas à la sanction complémentaire prise en application de l'alinéa précédent. Si, dans le délai de cinq ans à compter du prononcé de la sanction, le commissaire aux comptes a commis une infraction ou une faute ayant entraîné le prononcé d'une nouvelle sanction disciplinaire, celle-ci entraîne, sauf décision motivée, l'exécution de la première sanction sans confusion possible avec la seconde.
Lorsqu'ils prononcent une sanction disciplinaire, le Haut Conseil et les chambres régionales peuvent décider de mettre à la charge du commissaire aux comptes tout ou partie des frais occasionnés par les inspections ou contrôles ayant permis la constatation des faits sanctionnés.
Section 2 : De la déontologie et de l'indépendance des commissaires aux comptes.
Article L822-9
Les fonctions de commissaire aux comptes sont exercées par des personnes physiques ou des sociétés constituées entre elles sous quelque forme que ce soit.
Les trois quarts des droits de vote des sociétés de commissaires aux comptes sont détenus par des commissaires aux comptes ou des sociétés de commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 ou des professionnels régulièrement agréés dans un autre Etat membre de la Communauté européenne pour l'exercice du contrôle légal des comptes. Lorsqu'une société de commissaires aux comptes a une participation dans le capital d'une autre société de commissaires aux comptes, les actionnaires ou associés non commissaires aux comptes ne peuvent détenir plus d'un quart de l'ensemble des droits de vote des deux sociétés.
Les fonctions de gérant, de président du conseil d'administration ou du directoire, de président du conseil de surveillance et de directeur général sont assurées par des commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 ou régulièrement agréés dans un autre Etat membre de la Communauté européenne pour l'exercice du contrôle légal des comptes. Les trois quarts au moins des membres des organes de gestion, d'administration, de direction ou de surveillance doivent être
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des commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 ou régulièrement agréés dans un autre Etat membre de la Communauté européenne pour l'exercice du contrôle légal des comptes. Les représentants permanents des sociétés de commissaires aux comptes associés ou actionnaires doivent être des commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 ou régulièrement agréés dans un autre Etat membre de la Communauté européenne pour l'exercice du contrôle légal des comptes.
Dans les sociétés de commissaires aux comptes inscrites, les fonctions de commissaire aux comptes sont exercées, au nom de la société, par des commissaires aux comptes personnes physiques associés, actionnaires ou dirigeants de cette société. Ces personnes ne peuvent exercer les fonctions de commissaire aux comptes qu'au sein d'une seule société de commissaires aux comptes. Les membres du conseil d'administration ou du conseil de surveillance peuvent être salariés de la société sans limitation de nombre ni condition d'ancienneté au titre de la qualité de salarié.
En cas de décès d'un actionnaire ou associé commissaire aux comptes, ses ayants droit disposent d'un délai de deux ans pour céder leurs actions ou parts à un commissaire aux comptes.
L'admission de tout nouvel actionnaire ou associé est subordonnée à un agrément préalable qui, dans les conditions prévues par les statuts, peut être donné soit par l'assemblée des actionnaires ou des porteurs de parts, soit par le conseil d'administration ou le conseil de surveillance ou les gérants selon le cas.
Par dérogation à ces dispositions, l'exercice de ces fonctions est possible simultanément au sein d'une société de commissaires aux comptes et d'une autre société de commissaires aux comptes dont la première détient plus de la moitié du capital social ou dans le cas où les associés des deux entités sont communs pour au moins la moitié d'entre eux.
Article L822-10
Les fonctions de commissaire aux comptes sont incompatibles :
1° Avec toute activité ou tout acte de nature à porter atteinte à son indépendance ;
2° Avec tout emploi salarié ; toutefois, un commissaire aux comptes peut dispenser un enseignement se rattachant à l'exercice de sa profession ou occuper un emploi rémunéré chez un commissaire aux comptes ou chez un expert-comptable ;
3° Avec toute activité commerciale, qu'elle soit exercée directement ou par personne interposée.
Article L822-11
I.-Le commissaire aux comptes ne peut prendre, recevoir ou conserver, directement ou indirectement, un intérêt auprès de la personne ou de l'entité dont il est chargé de certifier les comptes, ou auprès d'une personne qui la contrôle ou qui est contrôlée par elle, au sens des I et II de
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l'article L. 233-3.
Sans préjudice des dispositions contenues dans le présent livre ou dans le livre II, le code de déontologie prévu à l'article L. 822-16 définit les liens personnels, financiers et professionnels, concomitants ou antérieurs à la mission du commissaire aux comptes, incompatibles avec l'exercice de celle-ci. Il précise en particulier les situations dans lesquelles l'indépendance du commissaire aux comptes est affectée, lorsqu'il appartient à un réseau pluridisciplinaire, national ou international, dont les membres ont un intérêt économique commun, par la fourniture de prestations de services à une personne ou à une entité contrôlée ou qui contrôle, au sens des I et II de l'article L. 233-3, la personne ou l'entité dont les comptes sont certifiés par ledit commissaire aux comptes. Le code de déontologie précise également les restrictions à apporter à la détention d'intérêts financiers par les salariés et collaborateurs du commissaire aux comptes dans les sociétés dont les comptes sont certifiés par lui.
II.-Il est interdit au commissaire aux comptes de fournir à la personne ou à l'entité qui l'a chargé de certifier ses comptes, ou aux personnes ou entités qui la contrôlent ou qui sont contrôlées par celle-ci au sens des I et II du même article, tout conseil ou toute autre prestation de services n'entrant pas dans les diligences directement liées à la mission de commissaire aux comptes, telles qu'elles sont définies par les normes d'exercice professionnel mentionnées au sixième alinéa de l'article L. 821-1.
Lorsqu'un commissaire aux comptes est affilié à un réseau national ou international, dont les membres ont un intérêt économique commun et qui n'a pas pour activité exclusive le contrôle légal des comptes, il ne peut certifier les comptes d'une personne ou d'une entité qui, en vertu d'un contrat conclu avec ce réseau ou un membre de ce réseau, bénéficie d'une prestation de services, qui n'est pas directement liée à la mission du commissaire aux comptes selon l'appréciation faite par le Haut Conseil du commissariat aux comptes en application du troisième alinéa de l'article L. 821-1.
Article L822-12
Les commissaires aux comptes et les membres signataires d'une société de commissaires aux comptes ne peuvent être nommés dirigeants ou salariés des personnes ou entités qu'ils contrôlent, moins de cinq années après la cessation de leurs fonctions.
Pendant ce même délai, ils ne peuvent exercer les mêmes fonctions dans une personne ou entité contrôlée ou qui contrôle au sens des I et II de l'article L. 233-3 la personne ou entité dont ils ont certifié les comptes.
Article L822-13
Les personnes ayant été dirigeants ou salariés d'une personne ou entité ne peuvent être nommées commissaires aux comptes de cette personne ou entité moins de cinq années après la cessation de leurs fonctions.
Pendant le même délai, elles ne peuvent être nommées commissaires aux comptes des personnes ou
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entités possédant au moins 10 % du capital de la personne ou de l'entité dans laquelle elles exerçaient leurs fonctions, ou dont celle-ci possédait au moins 10 % du capital lors de la cessation de leurs fonctions.
Les interdictions prévues au présent article pour les personnes ou entités mentionnées au premier alinéa sont applicables aux sociétés de commissaires aux comptes dont lesdites personnes ou entités sont associées, actionnaires ou dirigeantes.
Article L822-14
Le commissaire aux comptes, personne physique, et, dans les sociétés de commissaires aux comptes, le ou les associés signataires ainsi que, le cas échéant, tout autre associé principal au sens du 16 de l'article 2 de la directive 2006 / 43 / CE du Parlement européen et du Conseil, du 17 mai 2006, concernant les contrôles légaux des comptes annuels et des comptes consolidés et modifiant les directives 78 / 660 / CEE et 83 / 349 / CEE, et abrogeant la directive 84 / 253 / CEE du Conseil, ne peuvent certifier durant plus de six exercices consécutifs les comptes des personnes et entités dont les titres financiers sont admis à la négociation sur un marché réglementé.
Ils ne peuvent à nouveau participer à une mission de contrôle légal des comptes de ces personnes ou entités avant l'expiration d'un délai de deux ans à compter de la date de clôture du sixième exercice qu'ils ont certifié.
Cette disposition est également applicable aux personnes et entités visées à l'article L. 612-1 et aux associations visées à l'article L. 612-4 dès lors que ces personnes font appel à la générosité publique au sens de l'article 3 de la loi n° 91-772 du 7 août 1991.
Article L822-15
Sous réserve des dispositions de l'article L. 823-12 et des dispositions législatives particulières, les commissaires aux comptes, ainsi que leurs collaborateurs et experts, sont astreints au secret professionnel pour les faits, actes et renseignements dont ils ont pu avoir connaissance à raison de leurs fonctions. Toutefois, ils sont déliés du secret professionnel à l'égard du président du tribunal de commerce ou du tribunal de grande instance lorsqu'ils font application des dispositions du chapitre IV du titre III du livre II ou du chapitre II du titre Ier du livre VI.
Lorsqu'une personne morale établit des comptes consolidés, les commissaires aux comptes de la personne morale consolidante et les commissaires aux comptes des personnes consolidées sont, les uns à l'égard des autres, libérés du secret professionnel. Ces dispositions s'appliquent également lorsqu'une personne établit des comptes combinés.
Les commissaires aux comptes procédant à une revue indépendante ou contribuant au dispositif de contrôle de qualité interne sont astreints au secret professionnel.
Article L822-16
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Un décret en Conseil d'Etat approuve un code de déontologie de la profession, après avis du Haut Conseil du commissariat aux comptes et, pour les dispositions s'appliquant aux commissaires aux comptes intervenant auprès des personnes et entités dont les titres financiers sont admis aux négociations sur un marché réglementé ou offerts au public sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations, de l'Autorité des marchés financiers.
Section 3 : De la responsabilité civile.
Article L822-17
Les commissaires aux comptes sont responsables, tant à l'égard de la personne ou de l'entité que des tiers, des conséquences dommageables des fautes et négligences par eux commises dans l'exercice de leurs fonctions.
Leur responsabilité ne peut toutefois être engagée à raison des informations ou divulgations de faits auxquelles ils procèdent en exécution de leur mission.
Ils ne sont pas civilement responsables des infractions commises par les dirigeants et mandataires sociaux, sauf si, en ayant eu connaissance, ils ne les ont pas signalées dans leur rapport à l'assemblée générale ou à l'organe compétent mentionnés à l'article L. 823-1.
Article L822-18
Les actions en responsabilité contre les commissaires aux comptes se prescrivent dans les conditions prévues à l'article L. 225-254.
Chapitre III : De l'exercice du contrôle légal.
Section 1 : De la nomination, de la récusation et de la révocation des commissaires aux comptes.
Article L823-1
En dehors des cas de nomination statutaire, les commissaires aux comptes sont désignés par l'assemblée générale ordinaire dans les personnes morales qui sont dotées de cette instance ou par
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l'organe exerçant une fonction analogue compétent en vertu des règles qui s'appliquent aux autres personnes ou entités.
Un ou plusieurs commissaires aux comptes suppléants, appelés à remplacer les titulaires en cas de refus, d'empêchement, de démission ou de décès sont désignés dans les mêmes conditions.
Les fonctions du commissaire aux comptes suppléant appelé à remplacer le titulaire prennent fin à la date d'expiration du mandat confié à ce dernier, sauf si l'empêchement n'a qu'un caractère temporaire. Dans ce dernier cas, lorsque l'empêchement a cessé, le titulaire reprend ses fonctions après l'approbation des comptes par l'assemblée générale ou l'organe compétent.
Lorsque le commissaire aux comptes a vérifié, au cours des deux derniers exercices, les opérations d'apports ou de fusion de la société ou des sociétés que celle-ci contrôle au sens des I et II de l'article L. 233-16, le projet de résolution le désignant en fait état.
Article L823-2
Les personnes et entités astreintes à publier des comptes consolidés désignent au moins deux commissaires aux comptes.
Article L823-3
Les commissaires aux comptes sont nommés pour six exercices. Leurs fonctions expirent après la délibération de l'assemblée générale ou de l'organe compétent qui statue sur les comptes du sixième exercice.
Le commissaire aux comptes nommé en remplacement d'un autre ne demeure en fonction que jusqu'à l'expiration du mandat de son prédécesseur.
Le commissaire aux comptes dont la mission est expirée, qui a été révoqué, relevé de ses fonctions, suspendu, interdit temporairement d'exercer, radié, omis ou a donné sa démission permet au commissaire aux comptes lui succédant d'accéder à toutes les informations et à tous les documents pertinents concernant la personne ou l'entité dont les comptes sont certifiés.
Article L823-4
Si l'assemblée ou l'organe compétent omet de désigner un commissaire aux comptes, tout membre de l'assemblée ou de l'organe compétent peut demander en justice la désignation d'un commissaire aux comptes, le représentant légal de la personne ou de l'entité dûment appelé. Le mandat ainsi conféré prend fin lorsqu'il a été pourvu par l'assemblée ou l'organe compétent à la nomination du ou des commissaires.
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Article L823-5
Lorsqu'une société de commissaires aux comptes est absorbée par une autre société de commissaires aux comptes, la société absorbante poursuit le mandat confié à la société absorbée jusqu'à la date d'expiration de ce dernier.
Toutefois, par dérogation aux dispositions de l'article L. 823-3, l'assemblée générale ou l'organe compétent de la personne ou de l'entité contrôlée peut, lors de sa première réunion postérieure à l'absorption, délibérer sur le maintien du mandat, après avoir entendu le commissaire aux comptes.
Article L823-6
Un ou plusieurs actionnaires ou associés représentant au moins 5 % du capital social, le comité d'entreprise, le ministère public, l'Autorité des marchés financiers pour les personnes dont les titres financiers sont admis aux négociations sur un marché réglementé et entités peuvent, dans le délai et les conditions fixées par décret en Conseil d'Etat, demander en justice la récusation pour juste motif d'un ou plusieurs commissaires aux comptes.
Les dispositions de l'alinéa précédent sont applicables, en ce qui concerne les personnes autres que les sociétés commerciales, sur demande du cinquième des membres de l'assemblée générale ou de l'organe compétent.
S'il est fait droit à la demande, un nouveau commissaire aux comptes est désigné en justice. Il demeure en fonctions jusqu'à l'entrée en fonctions du commissaire aux comptes désigné par l'assemblée ou l'organe compétent.
Article L823-7
En cas de faute ou d'empêchement, les commissaires aux comptes peuvent, dans les conditions fixées par décret en Conseil d'Etat, être relevés de leurs fonctions avant l'expiration normale de celles-ci, sur décision de justice, à la demande de l'organe collégial chargé de l'administration, de l'organe chargé de la direction, d'un ou plusieurs actionnaires ou associés représentant au moins 5 % du capital social, du comité d'entreprise, du ministère public ou de l'Autorité des marchés financiers pour les personnes dont les titres financiers sont admis aux négociations sur un marché réglementé et entités.
Les dispositions de l'alinéa précédent sont applicables, en ce qui concerne les personnes autres que les sociétés commerciales, sur demande du cinquième des membres de l'assemblée générale ou de l'organe compétent.
Article L823-8
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Lorsque, à l'expiration des fonctions d'un commissaire aux comptes, il est proposé à l'assemblée ou à l'organe compétent de ne pas le renouveler, le commissaire aux comptes doit, sous réserve des dispositions de l'article L. 822-14 et s'il le demande, être entendu par l'assemblée ou l'organe compétent.
Section 2 : De la mission du commissaire aux comptes.
Article L823-9
Les commissaires aux comptes certifient, en justifiant de leurs appréciations, que les comptes annuels sont réguliers et sincères et donnent une image fidèle du résultat des opérations de l'exercice écoulé ainsi que de la situation financière et du patrimoine de la personne ou de l'entité à la fin de cet exercice.
Lorsqu'une personne ou une entité établit des comptes consolidés, les commissaires aux comptes certifient, en justifiant de leurs appréciations, que les comptes consolidés sont réguliers et sincères et donnent une image fidèle du patrimoine, de la situation financière ainsi que du résultat de l'ensemble constitué par les personnes et entités comprises dans la consolidation.
Sans préjudice des dispositions de l'article L. 823-14, la certification des comptes consolidés est délivrée notamment après examen des travaux des commissaires aux comptes des personnes et entités comprises dans la consolidation ou, s'il n'en est point, des professionnels chargés du contrôle des comptes desdites personnes et entités.
Article L823-10
Les commissaires aux comptes ont pour mission permanente, à l'exclusion de toute immixtion dans la gestion, de vérifier les valeurs et les documents comptables de la personne ou de l'entité dont ils sont chargés de certifier les comptes et de contrôler la conformité de sa comptabilité aux règles en vigueur.
Ils vérifient également la sincérité et la concordance avec les comptes annuels des informations données dans le rapport de gestion du conseil d'administration, du directoire ou de tout organe de direction, et dans les documents adressés aux actionnaires ou associés sur la situation financière et les comptes annuels. Ils attestent spécialement l'exactitude et la sincérité des informations relatives aux rémunérations et aux avantages de toute nature versés à chaque mandataire social.
Ils vérifient, le cas échéant, la sincérité et la concordance avec les comptes consolidés des informations données dans le rapport sur la gestion du groupe.
Article L823-11
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Les commissaires aux comptes s'assurent que l'égalité a été respectée entre les actionnaires, associés ou membres de l'organe compétent.
Article L823-12
Les commissaires aux comptes signalent à la plus prochaine assemblée générale ou réunion de l'organe compétent les irrégularités et inexactitudes relevées par eux au cours de l'accomplissement de leur mission.
Ils révèlent au procureur de la République les faits délictueux dont ils ont eu connaissance, sans que leur responsabilité puisse être engagée par cette révélation.
Sans préjudice de l'obligation de révélation des faits délictueux mentionnée à l'alinéa précédent, ils mettent en œuvre les obligations relatives à la lutte contre le blanchiment des capitaux et le financement du terrorisme définies au chapitre Ier du titre VI du livre V du code monétaire et financier.
Section 3 : Des modalités d'exercice de la mission.
Article L823-12-1
Les commissaires aux comptes exercent leurs diligences selon une norme d'exercice professionnel spécifique dans les sociétés en nom collectif, les sociétés en commandite simple, les sociétés à responsabilité limitée et les sociétés par actions simplifiées qui ne dépassent pas, à la clôture d'un exercice social, deux des seuils suivants, fixés par décret en Conseil d'Etat : le total de leur bilan, le montant hors taxes de leur chiffre d'affaires ou le nombre moyen de leurs salariés. Cette norme est homologuée par arrêté du garde des sceaux, ministre de la justice.
Article L823-13
A toute époque de l'année, les commissaires aux comptes, ensemble ou séparément, opèrent toutes vérifications et tous contrôles qu'ils jugent opportuns et peuvent se faire communiquer sur place toutes les pièces qu'ils estiment utiles à l'exercice de leur mission et notamment tous contrats, livres, documents comptables et registres des procès-verbaux.
Pour l'accomplissement de leurs contrôles, les commissaires aux comptes peuvent, sous leur responsabilité, se faire assister ou représenter par tels experts ou collaborateurs de leur choix, qu'ils font connaître nommément à la personne ou à l'entité dont ils sont chargés de certifier les comptes. Ces experts ou collaborateurs ont les mêmes droits d'investigation que les commissaires aux comptes.
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Article L823-14
Les investigations prévues à l'article L. 823-13 peuvent être faites tant auprès de la personne ou de l'entité dont les commissaires aux comptes sont chargés de certifier les comptes que des personnes ou entités qui la contrôlent ou qui sont contrôlées par elle au sens de l'article L. 233-3. Elles peuvent également être faites, pour l'application du deuxième alinéa de l'article L. 823-9, auprès de l'ensemble des personnes ou entités comprises dans la consolidation.
Les commissaires aux comptes peuvent également recueillir toutes informations utiles à l'exercice de leur mission auprès des tiers qui ont accompli des opérations pour le compte de la personne ou de l'entité. Toutefois, ce droit d'information ne peut s'étendre à la communication des pièces, contrats et documents quelconques détenus par des tiers, à moins qu'ils n'y soient autorisés par une décision de justice.
Le secret professionnel ne peut être opposé aux commissaires aux comptes dans le cadre de leur mission, sauf par les auxiliaires de justice.
Article L823-15
Lorsque la personne ou l'entité est astreinte à désigner deux commissaires aux comptes, ceux-ci se livrent ensemble à un examen contradictoire des conditions et des modalités d'établissement des comptes, selon les prescriptions énoncées par une norme d'exercice professionnel établie conformément au sixième alinéa de l'article L. 821-1. Une norme d'exercice professionnel détermine les principes de répartition des diligences à mettre en oeuvre par chacun des commissaires aux comptes pour l'accomplissement de leur mission.
Article L823-16
Les commissaires aux comptes portent à la connaissance, selon le cas, de l'organe collégial chargé de l'administration ou de l'organe chargé de la direction et de l'organe de surveillance, ainsi que, le cas échéant, du comité spécialisé agissant sous la responsabilité exclusive et collective de ces organes :
1° Leur programme général de travail mis en oeuvre ainsi que les différents sondages auxquels ils ont procédé ;
2° Les modifications qui leur paraissent devoir être apportées aux comptes devant être arrêtés ou aux autres documents comptables, en faisant toutes observations utiles sur les méthodes d'évaluation utilisées pour leur établissement ;
3° Les irrégularités et les inexactitudes qu'ils auraient découvertes ;
4° Les conclusions auxquelles conduisent les observations et rectifications ci-dessus sur les résultats de la période comparés à ceux de la période précédente.
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Lorsqu'ils interviennent auprès de personnes ou d'entités soumises aux dispositions de l'article L. 823-19 ou qui se sont volontairement dotées d'un comité spécialisé au sens dudit article, ils examinent en outre avec le comité spécialisé mentionné à cet article les risques pesant sur leur indépendance et les mesures de sauvegarde prises pour atténuer ces risques. Ils portent à la connaissance de ce comité les faiblesses significatives du contrôle interne, pour ce qui concerne les procédures relatives à l'élaboration et au traitement de l'information comptable et financière, et lui communiquent chaque année :
a) Une déclaration d'indépendance ;
b) Une actualisation des informations mentionnées à l'article L. 820-3 détaillant les prestations fournies par les membres du réseau auquel les commissaires aux comptes sont affiliés ainsi que les prestations accomplies au titre des diligences directement liées à la mission (1).
Article L823-17
Les commissaires aux comptes sont convoqués à toutes les réunions du conseil d'administration ou du directoire et du conseil de surveillance, ou de l'organe collégial d'administration ou de direction et de l'organe de surveillance qui examinent ou arrêtent des comptes annuels ou intermédiaires, ainsi qu'à toutes les assemblées d'actionnaires ou d'associés ou à toutes les réunions de l'organe compétent mentionné à l'article L. 823-1.
Article L823-18
Les honoraires des commissaires aux comptes sont supportés par la personne ou l'entité dont ils sont chargés de certifier les comptes. Ces honoraires sont fixés selon des modalités déterminées par décret en Conseil d'Etat.
La chambre régionale de discipline et, en appel, le Haut Conseil du commissariat aux comptes sont compétents pour connaître de tout litige tenant à la rémunération des commissaires aux comptes.
Article L823-19
Au sein des personnes et entités dont les titres sont admis à la négociation sur un marché réglementé, ainsi que dans les établissements de crédit mentionnés à l'article L. 511-1 du code monétaire et financier, les entreprises d'assurances et de réassurances, les mutuelles régies par le livre II du code de la mutualité et les institutions de prévoyance régies par le titre III du livre IX du code de la sécurité sociale, un comité spécialisé agissant sous la responsabilité exclusive et collective des membres, selon le cas, de l'organe chargé de l'administration ou de l'organe de surveillance assure le suivi des questions relatives à l'élaboration et au contrôle des informations comptables et financières.
La composition de ce comité est fixée, selon le cas, par l'organe chargé de l'administration ou de la surveillance. Le comité ne peut comprendre que des membres de l'organe chargé de l'administration
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ou de la surveillance en fonctions dans la société, à l'exclusion de ceux exerçant des fonctions de direction. Un membre au moins du comité doit présenter des compétences particulières en matière financière ou comptable et être indépendant au regard de critères précisés et rendus publics par l'organe chargé de l'administration ou de la surveillance.
Sans préjudice des compétences des organes chargés de l'administration, de la direction et de la surveillance, ce comité est notamment chargé d'assurer le suivi :
a) Du processus d'élaboration de l'information financière ;
b) De l'efficacité des systèmes de contrôle interne et de gestion des risques ;
c) Du contrôle légal des comptes annuels et, le cas échéant, des comptes consolidés par les commissaires aux comptes ;
d) De l'indépendance des commissaires aux comptes.
Il émet une recommandation sur les commissaires aux comptes proposés à la désignation par l'assemblée générale ou l'organe exerçant une fonction analogue.
Il rend compte régulièrement à l'organe collégial chargé de l'administration ou à l'organe de surveillance de l'exercice de ses missions et l'informe sans délai de toute difficulté rencontrée.
Article L823-20
Sont exemptés des obligations mentionnées à l'article L. 823-19 :
1° Les personnes et entités contrôlées au sens de l'article L. 233-16, lorsque la personne ou l'entité qui les contrôle est elle-même soumise aux dispositions de l'article L. 823-19 ;
2° Les organismes de placement collectif mentionnés à l'article L. 214-1 du code monétaire et financier ;
3° Les établissements de crédit dont les titres ne sont pas admis à la négociation sur un marché réglementé et qui n'ont émis, de manière continue ou répétée, que des titres obligataires, à condition que le montant total nominal de ces titres reste inférieur à 100 millions d'euros et qu'ils n'aient pas publié de prospectus ;
4° Les personnes et entités disposant d'un organe remplissant les fonctions du comité spécialisé mentionné à l'article L. 823-19, sous réserve d'identifier cet organe, qui peut être l'organe chargé de l'administration ou l'organe de surveillance, et de rendre publique sa composition.
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Partie législative
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE Ier : Dispositions spécifiques à Saint-Pierre-et-Miquelon.
Article L910-1
Ne sont pas applicables à Saint-Pierre-et-Miquelon les articles :
1° L. 125-3, L. 126-1 ;
2° L. 225-245-1, L. 229-1 à L. 229-15, L. 238-6, L. 244-5 et L. 252-1 à L. 252-13 ;
3° L. 470-6 ;
4° L. 522-1 à L. 522-40 et L. 524-20 ;
5° L. 711-2 (4°), L. 711-4 (dernier alinéa), L. 711-6 à L. 711-10, L. 712-4, L. 712-5, L. 713-6 à L. 713-10, L. 713-11 à L. 713-18 en tant qu'ils concernent les délégués consulaires ; L. 721-1, L. 721-2, L. 722-1 à L. 724-7, L. 741-1 à L. 743-11, L. 750-1 à L. 761-11.
Article L910-2
Pour l'application du présent code à Saint-Pierre-et-Miquelon, les termes énumérés ci-après sont remplacés comme suit :
1° " Tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
2° " Tribunal de commerce " ou " justice consulaire " par " tribunal de première instance statuant en matière commerciale " ;
3° " Département " ou " arrondissement " par " collectivité territoriale " ;
4° " Bulletin officiel des annonces civiles et commerciales " par " Recueil des actes administratifs de la collectivité territoriale ".
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Article L910-3
Les références faites, par des dispositions du présent code applicables à Saint-Pierre-et-Miquelon, à d'autres articles du présent code, ne concernent que les articles rendus applicables dans la collectivité avec les adaptations prévues dans les chapitres ci-dessous.
Article L910-4
En l'absence d'adaptation, les références faites par des dispositions du présent code applicables à Saint-Pierre-et-Miquelon, à des dispositions qui n'y sont pas applicables, sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article L910-5
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 136 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
Article L911-1
A l'article L. 122-1, les mots : "par le préfet du département dans lequel il envisage d'exercer pour la première fois son activité" sont remplacés par les mots : "par le préfet de la collectivité dans le cas où l'étranger doit y exercer pour la première fois son activité".
Article L911-2
Les dérogations prévues par les articles L. 123-25 à L. 123-27 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur à Saint-Pierre-et-Miquelon.
Article L911-3
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A l'article L. 133-7, les mots : " les droits, taxes, frais et amendes de douane liés à une opération de transport " sont supprimés.
Article L911-4
L'inscription au greffe du tribunal de première instance statuant en matière commerciale dispense de la formalité de l'enregistrement les actes et déclarations qui y sont soumis en application de l'article L. 141-5.
Article L911-5
Pour l'application des articles L. 141-15, L. 143-7 et L. 145-28, un magistrat du tribunal de première instance peut être délégué par le président.
Article L911-6
A l'article L. 141-13, les mots : " par les articles 638 et 653 du code général des impôts " sont remplacés par les mots :
" par les dispositions de droit fiscal applicables localement ".
Article L911-7
A l'article L. 144-5, les mots : " les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique " sont remplacés par les mots : " les articles du code de la santé publique applicable localement relatifs à l'hospitalisation et à l'internement avec ou sans le consentement de l'intéressé ".
Article L911-8
L'article L. 145-2 est modifié ainsi qu'il suit :
I. - Au 4°, les mots : " à l'Etat, aux départements, aux communes, aux établissements publics " sont remplacés par les mots : " à l'Etat, aux collectivités territoriales et aux établissements publics " ;
II. - Au 6°, les mots : " à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 71 de l'annexe III du code général
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des impôts " sont remplacés par les mots : " à la caisse locale d'assurance sociale et reconnus auteurs d'oeuvres graphiques et plastiques au sens du code des impôts applicable localement ".
Article L911-9
Pour l'application de l'article L. 145-6, les mots : "l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme" sont remplacés par les mots : "l'évacuation des lieux prévue à l'article L. 145-18".
Article L911-10
A l'article L. 145-13, les mots : " sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme " sont supprimés.
Article L911-11
Le deuxième alinéa de l'article L. 145-18 est ainsi rédigé :
" Il en est de même pour effectuer des opérations de restauration immobilière comportant des travaux de remise en état, de conservation, de modernisation ou de démolition ayant pour conséquence la transformation des conditions d'habitabilité d'un ensemble d'immeubles nécessitant l'évacuation des lieux. Ces opérations peuvent être décidées et exécutées dans le respect de la réglementation locale, soit par les autorités publiques localement compétentes, soit à l'initiative d'un ou de plusieurs propriétaires, groupés ou non en association syndicale. Dans ce dernier cas, ce ou ces propriétaires y sont spécialement autorisés dans des conditions fixées par le représentant de l'Etat, qui précisent notamment les engagements exigés des propriétaires quant à la nature et à l'importance des travaux. Les immeubles acquis par un organisme de rénovation ne peuvent, après restauration, être cédés de gré à gré qu'aux conditions d'un cahier des charges type approuvé par le représentant de l'Etat. "
Article L911-12
A l'article L. 145-26, après les mots : " à l'Etat, aux départements, aux communes ", sont ajoutés les mots : " à la collectivité territoriale ".
Article L911-13
Le premier alinéa de l'article L. 145-34 est ainsi rédigé :
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" A moins d'une modification notable des éléments déterminant la valeur locative, le taux de variation du loyer applicable lors de la prise d'effet du bail à renouveler, si sa durée n'est pas supérieure à neuf ans, ne peut excéder la variation d'un indice local trimestriel mesurant le coût de la construction intervenue depuis la fixation initiale du loyer du bail expiré. Cet indice est calculé dans des conditions déterminées par arrêté du représentant de l'Etat. A défaut de clause contractuelle fixant le trimestre de référence de cet indice, il y a lieu de prendre en compte une variation de l'indice local trimestriel mesurant le coût de la construction fixé à cet effet par l'arrêté précité. "
Article L911-14
L'article L. 145-35 est modifié ainsi qu'il suit :
I. - Au premier alinéa, le mot : " départementale " est supprimé ;
II. - Le dernier alinéa est ainsi rédigé :
" La composition de la commission, le mode de désignation de ses membres et ses règles de fonctionnement sont fixés par arrêté du représentant de l'Etat. "
Chapitre II : Dispositions d'adaptation du livre II.
Article L912-1
Aux articles L. 223-18, L. 225-36 et L. 225-65, les mots : "dans le même département ou un département limitrophe" sont remplacés par les mots : "dans la collectivité".
Article L912-1-1
Les mots : "la loi n° 2005-882 du 2 août 2005 en faveur des petites et moyennes entreprises " et les mots : "la loi n° 2005-882 du 2 août 2005 précitée" figurant au troisième et au quatrième alinéa de l'article L. 223-30 sont remplacés respectivement par les mots : "l'ordonnance n° 2008-697 du 11 juillet 2008 relative à l'application à Saint-Pierre-et-Miquelon de la loi n° 2005-882 du 2 août 2005 en faveur des petites et moyennes entreprises et réformant la chambre interprofessionnelle de Saint-Pierre-et-Miquelon" et par les mots : "l'ordonnance n° 2008-697 du 11 juillet 2008 précitée."
Article L912-2
Le dernier alinéa de l'article L. 225-43 et celui de l'article L. 225-91 sont supprimés.
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Article L912-3
Au deuxième alinéa de l'article L. 225-102, les mots : " ainsi que par les salariés d'une société coopérative ouvrière de production au sens de la loi n° 78-763 du 19 juillet 1978 portant statut de sociétés coopératives ouvrières de production " sont supprimés.
Article L912-4
Au 5° de l'article L. 225-115, les mots : versements effectués en application des 1 et 4 de l'article 238 bis du code général des impôts sont remplacés par les mots : déductions fiscales prévues par les dispositions du code des impôts applicables localement relatives au total des déductions du montant des bénéfices imposables des sociétés qui procèdent à des versements au profit d'oeuvres d'organismes d'intérêt général, ou de sociétés agréées ou à des donations d'oeuvre d'art à l'Etat.
Article L912-6
Au VI de l'article L. 225-270, les mots : " les dispositions de l'article 94 A du code général des impôts " sont remplacés par les mots : " les dispositions du code des impôts applicable localement relatives aux gains nets en capital réalisés à l'occasion de la cession à titre onéreux de valeurs mobilières et de droits sociaux ".
Article L912-7
Au cinquième alinéa (2°) de l'article L. 239-1, les mots : "à l'article 208 D du code général des impôts " sont remplacés par les mots : "au code général des impôts applicable localement".
Chapitre III : Dispositions d'adaptation du livre III.
Article L913-1
Le second alinéa de l'article L. 322-9 est ainsi rédigé :
" Ils se conforment aux dispositions prescrites par le code des impôts applicable localement relatives aux ventes publiques et par enchères. "
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Chapitre IV : Dispositions d'adaptation du livre IV.
Article L914-1
Au second alinéa de l'article L. 442-2, avant les mots :
" taxes sur le chiffre d'affaires ", est ajouté le mot :
" éventuelles ".
Au deuxième et au troisième alinéa de l'article L. 442-2, les dates : "1er janvier 2006" et "1er janvier 2007" sont respectivement remplacées par les dates : "1er janvier 2009" et "1er janvier 2010".
Article L914-2
L'article L. 443-1 est modifié ainsi qu'il suit :
I. - Au 3° , les mots : " à l'article 403 du code général des impôts " sont remplacés par les mots : " par les dispositions du code des impôts applicable localement ".
II. - Le 4° est ainsi rédigé :
" 4° A soixante-quinze jours après le jour de livraison pour les achats de boissons alcooliques passibles des droits de circulation prévus par le code des impôts applicable localement. "
Chapitre V : Dispositions d'adaptation du livre V.
Article L915-1
Le deuxième alinéa de l'article L. 511-62 est ainsi rédigé :
" La retraite comprend les sommes indiquées dans les articles L. 511-45 et L. 511-46, outre les droits de courtage et de timbre éventuellement prévus par les dispositions du code des impôts applicable localement. "
Article L915-2
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Le premier alinéa de l'article L. 524-19 est ainsi rédigé :
" Le montant des droits à percevoir par le greffier du tribunal de première instance statuant en matière commerciale est fixé par décret. "
Article L915-3
Au premier alinéa de l'article L. 525-2, après les mots " au droit fixe ", sont ajoutés les mots : " selon les modalités en vigueur localement ".
Article L915-4
Au II de l'article L. 525-9, les mots : " au privilège visé à l'article L. 243-4 du code la sécurité sociale " sont remplacés par les mots : " au privilège organisé en faveur de la caisse de prévoyance sociale de la collectivité territoriale ".
Article L915-5
L'article L. 525-18 est modifié ainsi qu'il suit :
I. - Au 1° , la référence au décret n° 53-968 du 30 septembre 1953 est remplacée par la référence au décret n° 55-639 du 20 mai 1955.
II. - Le 2° est ainsi rédigé :
" 2° Les navires de mer. "
Chapitre VI : Dispositions d'adaptation du livre VI.
Article L916-1
Le 4° du III de l'article L. 643-11 ne s'applique pas à Saint-Pierre-et-Miquelon.
Chapitre VII : Dispositions d'adaptation du livre VII.
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Article L917-4
A l'article L. 712-2, les mots : " au moyen d'une taxe additionnelle à la taxe professionnelle " sont remplacés par les mots : " comme il est dit dans les dispositions du code des impôts applicable dans la collectivité ".
Article L917-5
Pour l'application de l'article L. 712-7, les mots : ", notamment celles mentionnées au 2° de l'article L. 711-8, " sont supprimés.
Chapitre VIII : Dispositions d'adaptation du livre VIII.
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Partie législative
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE II : Dispositions applicables à Mayotte.
Article L920-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du présent code sont applicables à Mayotte :
1° Le livre Ier, à l'exception des articles L. 125-3, L. 126-1 ;
2° Le livre II, à l'exception des articles L. 225-245-1, L. 229-1 à L. 229-15, L. 238-6, L. 244-5 et L. 252-1 à L. 252-13 ;
3° Le livre III, à l'exception des articles L. 321-1 à L. 321-38 ;
4° Le livre IV, à l'exception des articles L. 441-1, L. 442-1 et L. 470-6 ;
5° Le livre V, à l'exception des articles L. 522-1 à L. 522-40, L. 524-12, L. 524-20 et L. 524-21 ;
6° Le livre VI, à l'exclusion des articles L. 622-19, L. 625-9 et L. 670-1 à L. 670-8 ;
7° Le titre Ier du livre VII, à l'exception de la section 2 du chapitre Ier, du second alinéa de l'article L. 711-5, des articles L. 712-2, L. 712-4 et L. 712-5, ainsi que des dispositions relatives aux délégués consulaires ; les articles L. 721-3 à L. 721-6 ;
8° Le livre VIII.
Article L920-2
Pour l'application du présent code dans la collectivité, les termes énumérés ci-après sont remplacés comme suit :
1° " Tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
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2° " Tribunal de commerce " ou " justice consulaire " par " tribunal de première instance statuant en matière commerciale " ;
3° " Conseil des prud'hommes " par " tribunal du travail " ;
4° " Département " ou " arrondissement " par " collectivité territoriale " ;
5° " Bulletin officiel des annonces civiles et commerciales " par " Recueil des actes administratifs de la collectivité territoriale ".
Article L920-3
Les références faites, par des dispositions du présent code applicables à Mayotte, à d'autres articles du présent code ne concernent que les articles rendus applicables dans la collectivité avec les adaptations prévues dans les chapitres ci-dessous.
Article L920-4
En l'absence d'adaptation, les références faites, par des dispositions du présent code applicables à Mayotte, à des dispositions qui n'y sont pas applicables sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article L920-5
Les références faites, par des dispositions du présent code applicables à Mayotte, à des dispositions du code du travail n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article L920-7
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 136 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
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Article L921-1
A l'article L. 122-1, les mots : "par le préfet du département dans lequel il envisage d'exercer pour la première fois son activité" sont remplacés par les mots : "par le préfet de Mayotte dans le cas où l'étranger doit y exercer pour la première fois son activité".
Article L921-2
Les dérogations prévues par les articles L. 123-25 à L. 123-27 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur à Mayotte.
Article L921-3
A l'article L. 133-6, les mots : " celles qui naissent des dispositions de l'article 1269 du code de procédure civile " sont remplacés par les mots : " les demandes en révision de compte et en liquidation des fruits présentées en vue d'un redressement en cas d'erreur, d'omission ou de présentation inexacte ".
Article L921-4
A l'article L. 133-7, les mots : " les droits, taxes, frais et amendes de douane liés à une opération de transport " sont supprimés.
Article L921-5
Pour l'application des articles L. 141-15, L. 143-7, L. 144-1 à L. 144-13 et L. 145-28, un magistrat du tribunal de première instance peut être délégué par le président.
Article L921-6
A l'article L. 141-13, les mots : " de la déclaration prescrite par les articles 638 et 653 du code général des impôts " sont remplacés par les mots : " de la déclaration prescrite dans les conditions prescrites par les dispositions du code des impôts applicable dans la collectivité ".
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Article L921-7
A l'article L. 144-5, les mots : " les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique " sont remplacés par les mots : " les articles du code de la santé publique applicable dans la collectivité relatifs à l'hospitalisation et à l'internement avec ou sans le consentement de l'intéressé ".
Article L921-8
L'article L. 145-2 est modifié ainsi qu'il suit :
I. - Au 4°, les mots : " à l'Etat, aux départements, aux communes, aux établissements publics " sont remplacés par les mots : " à l'Etat, aux collectivités territoriales et aux établissements publics ".
II. - Au 6°, les mots : " à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 71 de l'annexe III du code général des impôts " sont remplacés par les mots : " à la caisse locale d'assurance sociale et reconnus auteurs d'oeuvres graphiques et plastiques au sens du code des impôts applicable dans la collectivité ".
Article L921-9
Pour l'application de l'article L. 145-6, les mots : "l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme" sont remplacés par les mots : "l'évacuation des lieux prévue à l'article L. 145-18".
Article L921-10
A l'article L. 145-13, les mots : " sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme " sont supprimés.
Article L921-11
Le deuxième alinéa de l'article L. 145-18 est ainsi rédigé :
" Il en est de même pour effectuer des opérations de restauration immobilière comportant des travaux de remise en état, de conservation, de modernisation ou de démolition ayant pour
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conséquence la transformation des conditions d'habitabilité d'un ensemble d'immeubles nécessitant l'évacuation des lieux. Ces opérations peuvent être décidées et exécutées dans le respect de la réglementation locale, soit par les autorités publiques localement compétentes, soit à l'initiative d'un ou de plusieurs propriétaires, groupés ou non en association syndicale. Dans ce dernier cas, ce ou ces propriétaires y sont spécialement autorisés dans des conditions fixées par le représentant de l'Etat, qui précisent notamment les engagements exigés des propriétaires quant à la nature et à l'importance des travaux. Les immeubles acquis par un organisme de rénovation ne peuvent, après restauration, être cédés de gré à gré qu'aux conditions d'un cahier des charges type approuvé par le représentant de l'Etat. "
Article L921-12
A l'article L. 145-26, après les mots : " à l'Etat, aux départements, aux communes ", sont ajoutés les mots : " à la collectivité territoriale ".
Article L921-13
Le premier alinéa de l'article L. 145-34 est ainsi rédigé :
" A moins d'une modification notable des éléments déterminant la valeur locative, le taux de variation du loyer applicable lors de la prise d'effet du bail à renouveler, si sa durée n'est pas supérieure à neuf ans, ne peut excéder la variation d'un indice local trimestriel mesurant le coût de la construction intervenue depuis la fixation initiale du loyer du bail expiré. Cet indice est calculé dans des conditions déterminées par arrêté du représentant de l'Etat. A défaut de clause contractuelle fixant le trimestre de référence de cet indice, il y a lieu de prendre en compte une variation de l'indice local trimestriel mesurant le coût de la construction fixé à cet effet par l'arrêté précité. "
Article L921-14
L'article L. 145-35 est modifié ainsi qu'il suit :
I. - Au premier alinéa, le mot : " départementale " est supprimé ;
II. - Le dernier alinéa est ainsi rédigé :
" La composition de la commission, le mode de désignation de ses membres et ses règles de fonctionnement sont fixés par arrêté du représentant de l'Etat. "
Chapitre II : Dispositions d'adaptation du livre II.
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Article L922-1
Aux articles L. 225-177, L. 225-179 et L. 233-11, les mots : "la date de publication de la loi n° 2001-420 du 15 mai 2001" sont remplacés par les mots : "la date de publication de l'ordonnance n° 2004-604 du 24 juin 2004 portant réforme du régime des valeurs mobilières émises par les sociétés commerciales et extension à l'outre-mer de dispositions ayant modifié la législation commerciale".
Article L922-2
Aux articles L. 223-18, L. 225-36 et L. 225-65, les mots : "dans le même département ou un département limitrophe" sont remplacés par les mots : "dans la collectivité".
Article L922-3
Le dernier alinéa de l'article L. 225-43 et celui de l'article L. 225-91 sont supprimés.
Article L922-4
Au 5° de l'article L. 225-115, les mots : "versements effectués en application des 1 et 4 de l'article 238 bis du code général des impôts" sont remplacés par les mots : "déductions fiscales prévues par les dispositions de droit fiscal applicables dans la collectivité et relatives au total des déductions du montant des bénéfices imposables des sociétés qui procèdent à des versements au profit d'oeuvres d'organismes d'intérêt général, ou de sociétés agréées ou à des donations d'oeuvre d'art à l'Etat".
Article L922-5
Aux articles L. 225-105, L. 823-6 et L. 225-231, les mots :
" le comité d'entreprise " sont remplacés par les mots :
" les délégués du personnel ".
Article L922-6
Aux articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 et L. 234-2, les mots : " au comité d'entreprise " sont remplacés par les mots : " aux délégués du personnel ".
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Article L922-7
Au VI de l'article L. 225-270, les mots : " les dispositions de l'article 94 A du code général des impôts " sont remplacés par les mots : " les dispositions du code des impôts applicable dans la collectivité relatives aux gains nets en capital réalisés à l'occasion de la cession à titre onéreux de valeurs mobilières et de droits sociaux ".
Article L922-8
Le dernier alinéa de l'article L. 228-36 est supprimé.
Article L922-9
A l'article L. 233-24, les mots : " ou du VII de l'article 97 " sont supprimés.
Article L922-10
Le deuxième alinéa de l'article L. 251-7 est supprimé.
Chapitre III : Dispositions d'adaptation du livre III.
Article L923-1
A l'article L. 322-1, les mots : " aux articles 53 de la loi n° 91-650 du 9 juillet 1991 relative à la réforme des procédures d'exécution et 945 du code de procédure civile " sont remplacés par les mots : " aux dispositions de procédure civile applicables dans la collectivité relatives à la vente de meubles dépendant d'une succession ".
Article L923-2
Le second alinéa de l'article L. 322-9 est ainsi rédigé :
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" Ils se conforment aux dispositions prescrites par le code des impôts applicable dans la collectivité relatives aux ventes publiques et par enchères. "
Chapitre IV : Dispositions d'adaptation du livre IV.
Article L924-1
Au premier alinéa de l'article L. 430-2, le mot : "trois" est remplacé par le mot : "deux". Les quatrième et cinquième alinéas de cet article sont supprimés.
Article L924-2
A l'article L. 430-3, la dernière phrase du premier alinéa est supprimée. Au troisième alinéa du même article, les mots : ", ou le renvoi total ou partiel d'une opération de dimension communautaire," sont supprimés.
Article L924-3
Le dernier alinéa de l'article L. 441-2 est remplacé par quatre alinéas ainsi rédigés :
" La cessation de la publicité, réalisée dans des conditions non conformes aux dispositions de l'alinéa 1, peut être ordonnée par le juge d'instruction ou par le tribunal saisi des poursuites, soit sur réquisition du ministère public, soit d'office. La mesure ainsi prise est exécutoire nonobstant toutes voies de recours.
Mainlevée peut en être donnée par la juridiction qui l'a ordonnée ou qui est saisie du dossier. La mesure cesse d'avoir effet en cas de décision de non-lieu ou de relaxe.
Les décisions statuant sur les demandes de mainlevée peuvent faire l'objet d'un recours devant le tribunal supérieur d'appel selon qu'elles ont été prononcées par un juge d'instruction ou par le tribunal saisi des poursuites.
Le tribunal supérieur d'appel statue dans un délai de dix jours à compter de la réception des pièces. "
Article L924-4
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Au second alinéa de l'article L. 442-2, avant les mots :
" taxes sur le chiffre d'affaires ", est ajouté le mot :
" éventuelles " ;
Article L924-5
Le dernier alinéa de l'article L. 442-3 est remplacé par quatre alinéas ainsi rédigés :
" La cessation de l'annonce publicitaire peut être ordonnée par le juge d'instruction ou par le tribunal saisi des poursuites, soit sur réquisition du ministère public, soit d'office. La mesure ainsi prise est exécutoire nonobstant toutes voies de recours.
Mainlevée peut en être donnée par la juridiction qui l'a ordonnée ou qui est saisie du dossier. La mesure cesse d'avoir effet en cas de décision de non-lieu ou de relaxe.
Les décisions statuant sur les demandes de mainlevée peuvent faire l'objet d'un recours devant le tribunal supérieur d'appel.
Le tribunal supérieur d'appel statue dans un délai de dix jours à compter de la réception des pièces. "
Article L924-6
L'article L. 443-1 est modifié ainsi qu'il suit :
I. - Au 1°, les mots : " visés aux articles L. 326-1 à L. 326-3 du code rural " sont remplacés par les mots : " prévus par les dispositions du code rural applicable dans la collectivité " ;
II. - Au 3°, les mots : " à l'article 403 du code général des impôts " sont remplacés par les mots : " par les dispositions du code des impôts applicable dans la collectivité " ;
III. - Le 4° est ainsi rédigé :
" 4° A soixante-quinze jours après le jour de livraison pour les achats de boissons alcooliques passibles des droits de circulation prévus par le code des impôts applicable dans la collectivité. "
Chapitre V : Dispositions d'adaptation du livre V.
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Article L925-1
Le deuxième alinéa de l'article L. 511-62 est ainsi rédigé :
" La retraite comprend les sommes indiquées dans les articles L. 511-45 et L. 511-46, outre les droits de courtage et de timbre éventuellement prévus par les dispositions applicables dans la collectivité. "
Article L925-2
Aux articles L. 523-8 et L. 524-6, les mots : " articles 1426 à 1429 du code de procédure civile " sont remplacés par les mots : " dispositions de procédure civile applicables localement relatives aux offres de payement et à la consignation ".
Article L925-3
Le premier alinéa de l'article L. 524-19 est ainsi rédigé :
" Le montant des droits à percevoir par le greffier du tribunal de première instance statuant en matière commerciale est fixé par décret. "
Article L925-4
Au premier alinéa de l'article L. 525-2, après les mots : " au droit fixe " sont ajoutés les mots : " selon les modalités en vigueur dans la collectivité ".
Article L925-5
Au II de l'article L. 525-9, les mots : " au privilège visé à l'article L. 243-4 du code de la sécurité sociale " sont remplacés par les mots : " au privilège organisé en faveur de la caisse de prévoyance sociale de la collectivité territoriale ".
Article L925-6
L'article L. 525-18 est modifié ainsi qu'il suit :
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I. - Au 1°, la référence au décret n° 53-968 du 30 septembre 1953 est remplacée par la référence au décret n° 55-639 du 20 mai 1955.
II. - Le 2° est ainsi rédigé :
" 2° Les navires de mer ainsi que les bateaux de navigation fluviale. "
Chapitre VI : Dispositions d'adaptation du livre VI.
Article L926-1
A l'article L. 625-2 les mots : " mentionnée à l'article L. 432-7 du code du travail " sont remplacés par les mots : " à l'égard des informations présentant un caractère confidentiel et données comme telles ".
Article L926-2
Pour l'application de l'article L. 622-24, les organismes visés à l'article L. 351-21 du code du travail sont les organismes locaux ayant en charge le service de l'allocation d'assurance chômage et le recouvrement des contributions.
Article L926-3
Pour l'application des articles L. 622-24, L. 622-26, L. 625-4, L. 626-5, L. 626-20, L. 631-18, L. 641-14 et L. 662-4, les institutions mentionnées à l'article L. 143-11-4 du code du travail sont les institutions locales chargées de la mise en oeuvre du régime d'assurance contre le risque de non-paiement des salaires, en cas de procédure de redressement ou de liquidation judiciaires.
Article L926-4
Pour l'application de l'article L. 611-7, L. 626-6 et L. 643-3, les institutions régies par le livre IX du code de la sécurité sociale sont les institutions locales de retraite complémentaire ou supplémentaire ou de prévoyance, prévues par les dispositions applicables dans la collectivité et relatives aux régimes de sécurité et de protection sociales.
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Article L926-6
A l'article L. 642-1, l'obligation faite au tribunal de tenir compte des dispositions contenues aux 1°, 2°, 3° et 4° de l'article L. 331-3 du code rural s'entend des prescriptions suivantes :
" Observer l'ordre des priorités établi entre l'installation des jeunes agriculteurs et l'agrandissement des exploitations, en tenant compte de l'intérêt économique et social du maintien de l'autonomie de l'exploitation faisant l'objet de la demande ;
Tenir compte, en cas d'agrandissement ou de réunion d'exploitations, des possibilités d'installation sur une exploitation viable, de la situation des terres concernées par rapport au siège de l'exploitation du ou des demandeurs, de la superficie des biens faisant l'objet de la demande et des superficies déjà mises en valeur par le ou les demandeurs, ainsi que par le preneur en place ;
Prendre en considération la situation personnelle du ou des demandeurs : âge, situation familiale et professionnelle et, le cas échéant, celle du preneur en place, ainsi que le nombre et la nature des emplois salariés en cause ;
Tenir compte de la structure parcellaire des exploitations concernées, soit par rapport au siège de l'exploitation, soit pour éviter que des mutations en jouissance ne remettent en cause des aménagements obtenus à l'aide de fonds publics. "
Article L926-7
Le 4° du III de l'article L. 643-11 ne s'applique pas.
Chapitre VII : Dispositions d'adaptation du livre VII.
Article L927-1
Pour l'application à Mayotte :
1° De l'article L. 711-2, le dernier alinéa (4°) est ainsi rédigé :
" 4° Elles sont associées à l'élaboration du plan d'aménagement et de développement durable et des plans locaux d'urbanisme. ";
2° Du premier alinéa de l'article L. 711-5, les mots : "dans les conditions prévues aux articles L. 443-1 et L. 753-1 du code de l'éducation" sont supprimés ;
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3° De l'article L. 712-7, les mots : " , notamment celles mentionnées au 2° de l'article L. 711-8," sont supprimés.
Chapitre VIII : Dispositions d'adaptation du livre VIII.
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Partie législative
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE III : Dispositions applicables en Nouvelle-Calédonie.
Article L930-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du présent code sont applicables en Nouvelle-Calédonie :
1° Le livre Ier, à l'exception des articles L. 123-1-1, L. 123-29 à L. 123-31, L. 124-1 à L. 126-1, L. 131-1 à L. 131-6, L. 131-9, L. 134-1 à L. 135-3, L. 145-34 à L. 145-36, L. 145-38 et L. 145-39 ;
2° Le livre II, à l'exception des articles L. 225-245-1, L. 229-1 à L. 229-15, L. 238-6, L. 244-5 et L. 252-1 à L. 252-13 ;
3° Le livre III, à l'exception des articles L. 310-4, L. 321-1 à L. 321-38, L. 322-7 et L. 322-10 ;
4° Le livre IV, à l'exception des articles L. 410-1 à L. 450-1, L. 450-5 à L. 450-6, L. 461-1 à L. 464-9, L. 470-2 à L. 470-4 et des articles L. 470-6 à L. 470-8 ;
5° Le livre V, à l'exception des articles L. 522-1 à L. 522-40, L. 524-12, L. 524-20 et L. 524-21 ;
6° Le livre VI, à l'exception des articles L. 622-19, L. 625-9 et L. 670-1 à L. 670-8 ;
7° Le titre II du livre VII, à l'exception des articles L. 722-3, L. 722-11 à L. 722-13, de l'article L. 723-6, de l'alinéa 2 de l'article L. 723-7, de l'alinéa 2 de l'article L. 723-10 et de l'article L. 723-11 ;
8° Le titre II du livre VIII.
Article L930-2
Pour l'application du présent code dans le territoire, les termes énumérés ci-après sont remplacés ainsi qu'il suit :
1° " Tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
2° " Tribunal de commerce " ou " justice consulaire " par " tribunal mixte de commerce " ;
3° " Conseil de prud'hommes " par " tribunal du travail " ;
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4° " Bulletin officiel des annonces civiles et commerciales " par " Journal officiel de la Nouvelle-Calédonie " ;
5° " Département " ou " arrondissement " par " Nouvelle-Calédonie " ou par " province " ;
6° " Préfet " ou " sous-préfet " par " représentant de l'Etat en Nouvelle-Calédonie ".
Article L930-3
Les références faites, par des dispositions du présent code applicables en Nouvelle-Calédonie, à d'autres articles du présent code, ne concernent que les articles rendus applicables en Nouvelle-Calédonie avec les adaptations prévues dans les chapitres ci-dessous.
Article L930-4
En l'absence d'adaptation, les références faites par des dispositions du présent code applicables en Nouvelle-Calédonie, à des dispositions qui n'y sont pas applicables, sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article L930-5
Les références faites par des dispositions du présent code applicables en Nouvelle-Calédonie à des dispositions du code du travail, n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article L930-6
Les références à l'immatriculation au répertoire des métiers sont remplacées par les références à l'immatriculation faite conformément à la réglementation applicable en Nouvelle-Calédonie.
Article L930-7
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 136 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
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Chapitre Ier : Dispositions d'adaptation du livre Ier.
Article L931-1
A l'article L. 122-1, les mots : " le préfet du département où l'étranger doit exercer son activité " sont remplacés par les mots : " l'autorité de Nouvelle-Calédonie compétente ".
Article L931-1-1
A l'article L. 123-11-3, les références au code de la consommation et au code du travail sont remplacées par des références aux dispositions applicables localement ayant le même objet.
Article L931-1-2
Pour son application en Nouvelle-Calédonie, l'article L. 123-11-6 est rédigé comme suit : Art.L. 123-11-6.-Les agents des douanes sont qualifiés pour procéder à la recherche et à la constatation des infractions aux dispositions des articles de la présente sous-section et des règlements pris pour leur application.A cet effet, ils agissent, conformément aux règles de recherche et de constatation des infractions déterminées par le code des douanes. Les infractions sont constatées par des procès-verbaux faisant foi jusqu'à preuve du contraire et transmis directement au parquet.
Article L931-2
Les dérogations prévues par les articles L. 123-25 à L. 123-27 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur en Nouvelle-Calédonie.
Article L931-3
A l'article L. 131-11, les mots : " S'il est inscrit sur la liste des courtiers, dressée conformément aux dispositions réglementaires, il en est rayé et ne peut plus y être inscrit de nouveau " sont supprimés.
Article L931-4
Pour l'application de l'article L. 133-6 :
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1° Les mots : " celles qui naissent des dispositions de l'article 1269 du code de procédure civile " sont remplacés par les mots : " les demandes en révision de compte et en liquidation des fruits présentées en vue d'un redressement en cas d'erreur, d'omission ou de présentation inexacte " ;
2° Les dispositions du dernier alinéa sont applicables dans le cas de transport fait pour le compte de la Nouvelle-Calédonie.
Article L931-5
A l'article L. 133-7, les mots : " les droits, taxes, frais et amendes de douane liés à une opération de transport " sont supprimés.
Article L931-6
Pour l'application des articles L. 141-15, L. 143-7, L. 144-1 à L. 144-13 et L. 145-28, un magistrat du tribunal de première instance peut être délégué par le président.
Article L931-7
A l'article L. 141-13, les mots : " par les articles 638 et 653 du code général des impôts " sont remplacés par les mots :
" par les dispositions du code des impôts applicable en Nouvelle-Calédonie relatives aux déclarations de mutation verbales ".
Article L931-8
A l'article L. 144-5, les mots : " les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique " sont remplacés par les mots : " les articles du code de la santé publique applicable en Nouvelle-Calédonie relatifs à l'hospitalisation ou à l'internement avec ou sans le consentement de l'intéressé ".
Article L931-9
L'article L. 144-11 est ainsi rédigé :
" Art. L. 144-11. - Si, conformément à la réglementation locale, le contrat de location-gérance est assorti d'une clause d'échelle mobile, la révision du loyer peut, nonobstant toute convention
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contraire, être demandée selon les conditions fixées par une délibération de l'autorité locale compétente lorsque, par le jeu de cette clause, ce loyer se trouve augmenté ou diminué de plus du quart par rapport au prix précédemment fixé, contractuellement ou judiciairement. "
Article L931-10
L'article L. 144-12 est ainsi rédigé :
" Art. L. 144-12. - A défaut d'accord amiable entre les parties sur la révision du loyer, l'instance est introduite et jugée conformément aux dispositions prévues en matière de révision du prix des baux à loyer d'immeubles ou de locaux à usage commercial ou industriel.
Le juge doit, en tenant compte de tous les éléments d'appréciation, adapter le jeu de l'échelle mobile à la valeur locative équitable au jour de la notification. Le nouveau prix est applicable à partir de cette même date, à moins que les parties ne se soient mises d'accord avant ou pendant l'instance sur une date plus ancienne ou plus récente. "
Article L931-11
Pour l'application de l'article L. 145-2, la Nouvelle-Calédonie est considérée comme une collectivité territoriale et au 6°, les mots : " à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 71 de l'annexe III du code général des impôts " sont remplacés par les mots : " à la caisse locale d'assurance sociale et reconnus auteurs d'oeuvres graphiques et plastiques au sens du code des impôts applicable en Nouvelle-Calédonie ".
Article L931-12
Pour l'application de l'article L. 145-6, les mots : "l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme" sont remplacés par les mots : "l'évacuation des lieux prévue à l'article L. 145-18".
Article L931-13
A l'article L. 145-13, les mots : " sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme " sont supprimés.
Article L931-14
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Le deuxième alinéa de l'article L. 145-18 est ainsi rédigé :
" Il en est de même pour effectuer des opérations de restauration immobilière comportant des travaux de remise en état, de conservation, de modernisation ou de démolition ayant pour conséquence la transformation des conditions d'habitabilité d'un ensemble d'immeubles nécessitant l'évacuation des lieux. Ces opérations peuvent être décidées et exécutées dans le respect de la réglementation locale, soit par les autorités publiques localement compétentes, soit à l'initiative d'un ou de plusieurs propriétaires, groupés ou non en association syndicale. Dans ce dernier cas, ce ou ces propriétaires y sont spécialement autorisés dans des conditions fixées par les autorités locales compétentes, qui précisent notamment les engagements exigés des propriétaires quant à la nature et à l'importance des travaux. Les immeubles acquis par un organisme de rénovation ne peuvent, après restauration, être cédés de gré à gré qu'aux conditions d'un cahier des charges type approuvé par lesdites autorités. "
Article L931-15
Pour l'application de l'article L. 145-26, la Nouvelle-Calédonie est considérée comme une collectivité territoriale.
Article L931-16
L'article L. 145-37 est ainsi rédigé :
" Art. L. 145-37. - Les loyers des baux d'immeubles ou de locaux régis par le présent chapitre, renouvelés ou non, peuvent être révisés à la demande de l'une ou de l'autre des parties, dans les conditions prévues par les délibérations de l'autorité de Nouvelle-Calédonie compétente. "
Article L931-17
L'article L. 145-43 est ainsi rédigé :
" Art. L. 145-43. - Sont dispensés de l'obligation d'exploiter pendant la durée de leur stage les commerçants et artisans, locataires du local dans lequel est situé leur fonds, qui sont admis à suivre un stage de conversion ou un stage de promotion conformément aux dispositions du code du travail applicable en Nouvelle-Calédonie. "
Article L931-18
Le troisième alinéa de l'article L. 145-47 est supprimé.
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Article L931-19
A l'article L. 145-56, les mots : " et de procédure " sont supprimés.
Chapitre II : Dispositions d'adaptation du livre II.
Article L932-6
Aux articles L. 225-177, L. 225-179 et L. 233-11, les mots : "la date de publication de la loi n° 2001-420 du 15 mai 2001 relative aux nouvelles régulations économiques" sont remplacés par les mots : "la date de publication de l'ordonnance n° 2004-604 du 24 juin 2004 portant réforme du régime des valeurs mobilières émises par les sociétés commerciales et extension à l'outre-mer de dispositions ayant modifié la législation commerciale".
Article L932-7
Aux articles L. 223-18, L. 225-36 et L. 225-65, les mots : "dans le même département ou un département limitrophe" sont remplacés par les mots : "en Nouvelle-Calédonie".
Article L932-8
Le dernier alinéa de l'article L. 225-43 et celui de l'article L. 225-91 sont supprimés.
Article L932-10
Le 5° de l'article L. 225-115 est ainsi rédigé :
" 5° Du montant global, certifié par les commissaires aux comptes, des déductions du montant des bénéfices imposables de sociétés qui procèdent à des versements à des oeuvres d'organismes d'intérêt général ou de sociétés agréées ou à des donations d'oeuvres d'art à l'Etat ou à la Nouvelle-Calédonie, telles que prévues par les dispositions de droit fiscal applicables en Nouvelle-Calédonie, ainsi que la liste des actions nominatives de parrainage, de mécénat. "
Article L932-11
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Aux articles L. 225-105, L. 823-6 et L. 225-231, après les mots : " le comité d'entreprise " sont ajoutés les mots :
" ou à défaut les délégués du personnel ".
Article L932-12
Aux articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 et L. 234-2, aux mots : " au comité d'entreprise " sont ajoutés les mots :
" ou à défaut aux délégués du personnel ".
Article L932-14
Au VI de l'article L. 225-270, les mots : " les dispositions de l'article 94 A du code général des impôts " sont remplacés par les mots : " les dispositions du code des impôts applicable en Nouvelle-Calédonie relatives aux gains nets en capital réalisés à l'occasion de la cession à titre onéreux de valeurs mobilières et de droits sociaux ".
Article L932-15
Le dernier alinéa de l'article L. 228-36 est supprimé.
Article L932-16
A l'article L. 233-24, les mots " ou du VII de l'article 97 " sont supprimés.
Article L932-17
Le deuxième alinéa de l'article L. 251-7 est supprimé.
Chapitre III : Dispositions d'adaptation du livre III.
Article L933-1
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Les deuxième et troisième alinéas de l'article L. 310-1 sont supprimés.
Article L933-2
Le deuxième alinéa du I et le II de l'article L. 310-2 sont supprimés.
Article L933-3
Le deuxième alinéa du I de l'article L. 310-3 est supprimé.
Article L933-4
Les 1°, 2° et 3° de l'article L. 310-5 sont supprimés.
Article L933-5
A l'article L. 322-1, les mots : " aux articles 53 de la loi n° 91-650 du 9 juillet 1991 relative à la réforme des procédures d'exécution et 945 du code de procédure civile " sont remplacés par les mots : " aux dispositions de procédure civile applicables en Nouvelle-Calédonie et relatives à la vente de meubles dépendant d'une succession ".
Article L933-6
L'article L. 322-11 est ainsi rédigé :
" Art. L. 322-11. - Les contestations relatives aux ventes réalisées en application des délibérations en vigueur localement relatives à la vente volontaire, aux enchères, en gros, des marchandises par les courtiers assermentés sont portées devant le tribunal mixte de commerce. "
Article L933-7
L'article L. 322-15 est ainsi rédigé :
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" Art. L. 322-15. - Il appartient toujours au tribunal ou au juge qui autorise ou ordonne la vente en vertu de l'article précédent, de désigner éventuellement, pour y procéder, une autre classe d'officiers publics que les courtiers assermentés. "
Article L933-8
L'article L. 322-16 est ainsi rédigé :
" Art. L. 322-16. - Les dispositions de l'article L. 322-11 sont applicables aux ventes visées aux articles L. 322-14 et L. 322-15. "
Chapitre IV : Dispositions d'adaptation du livre IV.
Article L934-1
Pour l'application de l'article L. 450-4 : 1° Au premier alinéa, les mots : " la Commission européenne, le ministre chargé de l'économie ou le rapporteur général de l'Autorité de la concurrence sur proposition du rapporteur " sont remplacés par les mots : " l'autorité compétente de la Nouvelle-Calédonie " ; 2° Au deuxième alinéa, les mots : " du livre IV du présent code " sont remplacés par les mots : " applicables en Nouvelle-Calédonie en matière de liberté des prix et de concurrence " ; 3° Au septième alinéa, les mots : " de celle de l'administration de la direction générale de la concurrence, de la consommation et de la répression des fraudes ou de celle de l'Autorité de la concurrence " sont remplacés par les mots : " ou de celle de l'administration compétente de la Nouvelle-Calédonie. " ; 4° Au huitième alinéa, les mots : " et, le cas échéant, les agents et autres personnes mandatés par la Commission européenne " sont supprimés ; 5° Au onzième alinéa, les mots : " de l'Autorité de la concurrence " sont remplacés par les mots : " de l'administration compétente de la Nouvelle-Calédonie " ; 6° Au douzième alinéa, les mots : " et au plus tard à compter de la notification de griefs prévue à l'article L. 463-2 " sont supprimés.
Article L934-2
Pour l'application de l'article L. 450-8, les mots : " mentionnés à l'article L. 450-1 " sont remplacés par les mots : " assermentés ".
Article L934-3
Pour son application en Nouvelle-Calédonie, l'article 470-4-1 est ainsi rédigé :
Art. 470-4-1. - L'acte par lequel le procureur de la République donne son accord à la proposition de transaction émise par l'autorité administrative chargée des prix et de la concurrence est interruptif de la prescription de l'action publique.
L'action publique est éteinte lorsque l'auteur de l'infraction a exécuté dans le délai imparti les
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obligations résultant pour lui de l'acceptation de la transaction.
Article L934-4
Pour l'application de l'article L. 470-5, les mots : " le ministre chargé de l'économie ou son représentant " sont remplacés par les mots : " l'autorité compétente de la Nouvelle-Calédonie ".
Article L934-5
Pour l'application des articles L. 450-3, L. 450-4, L. 450-7, L. 450-8, L. 470-4-2 et L. 470-4-3 en Nouvelle-Calédonie, les mots : " les agents mentionnés à l'article L. 450-1 " sont remplacés par les mots : " les agents assermentés de la Nouvelle-Calédonie mentionnés à l'article 86 de la loi organique n° 99-209 du 19 mars 1999 relative à la Nouvelle-Calédonie intervenant dans les matières énumérées aux 19° et 20° de l'article 22 de la même loi.
Chapitre V : Dispositions d'adaptation du livre V.
Article L935-1
A l'article L. 511-55, le mot : " destitution " est supprimé.
Article L935-2
L'article L. 511-60 est ainsi rédigé :
" Art. L. 511-60. - Un décret en Conseil d'Etat détermine les modalités d'application des dispositions de la présente sous-section, hormis le montant des rémunérations dues aux notaires ou huissiers ayant dressé les protêts pour les différentes formalités dont ils sont chargés. "
Article L935-3
A l'article L. 511-61, les mots : " ou des collectivités territoriales " sont remplacés par les mots : " des communes, des provinces ou de la Nouvelle-Calédonie ".
Article L935-4
Le deuxième alinéa de l'article L. 511-62 est ainsi rédigé :
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" La retraite comprend les sommes indiquées dans les articles L. 511-45 et L. 511-46, outre les droits de courtage et de timbre éventuellement prévus par les dispositions du code des impôts applicable en Nouvelle-Calédonie. "
Article L935-5
Aux articles L. 523-8 et L. 524-6, les mots : " articles 1426 à 1429 du code de procédure civile " sont remplacés par les mots : " dispositions de procédure civile applicables localement relatives aux offres de payement et à la consignation ".
Article L935-6
Le premier alinéa de l'article L. 524-19 est ainsi rédigé :
" Le montant des droits à percevoir par le greffier du tribunal mixte de commerce est fixé par décret. "
Article L935-7
Au premier alinéa de l'article L. 525-2, après les mots : " au droit fixe " sont ajoutés les mots : " selon les modalités en vigueur en Nouvelle-Calédonie ".
Article L935-8
Au II de l'article L. 525-9, les mots : " au privilège visé à l'article L. 243-4 du code de la sécurité sociale " sont remplacés par les mots : " au privilège organisé en faveur de la caisse de prévoyance sociale du territoire ".
Article L935-9
L'article L. 525-18 est modifié ainsi qu'il suit :
I.-Au 1°, la référence au décret n° 53-968 du 30 septembre 1953 est remplacée par la référence au décret n° 55-639 du 20 mai 1955.
II.-Le 2° est ainsi rédigé :
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" 2° Les navires de mer ainsi que les bateaux de navigation fluviale. "
Chapitre VI : Dispositions d'adaptation du livre VI.
Article L936-1
Les mesures d'application prévues aux articles L. 621-4, L. 625-1, L. 626-3, L. 626-6, L. 626-14 et L. 626-16 sont fixées par l'autorité compétente de Nouvelle-Calédonie.
Article L936-2
Au premier alinéa de l'article L. 611-1, l'arrêté du représentant de l'Etat dans la région est remplacé par une décision du gouvernement de la Nouvelle-Calédonie.
Article L936-3
Pour l'application de l'article L. 612-1, les commissaires aux comptes et leurs suppléants sont choisis et exercent leurs fonctions selon la réglementation en vigueur localement.
Article L936-4
Le troisième alinéa de l'article L. 612-1 est supprimé.
Article L936-6
A l'article L. 625-2, les mots : " mentionnée à l'article L. 432-7 du code du travail " sont remplacés par les mots : " à l'égard des informations présentant un caractère confidentiel et données comme telles ".
Article L936-7
Pour l'application de l'article L. 622-24, les organismes visés à l'article L. 351-21 du code du travail
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sont les organismes de Nouvelle-Calédonie ayant en charge le service de l'allocation d'assurance chômage et le recouvrement des contributions.
Article L936-8
Pour l'application des articles L. 622-24, L. 622-26, L. 625-4, L. 626-5, L. 626-20, L. 631-18, L. 641-14 et L. 662-4, les institutions mentionnées à l'article L. 143-11-4 du code du travail sont les institutions de Nouvelle-Calédonie chargées de la mise en oeuvre du régime d'assurance contre le risque de non-paiement des salaires, en cas de procédure de redressement ou de liquidation judiciaires.
Article L936-9
Pour l'application de l'article L. 611-7, L. 626-6 et L. 643-3, les institutions régies par le livre IX du code de la sécurité sociale sont les institutions de retraite complémentaire ou supplémentaire ou de prévoyance, prévues par les dispositions applicables en Nouvelle-Calédonie et relatives aux régimes de sécurité et de protection sociales.
Article L936-11
A l'article L. 642-1, l'obligation faite au tribunal de tenir compte des dispositions contenues aux 1°, 2°, 3° et 4° de l'article L. 331-3 du code rural s'entend des prescriptions suivantes :
" Observer l'ordre des priorités établi entre l'installation des jeunes agriculteurs et l'agrandissement des exploitations, en tenant compte de l'intérêt économique et social du maintien de l'autonomie de l'exploitation faisant l'objet de la demande ;
Tenir compte, en cas d'agrandissement ou de réunion d'exploitations, des possibilités d'installation sur une exploitation viable, de la situation des terres concernées par rapport au siège de l'exploitation du ou des demandeurs, de la superficie des biens faisant l'objet de la demande et des superficies déjà mises en valeur par le ou les demandeurs, ainsi que par le preneur en place ;
Prendre en considération la situation personnelle du ou des demandeurs : âge, situation familiale et professionnelle et, le cas échéant, celle du preneur en place, ainsi que le nombre et la nature des emplois salariés en cause ;
Tenir compte de la structure parcellaire des exploitations concernées, soit par rapport au siège de l'exploitation, soit pour éviter que des mutations en jouissance ne remettent en cause des aménagements obtenus à l'aide de fonds publics. "
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Article L936-12
Le 4° du III de l'article L. 643-11 ne s'applique pas.
Chapitre VII : Dispositions d'adaptation du livre VII.
Article L937-1
Le premier alinéa de l'article L. 721-1 est ainsi rédigé :
"Le tribunal mixte de commerce est composé du président du tribunal de première instance, président, de juges élus, sous réserve des dispositions de l'article L. 937-13, et d'un greffier.
Ce tribunal exerce les compétences dévolues en métropole au tribunal de commerce."
Article L937-2
L'article L. 722-1 est ainsi rédigé :
"Art. L. 722-1. - Les jugements des tribunaux mixtes de commerce sont rendus, sauf dispositions qui prévoient un juge unique, par une formation comprenant, outre le président, trois juges élus ou désignés dans les conditions prévues à l'article L. 937-13. En cas de partage égal des voix, celle du président est prépondérante."
Article L937-3
Le premier alinéa de l'article L. 722-9 est ainsi rédigé :
"Les juges des tribunaux mixtes de commerce sont élus pour quatre ans. Ils sont rééligibles."
Article L937-4
L'article L. 723-1 est ainsi rédigé :
"Art. L. 723-1. - I. - Les juges des tribunaux mixtes de commerce sont élus dans le ressort de
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chacune de ces juridictions par un collège composé :
1° D'électeurs à titre personnel :
a) Les commerçants immatriculés en Nouvelle-Calédonie au registre du commerce et des sociétés, sous réserve, pour les associés en nom collectif et les associés commandités, des dispositions du IV du présent article ;
b) Les chefs d'entreprise immatriculés en Nouvelle-Calédonie conformément à la réglementation applicable à la collectivité et au registre du commerce et des sociétés ;
c) Les conjoints des personnes énumérées au a ou au b ci-dessus ayant déclaré au registre du commerce et des sociétés qu'ils collaborent à l'activité de leur époux sans autre activité professionnelle ;
d) Les capitaines au long cours ou capitaines de la marine marchande exerçant le commandement d'un navire immatriculé en France dont le port d'attache est situé dans la circonscription, les pilotes maritimes exerçant leurs fonctions dans un port situé dans la circonscription, les pilotes de l'aéronautique civile domiciliés dans la circonscription et exerçant le commandement d'un aéronef immatriculé en France ;
e) Les membres en exercice des tribunaux mixtes de commerce, ainsi que les anciens membres de ces tribunaux ayant demandé à être inscrits sur la liste électorale ;
2° D'électeurs inscrits en qualité de représentant :
a) Les sociétés à caractère commercial au sens de l'article L. 210-1 et les établissements publics à caractère industriel et commercial dont le siège social est situé dans la circonscription ;
b) Au titre d'un établissement faisant l'objet dans la circonscription d'une inscription complémentaire ou d'une immatriculation secondaire, à moins qu'il en soit dispensé par les lois et règlements en vigueur, les personnes physiques mentionnées aux a et b du 1° et les personnes morales mentionnées au a du présent 2°, quelle que soit la circonscription où ces personnes exercent leur propre droit de vote ;
c) Les sociétés à caractère commercial dont le siège est situé hors du territoire national et qui disposent dans la circonscription d'un établissement immatriculé au registre du commerce et des sociétés ;
3° Les cadres qui, employés dans la circonscription par les électeurs mentionnés aux 1° ou 2°, exercent des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
II. - Au titre de leur siège social et de l'ensemble de leurs établissements situés dans la collectivité, les personnes physiques ou morales mentionnées aux 1° et 2° du I disposent :
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1° D'un représentant supplémentaire, lorsqu'elles emploient dans la collectivité de dix à quarante-neuf salariés ;
2° De deux représentants supplémentaires, lorsqu'elles emploient dans la collectivité de cinquante à cent quatre-vingt-dix-neuf salariés ;
3° De trois représentants supplémentaires, lorsqu'elles emploient dans la collectivité de deux cents à quatre cent quatre-vingt-dix-neuf salariés ;
4° De quatre représentants supplémentaires, lorsqu'elles emploient dans la collectivité de cinq cents à mille neuf cent quatre-vingt-dix-neuf salariés ;
5° De cinq représentants supplémentaires, lorsqu'elles emploient dans la collectivité deux mille salariés ou plus.
III. - Toutefois, les personnes physiques énumérées aux a et b du 1° du I dont le conjoint bénéficie des dispositions du c du 1° du même paragraphe ne désignent aucun représentant supplémentaire si elles emploient moins de cinquante salariés dans la collectivité.
IV. - Les sociétés en nom collectif et les sociétés en commandite désignent par délibération expresse conformément aux dispositions statutaires un représentant unique au titre des associés et de la société, sans préjudice de la possibilité de désigner des représentants supplémentaires en application du II ci-dessus."
Article L937-5
L'article L. 723-2 est ainsi rédigé :
"Art. L. 723-2. - I. - Les représentants mentionnés à l'article L. 723-1 applicable en Nouvelle-Calédonie doivent exercer dans l'entreprise soit des fonctions de président-directeur général, de président ou de membre du conseil d'administration, de directeur général, de président ou de membre du directoire, de président du conseil de surveillance, de gérant, de président ou de membre du conseil d'administration ou de directeur d'un établissement public à caractère industriel et commercial, soit, à défaut et pour les représenter à titre de mandataire, des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
II. - Les électeurs à titre personnel mentionnés au 1° du I du même article et les représentants des personnes physiques ou morales mentionnées au 2° du I de cet article doivent être ressortissants d'un Etat membre de la Communauté européenne.
Ils doivent, en outre, pour prendre part au vote :
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1° Remplir les conditions fixées à l'article L. 2 du code électoral, à l'exception de la nationalité ;
2° Ne pas avoir fait l'objet de l'interdiction visée à l'article L. 6 du code électoral ;
3° N'avoir pas été frappés depuis moins de quinze ans à compter du jour où la décision les ayant prononcées est devenue définitive de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance telles que prévues au livre VI du présent code ou à la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou à la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ;
4° Ne pas être frappé d'une peine d'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour son propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale ;
5° Ne pas avoir été condamnés à des peines, déchéances ou sanctions prononcées en vertu de législations en vigueur dans les Etats membres de la Communauté européenne équivalentes à celles visées aux 2°, 3° et 4°."
Article L937-6
Pour l'application de l'article L. 723-3, les mots : "le juge commis à la surveillance du registre du commerce et des sociétés. En cas de création d'un tribunal de commerce, le premier président de la cour d'appel désigne comme président de la commission un magistrat de l'ordre judiciaire" sont remplacés par les mots : "un magistrat de l'ordre judiciaire désigné par le premier président de la cour d'appel".
Article L937-7
L'article L. 723-4 est ainsi rédigé :
"Art. L. 723-4. - Sous réserve des dispositions de l'article L. 937-9, sont éligibles aux fonctions de juge d'un tribunal mixte de commerce les personnes âgées de trente ans au moins inscrites sur la liste électorale dressée en application de l'article L. 937-6 et justifiant soit d'une immatriculation en Nouvelle-Calédonie depuis cinq ans au moins au registre du commerce et des sociétés, soit, pendant le même délai, de l'exercice de l'une des qualités énumérées au I de l'article L. 723-2 applicable en Nouvelle-Calédonie."
Article L937-8
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L'article L. 723-5 est ainsi rédigé :
"Art. L. 723-5. - Est inéligible aux fonctions de juge d'un tribunal mixte de commerce tout candidat à l'égard duquel est ouverte une procédure de sauvegarde, redressement ou de liquidation judiciaires. La même disposition s'applique à tout candidat ayant une des qualités mentionnées au I de l'article L. 723-2 applicable en Nouvelle-Calédonie, lorsque la société ou l'établissement public auquel il appartient fait l'objet d'une procédure de sauvegarde, redressement ou de liquidation judiciaires."
Article L937-9
Le premier alinéa de l'article L. 723-7 est ainsi rédigé :
"Après douze années de fonctions judiciaires ininterrompues dans un même tribunal mixte de commerce, les juges des tribunaux mixtes de commerce ne sont plus éligibles dans ce tribunal pendant un an."
Article L937-10
Pour l'application de l'article L. 723-8, les mots : "membre d'un conseil de prud'hommes" sont remplacés par les mots : "assesseur d'un tribunal du travail".
Article L937-11
Pour l'application de l'article L. 723-9, les mots : "par correspondance ou par voie électronique." sont remplacés par les mots : "par procuration ou par correspondance dans des conditions fixées par décret en Conseil d'Etat. Chaque électeur ne peut disposer que d'une procuration."
Article L937-12
Pour l'application du premier alinéa de l'article L. 723-10, les mots : "deux tours" sont remplacés par les mots : "un tour", et il est ajouté à la fin de l'alinéa la phrase suivante : "Si plusieurs candidats obtiennent le même nombre de voix, le plus âgé est proclamé élu."
Article L937-13
Pour l'application de la section 3 du chapitre III du titre II du livre VII, les dispositions suivantes sont ajoutées :
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"I. - A la liste des candidats déclarés élus, la commission prévue par l'article L. 723-13 annexe une liste complémentaire comprenant les nom, qualité et domicile des candidats non élus. Ces candidats sont classés dans l'ordre décroissant du nombre de voix qu'ils ont obtenues. A égalité de voix, ils sont classés dans l'ordre décroissant de leur âge.
Les candidats figurant sur la liste complémentaire dressée en application du premier alinéa du présent article sont appelés à remplacer les juges dont le siège deviendrait vacant pour quelque cause que ce soit. Ils sont désignés, en suivant l'ordre de la liste complémentaire, par le président du tribunal mixte de commerce. Avant d'entrer en fonctions, ils prêtent serment dans les conditions prévues pour les juges des tribunaux mixtes de commerce.
II. - Si les sièges vacants ne peuvent être pourvus en application du I et si le nombre des vacances dépasse le tiers des effectifs du tribunal, il est procédé à des élections complémentaires.
Il en est de même en cas d'augmentation des effectifs d'un tribunal mixte de commerce.
Toutefois, il n'y a pas lieu de procéder à des élections complémentaires dans les douze mois précédant l'élection générale.
III. - Le mandat des juges désignés ou élus en application des I et II prend fin en même temps que celui des autres juges des tribunaux mixtes de commerce."
Chapitre VIII : Dispositions d'adaptation du livre VIII.
Article L938-1
Pour l'application en Nouvelle-Calédonie des articles L. 822-2 à L. 822-7, les termes énumérés ci-après sont remplacés ainsi qu'il suit :
1° "commission régionale d'inscription" par "commission territoriale d'inscription" ;
2° "chambre régionale des comptes" par "chambre territoriale des comptes" ;
3° "chambre régionale de discipline" par "chambre territoriale de discipline".
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Partie législative
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE IV : Dispositions applicables en Polynésie française.
Article L940-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du présent code sont applicables dans le territoire de la Polynésie française :
1° Le livre I, à l'exception des articles L. 124-1 à L. 126-1, L. 145-34 à L. 145-36, L. 145-38 et L. 145-39 ;
2° Le livre II, à l'exception des articles L. 225-219 à L. 225-223, L. 252-1 à L. 252-13 ;
3° Le livre III, à l'exception des articles L. 310-4, L. 321-1 à L. 321-38, L. 322-7 et L. 322-10 ;
4° Le livre V, à l'exception des articles L. 522-1 à L. 522-40, L. 524-12, L. 524-20 et L. 524-21 ;
5° Le livre VI, à l'exception des articles L. 622-19, L. 625-9 et L. 670-1 à L. 670-8 ;
6° Le titre II du livre VII, à l'exception des articles L. 722-3, L. 722-11 à L. 722-13, de l'article L. 723-6, du deuxième alinéa de l'article L. 723-7, du deuxième alinéa de l'article L. 723-10 et de l'article L. 723-11.
Les dispositions qui précèdent, a l'exception de celles du 6° et de l'article L. 610-1, sont celles en vigueur à la date de la publication de la loi organique n° 2004-192 du 27 février 2004 portant statut d'autonomie de la Polynésie française. Elles ne peuvent être modifiées que dans les conditions prévues à l'article 11 de cette loi organique.
Article L940-2
Pour l'application du présent code en Polynésie française, les termes énumérés ci-après sont remplacés comme suit :
1° " Tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
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2° " Tribunal de commerce " ou " justice consulaire " par " tribunal mixte de commerce " ;
3° " Conseil de prud'hommes " par " tribunal du travail " ;
4° " Bulletin officiel des annonces civiles et commerciales " par " Journal officiel de la Polynésie française " ;
5° " Département " ou " arrondissement " par " territoire de la Polynésie française " ;
6° " Préfet " ou " sous-préfet " par " représentant de l'Etat dans le territoire ".
Article L940-3
Les références faites, par des dispositions du présent code applicables en Polynésie française, à d'autres articles du présent code ne concernent que les articles rendus applicables en Polynésie française avec les adaptations prévues dans les chapitres ci-dessous.
Article L940-4
En l'absence d'adaptation, les références faites, par des dispositions du présent code applicables en Polynésie française, à des dispositions qui n'y sont pas applicables sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article L940-5
Les références faites, par des dispositions du présent code applicables en Polynésie française, à des dispositions du code du travail n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article L940-6
Les renvois faits, par des dispositions du présent code applicables en Polynésie française, à des dispositions de nature réglementaire sont remplacés par des renvois à des délibérations de l'autorité compétente de la Polynésie française, sous réserve des dispositions prévues dans les chapitres ci-après.
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Article L940-7
Les références à l'immatriculation au répertoire des métiers sont remplacées par les références à l'immatriculation faite conformément à la réglementation applicable en Polynésie française.
Article L940-8
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 136 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
Article L941-1
Par dérogation à l'article L. 940-6, le renvoi à des dispositions de nature réglementaire mentionné à l'article L. 143-23 est maintenu en ce qu'il concerne l'Institut national de la propriété industrielle.
Article L941-2
A l'article L. 122-1, les mots : " le préfet du département où l'étranger doit exercer son activité " sont remplacés par les mots : " le conseil des ministres de la Polynésie française ".
Article L941-3
Les dérogations prévues par les articles L. 123-25 à L. 123-27 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur en Polynésie française.
Article L941-4
Pour l'application de l'article L. 133-6 :
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I.-Les mots : " celles qui naissent des dispositions de l'article 1269 du code de procédure civile " sont remplacés par les mots : les demandes en révision de compte et en liquidation des fruits présentées en vue d'un redressement en cas d'erreur, d'omission ou de présentation inexacte ".
II.-Les dispositions du dernier alinéa sont applicables dans le cas de transport fait pour le compte de la Polynésie française.
Article L941-5
A l'article L. 133-7, les mots : " les droits, taxes, frais et amendes de douane liés à une opération de transport " sont supprimés.
Article L941-6
Pour l'application des articles L. 141-15, L. 143-7, L. 144-1 à L. 144-13 et L. 145-28, un magistrat du tribunal de première instance peut être délégué par le président.
Article L941-7
A l'article L. 141-13, les mots : " par les articles 638 et 653 du code général des impôts " sont remplacés par les mots :
" par les dispositions du code des impôts applicable en Polynésie française ".
Article L941-8
A l'article L. 144-5, les mots : " les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique " sont remplacés par les mots : " les articles du code de la santé publique applicable dans le territoire relatifs à l'hospitalisation ou à l'internement avec ou sans le consentement de l'intéressé ".
Article L941-9
L'article L. 144-11 est ainsi rédigé :
" Art. L. 144-11. - Si, conformément à la réglementation territoriale, le contrat de location-gérance est assorti d'une clause d'échelle mobile, la révision du loyer peut, nonobstant toute convention
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contraire, être demandée selon les conditions fixées par une délibération de l'assemblée de la Polynésie française lorsque, par le jeu de cette clause, ce loyer se trouve augmenté ou diminué de plus du quart par rapport au prix précédemment fixé, contractuellement ou judiciairement. "
Article L941-10
L'article L. 144-12 est ainsi rédigé :
" Art. L. 144-12. - A défaut d'accord amiable entre les parties sur la révision du loyer, l'instance est introduite et jugée conformément aux dispositions prévues en matière de révision du prix des baux à loyer d'immeubles ou de locaux à usage commercial ou industriel.
Le juge doit, en tenant compte de tous les éléments d'appréciation, adapter le jeu de l'échelle mobile à la valeur locative équitable au jour de la notification. Le nouveau prix est applicable à partir de cette même date, à moins que les parties ne se soient mises d'accord avant ou pendant l'instance sur une date plus ancienne ou plus récente. "
Article L941-11
L'article L. 145-2 est modifié ainsi qu'il suit :
I. - Au 4°, les mots : " à l'Etat, aux départements, aux communes, aux établissements publics " sont remplacées par les mots : " à l'Etat, aux collectivités territoriales et aux établissements publics " ;
II. - Au 6°, les mots : " à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 71 de l'annexe III du code général des impôts " sont remplacées par les mots : " à la caisse locale d'assurance sociale et reconnus auteurs d'oeuvres graphiques et plastiques au sens du code des impôts applicable dans le territoire ".
Article L941-12
Pour l'application de l'article L. 145-6, les mots : "l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme" sont remplacés par les mots : "l'évacuation des lieux prévue à l'article L. 145-18".
Article L941-13
A l'article L. 145-13, les mots : " sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme " sont supprimés.
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Article L941-14
Le deuxième alinéa de l'article L. 145-18 est ainsi rédigé :
" Il en est de même pour effectuer des opérations de restauration immobilière comportant des travaux de remise en état, de conservation, de modernisation ou de démolition ayant pour conséquence la transformation des conditions d'habitabilité d'un ensemble d'immeubles nécessitant l'évacuation des lieux. Ces opérations peuvent être décidées et exécutées dans le respect de la réglementation locale, soit par les autorités publiques localement compétentes, soit à l'initiative d'un ou de plusieurs propriétaires, groupés ou non en association syndicale. Dans ce dernier cas, ce ou ces propriétaires y sont spécialement autorisés dans des conditions fixées par les autorités territoriales compétentes, qui précisent notamment les engagements exigés des propriétaires quant à la nature et à l'importance des travaux. Les immeubles acquis par un organisme de rénovation ne peuvent, après restauration, être cédés de gré à gré qu'aux conditions d'un cahier des charges type approuvé par lesdites autorités. "
Article L941-15
A l'article L. 145-26, les mots : " aux départements " sont remplacés par les mots : " à la Polynésie française ".
Article L941-16
L'article L. 145-37 est ainsi rédigé :
" Art. L. 145-37. - Les loyers des baux d'immeubles ou de locaux régis par le présent chapitre, renouvelés ou non, peuvent être révisés à la demande de l'une ou de l'autre des parties, dans les conditions prévues par délibération de l'assemblée de la Polynésie française. "
Article L941-17
L'article L. 145-43 est ainsi rédigé :
" Art. L. 145-43. - Sont dispensés de l'obligation d'exploiter pendant la durée de leur stage les commerçants et artisans, locataires du local dans lequel est situé leur fonds, qui sont admis à suivre un stage de conversion ou un stage de promotion conformément aux dispositions du code du travail applicable en Polynésie française. "
Article L941-18
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Le troisième alinéa de l'article L. 145-47 est supprimé.
Article L941-19
A l'article L. 145-56, les mots : " et de procédure " sont supprimés.
Chapitre II : Dispositions d'adaptation du livre II.
Article L942-1
Par dérogation à l'article L. 940-6, les renvois à des décrets mentionnés aux articles L. 225-35 et L. 225-68 sont maintenus.
Article L942-2
Pour l'application du livre II, les commissaires aux comptes et leurs suppléants sont choisis et exercent leurs fonctions selon la réglementation en vigueur en Polynésie française.
Article L942-3
Les 4° et 5° du III de l'article L. 225-21 sont supprimés.
Article L942-4
Aux articles L. 225-25 et L. 225-72, la référence aux articles 20 et 21 de la loi n° 88-1201 du 23 décembre 1988 relative aux organismes de placement collectif en valeurs mobilières et portant création des fonds communs de créances est supprimée.
Article L942-5
Aux articles L. 225-36 et L. 225-65, les mots : " dans le même département ou un département limitrophe " sont remplacés par les mots : " en Polynésie française ".
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Article L942-6
Le dernier alinéa de l'article L. 225-43 et celui de l'article L. 225-91 sont supprimés.
Article L942-7
Le 4° du IV de l'article L. 225-67 et le 4° du III de l'article L. 225-77 sont supprimés.
Article L942-8
Le 5° de l'article L. 225-115 est ainsi rédigé :
" 5° Du montant global, certifié par les commissaires aux comptes, des déductions du montant des bénéfices imposables de sociétés qui procèdent à des versements à des oeuvres d'organismes d'intérêt général ou de sociétés agréées ou à des donations d'oeuvres d'art à l'Etat ou à la Polynésie française, telles que prévues par les dispositions de droit fiscal applicables en Polynésie française, ainsi que la liste des actions nominatives de parrainage, de mécénat. "
Article L942-9
A l'article L. 823-6, après les mots : " le comité d'entreprise ", sont ajoutés les mots : " ou à défaut les délégués du personnel ".
Article L942-10
Aux articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 et L. 234-2, aux mots : " au comité d'entreprise ", sont ajoutés les mots :
" ou à défaut aux délégués du personnel ".
Article L942-11
Le deuxième alinéa de l'article L. 823-18 est supprimé.
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Article L942-12
Au VI de l'article L. 225-270, les mots : " les dispositions de l'article 94 A du code général des impôts " sont remplacés par les mots : " les dispositions du code des impôts applicable dans le territoire relatives aux gains nets en capital réalisés à l'occasion de la cession à titre onéreux de valeurs mobilières et de droits sociaux ".
Article L942-13
Le dernier alinéa de l'article L. 228-36 est supprimé.
Article L942-14
A l'article L. 233-24, les mots : " ou du VII de l'article 97 " sont supprimés.
Article L942-15
Le deuxième alinéa de l'article L. 251-7 est supprimé.
Chapitre III : Dispositions d'adaptation du livre III.
Article L943-1
Les deuxième et troisième alinéas de l'article L. 310-1 sont supprimés.
Article L943-2
Le deuxième alinéa du I et le II de l'article L. 310-2 sont supprimés.
Article L943-3
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Le deuxième alinéa du I de l'article L. 310-3 est supprimé.
Article L943-4
Les 1°, 2° et 3° de l'article L. 310-5 sont supprimés.
Article L943-5
A l'article L. 322-1, les mots : " aux articles 53 de la loi n° 91-650 du 9 juillet 1991 relative à la réforme des procédures d'exécution et 945 du code de procédure civile " sont remplacés par les mots : " aux dispositions de procédure civile applicables localement et relatives à la vente de meubles dépendant d'une succession ".
Article L943-6
L'article L. 322-11 est ainsi rédigé :
" Art. L. 322-11. - Les contestations relatives aux ventes réalisées en application des délibérations en vigueur localement relatives à la vente volontaire, aux enchères, en gros, des marchandises par les courtiers assermentés sont portées devant le tribunal mixte de commerce. "
Article L943-7
L'article L. 322-15 est ainsi rédigé :
" Art. L. 322-15. - Il appartient toujours au tribunal ou au juge qui autorise ou ordonne la vente en vertu de l'article précédent, de désigner éventuellement, pour y procéder, une autre classe d'officiers publics que les courtiers assermentés. "
Article L943-8
L'article L. 322-16 est ainsi rédigé :
" Art. L. 322-16. - Les dispositions de l'article L. 322-11 sont applicables aux ventes visées aux articles L. 322-14 et L. 322-15. "
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Chapitre IV : Dispositions d'adaptation du livre IV.
Article L941-2-1
Pour son application en Polynésie française, l'article L. 123-11-5 du code de commerce est complété par un alinéa ainsi rédigé : Les agents des douanes sont qualifiés pour procéder à la recherche et à la constatation des infractions aux dispositions de ce dernier chapitre et des règlements pris pour son application par les personnes ou les organismes exerçant une activité de domiciliation, telle que définie par la réglementation applicable localement.A cet effet, ils agissent, conformément aux règles de recherche et de constatation des infractions déterminées par le code des douanes. Les infractions sont constatées par des procès-verbaux faisant foi jusqu'à preuve du contraire et transmis directement au parquet.
Chapitre V : Dispositions d'adaptation du livre V.
Article L945-1
Par dérogation à l'article L. 940-6, les renvois à des dispositions de nature réglementaire mentionnés aux articles L. 523-14 et L. 524-19 sont maintenus.
Article L945-2
A l'article L. 511-55, le mot " destitution " est supprimé.
Article L945-3
L'article L. 511-60 est ainsi rédigé :
" Art. L. 511-60. - Les modalités d'application des dispositions de la présente sous-section sont fixées par délibération de l'autorité territoriale compétente. "
Article L945-4
A l'article L. 511-61, les mots : " ou des collectivités territoriales " sont remplacés par les mots : " ou des communes ou de la Polynésie française ".
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Article L945-5
Le deuxième alinéa de l'article L. 511-62 est ainsi rédigé :
" La retraite comprend les sommes indiquées dans les articles L. 511-45 et L. 511-46, outre les droits de courtage et de timbre éventuellement prévus par les dispositions applicables en Polynésie française. "
Article L945-6
Aux articles L. 523-8 et L. 524-6, les mots : " articles 1426 à 1429 du code de procédure civile " sont remplacés par les mots : " dispositions de procédure civile applicables localement relatives aux offres de payement et à la consignation ".
Article L945-7
Au premier alinéa de l'article L. 525-2, après les mots : " au droit fixe " sont ajoutés les mots : " selon les modalités en vigueur en Polynésie française ".
Article L945-8
Au II de l'article L. 525-9, les mots : " au privilège visé à l'article L. 243-4 du code de la sécurité sociale " sont remplacés par les mots : " au privilège organisé en faveur de la caisse de prévoyance sociale du territoire. "
Article L945-9
L'article L. 525-18 est modifié ainsi qu'il suit :
I. - Au 1°, la référence au décret n° 53-968 du 30 septembre 1953 est remplacée par la référence au décret n° 55-639 du 20 mai 1955 ;
II. - Le 2° est ainsi rédigé :
" 2° Les navires de mer ainsi que les bateaux de navigation fluviale. "
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Chapitre VI : Dispositions d'adaptation du livre VI.
Article L946-1
Par dérogation à l'article L. 940-6, le renvoi à des dispositions de nature réglementaire mentionné à l'article L. 621-5 est maintenu.
Article L946-2
L'article L. 611-1 est modifié ainsi qu'il suit :
I.-Au premier alinéa, l'arrêté du représentant de l'Etat dans la région est remplacé par une décision du gouvernement de Polynésie française.
" II.-Au quatrième alinéa, les mots : " notamment en application des articles 5, 48 et 66 de la loi n° 82-213 du 2 mars 1982 modifiée relative aux droits et libertés des communes, des départements et des régions " sont supprimés.
Article L946-3
Pour l'application de l'article L. 612-1, les commissaires aux comptes et leurs suppléants sont choisis et exercent leurs fonctions selon la réglementation en vigueur localement.
Article L946-4
Le troisième alinéa de l'article L. 612-1 est supprimé.
Article L946-5
A l'article L. 612-2, après les mots : " au comité d'entreprise " sont ajoutés les mots : " ou, à défaut, aux délégués du personnel ".
Article L946-6
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A l'article L. 621-2, les mots : " dans chaque département " sont remplacés par les mots : " en Polynésie française ".
Article L946-7
A l'article L. 625-2, les mots : " mentionnée à l'article L. 432-7 du code du travail " sont remplacés par les mots : " à l'égard des informations présentant un caractère confidentiel et données comme telles ".
Article L946-8
Pour l'application de l'article L. 622-24, les organismes visés à l'article L. 351-21 du code du travail sont les organismes territoriaux ayant en charge le service de l'allocation d'assurance chômage et le recouvrement des contributions.
Article L946-9
Pour l'application des articles L. 622-24, L. 626-20, L. 625-3, L. 625-4 et L. 662-4, les institutions mentionnées à l'article L. 143-11-4 du code du travail sont les institutions territoriales chargées de la mise en oeuvre du régime d'assurance contre le risque de non-paiement des salaires, en cas de procédure de redressement ou de liquidation judiciaires.
Article L946-10
Pour l'application de l'article L. 621-60, les institutions régies par le livre IX du code de la sécurité sociale sont les institutions territoriales de retraite complémentaire ou supplémentaire ou de prévoyance, prévues par les dispositions applicables dans la collectivité et relatives aux régimes de sécurité et de protection sociales.
Article L946-11
A l'article L. 626-14, la référence à l'article 28 du décret n° 55-22 du 4 janvier 1955 portant réforme de la publicité foncière est remplacée par la référence aux dispositions applicables dans le territoire et relatives à la publicité des droits sur les immeubles autres que les privilèges et hypothèques.
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Article L946-12
A l'article L. 621-84, l'obligation faite au tribunal de tenir compte des dispositions contenues aux 1°, 2°, 3° et 4° de l'article L. 331-7 du code rural s'entend des prescriptions suivantes :
" Observer l'ordre des priorités établi entre l'installation des jeunes agriculteurs et l'agrandissement des exploitations, en tenant compte de l'intérêt économique et social du maintien de l'autonomie de l'exploitation faisant l'objet de la demande ;
Tenir compte, en cas d'agrandissement ou de réunion d'exploitations, des possibilités d'installation sur une exploitation viable, de la situation des terres concernées par rapport au siège de l'exploitation du ou des demandeurs, de la superficie des biens faisant l'objet de la demande et des superficies déjà mises en valeur par le ou les demandeurs, ainsi que par le preneur en place ;
Prendre en considération la situation personnelle du ou des demandeurs : âge, situation familiale et professionnelle et, le cas échéant, celle du preneur en place, ainsi que le nombre et la nature des emplois salariés en cause ;
Tenir compte de la structure parcellaire des exploitations concernées, soit par rapport au siège de l'exploitation, soit pour éviter que des mutations en jouissance ne remettent en cause des aménagements obtenus à l'aide de fonds publics. "
Article L946-13
Le premier alinéa de l'article L. 622-2 est complété par une phrase ainsi rédigée :
"Il peut lui être adjoint dans les mêmes conditions un ou plusieurs liquidateurs. "
Chapitre VII : Dispositions d'adaptation du livre VII.
Article L947-1
Le premier alinéa de l'article L. 721-1 est ainsi rédigé :
"Le tribunal mixte de commerce est composé du président du tribunal de première instance, président, de juges élus, sous réserve des dispositions de l'article L. 947-13, et d'un greffier.
Ce tribunal exerce les compétences dévolues en métropole au tribunal de commerce."
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Article L947-2
L'article L. 722-1 est ainsi rédigé :
"Art. L. 722-1. - Les jugements des tribunaux mixtes de commerce sont rendus, sauf dispositions qui prévoient un juge unique, par une formation comprenant, outre le président, trois juges élus ou désignés dans les conditions prévues à l'article L. 947-13. En cas de partage égal des voix, celle du président est prépondérante."
Article L947-3
Le premier alinéa de l'article L. 722-7 est ainsi rédigé :
"Les juges des tribunaux mixtes de commerce sont élus pour quatre ans. Ils sont rééligibles."
Article L947-4
L'article L. 723-1 est ainsi rédigé :
"Art. L. 723-1. - I. - Les juges des tribunaux mixtes de commerce sont élus dans le ressort de chacune de ces juridictions par un collège composé :
1° D'électeurs à titre personnel :
a) Les commerçants immatriculés en Polynésie française au registre du commerce et des sociétés, sous réserve, pour les associés en nom collectif et les associés commandités, des dispositions du IV du présent article ;
b) Les chefs d'entreprise immatriculés en Polynésie française conformément à la réglementation applicable à cette collectivité au registre du commerce et des sociétés ;
c) Les conjoints des personnes énumérées au a ou au b ci-dessus ayant déclaré au registre du commerce et des sociétés qu'ils collaborent à l'activité de leur époux sans autre activité professionnelle ;
d) Les capitaines au long cours ou capitaines de la marine marchande exerçant le commandement d'un navire immatriculé en France dont le port d'attache est situé dans la circonscription, les pilotes maritimes exerçant leurs fonctions dans un port situé dans la circonscription, les pilotes de l'aéronautique civile domiciliés dans la circonscription et exerçant le commandement d'un aéronef immatriculé en France ;
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e) Les membres en exercice des tribunaux mixtes de commerce, ainsi que les anciens membres de ces tribunaux ayant demandé à être inscrits sur la liste électorale ;
2° D'électeurs inscrits en qualité de représentant :
a) Les sociétés à caractère commercial au sens de l'article L. 210-1 et les établissements publics à caractère industriel et commercial dont le siège social est situé dans la circonscription ;
b) Au titre d'un établissement faisant l'objet dans la circonscription d'une inscription complémentaire ou d'une immatriculation secondaire, à moins qu'il en soit dispensé par les lois et règlements en vigueur, les personnes physiques mentionnées aux a et b du 1° et les personnes morales mentionnées au a du présent 2°, quelle que soit la circonscription où ces personnes exercent leur propre droit de vote ;
c) Les sociétés à caractère commercial dont le siège est situé hors du territoire national et qui disposent dans la circonscription d'un établissement immatriculé au registre du commerce et des sociétés ;
3° Les cadres qui, employés dans la circonscription par les électeurs mentionnés aux 1° ou 2°, exercent des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
II. - Au titre de leur siège social et de l'ensemble de leurs établissements situés dans la collectivité, les personnes physiques ou morales mentionnées aux 1° et 2° du I disposent :
1° D'un représentant supplémentaire, lorsqu'elles emploient dans la collectivité de dix à quarante-neuf salariés ;
2° De deux représentants supplémentaires, lorsqu'elles emploient dans la collectivité de cinquante à cent quatre-vingt-dix-neuf salariés ;
3° De trois représentants supplémentaires, lorsqu'elles emploient dans la collectivité de deux cents à quatre cent quatre-vingt-dix-neuf salariés ;
4° De quatre représentants supplémentaires, lorsqu'elles emploient dans la collectivité de cinq cents à mille neuf cent quatre-vingt-dix-neuf salariés ;
5° De cinq représentants supplémentaires, lorsqu'elles emploient dans la collectivité deux mille salariés ou plus.
III. - Toutefois, les personnes physiques énumérées aux a et b du 1° du I dont le conjoint bénéficie des dispositions du c du 1° du même paragraphe ne désignent aucun représentant supplémentaire si elles emploient moins de cinquante salariés dans la collectivité.
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IV. - Les sociétés en nom collectif et les sociétés en commandite désignent par délibération expresse conformément aux dispositions statutaires un représentant unique au titre des associés et de la société, sans préjudice de la possibilité de désigner des représentants supplémentaires en application du II ci-dessus."
Article L947-5
L'article L. 723-2 est ainsi rédigé :
"Art. L. 723-2. - I. - Les représentants mentionnés à l'article L. 723-1 applicable en Polynésie française doivent exercer dans l'entreprise soit des fonctions de président-directeur général, de président ou de membre du conseil d'administration, de directeur général, de président ou de membre du directoire, de président du conseil de surveillance, de gérant, de président ou de membre du conseil d'administration ou de directeur d'un établissement public à caractère industriel et commercial, soit, à défaut et pour les représenter à titre de mandataire, des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
II. - Les électeurs à titre personnel mentionnés au I du même article et les représentants des personnes physiques ou morales mentionnées au 2° du I de cet article doivent être ressortissants d'un Etat membre de la Communauté européenne.
Ils doivent, en outre, pour prendre part au vote :
1° Remplir les conditions fixées à l'article L. 2 du code électoral, à l'exception de la nationalité ;
2° Ne pas avoir fait l'objet de l'interdiction visée à l'article L. 6 du code électoral ;
3° N'avoir pas été frappés de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance telles que prévues au livre VI du présent code dans sa rédaction applicable conformément au dernier alinéa de l'article L. 940-1 ou à la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou à la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ou d'une mesure d'interdiction d'exercer une activité commerciale ;
4° Ne pas avoir été condamnés à des peines, déchéances ou sanctions prononcées en vertu de législations en vigueur dans les Etats membres de la Communauté européenne équivalentes à celles visées aux 2° et 3°."
Article L947-6
Pour l'application de l'article L. 723-3, les mots : "le juge commis à la surveillance du registre du commerce et des sociétés. En cas de création d'un tribunal de commerce, le premier président de la
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cour d'appel désigne comme président de la commission un magistrat de l'ordre judiciaire" sont remplacés par les mots : "un magistrat de l'ordre judiciaire désigné par le premier président de la cour d'appel".
Article L947-7
L'article L. 723-4 est ainsi rédigé :
"Art. L. 723-4. - Sous réserve des dispositions de l'article L. 947-9, sont éligibles aux fonctions de juge d'un tribunal mixte de commerce les personnes âgées de trente ans au moins inscrites sur la liste électorale dressée en application de l'article L. 947-6 et justifiant soit d'une immatriculation depuis cinq ans au moins au registre du commerce et des sociétés, soit, pendant le même délai, de l'exercice de l'une des qualités énumérées au I de l'article L. 723-2 dans sa rédaction applicable en Polynésie française."
Article L947-8
L'article L. 723-5 est ainsi rédigé :
"Art. L. 723-5. - Est inéligible aux fonctions de juge d'un tribunal mixte de commerce tout candidat à l'égard duquel est ouverte une procédure de redressement ou de liquidation judiciaires. La même disposition s'applique à tout candidat ayant une des qualités mentionnées au I de l'article L. 723-2 dans sa rédaction applicable en Polynésie française, lorsque la société ou l'établissement public auquel il appartient fait l'objet d'une procédure de redressement ou de liquidation judiciaires."
Article L947-9
Le premier alinéa de l'article L. 723-7 est ainsi rédigé :
"Après douze années de fonctions judiciaires ininterrompues dans un même tribunal mixte de commerce, les juges des tribunaux mixtes de commerce ne sont plus éligibles dans ce tribunal pendant un an."
Article L947-10
Pour l'application de l'article L. 723-8, les mots : "membre d'un conseil de prud'hommes" sont remplacés par les mots : "assesseur d'un tribunal du travail".
Article L947-11
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Pour l'application de l'article L. 723-9, les mots : "par correspondance ou par voie électronique." sont remplacés par les mots : "par procuration ou par correspondance dans des conditions fixées par décret en Conseil d'Etat. Chaque électeur ne peut disposer que d'une procuration."
Article L947-12
Pour l'application du premier alinéa de l'article L. 723-10, les mots : "deux tours" sont remplacés par les mots : "un tour", et il est ajouté à la fin de l'article la phrase suivante : "Si plusieurs candidats obtiennent le même nombre de voix, le plus âgé est proclamé élu".
Article L947-13
Pour l'application de la section 3 du chapitre III du titre II du livre VII, les dispositions suivantes sont ajoutées :
I. - A la liste des candidats déclarés élus, la commission prévue par l'article L. 723-13 annexe une liste complémentaire comprenant les nom, qualité et domicile des candidats non élus. Ces candidats sont classés dans l'ordre décroissant du nombre de voix qu'ils ont obtenues. A égalité de voix, ils sont classés dans l'ordre décroissant de leur âge.
Les candidats figurant sur la liste complémentaire dressée en application du premier alinéa du présent article sont appelés à remplacer les juges dont le siège deviendrait vacant pour quelque cause que ce soit. Ils sont désignés, en suivant l'ordre de la liste complémentaire, par le président du tribunal mixte de commerce. Avant d'entrer en fonctions, ils prêtent serment dans les conditions prévues pour les juges des tribunaux mixtes de commerce.
II. - Si les sièges vacants ne peuvent être pourvus en application du I et si le nombre des vacances dépasse le tiers des effectifs du tribunal, il est procédé à des élections complémentaires. Il en est de même en cas d'augmentation des effectifs d'un tribunal mixte de commerce.
Toutefois, il n'y a pas lieu de procéder à des élections complémentaires dans les douze mois précédant l'élection générale.
III. - Le mandat des juges désignés ou élus en application des I et II prend fin en même temps que celui des autres juges des tribunaux mixtes de commerce.
Chapitre VIII : Dispositions d'adaptation du livre VIII.
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Partie législative
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE V : Dispositions applicables dans les îles Wallis et Futuna.
Article L950-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du présent code sont applicables dans les îles Wallis et Futuna :
1° Le livre Ier, à l'exception des articles L. 123-1-1, L. 123-29 à L. 123-31, L. 124-1 à L. 126-1, L. 135-1 à L. 135-3 ;
2° Le livre II, à l'exception des articles L. 225-245-1, L. 229-1 à L. 229-15, L. 238-6, L. 244-5 et L. 252-1 à L. 252-13 ;
3° Le livre III, à l'exception des articles L. 321-1 à L. 321-38 ;
4° Le livre IV, à l'exception des articles L. 441-1, L. 442-1 et L. 470-6 ;
5° Le livre V, à l'exception des articles L. 522-1 à L. 522-40, L. 524-12, L. 524-20 et L. 524-21 ;
6° Le livre VI, à l'exception des articles L. 622-19, L. 625-9, L. 653-10 et L. 670-1 à L. 670-8 ;
7° Le titre Ier du livre VII, à l'exception des articles L. 711-5 et L. 711-9 ; les articles L. 721-3 à L. 721-6 ;
8° Le livre VIII, à l'exception des articles L. 812-1 à L. 813-1.
Article L950-2
Pour l'application du présent code dans les îles Wallis et Futuna, les termes énumérés ci-après sont remplacés comme suit :
1° "Tribunal de grande instance" ou "tribunal d'instance" par "tribunal de première instance" ;
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2° "Tribunal de commerce" ou "justice consulaire" par "tribunal de première instance statuant en matière commerciale" ;
3° "Conseil de prud'hommes" par "tribunal du travail" ;
4° "Bulletin officiel des annonces civiles et commerciales" par "Journal officiel du territoire" ;
5° "Département" ou "arrondissement" par "territoire" ;
6° "Préfet" ou "sous-préfet" par "représentant de l'Etat dans le territoire" ;
7° "Maire" par "chef de circonscription".
Article L950-3
Les références faites, par des dispositions du présent code applicables dans les îles Wallis et Futuna, à d'autres articles du présent code, ne concernent que les articles rendus applicables dans les îles Wallis et Futuna avec les adaptations prévues dans les chapitres ci-dessous.
Article L950-4
En l'absence d'adaptation, les références faites par des dispositions du présent code applicables dans les îles Wallis et Futuna, à des dispositions qui n'y sont pas applicables, sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article L950-5
Les références faites par des dispositions du présent code applicables dans les îles Wallis et Futuna, à des dispositions du code du travail n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article L950-6
Les références à l'immatriculation au répertoire des métiers sont remplacées par les références à l'immatriculation faite conformément à la réglementation applicable dans les îles Wallis et Futuna.
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Article L950-7
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 136 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
Article L951-1
A l'article L. 122-1, les mots : " par le préfet du département où l'étranger doit exercer son activité " sont remplacés par les mots : " par le représentant de l'Etat dans le territoire dans le cas où l'étranger doit y exercer son activité ".
Article L951-1-1
A l'article L. 123-11-3, les références au code de la consommation et au code du travail sont remplacées par des références aux dispositions applicables localement ayant le même objet.
Article L951-1-2
Pour son application dans les îles Wallis et Futuna, l'article L. 123-11-6 est rédigé comme suit : Art.L. 123-11-6.-Les agents des douanes sont qualifiés pour procéder à la recherche et à la constatation des infractions aux dispositions des articles de la présente sous-section et des règlements pris pour leur application.A cet effet, ils agissent, conformément aux règles de recherche et de constatation des infractions déterminées par le code des douanes. Les infractions sont constatées par des procès-verbaux faisant foi jusqu'à preuve du contraire et transmis directement au parquet.
Article L951-2
Les dérogations prévues par les articles L. 123-25 à L. 123-27 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur localement.
Article L951-3
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A l'article L. 133-6, les mots : " celles qui naissent des dispositions de l'article 1269 du code de procédure civile " sont remplacés par les mots : " les demandes en révision de compte et en liquidation des fruits présentées en vue d'un redressement en cas d'erreur, d'omission ou de présentation inexacte ".
Article L951-4
Pour l'application des articles L. 141-15, L. 143-7, L. 144-1 à L. 144-13 et L. 145-28, un magistrat du tribunal de première instance peut être délégué par le président.
Article L951-5
A l'article L. 141-13, les mots : " par les articles 638 et 653 du code général des impôts " sont remplacés par les mots :
" par les dispositions du code des impôts applicable dans le territoire ".
Article L951-6
A l'article L. 144-5, les mots : " les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique " sont remplacés par les mots : " les articles du code de la santé publique applicable dans le territoire relatifs à l'hospitalisation et à l'internement avec ou sans le consentement de l'intéressé ".
Article L951-7
L'article L. 145-2 est modifié ainsi qu'il suit :
I.-abrogé ;
II.-Au 6°, les mots : " à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 71 de l'annexe III du code général des impôts " sont remplacés par les mots : " à la caisse locale d'assurance sociale et reconnus auteurs d'oeuvres graphiques et plastiques au sens du code des impôts applicable dans le territoire ".
Article L951-8
Pour l'application de l'article L. 145-6, les mots : "l'évacuation des lieux compris dans un secteur ou
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périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme" sont remplacés par les mots "l'évacuation des lieux prévue à l'article L. 145-18".
Article L951-9
A l'article L. 145-13, les mots " sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme " sont supprimés.
Article L951-10
Le deuxième alinéa de l'article L. 145-18 est ainsi rédigé :
" Il en est de même pour effectuer des opérations de restauration immobilière comportant des travaux de remise en état, de conservation, de modernisation ou de démolition ayant pour conséquence la transformation des conditions d'habitabilité d'un ensemble d'immeubles nécessitant l'évacuation des lieux. Ces opérations peuvent être décidées et exécutées dans le respect de la réglementation locale, soit par les autorités publiques localement compétentes, soit à l'initiative d'un ou de plusieurs propriétaires, groupés ou non en association syndicale. Dans ce dernier cas, ce ou ces propriétaires y sont spécialement autorisés dans des conditions fixées par le représentant de l'Etat, qui précisent notamment les engagements exigés des propriétaires quant à la nature et à l'importance des travaux. Les immeubles acquis par un organisme de rénovation ne peuvent, après restauration, être cédés de gré à gré qu'aux conditions d'un cahier des charges type approuvé par le représentant de l'Etat. "
Article L951-12
Le premier alinéa de l'article L. 145-34 est ainsi rédigé :
" A moins d'une modification notable des éléments mentionnés aux 1° à 4° de l'article L. 145-33, le taux de variation du loyer applicable lors de la prise d'effet du bail à renouveler, si sa durée n'est pas supérieure à neuf ans, ne peut excéder la variation d'un indice local trimestriel mesurant le coût de la construction intervenue depuis la fixation initiale du loyer du bail expiré. Cet indice est calculé dans des conditions déterminées par arrêté du représentant de l'Etat. A défaut de clause contractuelle fixant le trimestre de référence de cet indice, il y a lieu de prendre en compte une variation de l'indice local trimestriel mesurant le coût de la construction fixé à cet effet par l'arrêté précité. "
Article L951-13
L'article L. 145-35 est modifié ainsi qu'il suit :
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I. - Au premier alinéa, le mot : " départementale " est supprimé ;
II. - Le dernier alinéa est ainsi rédigé :
" La composition de la commission, le mode de désignation de ses membres et ses règles de fonctionnement sont fixés par arrêté du représentant de l'Etat. "
Article L951-14
L'article L. 145-43 est ainsi rédigé :
" Art. L. 145-43. - Sont dispensés de l'obligation d'exploiter pendant la durée de leur stage les commerçants et artisans, locataires du local dans lequel est situé leur fonds, qui sont admis à suivre un stage de conversion ou un stage de promotion conformément aux dispositions du code du travail applicable dans le territoire. "
Chapitre II : Dispositions d'adaptation du livre II.
Article L952-1
Aux articles L. 225-177, L. 225-179 et L. 233-11, les mots : "la date de publication de la loi n° 2001-420 du 15 mai 2001 relative aux nouvelles régulations économiques" sont remplacés par les mots : "la date de publication de l'ordonnance n° 2004-604 du 24 juin 2004 portant réforme du régime des valeurs mobilières émises par les sociétés commerciales et extension à l'outre-mer de dispositions ayant modifié la législation commerciale".
Article L952-2
Aux articles L. 223-18, L. 225-36 et L. 225-65, les mots : "dans le même département ou un département limitrophe" sont remplacés par les mots : "dans le territoire".
Article L952-4
Au 5° de l'article L. 225-115, les mots : "versements effectués en application des 1 et 4 de l'article 238 bis du code général des impôts" sont remplacés par les mots : "déductions fiscales prévues par les dispositions de droit fiscal applicables dans le territoire et relatives au total des déductions du montant des bénéfices imposables des sociétés qui procèdent à des versements au profit d'oeuvres d'organismes d'intérêt général, ou de sociétés agréées ou à des donations d'oeuvre d'art à l'Etat".
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Article L952-5
Aux articles L. 225-105, L. 823-6 et L. 225-231, les mots :
" le comité d'entreprise " sont remplacés par les mots :
" les délégués du personnel ".
Article L952-6
Aux articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 et L. 234-2, les mots : " au comité d'entreprise " sont remplacés par les mots : " aux délégués du personnel ".
Article L952-7
Au VI de l'article L. 225-270, les mots : " les dispositions de l'article 94 A du code général des impôts " sont remplacés par les mots : " les dispositions du code des impôts applicable dans le territoire relatives aux gains nets en capital réalisés à l'occasion de la cession à titre onéreux de valeurs mobilières et de droits sociaux ".
Article L952-8
Le dernier alinéa de l'article L. 228-36 est supprimé.
Article L952-9
A l'article L. 233-24, les mots : " ou du VII de l'article 97 " sont supprimés.
Article L952-10
Le deuxième alinéa de l'article L. 251-7 est supprimé.
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Chapitre III : Dispositions d'adaptation du livre III.
Article L953-1
Le III de l'article L. 310-2 et le 6° de l'article L. 310-5 sont supprimés.
Article L953-2
A l'article L. 322-1, les mots : "aux articles 53 de la loi n° 91-650 du 9 juillet 1991 relative à la réforme des procédures d'exécution et 945 du code de procédure civile" sont remplacés par les mots : "aux dispositions de procédure civile applicables dans le territoire relatives à la vente de meubles dépendant d'une succession".
Article L953-3
Le second alinéa de l'article L. 322-9 est ainsi rédigé :
"Ils se conforment aux dispositions prescrites par le code des impôts applicable dans le territoire relatives aux ventes publiques et par enchères."
Chapitre IV : Dispositions d'adaptation du livre IV.
Article L954-1
Au premier alinéa de l'article L. 430-2, le mot : "trois" est remplacé par le mot : "deux". Les quatrième et cinquième alinéas de cet article sont supprimés.
Article L954-2
A l'article L. 430-3, la dernière phrase du premier alinéa est supprimée. Au troisième alinéa du même article, les mots : ", ou le renvoi total ou partiel d'une opération de dimension communautaire," sont supprimés.
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Article L954-3
Le dernier alinéa de l'article L. 441-2 est remplacé par quatre alinéas ainsi rédigés :
" La cessation de la publicité, réalisée dans des conditions non conformes aux dispositions de l'alinéa 1, peut être ordonnée par le juge d'instruction ou par le tribunal saisi des poursuites, soit sur réquisition du ministère public, soit d'office. La mesure ainsi prise est exécutoire nonobstant toutes voies de recours.
Mainlevée peut en être donnée par la juridiction qui l'a ordonnée ou qui est saisie du dossier. La mesure cesse d'avoir effet en cas de décision de non-lieu ou de relaxe.
Les décisions statuant sur les demandes de mainlevée peuvent faire l'objet d'un recours devant la cour d'appel.
La cour d'appel statue dans un délai de dix jours à compter de la réception des pièces. "
Article L954-4
Au second alinéa de l'article L. 442-2, avant les mots :
" taxes sur le chiffre d'affaires ", est ajouté le mot :
" éventuelles ".
Article L954-5
Le dernier alinéa de l'article L. 442-3 est remplacé par quatre alinéas ainsi rédigés :
" La cessation de l'annonce publicitaire peut être ordonnée par le juge d'instruction ou par le tribunal saisi des poursuites, soit sur réquisition du ministère public, soit d'office. La mesure ainsi prise est exécutoire nonobstant toutes voies de recours.
Mainlevée peut en être donnée par la juridiction qui l'a ordonnée ou qui est saisie du dossier. La mesure cesse d'avoir effet en cas de décision de non-lieu ou de relaxe.
Les décisions statuant sur les demandes de mainlevée peuvent faire l'objet d'un recours devant la cour d'appel.
La cour d'appel statue dans un délai de dix jours à compter de la réception des pièces. "
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Article L954-6
A l'article L. 442-7, les mots : " ou coopérative d'entreprise ou d'administration " sont supprimés.
Article L954-7
L'article L. 443-1 est modifié ainsi qu'il suit :
I. - Au 1°, les mots : " visés aux articles L. 326-1 à L. 326-3 du code rural " sont remplacés par les mots : " prévus par les dispositions de droit rural applicables dans le territoire " ;
II. - Au 3°, les mots : " à l'article 403 du code général des impôts " sont remplacés par les mots : " par les dispositions du code des impôts applicable dans le territoire. "
III. - Le 4° est ainsi rédigé :
" 4° A soixante-quinze jours après le jour de livraison pour les achats de boissons alcooliques passibles des droits de circulation prévus par le code des impôts applicable dans le territoire ".
Chapitre V : Dispositions d'adaptation du livre V.
Article L955-1
A l'article L. 511-61, les mots : " ou des collectivités territoriales " sont remplacés par les mots : " ou des îles Wallis et Futuna ".
Article L955-2
Le deuxième alinéa de l'article L. 511-62 est ainsi rédigé :
" La retraite comprend les sommes indiquées dans les articles L. 511-45 et L. 511-46, outre les droits de courtage et de timbre éventuellement prévus par les dispositions du code des impôts applicable dans les îles Wallis et Futuna. "
Article L955-3
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Aux articles L. 523-8 et L. 524-6, les mots : " articles 1426 à 1429 du code de procédure civile " sont remplacés par les mots : " dispositions de procédure civile applicables localement relatives aux offres de payement et à la consignation ".
Article L955-4
Le premier alinéa de l'article L. 524-19 est ainsi rédigé :
" Le montant des droits à percevoir par le greffier du tribunal de première instance statuant en matière commerciale est fixé par décret. "
Article L955-5
Au premier alinéa de l'article L. 525-2, après les mots : " au droit fixe " sont ajoutés les mots : " selon les modalités en vigueur dans les îles Wallis et Futuna ".
Article L955-6
Au II de l'article L. 525-9, les mots : " au privilège visé à l'article L. 243-4 du code de la sécurité sociale " sont remplacés par les mots : " au privilège organisé en faveur de la caisse de prévoyance sociale du territoire ".
Article L955-7
L'article L. 525-18 est modifié ainsi qu'il suit :
I. - Au 1°, la référence au décret n° 53-968 du 30 septembre 1953 est remplacée par la référence au décret n° 55-639 du 20 mai 1955 ;
II. - Le 2° est ainsi rédigé :
" 2° Les navires de mer ainsi que les bateaux de navigation fluviale. "
Chapitre VI : Dispositions d'adaptation du livre VI.
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Article L956-1
Les mesures d'application prévues aux articles L. 621-4, L. 625-1, L. 626-3, L. 626-5 à L. 626-7, L. 626-14 et L. 626-16 sont fixées par l'assemblée territoriale.
Article L956-2
A l'article L. 625-2, les mots : " mentionnée à l'article L. 432-7 du code du travail " sont remplacés par les mots : " à l'égard des informations présentant un caractère confidentiel et données comme telles ".
Article L956-3
Pour l'application de l'article L. 622-24, les organismes visés à l'article L. 351-21 du code du travail sont les organismes locaux ayant en charge le service de l'allocation d'assurance chômage et le recouvrement des contributions.
Article L956-4
Pour l'application des articles L. 622-24, L. 622-26, L. 625-4, L. 626-5, L. 626-20, L. 631-18, L. 641-14 et L. 662-4, les institutions mentionnées à l'article L. 143-11-4 du code du travail sont les institutions locales chargées de la mise en oeuvre du régime d'assurance contre le risque de non-paiement des salaires, en cas de procédure de redressement ou de liquidation judiciaires.
Article L956-5
Pour l'application de l'article L. 611-7, L. 626-6 et L. 643-3, les institutions régies par le livre IX du code de la sécurité sociale sont les institutions locales de retraite complémentaire ou supplémentaire ou de prévoyance, prévues par les dispositions applicables dans les îles Wallis et Futuna et relatives aux régimes de sécurité et de protection sociales.
Article L956-7
A l'article L. 642-2, l'obligation faite au tribunal de tenir compte des dispositions contenues aux 1°, 2°, 3° et 4° de l'article L. 331-3 du code rural s'entend des prescriptions suivantes :
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Observer l'ordre des priorités établi entre l'installation des jeunes agriculteurs et l'agrandissement des exploitations, en tenant compte de l'intérêt économique et social du maintien de l'autonomie de l'exploitation faisant l'objet de la demande ;
Tenir compte, en cas d'agrandissement ou de réunion d'exploitations, des possibilités d'installation sur une exploitation viable, de la situation des terres concernées par rapport au siège de l'exploitation du ou des demandeurs, de la superficie des biens faisant l'objet de la demande et des superficies déjà mises en valeur par le ou les demandeurs, ainsi que par le preneur en place ;
Prendre en considération la situation personnelle du ou des demandeurs : âge, situation familiale et professionnelle et, le cas échéant, celle du preneur en place, ainsi que le nombre et la nature des emplois salariés en cause ;
Tenir compte de la structure parcellaire des exploitations concernées, soit par rapport au siège de l'exploitation, soit pour éviter que des mutations en jouissance ne remettent en cause des aménagements obtenus à l'aide de fonds publics.
Article L956-9
Le 4° du III de l'article L. 643-11 ne s'applique pas.
Chapitre VII : Dispositions d'adaptation du livre VII.
Article L957-1
Aux articles L. 711-2 et L. 711-4, le mot : " Gouvernement " est remplacé par les mots : " représentant de l'Etat dans le territoire ".
Article L957-2
Au troisième alinéa de l'article L. 711-6, les mots : " ou la commune " sont remplacés par les mots : " ou le territoire ".
Article L957-3
A l'article L. 712-1, les mots : " au moyen d'une taxe additionnelle à la taxe professionnelle " sont
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remplacés par les mots : " comme il est dit dans les dispositions du code des impôts applicable dans les îles Wallis et Futuna ".
Chapitre VIII : Dispositions d'adaptation du livre VIII
Article L958-1
Les articles L. 814-1 à L. 814-5 sont applicables en tant qu'ils concernent les administrateurs judiciaires.
Article L958-2
Pour l'application dans les îles Wallis et Futuna des articles L. 822-2 à L. 822-7, les termes énumérés ci-après sont remplacés ainsi qu'il suit :
1° "commission régionale d'inscription" par "commission territoriale d'inscription" ;
2° "chambre régionale des comptes" par "chambre territoriale des comptes de Nouvelle-Calédonie" ;
3° "chambre régionale de discipline" par "chambre territoriale de discipline".
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Code de commerce
Partie réglementaire
LIVRE Ier : Du commerce en général.
TITRE Ier : De l'acte de commerce.
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Partie réglementaire
LIVRE Ier : Du commerce en général.
TITRE II : Des commerçants.
Chapitre Ier : De la définition et du statut.
Article R121-1
Est considéré comme conjoint collaborateur le conjoint du chef d'une entreprise commerciale, artisanale ou libérale qui exerce une activité professionnelle régulière dans l'entreprise sans percevoir de rémunération et sans avoir la qualité d'associé au sens de l'article 1832 du code civil.
Article R121-2
En vue de l'application de l'article L. 121-4, les conjoints qui exercent à l'extérieur de l'entreprise une activité salariée d'une durée au moins égale à la moitié de la durée légale du travail, ou une activité non salariée, sont présumés ne pas exercer dans l'entreprise une activité professionnelle de manière régulière.
Article R121-3
Dans les sociétés mentionnées au II de l'article L. 121-4, le statut de conjoint collaborateur est ouvert au conjoint du chef d'une entreprise dont l'effectif n'excède pas vingt salariés. L'appréciation de l'effectif est effectuée conformément aux articles L. 117-11-1 et L. 620-10 du code du travail.
Article R121-4
Lorsque, sur une période de vingt-quatre mois consécutifs, l'effectif salarié dépasse le seuil mentionné à l'article R. 121-3, le chef d'entreprise doit, dans les deux mois, demander la radiation de la mention du conjoint collaborateur dans les conditions fixées au 3° de l'article R. 121-5.
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Article R121-5
Le centre de formalités des entreprises reçoit, dans les conditions prévues par le présent livre :
1° Dans le dossier unique de déclaration de création de l'entreprise, la déclaration de l'option choisie, le cas échéant, par le conjoint du chef d'entreprise en application du I de l'article L. 121-4 ;
2° La déclaration modificative portant mention que le conjoint exerce une activité professionnelle dans les conditions de l'article R. 121-1 dans les deux mois à compter du respect de ces conditions ;
3° La déclaration de radiation du conjoint collaborateur lorsque celui-ci cesse de remplir les conditions prévues à l'article R. 121-1 dans les deux mois à compter de la cessation du respect de ces conditions.
Le centre de formalités des entreprises notifie au conjoint la réception de la déclaration d'option du statut de conjoint collaborateur mentionnée au 1° et des déclarations de modification ou de radiation visées aux 2° et 3° par lettre recommandée avec demande d'avis de réception.
Article R121-6
Les dispositions du présent chapitre sont également applicables à la personne qui est liée au chef d'entreprise par un pacte civil de solidarité.
Chapitre II : Des commerçants étrangers.
Article D122-1
I. - L'étranger résidant hors de France tenu en application de l'article L. 122-1 à une obligation de déclaration pour l'exercice sur le territoire français d'une profession commerciale, industrielle ou artisanale dans des conditions rendant nécessaire son inscription ou sa mention au registre du commerce et des sociétés ou au répertoire des métiers adresse, préalablement à celles-ci, une déclaration au préfet du département dans lequel il envisage d'exercer pour la première fois son activité.
Lorsque plusieurs établissements sont ou doivent être implantés simultanément dans différents départements, la déclaration préalable doit être effectuée auprès du préfet du département d'installation de l'établissement principal.
II. - Lorsque cette activité est exercée en France par une personne morale, la déclaration préalable est effectuée par l'une des personnes suivantes :
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1° L'associé tenu indéfiniment ou indéfiniment et solidairement des dettes sociales ;
2° L'associé ou le tiers ayant le pouvoir de diriger, gérer ou le pouvoir général d'engager à titre habituel la personne morale ;
3° Le représentant légal des associations régies par la loi du 1er juillet 1901 qui émettent des obligations et exercent une activité économique depuis au moins deux ans ;
4° Le représentant légal des associations de change manuel ;
5° L'administrateur ou le représentant permanent d'un groupement d'intérêt économique à objet commercial ;
6° La personne physique ayant le pouvoir d'engager une personne morale de droit étranger au titre :
- d'un établissement, d'une succursale ou d'une représentation commerciale implantée en France ;
- d'une agence commerciale d'un Etat, collectivité ou établissement public étranger établi en France et effectuant des actes de commerce.
Lorsque l'activité est exercée par une personne physique, la personne ayant le pouvoir d'engager, à titre habituel, un commerçant ou un artisan personne physique doit satisfaire à l'obligation de déclaration préalable.
Article D122-2
La déclaration préalable est déposée auprès de l'autorité compétente par l'étranger visé à l'article D. 122-1 ou par son mandataire ou est effectuée par voie de lettre recommandée avec demande d'avis de réception.
Cette déclaration est accompagnée :
1° Des indications relatives à l'état civil du déclarant ;
2° De la copie de l'extrait du casier judiciaire ou de toute autre pièce similaire du pays dont il est ressortissant ;
3° D'une copie des statuts de la société.
Le préfet remet sans délai un récépissé de déclaration sur présentation d'un dossier complet par l'étranger ou son mandataire. Lorsque la déclaration préalable est effectuée par voie postale, le préfet adresse le récépissé par la même voie dans un délai de quinze jours à compter de la date de
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réception d'un dossier complet.
Article D122-3
Le récépissé mentionne l'identité du déclarant et le statut sous couvert duquel il exerce son activité ainsi que la dénomination, l'adresse et l'activité de l'établissement.
Article D122-4
L'extension à une nouvelle activité commerciale industrielle ou artisanale ou le changement d'activité est déclaré par l'étranger ou son mandataire au préfet compétent qui lui remet un nouveau récépissé dans les conditions de l'article D. 122-2.
Il est fourni à l'appui de ces déclarations un extrait du registre du commerce et des sociétés ou un extrait du répertoire des métiers.
Chapitre III : Des obligations générales des commerçants
Section préliminaire : Des centres de formalités des entreprises.
Article R123-1
I.-Les centres de formalités des entreprises permettent aux entreprises de souscrire en un même lieu l'ensemble des formalités et procédures nécessaires à l'accès et à l'exercice de leur activité.
Ils reçoivent à cet effet le dossier unique prévu à l'article 2 de la loi n° 94-126 du 11 février 1994 relative à l'initiative et à l'entreprise individuelle. Ce dossier comporte :
1° Les déclarations relatives à la création, aux modifications de la situation ou à la cessation d'activité, que les entreprises sont tenues de remettre aux administrations, personnes ou organismes mentionnés à l'annexe 1-1 à l'article R. 123-30 ;
2° Les demandes d'autorisation que les entreprises sont tenues de remettre aux autorités compétentes pour la délivrance de ces autorisations sauf si le déclarant souhaite déposer ces demandes directement auprès des autorités compétentes.
Les centres de formalités des entreprises reçoivent également les notifications effectuées par les greffes des tribunaux de commerce ou des tribunaux de grande instance statuant en matière commerciale, en application de l'article R. 123-83.
II.-Les centres de formalités des entreprises transmettent les renseignements ou pièces à chacun des organismes destinataires et, le cas échéant et selon leur compétence, à chacune des autorités
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habilitées à délivrer les autorisations.
Sous réserve des dispositions du dernier alinéa de l'article R. 123-3, il leur est interdit de communiquer à des tiers les renseignements contenus dans les déclarations.
Les organismes et les autorités compétents pour statuer sur les déclarations et les demandes d'autorisation dont ils sont saisis par les centres de formalités des entreprises informent ces derniers de leurs décisions.
III.-Les activités pour lesquelles le recours aux centres de formalités des entreprises est possible pour les démarches mentionnées au 2° du I sont fixées par arrêté du ministre chargé de l'économie.
Article R123-2
Les centres de formalités des entreprises mettent à disposition des personnes intéressées une documentation précisant les obligations du centre ainsi que les éléments que doit contenir le dossier de déclaration et, le cas échéant, le dossier de demandes d'autorisation.
Article R123-3
1° Sous réserve des dispositions des 2° et 3°, les chambres de commerce et d'industrie créent et gèrent les centres de formalités des entreprises compétents pour :
a) Les commerçants ;
b) Les sociétés commerciales.
2° Les chambres de métiers et de l'artisanat créent et gèrent les centres compétents pour les personnes physiques et les sociétés assujetties à l'immatriculation au répertoire des métiers et pour les personnes physiques bénéficiant de la dispense d'immatriculation prévue au V de l'article 19 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat, à l'exclusion des personnes mentionnées au 3° du présent article.
3° La chambre nationale de la batellerie artisanale crée et gère le centre compétent pour les personnes physiques et les sociétés assujetties à l'immatriculation au registre des entreprises de la batellerie artisanale.
4° Les greffes des tribunaux de commerce ou des tribunaux de grande instance statuant commercialement créent et gèrent les centres compétents pour :
a) Les sociétés civiles et autres que commerciales ;
b) Les sociétés d'exercice libéral ;
c) Les personnes morales assujetties à l'immatriculation au registre du commerce et des sociétés autres que celles mentionnées aux 1°, 2° et 3° ;
d) Les établissements publics industriels et commerciaux ;
e) Les agents commerciaux ;
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f) Les groupements d'intérêt économique et les groupements européens d'intérêt économique.
5° Les unions de recouvrement des cotisations de sécurité sociale et d'allocations familiales (URSSAF) ou les caisses générales de sécurité sociale créent et gèrent les centres compétents pour :
a) Les personnes exerçant, à titre de profession habituelle, une activité indépendante réglementée ou non autre que commerciale, artisanale ou agricole ;
b) Les employeurs dont les entreprises ne sont pas immatriculées au registre du commerce et des sociétés, au répertoire des métiers ou au registre des entreprises de la batellerie artisanale, et qui ne relèvent pas des centres mentionnés au 6°.
6° Les chambres d'agriculture créent et gèrent les centres compétents pour les personnes physiques et morales exerçant à titre principal des activités agricoles.
7° Les services des impôts créent et gèrent les centres compétents pour les personnes suivantes dès lors qu'elles exercent leur activité à titre de profession habituelle, qu'elles ne relèvent pas des dispositions des 1° à 6° et qu'elles n'ont pas d'autres obligations déclaratives que statistiques et fiscales :
a) Les assujettis à la taxe sur la valeur ajoutée ;
b) Les assujettis à l'impôt sur le revenu au titre des bénéfices industriels et commerciaux ;
c) Les redevables de l'impôt sur le revenu au titre des bénéfices non commerciaux ;
d) Les redevables de l'impôt sur les sociétés.
Les déclarations des personnes bénéficiant de la dispense d'immatriculation au registre du commerce et des sociétés prévue à l'article L. 123-1-1 ainsi que les déclarations des personnes physiques exerçant une activité artisanale et ayant opté pour le régime prévu à l'article L. 133-6-8 du code de la sécurité sociale sont recueillies par les centres de formalités des entreprises mentionnés respectivement au 1° et au 2° du présent article. Elles sont alors transmises aux centres de formalités des entreprises compétents mentionnés aux 1° et 2° aux fins d'information ainsi que, le cas échéant, aux fins d'immatriculation au répertoire des métiers sans formalité additionnelle.
Les personnes souhaitant exercer ou exerçant une activité de restauration à titre principal relèvent des centres de formalités des entreprises gérés par les chambres de commerce et d'industrie mentionnés au 1°.
Article R123-4
Chaque centre de formalités des entreprises est compétent à l'égard des entreprises dont le siège social, l'établissement principal, un établissement secondaire ou l'adresse est situé dans le ressort territorial de l'administration, personne ou organisme qui le crée.
Article R123-5
Le dépôt des déclarations prévues à l'annexe 1-2 au présent livre est obligatoirement effectué dans les centres de formalités des entreprises au terme d'un délai d'un an à compter de la création du
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centre.
Toutefois, lorsque la déclaration comporte une demande d'immatriculation au registre du commerce et des sociétés, d'inscription modificative ou de radiation, le déclarant a la faculté de déposer le dossier de déclaration directement auprès du greffe du tribunal compétent pour y procéder, soit sur support papier, soit par voie électronique. Il peut, lorsqu'il utilise le support papier, joindre également à sa déclaration le dossier des demandes d'autorisation. Le greffe, qui conserve la demande d'inscription, transmet sans délai le dossier au centre de formalités des entreprises compétent.
Lorsque la déclaration est effectuée par voie électronique, il est fait application des dispositions particulières prévues aux articles R. 123-20 à R. 123-27.
Article R123-6
Les déclarations, et le cas échéant les demandes d'autorisation, sont présentées au centre compétent en application des articles R. 123-3 et R. 123-4. Si plusieurs centres se trouvent compétents, Les déclarations, et le cas échéant les demandes d'autorisation, sont présentées à l'un d'eux au choix du déclarant, le centre choisi étant tenu d'accepter le dossier.
Article R123-7
Le dossier unique comprend :
I.-Pour le dossier de déclarations mentionné au 1° du I de l'article R. 123-1 :
1° Les déclarations signées du déclarant ou de son mandataire, accompagnées, le cas échéant, du pouvoir du mandataire ;
2° Les pièces justificatives prescrites, selon les dispositions législatives ou réglementaires en vigueur ;
3° Les actes qui sont remis aux organismes destinataires, dans la forme dans laquelle ce dépôt doit être effectué ;
4° Le titre de paiement des frais, droits ou redevances prescrits par les dispositions législatives ou réglementaires en vigueur.
Les formulaires de déclaration et la liste des pièces justificatives font l'objet d'une homologation par l'autorité désignée à l'article 3 du décret n° 98-1083 du 2 décembre 1998 relatif aux simplifications administratives.
II.-Pour le dossier de demandes d'autorisation mentionné au 2° du I de l'article R. 123-1 :
1° Les demandes d'autorisation ou déclarations préalables ;
2° Les pièces justificatives prescrites, selon les dispositions législatives ou réglementaires en vigueur ;
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3° Le titre de paiement des frais, droits ou redevances prescrits par les dispositions législatives ou réglementaires en vigueur.
Article R123-8
Le centre de formalités des entreprises est réputé saisi du dossier visé à l'article R. 123-1 lorsque les déclarations et, le cas échéant, les demandes d'autorisation, qui lui sont remises directement ou adressées par voie postale ou électronique, répondent aux conditions suivantes :
I.-Les déclarations visées au 1° du I de l'article R. 123-1 sont établies sur les formulaires homologués prévus à l'article R. 123-7, signées du déclarant ou de son mandataire. Elles comportent les énonciations indispensables pour identifier :
1° Pour les créations d'entreprises :
a) Les nom, nom d'usage et prénoms du déclarant pour les personnes physiques, la dénomination ou la raison sociale pour les personnes morales ;
b) La forme juridique de l'entreprise ;
c) Le siège de l'entreprise, le domicile du déclarant ou l'adresse de l'établissement ;
d) L'objet de la formalité ;
e) Les activités générales de l'entreprise ou de l'établissement ;
f) L'existence de salariés dans l'entreprise ou dans l'établissement et, le cas échéant, leur nombre ;
g) La date d'effet de l'événement objet de la formalité ;
h) Les date et lieu de naissance des déclarants personnes physiques ;
2° Pour les modifications de la situation de l'entreprise ainsi que pour sa cessation d'activité :
a) Les nom, nom d'usage, prénoms et pseudonyme du déclarant pour les personnes physiques, la dénomination ou la raison sociale pour les personnes morales ;
b) Le numéro unique d'identification de l'entreprise et, le cas échéant, le nom de la ville où se trouve le greffe où elle est immatriculée, ou la chambre de métiers et de l'artisanat où elle est inscrite au répertoire des métiers ;
c) L'objet de la formalité, ainsi que la date d'effet de l'événement la justifiant.
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Le centre ne peut refuser les déclarations respectant les conditions ci-dessus énumérées, ni en apprécier le bien-fondé.
II.-Les demandes d'autorisation visées au 2° du I de l'article R. 123-1 mentionnent l'identité du demandeur et l'objet de la demande. Le centre ne peut refuser les déclarations et demandes d'autorisation respectant les conditions ci-dessus énumérées ni en apprécier le bien-fondé.
Article R123-9
Le centre de formalités des entreprises compétent, saisi du dossier complet conformément aux dispositions de l'article R. 123-7, transmet le jour même aux organismes destinataires, et le cas échéant aux autorités habilitées à délivrer les autorisations, les informations et pièces les concernant.
Article R123-10
Le centre de formalités des entreprises saisi remet ou transmet, lors du dépôt, un récépissé au déclarant ou à son mandataire. Si le dépôt est effectué par voie postale, le récépissé est envoyé le jour même ou le premier jour ouvrable suivant.
1° Dans le cas d'une déclaration mentionnée au 1° du I de l'article R. 123-1 :
a) Lorsque le dossier est complet conformément aux dispositions de l'article R. 123-7, le récépissé indique les organismes auxquels il a été transmis le jour même. Ce récépissé prend le nom de récépissé de dossier de création d'entreprise en application de l'article R. 123-16 ;
b) Lorsque le dossier est incomplet, sous réserve des dispositions du c du 2°, ou lorsque la ou les autorisations mentionnées au 2° du I de l'article R. 123-1 doivent être obtenues préalablement à la déclaration mentionnée au 1° du I de l'article R. 123-1, le récépissé indique les compléments qui doivent être apportés par le déclarant dans un délai de quinze jours ouvrables à compter de la réception du récépissé ou de la délivrance de la ou des autorisations. Dans ce cas, le récépissé ne vaut pas récépissé de dossier de création d'entreprise.
2° Dans le cas d'une demande d'autorisation mentionnée au 2° du I de l'article R. 123-1 :
a) Lorsque le dossier contient toutes les pièces nécessaires à la délivrance de la ou des autorisations requises, conformément à l'article R. 123-7, le récépissé se substitue à l'accusé de réception des demandes présentées aux autorités. Il indique le ou les délais prévus par les textes législatifs ou réglementaires en vigueur pour la délivrance de la ou des autorisations requises pour exercer l'activité qui fait l'objet de la demande ainsi que les délais et voies de recours pour contester la ou les décisions d'octroi des autorisations.
b) Lorsque le dossier est incomplet, sous réserve des dispositions du c ci-dessous, le récépissé indique les compléments qui doivent être apportés par le déclarant dans un délai de quinze jours ouvrables à compter de la réception du récépissé.
c) Lorsqu'un document attestant de l'accomplissement de la formalité de création prévue au 1° du I de l'article R. 123-1 est nécessaire préalablement à la délivrance de la ou des autorisations requises
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ou à la délivrance de pièces elles-mêmes nécessaires à la délivrance de la ou des autorisations requises, le dossier de demande d'autorisation fait l'objet d'un récépissé provisoire attestant la réception des pièces remises par le déclarant et la date de la remise.
Un second récépissé est adressé au déclarant lorsque le centre de formalités des entreprises reçoit directement de l'autorité compétente le document attestant de l'accomplissement de la formalité prévue au 1° du I de l'article R. 123-1. Ce récépissé vaut accusé de réception des demandes présentées aux autorités administratives dans les conditions prévues au a.
Si le demandeur doit accomplir des démarches personnelles pour compléter son dossier de demande d'autorisation, le centre de formalités des entreprises l'informe qu'il dispose d'un délai de quinze jours ouvrables, le cas échéant renouvelable une fois, à compter de la remise du document attestant de l'accomplissement de la formalité prévue au 1° du I de l'article R. 123-1 pour déposer les pièces résultant de ses démarches. Au vu de ces pièces, il lui est délivré un récépissé qui vaut accusé de réception des demandes présentées aux autorités administratives dans les conditions prévues au a.
3° Lorsque le centre s'estime incompétent, le récépissé indique le centre auquel le dossier est transmis le jour même.
Article R123-11
I.-Si les éléments demandés ont été transmis par le déclarant avant l'expiration des délais mentionnés à l'article R. 123-10, le centre transmet le jour même :
1° Aux organismes destinataires la déclaration ainsi que, le cas échéant, les pièces annexées qui leur sont destinées ;
2° Aux organismes habilités à délivrer les autorisations, qui en accusent réception, les demandes d'autorisation ainsi que, le cas échéant, les pièces annexées qui leur sont destinées.
II.-Si, à l'expiration des délais mentionnés à l'article R. 123-10, les éléments demandés n'ont pas été transmis, le centre de formalités des entreprises procède de la manière suivante :
1° Pour les déclarations visées au 1° du I de l'article R. 123-1, il avise le déclarant des organismes destinataires auxquels le dossier est transmis en l'état ;
2° Pour les demandes d'autorisation visées au 2° du I de l'article R. 123-1, il renvoie le dossier au déclarant et informe ce dernier qu'il lui appartient de saisir directement les autorités habilitées à délivrer ces autorisations.
Article R123-12
A défaut de transmission par le centre de formalités des entreprises à l'expiration des délais prévus aux articles R. 123-10 et R. 123-11, le déclarant peut obtenir la restitution immédiate de son dossier afin d'en saisir directement les organismes destinataires ou, le cas échéant, les autorités habilitées à délivrer les autorisations.
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Article R123-13
Le centre de formalités des entreprises transmet le jour même aux organismes destinataires compétents les notifications et les informations mentionnées à l'article R. 123-1.
Article R123-14
Le centre de formalités des entreprises peut transmettre par voie électronique aux organismes destinataires et aux autorités habilitées à délivrer les autorisations, les informations et pièces les concernant.
Article R123-15
La commission de coordination instituée par l'article R. 123-28 veille au respect de la confidentialité et de la sécurité des échanges, ainsi qu'à la compatibilité des systèmes de communication par voie électronique.
Article R123-16
I.-Dans les cas prévus à l'article L. 123-9-1 et à l'article 19-1 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat, le récépissé prévu au a du 1° de l'article R. 123-10 prend, lorsque le dossier est réputé complet par le centre compétent, le nom de récépissé de dépôt de dossier de création d'entreprise. Délivré gratuitement et sans délai, ce récépissé est valable jusqu'à la notification au déclarant de son immatriculation et, au plus tard, jusqu'à l'expiration d'une durée d'un mois à compter de sa délivrance. Il indique :
1° Le nom et l'adresse du centre ;
2° La date de saisine du centre ;
3° La date de délivrance du récépissé et la date d'expiration de sa validité ;
4° La mention : " en attente d'immatriculation " ;
5° Les mentions prévues aux a, b et c du 1° du I de l'article R. 123-8 ;
6° Les organismes auxquels le dossier est transmis le jour même ;
7° Le numéro unique d'identification de l'entreprise.
Le centre de formalités des entreprises indique sur le récépissé de dépôt de dossier de création d'entreprise le numéro unique d'identification que l'INSEE lui communique ainsi qu'au greffier du
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tribunal compétent, lorsque la déclaration comporte une demande d'immatriculation au registre du commerce et des sociétés.
Lorsque la déclaration comporte une demande d'immatriculation au registre du commerce et des sociétés, une copie du récépissé de dépôt de dossier de création d'entreprise est transmise au greffier compétent avec le dossier du déclarant.
Dans le cas prévu au deuxième alinéa de l'article R. 123-5, le greffier adresse copie du récépissé de création d'entreprise au centre de formalités des entreprises.
II.-Lorsqu'il est délivré en application de l'article L. 311-2-1 du code rural, le récépissé de dépôt de dossier de création d'entreprise, délivré gratuitement et sans délai, indique :
1° Le nom et l'adresse du centre ;
2° La date de saisine du centre ;
3° La date de délivrance du récépissé ;
4° Les mentions prévues aux a, b et c du 1° du I de l'article R. 123-8 ;
5° Les organismes auxquels le dossier est transmis le jour même ;
6° La mention : " en attente d'immatriculation ", lorsque la demande concerne une société.
Article R123-17
La déclaration présentée ou transmise au centre de formalités des entreprises compétent vaut déclaration auprès de l'organisme destinataire, dès lors qu'elle est régulière et complète à l'égard de ce dernier. Elle interrompt les délais à l'égard de cet organisme.
Article R123-18
Les organismes destinataires des déclarations et des demandes d'autorisation sont seuls compétents pour en contrôler la régularité ou en apprécier la validité. Leur transmission à ces organismes dessaisit le centre en ce qui concerne les formalités à accomplir.
Article R123-19
Le centre ne peut conserver au-delà des délais nécessaires à la transmission prévue à l'article R. 123-18 le support de la déclaration, les renseignements qu'elle contient, les pièces relatives à celle-ci ainsi que, le cas échéant, les pièces relatives aux procédures d'autorisations requises. Toutefois, les renseignements destinés à être portés sur un registre de publicité légale peuvent être conservés par le centre pendant un délai de trois ans.
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Article R123-20
Les dispositions des articles R. 123-1 à R. 123-19 sont applicables à la déclaration d'entreprise par voie électronique, sous réserve des dispositions des articles R. 123-21 à R. 123-27.
Article R123-21
Les centres de formalités des entreprises, les services que les organismes gestionnaires de centres de formalités des entreprises mettent en commun et les greffes en application de l'article R. 123-5 fournissent au déclarant un service informatique accessible par l'internet, sécurisé et gratuit, lui permettant, selon son choix, de :
1° Transmettre un dossier unique tel que défini à l'article R. 123-23 dès lors qu'il respecte les dispositions de l'article R. 123-24 ;
2° Préparer un tel dossier de manière interactive et le transmettre.
La gestion de ce service informatique constitue une mission de service public. Elle peut être assurée par une personne morale publique ou privée regroupant les organismes mentionnés au premier alinéa.
Article R123-22
I.-Lorsque la déclaration appelle inscription au registre du commerce et des sociétés en application de l'article L. 123-1, le service informatique mentionné à l'article R. 123-21 permet, conjointement :
1° Au déclarant de procéder à l'acquittement des frais légaux induits par cette inscription au registre du commerce et des sociétés auprès du greffe ;
2° Au greffe compétent de recevoir, par voie électronique, la partie du dossier unique qui lui est nécessaire pour procéder à cette inscription. Il en accuse réception, par voie électronique, au déclarant ;
3° Au centre de formalités des entreprises de recevoir, par voie électronique, le dossier unique.
II.-Lorsque le déclarant dépose des demandes d'autorisation en application de l'article R. 123-1, le service informatique mentionné à l'article R. 123-21 permet, conjointement : 1° Au déclarant de procéder à l'acquittement éventuel des frais légaux induits par ces demandes ; 2° A chaque autorité habilitée à délivrer une autorisation de recevoir, par voie électronique, la partie du dossier unique qui lui est nécessaire pour procéder à cette délivrance. Elle en accuse réception, par voie électronique, au demandeur ; 3° Au centre de formalités des entreprises de recevoir, par voie
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électronique, le dossier unique.
Article R123-23
Lorsqu'il est établi et transmis par voie électronique aux centres de formalités des entreprises, le dossier mentionné à l'article 2 de la loi n° 94-126 du 11 février 1994 relative à l'initiative et à l'entreprise individuelle comprend les documents suivants :
1° Le formulaire électronique contenant l'ensemble des données déclarées ;
2° Le cas échéant, les demandes d'autorisation mentionnées au 2° du I de l'article R. 123-1 nécessaires à l'exercice de l'activité ;
3° Les pièces numériques ou numérisées exigées, sauf s'il s'agit de pièces devant être fournies en original et établies sur support papier ;
4° Lorsque la déclaration de création ou de modification de situation et, le cas échéant, les demandes d'autorisation donnent lieu à la perception de frais légaux, le justificatif de règlement de ces frais, selon des moyens communiqués au déclarant.
Un arrêté ministériel fixe les caractéristiques électroniques des documents énumérés au présent article.
Article R123-24
Lorsqu'une signature est requise, le recours à une signature électronique sécurisée est exigé dans les conditions prévues à l'article 1316-4 du code civil et au décret n° 2001-272 du 30 mars 2001 pris pour l'application de l'article 1316-4 du code civil et relatif à la signature électronique. Toutefois, pour la transmission par voie électronique des dossiers de création d'entreprise, est autorisé, y compris pour les demandes d'immatriculation au registre du commerce et des sociétés, le recours à une signature électronique présentant les caractéristiques prévues par la première phrase